Volume 266 — Pennsylvania State Reports

<p>Deeds — Extent of grant — Limitation of time — Omission of words "heirs or assigns” — Corporation—Parties to suit — Third person — Consideration—Interest—Switches—Railroads — Eminent domain — Presumption—Act of April 1, 1909, P. L. 91.</p> <p>1. Where an owner of land on which a railroad switch is located executes, prior to the Act of April 1, 1909, P. L. 91, a'writing by which he agrees for an annual rental to let an individual and a railroad company use the land upon which the switch is located “as long as said parties wish to use said switch” without the use of the words “heirs or assigns” or any time' limit as to the grant, the use ceases upon the death of the individual grantee.</p> <p>2. In such a ease the railroad company cannot claim a fee, because it is a corporation having perpetual succession, where it appears that the company was not a party to the writing, and was mentioned merely incidentally because of the ownership of the railway with which connection was contemplated. The contract was not one upon which the company could maintain an action.</p> <p>S. Nor in such a case can the company claim that the switch had been located by it in pursuance of its right of eminent domain, and that the rental was merely evidence of the consideration to be paid for the right, where there is no evidence to sustain this view. The reasonable inference is that the writing was contemporaneous with the location and construction of the switch, or that it was executed within a short time thereafter, and pursuant to an earlier agreement between the parties.</p> <p>4. The doctrine that a third person may maintain an action on a promise made for his benefit, is limited to cases where the third person is either a party to the consideration, or the contract created in him a legal or equitable interest entitling him to compel performance.</p>

<p>Conspiracy — Trespass for eviction — Pleadings.</p> <p>In an action of trespass against three defendants for an alleged wrongful eviction from leased premises, where the plaintiff alleged in the statement of claim that the wrong done them was in pursuance of -a conspiracy and the case was tried- on the theory of a conspiracy, the plaintiffs cannot complain that the trial judge instructed the jury that they could not find a verdict against only one of the defendants.</p>

<p>Executors and administrators — Accounts—Legacies—Objections by legatees — Wills.</p> <p>1. Legatees are entitled to object to credits claimed in a pending aecpunt, where it does not appear from the account itself that they will receive their legacies even though the credits are allowed.</p> <p>2. Proof that an estate is solvent and that legacies will be paid on a future accounting, will not operate to defeat their right to object.</p> <p>Executors and administrators — Credits—Payment of liens and debts — Premature payments — Legatees.</p> <p>3. As between an executor and legatees, the former will he refused credits for sums paid for existing liens upon a property devised subject thereto, possession of which he has given to the devisee without first compelling their payment.</p> <p>4. When debts are to be first paid out of collections to be made, and are still unpaid, an accountant will be refused credit for sums paid by way of distribution to those entitled to receive the residue after payment of the debts.</p> <p>Executors and administrators — Commissions—Misconduct.</p> <p>5. An executor of experience, who constantly violates his letters testamentary and oath of office, yet distributes large sums though the debts and taxes are unpaid, and who fails -to comply with the terms of the will, will be refused commissions, notwithstanding the will provides he shall control and manage the estate to the best of his ability.</p> <p>Wills — Construction—Meaning of words.</p> <p>6. A will is to be construed according to the meaning of the words actually used therein.</p> <p>7. Where testatrix devises realty subject to the payment of “liens,” it cannot be shown by oral evidence that testatrix meant “one mortgage” only.</p> <p>Appeals — Findings of fact — Review.</p> <p>8. The court will not reverse findings of fact which are based upon, statements of appellant, or unless clear error is shown.</p>

Appeal, No. 8, Oct. T., 1919, by S. D. Cushing, from order of C. P. Allegheny Co., April T., 1918, No. 1882, dismissing appeal from tax assessment In re Petition of S. D. Cushing. Appeal from assessment of personal property.

Appeal, No. 34, Oct. T., 1919, by E. W. Eisler, from decree of O. C. Allegheny Co., Sept. T., 1918, No. 636, dismissing exceptions to adjudication in Estate of Frederick Backhaus, deceased. Exceptions to adjudication. The court dismissed the exceptions in an opinion by Trimble, J. E. W. Eisler, assignee of heir, appealed. Errors assigned were in dismissing exceptions to adjudication.

<p>Appeal, No. 36, Oct. T., 1919, by defendant, from decree of C. P. Washington Co., No. 2550, in Equity, on bill in equity in case of John M. Greek v. Matthew Wylie.</p> <p>Bill in equity for an injunction. Before McIlvaine, P. J.</p> <p>The court entered a decree awarding the injunction. Defendant appealed.</p> <p>Error assigned was the decree of the court.</p>

<p>Appeal, No. 41, Oct. T., 1919, by plaintiff, from decree of O. P. Allegheny Co., July T., 1918, No. 1624, dismissing bill in equity in case of Barnes Laundry Company v. City of Pittsburgh, a Municipal Corporation, Charles S. Hubbard, Treasurer of the City of Pittsburgh; John Swan, Jr., Director of the Department of Public Works of the City of Pittsburgh.</p> <p>Bill in equity for an injunction and for a refunding of excessive water rates. Before Carpenter, J.</p> <p>The court sustained a demurrer and dismissed the bill. Plaintiff appealed.</p> <p>Error assigned was decree dismissing the bill.</p>

<p>Appeal, No. 42, Oct. T., 1919, by plaintiff, from decree of C. P. Allegheny Co., April T., 1918, No. 1865, dismissing bill in equity in case of Consolidated Ice Company v. City of Pittsburgh, a municipal corporation; Charles S. Hubbard, Treasurer of the City of Pittsburgh; John Swan, Jr., Director of the Department of Public Works of the City of Pittsburgh.</p>

<p>Appeal, No. 43, Oct. T., 1919, by plaintiff, from decree of O. P. Allegheny Co., Jan. T., 1919, No. 453, dismissing bill in equity in case of Ohio & Pittsburgh Milk Company v. City of Pittsburgh, a municipal corporation; Charles S. Hubbard, Treasurer of the City of Pittsburgh, John Swan, Jr., Director of the Department of Public Works of the City of Pittsburgh.</p>

Appeal, No. 31, Oct. T., 1919, by plaintiffs, from judgment of O. P. Allegheny Co., April T., 1917, No. 932, for defendant on case tried by the court without a jury, in suit of Thomas C. Atchison, John W. English, J. Allison Reed, Substituted Trustees under the Deed of Assignment of Alexander McElroy, v. United Presbyterian Board of Publication. Assumpsit to recover $10,380 with interest. The case was tried by the court without a jury.

Appeal, No. 52, Oct. T., 1919, by plaintiff, from decree of C. P. Allegheny Co., April T., 1919, No. 186, dismissing bill in equity in case of William Scott v. City of Pittsburgh, E. V. Babcock, Mayor, and John Swan, Director of the Department of Public Works. Bill in equity for an injunction. Before Brown, J. Demurrer to bill. The court entered a decree sustaining the demurrer and dismissing the bill. Plaintiff appealed. Error assigned was the decree of the court.

<p>Appeal, No. 69, Oct. T., 1919, by defendant, from judgment of C. P. Allegheny Co., April T., 1917, No. 1118, on verdict for plaintiffs in ease of Catherine Sullivan, Margaret O’Dwyer, Jane O’Dwyer and Ella Marie O’Dwyer, children of Michael O’Dwyer, deceased, v. Supreme Council of the Catholic Mutual Benefit Association.</p> <p>Assumpsit to recover death benefits. Before Carpenter, J.</p> <p>Verdict and judgment for plaintiffs for $2,370.85. Defendant appealed.</p> <p>Error assigned was in refusing defendant’s motion for judgment n. O', v.</p>

<p>Appeal, No. 75, Oct. T., 1919, by Union Trust Company, of Pittsburgh, from decree of O. C. Allegheny Co., Feb. T., 1919, No. 264, dismissing exceptions to adjudication in Estate of John G. Jennings, deceased.</p> <p>Exceptions to adjudication. Before Miller, J.</p> <p>The court dismissed the exceptions. The Union Trust Company of Pittsburgh, trustee under the will of decedent, appealed.</p> <p>Error assigned was in dismissing the exceptions.</p>

<p>Negligence — Railroads—Walking near track — Death—Contributory negligence — Choice of ways — Case for jury.</p> <p>In an action by .a widow against a railroad company for damages for the death of her husband crushed by a locomotive between the tracks and a concrete wall, the negligence of the defendant, and the contributory negligence of the deceased are for the jury, and a verdict and judgment for plaintiff will be sustained, where the evidence for the plaintiff tends to show that immediately prior to the accident deceased came out of an industrial plant near a railroad track, that as he emerged he saw a locomotive slowly running backwards, hauling one car; the locomotive stopped and deceased continued on his way, walking ahead of the locomotive either on the track or on a generally well used and well beaten path located between the track and a concrete wall; that, after turning a curve, and when at a point where he could, not see the locomotive, and close to the door of an industrial plant, where the path was only three feet and eight inches wide, the locomotive came back of him, without warning, and the overhang of the car crushed him to death; and that the deceased might have taken another way, but that by this way he would have had to cross at least three sets of railroad tracks.</p>

<p>Municipalities — Indebtedness—Increase of debt — Vote of electors — Ratification—School board — Current revenues — Constitutional law — Burden of proof.</p> <p>1. Where the greater portion of the floating debt created by a school board is illegal because it exceeded the two per cent constitutional limit of indebtedness allowed without a vote by the people, such indebtedness may be validated and refunded by a bond issue authorized by a vote of the electors. After the illegal debt has thus been validated, it need not be considered in computing the total debt created by the school board without a vote of the people.</p> <p>2. Where a debt is incurred by a school board for the construction of a school house, and it is claimed, that the amount of it exceeded the two per cent constitutional limit, the burden of proof is on the board to show that such debt could not be paid out of current revenues. If such evidence is produced the courts will not declare the debt illegal.</p>

<p>Appeal, No. 86, Oct. T., 1919, by plaintiff, from decree of O. P. Allegheny Co., Jan. T., 1917, No. 2152, dismissing bill in equity in case of Coulter E. Glenn v. J. C. Trees, M. L. Benedum and H. S. Grayson, individually, and J. C. Trees, director and president of the J. C. Trees Oil Company, H. S. Grayson, director, general manager and treasurer of the J. C. Trees Oil Company, M. L. Benedum, director of the J. C. Trees Oil Company and the J. C. Trees Oil Company.</p> <p>Bill in equity for an accounting. Before Evans, J.</p> <p>The averments of the bill and answer and the proofs are set forth in the opinion of the Supreme Court.</p> <p>At the trial the following offer was made:</p> <p>“Mr. Irwin: We offer in evidence Exhibit No. 5, which is an office copy of the return made to the United States Government in the year 1911 of the transactions of the J. C. Trees Oil Company in 1910, for the purpose of contradicting the defendants in stating that it was agreed to sell the property of the company for $4,150,000, the return showing a return of $4,380,000.</p> <p>“Objected to by defense as irrelevant and immaterial.</p> <p>“Objection sustained.” (44)</p> <p>Plaintiff made the following requests for findings of fact:</p> <p>“21. On Dec. 1, 1910, the defendants had prepared an estimate of the amount of a dividend to be paid out to the stockholders of the J. C. Trees Oil Company, in which dividend were to be included the moneys received by the sale under the Bedford contract.”</p> <p>Answer: “Refused, immaterial.” (4)</p> <p>“22. In making up that estimate of the amount of the dividend, the Glenns were excluded from sharing in the dividend, but they were to be paid $400,000, which was much less than their one-eighth share in the dividend proposed.”</p> <p>Answer: “Refused, immaterial.” (5)</p> <p>“29. The explanatory words now appearing on the voucher accompanying the check for $880,000 were not written on said voucher at the time the check was drawn but were added thereto subsequent to December 1,1911.”</p> <p>Answer: “Refused. These are not findings of fact, but are arguments.” (7)</p> <p>The court entered a decree dismissing the bill. Plaintiff appealed.</p> <p>Errors assigned, among others, were (4, 5, 7) refusal of requests for findings of fact as above and (44) ruling on evidence quoting the bill of exceptions.</p>

<p>WorJcmerís compensation — Death—Commuted payments — Protection of minor’s interests — Payment to widow.</p> <p>1. The Workmen’s Compensation Board in commuting payments made for the death of a workman, has no authority to direct payment of the whole commuted sum to the widow, without protecting the minor children of the decedent. In such a, case the widow is not entitled to have the payments commuted without the joinder of a guardian acting under the authority of the court.</p> <p>2. The standing of the children is just as high as that of the widow when commutation is asked, and while the fund as such may not be. divided, the children’s interest is, nevertheless, such an interest as will entitle them to be party to any proceeding looking toward commutation.</p> <p>3. Whenever the Workmen’s Compensation Act is silent with respect to the adjustment of any particular claim or interest in a fund allowed by it, or the orderly administration of this fund to preserve such interest, the law, as it previously existed, will step in and fill the gap which might otherwise occur.</p> <p>4. As the act is silent as to the proper care of minor children’s interest in a commuted fund, the court will enforce the remedy that would ordinarily apply had such fund been under administration as the estate of a minor.</p>

<p>Road law — Townships of the first class — Grading—Damages— Eminent domain — Acts of April 28, 1899, P. L. 101/, and June 7, 1901, P. L. 510.</p> <p>1. Land condemned for road purposes is regarded a little differently from land taken for other public uses, inasmuch as in the original grant from the Commonwealth it was subject to six per cent allowance for roads, and compensation for taking or injury was a matter of grace, not of right.</p> <p>2. A township is not liable for damages occasioned by the appropriation of private property for the construction of public highways, nor for injuries resulting therefrom, in the absence of legislation for compensation.</p> <p>3. Although townships of the first class may be said to have a qualified power of eminent domain, they do not have the exclusive power to take land for highways, and such right as they do possess is not coequal with the power as it is enjoyed by municipalities recognized by the constitutional provision. Such power is limited and controlled by the courts.</p> <p>4. The term “municipality” as used in the Constitution does not include all government agencies having authority to take or injure private property for use as a public highway, but such only as are municipalities with local and subordinate powers of self-government through their own legislation, and to which the features of police power appertain as an incident of government. It does not include quasi-corporations such as a township. When the latter is given authority, or a qualified authority, to take land for a highway, the enabling act must provide for compensation, with a remedy to recover it. When'the authority is exercised, the remedy provided must be strictly followed and the act itself strictly construed.</p> <p>5. The terms opening and grading have a distinct meaning in the law and damages for grading is not an incident inseparable from opening and laying out.</p> <p>6. A resident of a township of the first class whose land abuts oil a strip of land dedicated for the purposes of a highway cannot recover from the township damages under the Acts of April 28, 1899, P. L. 104, and June 7, 1901, P. L. 510, resulting from the grading of such highway.</p>

<p>Negligence — Automobiles — Pedestrians — Crossing street — Swerving of motor ca,r — Contributory negligence.</p> <p>1. When a pedestrian attempts to cross a street between established crossings, as vehicles are rapidly approaching, and injury results, he will be chargeable with such carelessness as will prevent a recovery of damages; but where, having observed the traffic and using due care, he deems it safe to attempt to cross, he is under no fixed duty to look back, though the circumstances may be such that in the exercise of due care it might become his duty to do so and be negligence to disregard it; but when he approaches a safe place, and, without any act on his part contributing to the cause, a driver suddenly changes the direction of his car striking the pedestrian, the latter cannot he held guilty of contributory negligence as a matter of law.</p> <p>2. When different parts of either the plaintiffs or the defendant’s testimony are apparently inconsistent, leaving it uncertain just what is the truthful recollection of the facts, it is the province of the jury to reconcile the conflicting statements if possible and to decide which shall prevail.</p>

<p>Appeal, No. 77, Oct. T., 1919, by plaintiff, from judgment of C. P. Allegheny Co., July T., 1917, No. 511, for defendant on demurrer to statement in case of A. D. Black v. City of Pittsburgh.</p> <p>Assumpsit to recover notary’s fees.</p> <p>Demurrer to statement of claim.</p> <p>Shaper, P. J., filed the following opinion:</p> <p>The case set out by the plaintiff’s statement is that the plaintiff, being a clerk in the office of the building inspector of the City of Pittsburgh, was requested by some of his superiors to take out a commission as a notary public, and that he did so in 1908 and at the expiration of his commission took out others, so that he continued in commission until some time in 1917; that the city paid the costs of his first two commissions which he took out, and that the object of his becoming a notary was for the purpose of taking affidavits of applicants for building permits, and other affidavits, for the purpose of expediting the city’s business, and that in this way he took, as notary public, oaths and affidavits and certified the same to a very large number, setting out the number of 4,115 in the year 1911 and various other numbers for each succeeding year, making in all 20,500 and upwards; and that he is unable to state the exact amount due him because the defendant has not accounted to him as to the number of affidavits taken by him, and that for that reason and the further reason that a complete record of all these affidavits is wholly within the knowledge and control of the defendant and not within his knowledge and control, he demands an accounting of the times when each of these oaths were administered, and claims from the city under some special act of assembly a fee of one dollar for each of these affidavits taken by him, amounting in all to $20,500.</p> <p>To this the defendant has filed a statutory demurrer setting out as reasons therefor that the statement does not show any valid employment of the plaintiff by the defendant or any legal contract with it.</p> <p>We are clearly of opinion that the plaintiff has not shown any employment by the city. While it-may be that it was convenient in the transaction of the city’s business in issuing building permits to- have a notary public in the office, no law has been pointed out to us which would authorize the employment of such a person by the city. If a petition verified, by affidavit was required by law, from applicants for building licenses, it was the duty of those applicants to furnish such a petition, and consequently to pay for it, in the absence of any legislation putting that duty upon the city.</p> <p>There is an additional reason in the present case why it seems plain that the plaintiff cannot recover, which was not, however, pointed out in the demurrer filed. The acts of assembly governing notaries public expressly provide that every notary shall keep a register of all his official acts, and provision is made for the preservation of such register in the office of the recorder of deeds. The statement of claim clearly shows that if the plaintiff kept any such register he failed to enter in it the official acts for which he now claims compensation. This in itself, without regard to the other matters above mentioned, would in our opinion be sufficient to prevent a recovery.</p> <p>As this disposes of the whole of plaintiff’s claim, it is ordered that judgment be entered for the defendant.</p> <p>Plaintiff appealed*</p> <p>Error assigned was in entering judgment for defendant on demurrer.</p>

<p>Appeal, No. 81, Oct. T., 1919, by defendant, from judgment of C. P. Allegheny Co., July T., 1917, No. 1426, on verdict for plaintiff in case of Mary A. Kerr v. Samuel R. McClure.</p> <p>Interpleader to determine ownership of fund paid into court. Before Wásson, J.</p> <p>Verdict and judgment for plaintiff. Defendant appealed.</p> <p>Errors assigned were admission of evidence, in refusing binding instructions and judgment for defendant n. o. v.</p>

<p>Negligence — Master and servant — Proper care — Circumstantial evidence — Case for jury.</p> <p>1. A party is bound to exercise care proportionate to the risk to -which, he exposes others.</p> <p>2. Where the evidence in a case is necessarily circumstantial,but strongly tends to show the negligence of a defendant, it must be left to a jury to decide.</p>

Appeal, No. 98, Oct. T., 1919, by defendant, from judgment of O. P. Allegheny Co., Oct. T., 1917, No. 2085, on verdict for plaintiffs in case of George Rakowski and Sophia Rakowski, his wife, v. Samuel Rosenthal. Ejectment for land in Homestead Borough. Before Shaper, P. J. Verdict and judgment for plaintiff by the instruction of the court. Defendant appealed. Error assigned was refusal of motion for judgment for defendant n. o. v.

Appeal, No. 105, Oct. T., 1919, by defendants, from judgment of O. P. Allegheny Oo., July T., 1918, No. 284, on verdict for plaintiff in case of Max Boharas v. William W. Martin and Elmer Whitehall, partners doing business as Martin-Whitehall Company. Trespass for personal injuries. Before Swearingen, J. Verdict and judgment for plaintiff for $4,000. Defendants appealed. Error assigned was refusal of new trial.

Appeal, No. 97, Oct. T., 1919, by plaintiff, from judgment of O. P. Allegheny Co., July T., 1918, No. 434, on verdict for defendants in case of Henry Anhaltzer v. M. L. Benedum and J. O. Trees. Assumpsit on a written contract. Before Swearingen, J. Verdict for defendants by instruction of the court. Judgment was entered on the verdict. Plaintiff appealed. Error assigned was in refusing plaintiff’s motion for judgment n. o. v.

Appeal, No. 94, Oct. T., 1919, by plaintiff, from judgment of C. P. Allegheny Co., July T., 1914, No. 1500, on verdict for defendant in case of Homewood Peoples Bank v. W. A. McCutcheon. Assumpsit on a promissory note. Before Shaper, P. J. The note in question was made by W. A. McCutcheon to the order of himself, and endorsed over to the plaintiff bank. The note was really made for the accommodation of Joseph R. Pauli, whose name, however did not appear on it, in any way.

Appeals, Nos. 92 and 93, Oct. T., 1919, by defendant, from judgment of O. P. Allegheny Go., April T., 1918, No. 1783, on verdicts for plaintiffs in case of Mary Anna Knowlan, by her parents and next friends, Charles P. Knowlan and Margaret M. Knowlan, and Charles P. Knowlan and Margaret M. Knowlan, in their own right, v. Shipley-Massingham Company. Trespass to recover damages for injuries to a child.

Appeal, No. 57, Oct. T., 1919, by plaintiff, from judgment of C. P. Allegheny Co., July T., 1917, No. 1881, for defendant n. o. v. in case of Eva Delaney v. Buffalo, Rochester & Pittsburgh Railway Company. Trespass for personal injuries. Before Shafer, P. J. At the trial the jury returned a verdict for plaintiff for $2,000. Subsequently the court entered judgment for defendant n. o. v. Plaintiff appealed. Error assigned, was in entering judgment for defendant n. o. v.

<p>Pxecutors and administrators — Payment to executor before letters are issued — Ground of executor’s authority.</p> <p>1. An executor in Pennsylvania has no authority to collect the debts of his testator until the will has been duly probated and letters testamentary issued to him. A payment made to him after the death of the testator and before the issue of letters, is not a good payment to the estate.</p> <p>2. A man’s estate really passes into the hands of the law for administration as much when he dies testate as when intestate, except that, in the former case, he fixes the law of its distribution after payment of debts, and usually appoints the persons who are to execute his will. But even this appointment is only provisional, and requires to be approved by the law before it is complete; and therefore the title to the office of executor is derived rather from the law than from the will.</p>

<p>Appeal, No. 104, Oct. T., 1919, by defendant, from judgment of C. P. Allegheny Oo., Oct. T., 1916, No. 1395, on verdict for plaintiff in case of Sarah C. Knobeloch v. Pittsburgh, Harmony, Butler & New Castle Railway Company.</p> <p>Trespass for death of plaintiff’s husband. Before Evans, J.</p> <p>Verdict and judgment for plaintiff for $12,750. Defendant appealed.</p> <p>Error assigned, inter alia, was refusal of defendant’s motion for judgment n. o. v.</p>

<p>Statute of limitations — Joint debtors — Payments—Payment not authorized by debtor — Identification of payment — Principal and surety.</p> <p>1. A payment to toll the statute of limitations must be made or authorized by the debtor.</p> <p>2. A payment by one of two joint debtors does not toll the statute as to the other.</p> <p>3. Payment by a principal will not toll the statute as to a surety.</p> <p>4. A payment to toll the statute must be an acknowledgment of the debt from which the law will imply a promise to pay; and to constitute such acknowledgment the debt must be identified, and its amount fixed expressly, or by reference to something from which it can be ascertained.</p> <p>5. Where there is no mention of the amount due, and no bills ever rendered, it proves nothing to show payments made on account while the statute was running.</p> <p>6. To take a debt out of the bar of the statute of limitations, the identification of it must be made by the debtor at the time of the promise or payment or act relied on. An identification by a mere inference of the jury from other collateral matters is not sufficient.</p> <p>Principal and agent — Authority of agent — Acting for another principal.</p> <p>I. A principal is not bound by the act of an agent done for and on behalf of another principal.</p>

<p>Appeal, No. 125, Oct. T., 1919, by defendant, from judgment of O. P. Allegheny Co., July T., 1919, No. 1786, for plaintiff on case stated in suit of John G. Schaper v. Pittsburgh Coal Company.</p> <p>Case stated to determine marketability of title to real estate. Before Carpenter, J.</p> <p>The court entered judgment for plaintiff for $13,-380.08 on the case stated. Defendant appealed.</p> <p>Error assigned was entry of judgment for plaintiff.</p>

<p>Appeal, No. 126, Oct. T., 1919, by defendant, from judgment of O. P. Allegheny Co., July T., 1919, No. 1787, for plaintiff on case stated in suit of Emma Jane Snyder v. Pittsburgh Coal Company.</p>

<p>Appeals, Nos. 128 and 129, Oct. T., 1919, by defendant, from judgments of O. P. Allegheny Co., July'T., 1917, No. 1592, on verdicts for plaintiffs in case of Sarab Louise Conklin, a minor, by her next friend and father, Lawrence J. Conklin, and Lawrence J. Conklin, in his own right, v. Beaver Valley Traction Company.</p> <p>Trespass to recover damages for injuries to a child three years old. Before Cohen, J.</p> <p>Verdict and judgment for Sarah Louise Conklin for $5,500 and for Lawrence J. Conklin for $1,500. Defendant appealed.</p> <p>Errors assigned, were various instructions, and that the charge was inadequate.</p>

<p>Appeal, No. 11, Oct. T., 1919, by defendant, from judgment of O. P. Lawrence Co., June T., 1914, No. 69, on verdict for plaintiff in case of Joe Palkovitz v. American Sheet & Tin Plate Company.</p> <p>Trespass for personal injuries. Before Emery, P. J.</p> <p>The court charged in part as follows:</p> <p>[Now, in addition to denying negligence, defendant has introduced here a paper called a release and which seems to have been signed by plaintiff on or about the 15th day of June, 1914. Defendant contends that that paper releases and relieves it from all liability growing out of this alleged accident to the plaintiff; that the plaintiff voluntarily and of his own free will, after the paper was read and explained to him, said that it was satisfactory and signed it, and that by so doing he now has no standing in court to maintain this action. You will recall the circumstances connected with the signing of that paper, where it was signed, who were present at the time plaintiff made his mark to it and under what circumstances his mark was made. All the matters pertaining to that entire transaction it is your duty to recall and decide whether plaintiff signed that paper voluntarily, willingly, knowing its full contents, or whether he signed under a misapprehension. If you should find that plaintiff knew the contents of that paper, that it was correctly interpreted to him, that it was explained to him by the people present and that he, after the explanation was made, if it were a correct one, willingly signed it by making his mark, then the case would fall and the plaintiff would have no action here. But if you should find from all the evidence in the case that the plaintiff signed that paper under misapprehension, that he was not aware of the legal import of the paper, or that a deception was practiced upon him, or a fraud, then you would not discard this case, but you would go back to the question of negligence and decide the case upon the evidence relative to the question of negligence.] (2)</p> <p>Plaintiff presented this point:</p> <p>“The evidence of the plaintiff is that he cannot read the English language and the alleged release is printed and written in the English language, and if the jury find that plaintiff signed the agreement by making his mark and that said release was not read to him in such manner that he could understand and know that the writing was in full settlement for his injuries, said release will not relieve defendant from liability to plaintiff.”</p> <p>Answer: Affirmed, but gentlemen of the jury, you must take that into consideration, as the evidence in this case both for the plaintiff and defendant shows. (3)</p> <p>Verdict and judgment for plaintiff for $3,536.66. Defendant appealed.</p> <p>Errors assigned, among others, were (2, 3) above instructions, quoting them.</p>

Appeal, No. 89, Oct. T., 1919, by defendant, from order of O. P. Allegheny Co., Jan. T., 1919, No. 524, malting absolute rule for judgment for want of a sufficient affidavit of defense in case of Club Laundry & Cleaning Co. v. Thomas W. Murphy. Assumpsit for $4,000. Before Carpenter, J. The court made absolute rule for judgment for want of a sufficient affidavit of defense. Defendant appealed. The facts appear by the opinion of the Supreme Court.

<p>Alien enemy property — Trading with the Enemy Act — Decedents’ estates — Wills — Enemy — Residence — Failure of devise or bequest — Act of June 7, 1917, P. L. 408 — Acts of Congress of Oct. 6, 1917, 40 Stat. 411j Nov. 4, ,1918, 40 Stat. 1020, and March 28, 1918, 40 Stat. 460.</p> <p>1. The Trading with the Enemy Act of Congress of Oct. 6, 1917, as amended by the Act of March 28, 1918, does not prevent the vesting of any interest in property, within the jurisdiction of the United States, in an alien enemy, through the instrumentality of a will taking effect after the passage of the act.</p> <p>2. The Trading with the Enemy Act is not for confiscation of property, but rather for its conservation. While it may be taken by the government for its own purposes, the owner does not part absolutely with it, for after the end of the war his claim to it “shall be settled as Congress shall direct.”</p> <p>Corbett v. Nutt, 77 U. S. 464, applied.</p> <p>3. Mere residence in a territory of a nation with which the United States is at war makes the resident an enemy.</p> <p>4. Where a mother dies after the Trading with the Enemy Act of October 6,1917, has become effective, and leaves a will by which she gives to her three daughters the residue of her estate, the share of a daughter, a resident of the City of Hamburg, Germany, and an alien enemy, will be distributed to the Alien Property Custodian, and not to the other two daughters.</p> <p>5. In such a ease a claim that the share of the alien daughter should be distributed to her two sisters under the terms of Section 15 of the Act of June 7, 1917, P. L. 408, cannot be sustained.</p>

<p>Contract — Attorney-at-law—Compensation for services — Several clients — Joint or several liability — Implied promise — Evidence— Amounts received from other parties.</p> <p>1. An attorney-at-law may recover from one of three baseball clubs for services rendered, such club where there was no joint interest nor any joint undertaking by the three clubs to pay the attorney nor any agreement to pay him except such as the law would imply from services rendered on request to each of them; an implied promise follows the nature of the consideration, and as that is joint or several, so will the promise be.</p> <p>2. A single undertaking for the performance of several duties is in its nature divisible, and this is especially true in the employment of counsel.</p> <p>3. In an action by the attorney against one of the clubs, evidence is properly excluded, which tends to show the amount the plaintiff had received from the other clubs.</p> <p>Evidence — Cross-examination—Contents of bill — Bill in court— Offer of compromise — Appeal.</p> <p>4. In an action by an attorney to recover for services where a bill made out by the plaintiff is offered in evidence, the plaintiff cannot be cross-examined as to the contents of the bill which the evidence, undisputed at that time, showed was an offer of compromise. He could not in any event properly be cross-examined as to the contents of a paper that was present in court.</p> <p>5. Where the trial judge leaves it to the jury to find whether the bill was in fact an offer of compromise, and the jury so finds, the defendant cannot, on appeal, complain that the bill was excluded.</p>

<p>Criminal law — Murder—Defense — Insanity — Charge — Inadequacy — Failure to request — Exceptions—Degrees—Evidence—Premeditation — Theory of case — Appeal—Assignments of error.</p> <p>1. On the trial of an indictment for the murder of the prisoner’s wife, the prisoner testified that at the time of the killing he was aroused from sleep by some noise behind him, and not being fully awake suddenly turned and fired his pistol without seeing his wife, or intending to harm her. The evidence for the Commonwealth tended to show the prisoner fired three shots, each with deadly aim; that he had recently bought a new revolver and made covert threats that something serious was to happen; that a letter written by him and addressed to his sister was found in his pocket, expressing regret for what he was to bring upon his family, and requesting that they visit him in jail, and arranging for the custody of his children; and that he stated immediately after he had surrendered himself that he had 'shot his wife because of her intimacy with a barber across the street from his house. The prisoner was sober at the time of the killing. There was some evidence of his insanity. Held, that a conviction of murder of the first degree should be sustained.</p> <p>2. In such a case where the prisoner’s counsel in his opening to the jury stated that the defense did not claim the prisoner was insane, but immediately thereafter, did state to the court, at side bar, that the defense was partial insanity, and evidence on that subject was introduced, the court committed no error in submitting the question of the prisoner’s insanity to the jury, and this is especially the case where the prisoner’s counsel made no objection at the time.</p> <p>3. Where counsel without objection permits the court to submit the case to the jury upon a certain theory, and takes his chances of a verdict, he should not be heard to complain.</p> <p>4. Where only a general exception is taken to a charge only basic fundamental errors can properly be urged.</p> <p>5. Where a charge is alleged to be inadequate it should be set out in the assignment.</p> <p>6. Where counsel desires from the court a fuller reference in the evidence to the charge, it should be requested, and reliance should not be based on a mere general exception.</p> <p>7. A trial judge in a murder trial cannot be convicted of error in omitting to include a verdict of “not guilty” among the different verdicts that could properly be rendered, if it appears that he gubmitted to the jury the question as to whether the killing was accidental and charged that if there was a reasonable doubt in their minds, it was their duty to resolve that doubt in favor of the defendant, and return a verdict of not guilty.</p> <p>8. On the trial of an indictment for murder, a letter found in the prisoner’s pocket, is competent evidence, if it appears that it was written by him, that it tended to rebut his testimony, and to show premeditation, and that it also bore upon his mental condition.</p> <p>9. A wife’s alleged misconduct with another affords no excuse to her husband for taking her life.</p>

<p>Workmen’s compensation — Widow—Dependency—Family relation — Separation—Obligation to support — Repudiation—Acquiescence — Presumption—Accumulations by wife — Contributions by husband — Findings by referee and board — Appeal—Review—Certiorari — Act of June 2,1915, P. L. 788, sec. 807.</p> <p>1. Under the Workmen’s Compensation Act of June 2, 1915, P. L. 738, the Supreme Court, for the purpose of review, will examine the findings and reasons stated in the adjudication of the referee and the board, and also those on which the opinion of the common pleas is based, tbe appeal being in tbe nature of a certiorari.</p> <p>2. Tbe term dependency, in tbe statute, contemplates actual dependency, and must affirmatively appear in tbe record as a fact. No rigid rule can be laid down as to tbe amount or character of evidence necessary to show actual dependency; therefore, each case must be controlled by its own circumstances. But tbe term actual dependency does not mean sole and exclusive support.</p> <p>3. Dependency is not controlled wholly by the legal obligation springing from the marriage contract. This obligation, however, is one of the elements to be considered in determining the fact of dependency.</p> <p>4. Separation may amount to a repudiation of the husband’s legal obligation to support, acquiesced in by the wife.</p> <p>5. The receipt of money from the husband for the purpose of accumulating a saving will not be considered as contributions for support, but the mere fact that claimant had a small sum of money in bank does not raise á conclusive presumption that the money was contributed by the husband for the purpose of enabling her to accumulate such saving. It may be considered, with other evidence, on the question of dependency.</p> <p>6. Where a wife was living apart from her husband, with his consent, earning money through her own labor, which partly reduces her living expenses, and the husband during this period maintains the family relation, writing to his wife regularly and visiting her frequently, paying a certain portion of the necessary expenses for her support, and often contributing other sums for her use, and all of these happenings occur frequently for a year and a half immediately before a fatal accident to her husband, held that a finding that the widow was actually dependent for this partial support and entitled to compensation, will not be disturbed on appeal, in a claim under Section 307 of the Workmen’s Compensation Act of June 2, 1915, P. L. 736, which provides that “no compensation shall be payable under this act to a widow unless she was living with her deceased husband at the time of his death or was then actually dependent upon him for support.”</p> <p>7. If the finding of dependency is based on any evidence, or on an inference fairly deducible therefrom, the award must be sustained, although the appellate court might differ from the conclusion thus reached. The judgment of such court cannot be substituted for that of the referee or board, inasmuch as the compensation act has delegated to them the exclusive function of determining these facts.</p> <p>8. Where a referee erroneously states a finding of fact as a conclusion of law, the appellate court will regard the conclusion as a finding of fact.</p>

<p>Appeal, No. 130, Oct. T., 1919, by Grand Lodge of Pennsylvania of Free and Accepted Ancient York Masons, from decree of O. C. Allegheny Co., June T., 1918, No. 369, directing payment of legacies in Estate of Almatia L. Reel.</p> <p>Petition for decree directing payment of legacies charged on land. Before Miller, J.</p> <p>From the record it appeared that decedent died on June 8,1917, leaving a will by which she gave pecuniary legacies to the petitioners and others. She further directed as follows:</p> <p>“All the rest and residue of my estate, including my dwelling-house known as Reel Hall, and all furniture and fixtures therein contained, I give, devise and bequeath unto The Grand Lodge of Pennsylvania of Free and Accepted Ancient York Masons as a memorial to my deceased parents and to my deceased brother Casper Reel, Jr.”</p> <p>The court entered a decree directing the payment of the legacies, or in default of payment the sale of the real estate. The grand lodge appealed.</p> <p>Error assigned was the decree of the court.</p>

<p>Appeal, No. 339, Jan. T., 1919, by defendant, from judgment of O. & T. Philadelphia Co., Aug. T., 1918, No. 55, on verdict of guilty of murder of the first degree in case of Commonwealth v. John Morrison.</p> <p>Indictment for murder. Before Monaghan, J.</p> <p>On the trial the Commonwealth made the following offer:</p> <p>Mr. Brown: I propose to show that the statement that this man was not in control of himself, was not in his right mind, was not a normal person at this time, was untrue.</p> <p>(Objected to by counsel for defendant.)</p> <p>The Court: Tbe district attorney proposes to call these witnesses for the purpose of testifying as to the condition of this defendant, and your position, Mr. Lucas, is that these men have already testified that the defendant was not under the influence of drugs or liquor.</p> <p>Mr. Lucas: Yes, and to call them again would simply add emphasis to what they have already testified in their examination by the district attorney.</p> <p>Objection overruled. Exception (1).</p> <p>Evidence supporting the offer was then given.</p> <p>The court charged in part as follows:</p> <p>[You will, therefore, come to the consideration of the case with care, with impartiality, without fear or favor, without prejudice or passion, uninfluenced by sympathy for the defendant or by indignation at the enormity of the offense with which he stands charged.] (2)</p> <p>[Upon the indictment before you, you have the power to render one of several verdicts. You have the power to find this defendant, if you think the evidence in the case warrants it, guilty of murder of the first degree. You have the power, under the evidence, if you think it warrants it, to find him guilty of murder of the second degree. After a review of the evidence, I find nothing in it which would justify you in rendering a verdict of voluntary manslaughter; therefore, under the evidence in this case, you may find the defendant guilty of murder of the first degree, murder of the second degree, or you may acquit him of all the charges against him.] (3) [If you find that the defendant killed Charles J. Martin, the presumption against Mm rises no Mgher than murder of the second degree, until it is shown by the Commonwealth, beyond a reasonable doubt, to be murder of the first degree. It therefore lies on the Commonwealth to satisfy the jury of these facts and circumstances which indicate the deliberate intention to kill and the cool depravity of heart and conscious purpose which constitute, as before stated, the crime of murder of the first degree. As I have said to you, murder of the first degree is a wilful, deliberate and premeditated killing. It is the most heinous crime known to the law. It means that the prisoner had time to make up his mind to kill the deceased, and that he killed him in pursuance of that determination. As you know from everyday experience, it takes a very short time to form an intention. An intention may be formed almost instantaneously, and it matters not how long the prisoner may have had his intention. If he formed it almost immediately before, and did intend to kill the deceased, and shot him with the purpose, it is murder of the first degree.] (7)</p> <p>Verdict of guilty of murder of the first degree, upon which judgment of sentence was passed. Defendant appealed.</p> <p>Errors assigned, among others, were (1) ruling on evidence, quoting bill of exceptions and evidence, (2, 3 and 7) portions of charge as above, quoting them.</p>

Appeal, No. 13, Oct. T., 1919, by defendant, from judgment of O. P. Allegheny Co., July T., 1917, No. 813, on verdict for plaintiff in case of Frederick W. Foedisch, trading as F. W. Foedisch & Company, v. Arrow Coal Mining Company. Assumpsit for breach of contract. Before Ford, J. Verdict and judgment for plaintiff for $26,914.57. Defendant appealed. Error assigned, among others, was in refusing binding instructions for defendant.

<p>Criminal law- — Larceny as "bailee — Pawnbroher—Criminal intent —Wrongful sale of pledged goods — Time.</p> <p>1. On the trial of an indictment against a pawnbroker for larceny as bailee, where the prosecutrix testifies that the defendant sold the pledged goods prior to the date at which he had agreed that she might redeem them, and this is denied by him, the important fact to be determined by the jury is the fraudulent intent of the defendant in selling the goods, and it is error for the court to charge that the guilt or innocence of the defendant depended upon their finding as to the time limit agreed upon by him for the redemption of what he had taken in pawn.</p> <p>2. If the defendant sold the goods under the honest belief that the time for their redemption had expired, and had not intended any fraud upon the pledgor he was not guilty of the offense charged against him, even if, as a matter of fact, he was mistaken in his recollection and the prosecutrix was right ag to the time within which she could redeem.</p> <p>Criminal law — Reasonable doubt — Burden of proof — Charge.</p> <p>3. On the trial of a criminal indictment the burden is on the Oommonwealth to present a case against the defendant establishing his guilt beyond a reasonable doubt, and if it fails to do so, he is entitled to an acquittal. The burden is not on the defendant to convince the jury of the truthfulness of his testimony, beyond any doubt, before they can acquit him.</p>

Appeal, No. 329, Jan. T., 1919, by defendants, from decree of C. P. Schuylkill Co., May T., 1918, No. 1, on bill in equity in case of Howard I. Paul v. Levi M. Paul and. Sarah K. Paul. Bill in equity for dissolution of a partnership and for an accounting. Before Berger, J. The court entered a decree for dissolution of partnership and for an accounting. Defendants appealed. Error assigned was the decree of the court.

Appeal, No. 73, Oct. T., 1919, by defendant, from judgment of O. & T. Allegheny Co., March T., 1918, No. 33, on verdict of guilty of murder of the first degree in case of Commonwealth v. James Davis. Indictment for murder. Before Bell, P. J., specially presiding. Verdict of guilty of murder of the first degree upon which judgment of sentence was passed. Defendant appealed. Errors assigned (1, 2) are set forth in the opinion of the Supreme Court.

Appeal, No. 87, Oct. T., 1919, by Colonial Trust Company, from decree of O. C. Allegheny Co., March T., 1919, No. 281, dismissing petition for citation to account, in Estate of William Robison. Petition for citation to account. Before Miller, J. From the record it appeared that testator died on May 26, 1912, leaving a will dated March 2, 1910. At the time of the mating of his will he was living with his second wife, Carrie R. Robison, and five minor children by her.

Appeal, No. 166, Jan. T., 1920, by defendants, from decree of C. P. No. 5, Pbiladelphia Co., Sept. T., 1918, No. 1563, on bill in equity in case of Elsie Bailey et al. v. Young Women’s Christian Association of Philadelphia et al. Bill in equity for an injunction, and for the appointment of a master to conduct a corporate election. Exceptions to the report of John M. Scott, Esq., master, were dismissed by the court. Defendants appealed.

<p>Appeal, No. 26, Jan. T., 1920, by defendant, from judgment of O. & T. Philadelphia Co., Nov. T., 1918, No. 604, on verdict of murder of the second degree, in the case of Commonwealth v. Michael Florentino.</p> <p>Indictment for murder. Before MgCormiok, J., specially presiding.</p> <p>The jury rendered a verdict of guilty of murder of second degree upon which the court imposed sentence. Defendant appealed.</p> <p>Errors assigned were, rulings on evidence, and refusal to withdraw a juror.</p>

<p>Appeal, No. 26, Oct. T., 1919, by defendant, from decree of C. P. Allegheny Co., in equity, No. 1945, Oct. T., 1917, granting an injunction in the case of First Church of Christ, Scientist, of Pittsburgh, Pennsylvania, v. Benjamin F. Meredith.</p> <p>Bill in equity for an injunction. Before Ford, J.</p> <p>The court granted the prayer of the bill and awarded an injunction restraining defendant from entering the complainant’s church, building during the holding of religious services. Defendant appealed.</p> <p>Error assigned was the decree of the court.</p>

<p>Worlcmen’s compensation — Findings of fact "by compensation board — Review by court — Injury in course of employment — Temporary absence — Gall of nature.</p> <p>A finding of fact by the referee, approved by tbe Workmen’s Compensation Board, to tbe effect tbat a deceased workman received injuries in tbe course of bis employment wbicb caused bis death, is conclusive on appeal to tbe courts.</p> <p>Gallagber v. Walton Manufacturing Co., 264 Pa. 29, followed.</p>

Appeal, No. 71, Jan. T., 1920, by plaintiff, from judgment of O. P. No. 1, Philadelphia Go., June T., 1918, No. 4498, dismissing appeal from the Workmen’s Compensation Board, which dismissed a claim for compensation in the case of Ella Hogan v. United Fruit Company and Travelers Insuranee Company, Insurance Carrier.

<p>Trusts and trustees — Parol agreement — Enforcement—Statute of frauds — Confession of trust by trustee — Enforcement of trust against judgment creditor of trustee — Equity.</p> <p>1. Where a parent and next friend of his minor child, invests the child’s money in real estate, the title to which is taken in the name of the parents with the express oral agreement that the property belonged to the child and would be conveyed to her upon her marriage, a trust may be enforced against the parents and against their judgment creditor where the parents, in the course of litigation to have the trust declared, confess the trust.</p> <p>2. Although an express trust of land resting in parol, cannot be enforced against the trustee if he elects to avoid it, a parol trust is valid where the trustee confesses it in open court; and where the trustee confesses the trust it may be enforced against a judgment creditor of the trustee.</p> <p>3. A mortgagee who entered a general judgment upon the bond secured by mortgage is not protected by the recording laws against trusts of which he has no notice, upon lands of the mortgagor not covered by the mortgage; nor is he allowed to hold against the cestui que trust, inasmuch as the lien of the judgment attaches merely to the mortgagor’s interest in such lands.</p> <p>Trusts and trustees — Resulting trusts — Act of June k, 1901, P. L. 1$5 — Protection of judgment creditor — Applicability where cestm que trust is minor — Equity.</p> <p>4. The Act of June 4, 1901, P. L. 425, declaring that resulting trusts arising from the payment of purchase money of land by one person and the taking of the legal title in the name of another, shall be void as to bona fide judgment creditors unless a declaration of trust be recorded or action of ejectment has been commenced by the person advancing the money, is not applicable to a case where the person advancing the money is a minor without capacity to contract.</p> <p>5. Where the father and next friend of his minor child invests the child’s money in land, there is a resulting trust in favor of the child no matter in whose name the title may be taken.</p> <p>Trusts and trustees — Residting trust — Act of April 22, 1856, Section J+, P. L. 682 — Application.</p> <p>6. Section 4, of Act of April 22, 1856, P. L. 532, declaring that declarations or creations of trusts in lands shall be in writing, is inapplicable to a resulting trust arising from the fact that the land was paid for with the money of one person and title taken in the name of another.</p> <p>Resulting trust — Agreement — Pa/yment of purchase money — Time of payment.</p> <p>7. A trust results at the time of the purchase where there is then a distinct understanding that the property is bought for the beneficiary and to be paid for with his funds, although such payment is temporarily deferred, or made by installments, or the purchase money is furnished by another on behalf of the beneficiary.</p> <p>Appeals — Questions not raised in lower court — Statutes of limitations — Section 6, Act of April 22,1856, P. L. 582.</p> <p>8. Objection that a suit to enforce a resulting trust is barred by Section 6 of Act of April 22, 1856, P. L. 532, because not brought within five years, is not properly before the Supreme Court on appeal, where that objection was not raised in the lower court.</p> <p>Trusts and trustees — Limitations of actions — Suit to enforce trust — Section 6, Act of April 22,1856, P. L. 582 — Resulting trust —Express trust.</p> <p>9. Section 6, Act of April 22, 1856, P. L. 532, prescribing limitation for enforcement of resulting or implied trust, does not apply to an express trust nor where the contract creating the trust provides for a longer period for its performances.</p>

<p>Practice, Supreme Court — Certiorari—Act of April 18, 1919, P. L. 72 — Findings of fact — Evidence—Review—Conclusions of law.</p> <p>1. Under the Act of April 18, 1919, P. L. 72, this court, on certiorari, will not overrule findings of fact which have evidence to sustain them; but will review conclusions of law based upon undisputed facts.</p> <p>2. Where the material facts are undisputed this court will enter a final order and not remit the ease to the court below for that purpose.</p> <p>Commissioners of navigation¡. — Powers — Money award against licensed pilot — Excessive pilotage fees — Suspension of pilot — Period of suspension — Refund of excessive fees.</p> <p>3. The Board of Commissioners of Navigation has no power to make a money award against a licensed pilot; but if he has collected money to which he is not entitled they may suspend him until he refunds it.</p> <p>Commissioners of navigation — Jurisdiction—Differences between masters of ships and pilots — Act of June 8, 1907, P. L. 1/-69.</p> <p>4. The differences between “masters, owners and consignees of ships and pilots,” which the Board of Commissioners of Navigation may pass upon and decide, under the Act of June 8, 1907, P. L. 469, are differences regarding the actions of the pilot, and they may be considered whether or not a suit at law could successfully be maintained in regard thereto.</p> <p>Pilots — Compensation—Amount—Statute — Rule of Board of Navigation Commissioners — Charge for constructive pilotage.</p> <p>5. A licensed pilot has no right to demand or receive any compensation except as provided by statute, or by rule of the Board of Commissioners of Navigation passed in pursuance thereof.</p> <p>6. A licensed pilot has no right to charge for an alleged constructive pilotage, or as upon an implied contract between him and the vessel, such matters not being provided for by statute or rule of the board.</p> <p>7. The statutes as to pilotage charges reviewed.</p>

<p>Appeal, No. 20, Jan. T., 1920, by plaintiff, from judgment of C. P. No. 3, Philadelphia Co., March T., 1917, No. 4794, on verdict for defendant in the case of Mary H. W. Krewson, Executrix of the last Will and Testament of Edward P. Krewson, deceased, v. Helen I. Sawyer, Charles E. Kremer and Francis M. Sawyer, Executors of Theodore E. Kremer, deceased.</p> <p>Action of account render. Before Davis, J.</p> <p>The trial court gave binding instructions for the defendant. Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned were directing a verdict for defendant, refusal of new trial, and judgment of the court.</p>

Appeal, No. 24, Jan. T., 1920, by defendant, from judgment of C. P. No. 2, Philadelphia Co., June T., 1917, No. 1617, on verdict for plaintiff in the case of Ruth-Hastings Glass Tube Company v. Thomas F. Slattery, Trading as Slattery Brothers. Assumpsit to recover sum of $6,165.50 alleged to be due as damages for breach of contract to deliver coal. Before Rogers, J. Verdict and judgment for plaintiff for $3,495.40. Defendant appealed.

<p>Negligence — Railroads—Shifting cars — Injury to workman engaged in unloading car — Notice of his presence — Question for jury.</p> <p>1. The question of a railroad company’s negligence is for the jury where the evidence tends to prove that the deceased, an employee of another person, was killed by defendant’s shifting train Striking violently against a car in which he was at work unloading coal, so that he fell or was thrown on the track and crushed by the train, and that the conductor of the shifting train had notice before the accident that a man was at work in the car, although the evidence tending to show notice, in time to have prevented the accident, was not entirely clear.</p> <p>2. A railroad company is not liable for the death of a workman caused by a shifting train bumping against the car in which he was engaged in unloading, where it was the uniform practice to have cars unloaded before noon and about one hour before the accident occurred, unless the crew of the shifting train had notice that work was still being done in the car at the time of the accident,</p> <p>Negligence — Railroads—Duty toward workmen unloading cars— Operation of shifting train.</p> <p>3. A railroad company owes the duty to use ordinary care in the operation of its shifting trains to avoid injury to workmen engaged in unloading cars on its premises.</p> <p>Negligence — Death of workman unloading car — Evidence—Presumption that decedent used due care.</p> <p>4. A workman who was killed by a shifting train striking violently against the car in which he was working is presumed to have used due care, where it appears that he could not see the approaching train and nothing is shown to charge him with contributory negligence.</p> <p>Negligence — Injury to workman engaged in unloading car— Shifting cars — Workman thrown upon track — Bumping car — Evidence as to how accident happened.</p> <p>5. The lack of proof as to just how decedent was thrown to the railroad track from the ear in which he was working when a shifting train bumped into it, will not relieve the company, if it is otherwise liable, where deceased was alone and no one saw him at the time of the accident.</p>

<p>Appeals — New trial — Discretion of trial court — Review—Abuse of discretion — Granting new trial to permit raising question for consideration on appeal — Delay of justice — Gonstitution.</p> <p>1. An order granting a new trial will not be reversed, unless it be clearly established that the court below abused its discretion in making the order.</p> <p>2. It is not an abuse of discretion to grant a new trial in order that an important question may be so raised as to permit of its consideration on appeal.</p> <p>3. If the questions raised do not depend on oral evidence, are conclusive of the ease, and nothing is left but to enter the judgment which their determination requires, an appellate court will reverse an erroneous order granting a new trial, because, in that event, a new trial would be a denial or delay of justice, in violation of the Constitution.</p> <p>4. But if the decision of the case depends wholly or in part upon oral evidence, an order granting a new trial will not be reversed simply because the court below in its opinion accompanying the order referred only to a pending legal question.</p> <p>5. Before an appellate court reverses an order granting a new trial it should review all the issues raised in the court below, whether or not they are referred to in the opinion granting the new triaL</p>

<p>Partnership — Beal estate — Deceased partner’s interest — rDistriTmiion — Bealty or personalty — Intention of partners — Partnership agreement — G onversion.</p> <p>1. The interest of a deceased partner in partnership real estate is personalty and should be distributed as such among his legal representatives, where the property was conveyed to the partners as a firm, and not as individuals, and it was designated in the deed as partnership property for the use of the firm; as there is of necessity an out and out conversion.</p> <p>2. Whether partnership real estate shall be treated as real or personal property, depends largely upon the intention of the parties.</p> <p>3. Where a partnership agreement provided that should the partnership be terminated by the death of either of the parties, the surviving partner shall have the right to continue the business under the firm name by paying to legal representatives of the deceased partner the amount of the interest of such deceased partner, and the surviving partner elected to continue the business by paying to the legal representative of the deceased partner the appraised value of his interest in the firm, the amount representing the deceased’s interest in partnership real estate is personalty,- and subject to distribution as such among his legal representatives.</p> <p>4. The rule that, after a partnership is dissolved and all its affairs closed and indebtedness liquidated, the property remaining in kind will resume its original form, and so pass to the individual partners, their heirs or legal representatives, has been more uniformly held applicable to real estate conveyed to the individual partners and treated as firm property for certain purposes only, in other words, where there was merely a quasi conversion, in any event it cannot be applied here under the partnership agreement and the action of the surviving partner.</p> <p>Partnership — Act of March 26, 1915, P. L. 18, Section 26 — Personal property.</p> <p>5. Section 26 of the Act of March 26, 1915, P. L. 18, declaring that “a partner’s interest in the partnership is his share of the profits and surplus, and the same is personal property,” referred to, but not considered in connection with the case.</p>

<p>Beneficial association — Life insurance — Reinsurance—Modification of contract — Knowledge and consent of insured — Rights of heneficiafy — Assessments—Misstatement of age — Estoppel—Notice —Certificate—Application.</p> <p>1. The mere fact that a beneficial association, subsequent to the issue of a beneficiary’s certificate, reinsured all its members under a group policy of life insurance, and thereafter made a monthly assessment of $3.50 in place of an assessment of fifty cents upon the death of each member, which had theretofore amounted to about $5 a month, does not preclude the beneficiary from recovering the amount specified in the certificate, which was an amount equal to fifty cents for each member in good standing, if it does not appear that the insured consented to the reinsurance, or that he was present at or had notice of any meeting where such consent was given, or that he ever accepted such reinsurance in place of his certificate or as a modification thereof.</p> <p>2. In such a ease the beneficiary was not precluded from recovering the full amount of benefits by the fact that the insured’^ age was misstated in the card accompanying the group insurance, which provided that the amount payable in case of misstatement of insured’s age shall be the amount which the premium paid for the insurance would have purchased at the rate given for the correct age, if the insured’s age was not referred to in the certificate or the application therefor; and his age was not material, as lie certificates made no distinction as to age, and it did not appear that the insured or his beneficiary ever saw the card or furnished añy data placed thereon.</p> <p>3. In such.a case the payment of the assessments of $3.50 per month in place of the fifty-eent assessment upon the death of each member does not estop the beneficiary from claiming upon the original certificate, where it appears that the assessments were paid when they matured and that no fraud or bad faith was.shown, or anything to support a finding that the insured consented to a modification of his contract.</p> <p>Practice, G. P. — Trial—Defense—Province of court and jury.</p> <p>A defendant’s case should not he submitted to the jury, where there is no evidence to, sustain the finding of a single fact that would be a defense to plaintiff’s claim or any part thereof.</p>

<p>Appeals, Nos. 95 and 96, Jan. T., 1920, by Henry Tonge and Rae Tonge, his wife, from decree of O. C. Philadelphia Co., April T., 1911, No. 443, dismissing petition for restitution of payments made by executor in Estate of Thomas Fitzgerald, deceased.</p> <p>Petition for restitution of payments made by executor. Before Gummey, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court dismissed the petition and exceptions filed to the decree, in an opinion by Gest, J., 27 Pa. Dist. R. 313. Petitioners, Henry Tonge and Rae Tonge, creditors, appealed;</p> <p>Errors assigned were dismissal of the exceptions and the decree.</p>

<p>Appeal, No. 98, Jan. T., 1920, by defendant, from judgment of C. P. No. 2, Philadelphia Co., June T., 1917, No. 210, on verdict for plaintiff in case of Catherine Lavin v. Clinton Garrett.</p> <p>Trespass to recover damages for personal injuries. Before Wessel, J.</p> <p>At the trial when defendant was under cross-examination the following question was asked him:</p> <p>Q. The purpose of that photograph was to try to make a defense if you could possibly get one to this suit, was it not?</p> <p>A. Really I do' not know. I suppose that was taken for—</p> <p>Q. You were down there trying to make evidence for your case?</p> <p>Mr. Herman: I move that a juror be withdrawn because Mr. McAdams suggests to the jury that the defense which is tried to be interposed in good conscience and fairness, was being built up unfairly.</p> <p>The Court: That impression has not been made upon my mind. You have been the one who has constantly been protesting about your fairness and everything of that kind. Mr. McAdams to my knowledge has done nothing of the kind. I overrule the motion.</p> <p>Exception noted for defendant. (4)</p> <p>Verdict and judgment for plaintiff for $7,500.</p> <p>The court discharged defendant’s rule for a new trial, based upon the following reasons:. 1. The verdict was against the law; 2. The verdict was against the evidence; 3. The verdict was against the weight of the evidence; 4. The verdict was against the charge of the court; 5. The verdict was excessive;</p> <p>The court discharged defendant’s motion for judgment non obstante veredicto. Defendant appealed.</p> <p>Errors assigned were (1) refusal to direct a verdict for defendant; (2) refusal to enter judgment for defendant n. o. v.; (3) refusal of motion for new trial based on the grounds that the verdict was against the law, the evidence, the charge of the court, and was excessive; (4) refusal to withdraw a juror because of the comments of plaintiff’s counsel; and (5) failure to instruct in a way that would overcome the effect of the statement of plaintiff’s counsel — although no request to so charge was made.</p>

Appeal, No. 99, Jan. T., 1920, by plaintiffs, from judgment of C. P. No. 1, Philadelphia Co., Jjine T., 1918, No. 1841, refusing to take off nonsuit in the case of Frank and Wilhelmina Wagner v. Pennsylvania Railroad Company and Director General of Railroads. Trespass to recover damages for death of plaintiffs’ minor son. Before Shoemaker, J. A nonsuit was granted at the conclusion of plaintiffs’ testimony, which the court subsequently refused to take off.

<p>Negligence — Railroads—Grade crossing accident — Contributory negligence of taxicab driver — Stop, looh and listen — Rebuttal by facts — Train in plain view. '</p> <p>1. A verdict was properly directed for' defendant in an action to recover damages for death of plaintiff's decedent caused when, early in the morning, he drove a taxicab over 'a railroad crossing and collided with a locomotive that was running backwards with the tender in front, where, although plaintiff’s witnesses testified that “it was dewey, like foggy, like early in the morning.....dark,” that the crossing gates were open, that neither the locomotive nor the tender carried a light, that no bell was sounded to give warning of approach, and that plaintiff’s decedent stopped and looked before crossing the first tracks, such witnesses admitting a nearby electric arc light shed its rays so that a view could be had from 100 to 150 feet in the direction from which the locomotive was slowly approaching, and that the taxicab was pushed about 25 or 30 feet, within which distance the locomotive came to a standstill.</p> <p>2. In such a case it is vain to say that the deceased looked, for, if he had, he must have seen the locomotive in the direction from which it was approaching at the low rate of speed shown in plaintiff’s presentation of the case.</p>

<p>Appeal, No. 105, Jan. T., 1920, by plaintiff, from judgment of C. P. No. 1, Philadelphia Co., March T., 1918, No. 2659, on verdict for the defendant in the case of Harry P. Clapp v. Eugene Vellner.</p> <p>Trespass to recover damages for personal injuries. Before Shoemaker, J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>The jury rendered a verdict for the defendant.</p> <p>The court overruled plaintiff’s motion for a new trial and judgment was entered on the verdict. Plaintiff appealed.</p> <p>Error assigned was portion of the charge of the court quoted in the opinion of the Supreme Court.</p>

<p>Workmen’s compensation — Railroads—Claim for compensation —Defense—Interstate commerce — Burden of proof — Presumption.</p> <p>Tbe burden of establishing tbe fact that an employee of a railroad company was, at the time of tbe occurrence of an injury from which be died, engaged in performing duties incident to interstate commerce, is upon tbe defendant who alleges that fact as a defense to a claim for compensation, inasmuch as there is no presumption as to tbe character of tbe employment.</p>

<p>Equity — Specific performance — Contract for sale of realty — Time for performance — Essence of contract — Waiver—Pleadings.</p> <p>1. A court of equity will not decree specific performance of a contract for the sale of land, which provides that time is of the essence of the contract, where, in a case heard on bill and answer, defendants’ answer averred that plaintiff had not undertaken to perform within the time fixed for performance, and plaintiff’s bill contained no allegation that defendants had waived the time within which the contract was to be performed.</p> <p>2. Where parties, by their agreements or covenants, have deliberately fixed a time for the performance of an act, a court of equity will be very cautious how it interferes in disregard of it, and thus in effect change the contract which the parties have made.</p>

<p>Wills — Construction—Estate to wife for life — Remainder “to children or their descendents” — Vested remainder — Construction of “oV’ — “Descendents”—Intention of testator.</p> <p>1. The estate of a remainderman who dies dining the life tenancy, is vested and not contingent under a will of a testator leaving a wife and four children for whom he provided by giving to his wife certain real estate for life, or during widowhood, and stipulating that, “upon” her death or remarriage, “said estate shall fall and vest in my children or their descendents absolutely and in fee.”</p> <p>2. Where the will was that of a husband and father, providing for wife and children — the natural objects of his bounty — the word “or,” in the phrase “said estate shall fall and vest in my children or their descendents absolutely and in fee,” will be construed as being used in the conjunctive and “descendents” as being used in descriptive sense of “heirs of the body,” or “issue,” of his children, where it is apparent from the writing itself, in light of relevant rules of interpretation, and from the next paragraph of the will wherein testator provides for the event of his death “without leaving issue,” that testator did not intend by “decedents” to designate a certain set of persons to take directly from him at a given time.</p> <p>3. The determination of the wife’s life estate does not depend upon an uncertain event, and the remainder in the children is limited to ascertained persons in esse, it being certain to take effect in possession by enduring longer than the precedent estate. Under these circumstances notwithstanding the remainderman did not live to enjoy possession of his remainder, it was vested, not contingent.</p> <p>Partition — Accounting for rents — Decree adjusting rents — Equity — Buies—Master.</p> <p>4. Where a bill for partition alleges the collection of rents by the defendant and prays for an accounting thereof, the court should direct the accounting of rents collected and fix the amount of defendant’s indebtedness to his cotenants, before entering a decree for partition.</p> <p>5. In such a case where the court entered a decree, directing partition of real estate without first directing an accounting for rents collected and without fixing the amount due the cotenants, the Supreme Court directed the lower court to set the case for rehearing and, after finding the necessary facts, enter a decree so as to adjust the question of rents between the parties for guidance of the master in making final distribution, unless the parties in interest agree, under Equity Rule 69, that the master appointed to make partition shall act as referee to pass on the account and distribute the balance found to be due.</p>

Appeal, No. 176, Jan. T., 1920, by plaintiff, from judgment of C. P. No. 4, Phila. Co., Sept. T., 1917, No. 3188, refusing to take off nonsuit in case of Mary Buccilli v. Timothy Shanahan and Timothy Shanahan, Jr., Copartners, trading as T. Shanahan, Jr. Trespass to recover damages for death of plaintiff’s husband. Before Finletter, J. The facts appear by the opinion of the Supreme Court. The court entered a compulsory nonsuit which it subsequently refused to take off.

<p>Appeal, No. 180, Jan. T., 1920, by defendants, from judgment of C. P. No. 2, Phila. Co., Dec. T., 1917, No. 4452, on a verdict for plaintiff in ease of City of Philadelphia v. Chester P. Ray, Receiver of the Newton Paving Company, and the United States Fidelity & Guaranty Company.</p> <p>Assumpsit by a municipality on a paving contract and tbe accompanying bond of a surety company. Before Wessel, J.</p> <p>The plaintiff sought to recover tbe difference between tbe contract price and tbe amount actually paid under a subsequent contract with another company for tbe same work after tbe defendant company bad refused to proceed with tbe work. Verdict for plaintiff in sum of $4,151.67.</p> <p>Tbe court overruled defendants’ motion for a new trial and for judgment non obstante veredicto and entered judgment on tbe verdict. Defendants appealed.</p> <p>Errors assigned were (1-3) portions of tbe charge, quoting them but without quoting exceptions, (4-7) refusal of defendants’ points for binding instructions, quoting points and answers, (8) dismissal of motion for judgment for defendant n. o. v., (9-12) specifying alleged errors, but without quoting tbe record.</p>

Appeal, No. 126, Jan. T., 1919, by Mary M. Gohn, Minnie Dissinger and Dissinger Farm Company, from judgment of C. P. York Co., Aug. T., 1914, No. 1, in Equity, in favor of petitioners in a proceeding to obtain possession of certain real estate sold at judicial sale in the case of Frank A. Eyster, Trustee in Bankruptcy of Sallie Gohn and Mary M. Gohn, v. Minnie Dissinger and C. H. A. Dissinger, her husband, Carrie Gohn, Nellie L. Hibner and Albert Hibner, her husband, wherein…

<p>Negligence — Municipality—Icy sidewalk — Constructive notice— Evidence — Records of weather bureau — Ordinance.</p> <p>1. A verdict is properly directed for defendant in an action against a city to recover damages for personal injuries sustained by plaintiff by a fall on an icy sidewalk covered with snow, where it did not appear how long the ice had been there, nor that the city had either actual or constructive notice of the icy condition of the path.</p> <p>2. The records of the weather bureau and a city ordinance providing a penalty for permitting ice to remain on paved footways, offered in evidence in this case, held not sufficient to prove constructive notice of the condition of the path.</p>

Appeal, No. 48, Oct. T., 1919, by plaintiff, from judgment of C. P. Mercer Co., Jan. T., 1912, No. 90, on verdict for defendant, in case of Cecil Lurie, by his father and next friend, George Lurie, v. Erie Railroad Co. Trespass for personal injuries. Before Sloan, P. J., specially presiding. The court directed a verdict for defendant. Verdict and judgment for defendant. Plaintiff appealed. Error assigned was order discharging motion for a new trial.

<p>Appeal, No. 51, Oct. T., 1919, by plaintiff, from judgment of O. P. Mercer Co., Jan. T., 1912, No. 90, on verdict for defendant, in case of Geo. Lurie v. Erie R. R. Co.</p>

<p>Workmen’s compensation — Death—Disease—Aggravation of disease — Findings of referee.</p> <p>1. A finding of a referee under the Workmen’s Compensation Act that an employee of a chemical company died as the result of injuries received in the course of his employment, will he sustained, where such finding, based on sufficient medical evidence, is in effect that at tbe time of the accident deceased was suffering- from malignant cancer or carcinoma, although, at the time, its development had not reached the stage to cause him inconvenience, and was not noticeable; that the natural course of the disease was gradual and slow; that the development after the accident was not such as would have been expected without an intervening cause; that, as the beginning of the rapid growth was coincident with the accident, and as there was nothing to indicate another cause, death resulted from the accident.</p> <p>2. An objection that there was absence of a finding that death was hastened by the accident is sufficiently answered by a finding that “this rapid development continued and progressed until it finally caused the decedent’s death.”</p> <p>3. In such a case, a statement was made by the referee that the medical testimony “indicated that a local injury might cause an otherwise slow growing cancer to light up and develop with great rapidity.” It was argued that the language used was not evidence that the local injury aggravated the disease and should be considered merely as evidence that it might do so, and, consequently, was insufficient proof that such result followed in this case. Held^ while a strict interpretation of the language used by the referee would justify the criticism made, if the purpose was to state the precise substance of the medical testimony as applied to this particular case, yet a careful reading of the paragraph in which the clause in question was used fails to convince the court that the referee intended to do no more than make a general statement of probable cause and effect applicable to such cases in general, or had in mind that the medical testimony in this case went only so far as to say the injury might have been the cause of the rapid development of the cancer.</p> <p>4. As those charged with the responsibility of finding the facts in cases arising under the Workmen’s Compensation Act, are not learned in the law, the courts cannot look for the same precision in their adjudications that otherwise might be insisted upon.</p>

<p>Appeal, No. 318, Jan. T., 1919, by defendants, from decree of C. P. No. 2, Philadelphia Co., Dec. T., 1917, No. 1058, on bill in equity in ease of George J. Siedler, Frances Rotan Sargent, Charles S. Starr, William D. Edson and Louise Burpee Sawtelle v. Jacob S. Wain and Lydia L. Wain, his wife.</p> <p>Bill in equity for injunction. Before Rogers, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The following plans show the situation of the properties and the road in controversy (see pages 365 and 366) :</p> <p>Mahan conveyed to plaintiffs lots fronting on both sides of the 33-foot road shown in plan on page 366.</p> <p>The court entered a decree in favor of plaintiffs, as set forth in the opinion of the Supreme Court. Defendants appealed.</p> <p>Errors assigned were dismissal of exceptions to findings of fact and law and the decree of the court.</p>

<p>Appeal, No. 120, Jan. T., 1920, by defendant, from judgment of C. P. No. 3, Phila. Co., June T., 1913, No. 2215, on verdict for plaintiff in case of Frederick C. Righter v. Charles K. Parry.</p> <p>Trespass for deceit. Before Ferguson, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Verdict and judgment for plaintiff for $3,000. Defendant appealed.</p> <p>Errors assigned were various rulings on evidence and instructions.</p>

<p>Appeals, Nos. 33, 34 and 35, Jan. T., 1920, by H. A. McCarthy, ancillary adm’r of estates of GeO'. S. Boutwell and Nathaniel A. Prentiss, and the Commercial Trust Co., ancillary administrator d. b. n. c. t. a. of estate of Edward McCall, deceased, from decree of O. C. Phila. Co., Jian. T., 1893, No. 278, dismissing exceptions in estate of Anne McCall, deceased.</p> <p>Exceptions to adjudication of Gest, J.</p> <p>The court, in an opinion by Henderson, J., dismissed the exceptions: see 28 Pa. Hist. B. 433. The exceptants, as above named, appealed.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Errors assigned were in dismissing exceptions to the adjudication.</p>

Appeal, No. 42, Jan. T., 1920, by defendant, from judgment of C. P. No. 1, Philadelphia Co., Sept. T., 1911, No. 4248, on verdict for plaintiff in case of Erwin C. Algard v. Phila. Rapid Transit Company. Trespass for personal injuries. Before Shoemaker, J. Verdict and judgment for defendant for $5,374. Defendant appealed. Error assigned was in refusing defendant’s motion for judgment n. o. v.

<p>Appeal, No. 67, Jan. T., 1920, by plaintiffs, from judgment of C. P. No. 5, Philadelphia CO'., Dec. T., 1918, No. 1833, for defendant, Land Title & Trust Co., in case of Finley C. Morrow and Amy S. Morrow, wife of the said Finley C. Morrow, v. Albert W. Wilson, Walter Preston and the Land Title & Trust Co.</p> <p>Trespass for deceit. Before Martin, P. J.</p> <p>Affidavit of defense in nature of demurrer by Land Title & Trust Company to statement of claim.</p> <p>The court entered judgment for defendant, the Land Title & Trust Co. Plaintiffs appealed.</p> <p>Error assigned was the judgment of the court.</p>

<p>Appeal, No. 77, Jan. T., 1920, by plaintiff, from judgment of C. P. No. 4, Phila. Co., June T., 1918, No. 3708, reversing decision of Workmen’s Compensation Board in case of Annie Reynolds v. Philadelphia & Reading Railway Co.</p> <p>Appeal by defendant from decision of Workmen’s Compensation Board on hearing de novo. Before Fin-letter, J.</p> <p>The court sustained the appeal and reversed the decision of the board. Plaintiff appealed.</p> <p>Error assigned was the judgment sustaining the appeal and reversing the decision of the board.</p>

<p>Appeal, No. 93, Jan. T., 1920, by defendant, from decree of C. P. No. 2, Philadelphia Co., Dec. T., 1916, No. 1516, on appeal from tax assessment in case of Board of Home Missions and Church Extension of the Methodist Episcopal Church v. City of Philadelphia.</p> <p>Appeal from tax assessment. Before Barratt, P. J.</p> <p>From the record it appeared that the petitioner claimed exemption from a portion of the taxes assessed on property, Nos. 1701-1703 Arch street, in the City of Philadelphia. The property in question was assessed at $275,000, of which valuation $22,000 was marked exempt and $253,000 taxable. It appeared that the petitioner rented out about one-half of the building owned by it to others, and used the remainder for its own work. The court held that the property was exempt from taxation in so far as it was used for the purposes of the petitioner. On the question of rental value the court found as follows:</p> <p>“The total value of the rental value of the building of this petitioner is $21,250 per year. The amount used by the petitioner aggregates $10,140; that rented out amounts to $11,110. The amount free, therefore, to that of the whole is as $10,140 to $21,250. As the total valuation of the premises is $275,000, the amount exempt is 10,140/21,250 of $275,000, or $131,223.53.</p> <p>“The tax, then, is upon the unexempt balance of $143,-776.47, and the petitioner’s appeal is sustained to this extent.”</p> <p>Other facts appear by the opinion of the Supreme Court.</p> <p>Error assigned.amongst others, was the decree of the court, quoting it.</p>

Appeal, No. 12, Jan. T., 1920, by defendant, from judgment of C. P. No. 1, Phila. Co., Dec. T., 1918, No. 2020, affirming decision of Workmen’s Compensation Board, which affirmed a referee’s award in favor of claimant, in case of Maria Domenica Di Donato v. Philadelphia & Reading Railway Company.

Appeal, No. 150, Jan. T., 1920, by Margaret K. Prichett, from decree of O. C. Pkila. Co., April T., 1909, No. 570, dismissing exceptions to adjudication in estate of Joseph Channon, deceased. Exceptions to adjudication of Gummey, J. The account of the Fidelity Trust Company, trustee under the will of Joseph Channon, showed a balance of principal of $66,242.11 and accumulations amounting to $21,210.53. Margaret K. Prichett, next of kin and sole heir at law, claimed both funds.

Appeal, No. 174, Jan. T., 1920, by defendant, from judgment of C. P. No. 2, Phila. Co., June T., 1917, No. 1646, on verdict for plaintiff in case of Georgia A. Boggs v. Jewell Tea Company. Trespass to recover damages for death of plaintiff’s husband. Before Barratt, P. J. The facts are stated in the opinion of the Supreme Court. See also Boggs v. Jewell Tea Co., 263 Pa. 413. Verdict and judgment for plaintiff for $9,000. Defendant appealed.

Appeal, No. 85, Jan. T., 1919, by defendant, from judgment of C. P. No. 2, Phila. Co., Dec. T., 1916, No. 2678, on verdict for plaintiff in case of Robert E. Chitwood v. Philadelphia & Reading Railway Co. Trespass to recover damages for personal injuries. Before Barratt, P. J. The facts appear by the opinion of the Supreme Court. Verdict and judgment for plaintiff for $10,000. Defendant appealed.

Appeal, No. 64, Jan. T., 1920, by defendant, from judgment of C. P. No. 2, Phila. Go., March T., 1917, No. 4503, on verdict for plaintiff in case of George M. Keebler, Inc., v. The Land Title & Trust Company. Assumpsit for breach of covenant in lease. Before Wessel, J. The facts appear by the opinion of the Supreme Court. Verdict and judgment for plaintiff for $2,850. Defendant appealed.

Appeal, No. 207, Jan. T., 1920, by defendant, from judgment of C. P. Montgomery Co., Oct. T., 1917, No. 190, for plaintiff on case tried by the court without a jury in case of John Durante and Nunzio Bucci v. Michael Alba. Trespass for destruction of a building caused by withdrawal of lateral support. Before Miller, J. The facts appear by the opinion of the Supreme Court. The case was tried by agreement of the parties by the court without a jury.

<p>Negligence — Bcdlroads—Infmts-r-Nards—Playing in yards— Sitting on freight cars — Notice — Burden of proof — Proximate cause — Sequence of events — No intervention of contributing cause —Defendant in possession of instrumentalities — Presumption —Admissions at trial — Case for jury.</p> <p>1. Where a railroad company permits its yards or tracks to be used as a playground for children, the corporation is required to operate its rolling stock with due care to avoid injuring such children, and the ordinary rule, as to the limited measure of duty owing to trespassers, is inapplicable.</p> <p>2. One fixed with a duty to regard the safety of children, is obliged reasonably to anticipate they will do the ordinary and natural things which may be looked for from them under the circumstances.</p> <p>3. In an action against a railroad company to recover damages for personal injuries to .a boy eight years old, injured while on a freight car standing with others, in an open railroad yard of defendant, the case is for the jury, where the evidence tends to show that the yard in question was triangular in form, with tracks on two sides of the triangle, and an open space in the centre; that this space had been very frequently used for years, without objection by defendants, as a playground by the boys in the neighborhood; that, on the day of the accident, the plaintiff and fifteen other boys had for at least three quarters of an hour before the accident been seated on the freight cars, looking at a ball game, in full view of one of defendant’s watchmen and others of its employees; that the cars in question, unattached to any motor power, were stationed at the place where defendant “put cars that stand for some time”; that the boys had been “playing” on or around the cars for “over three months”; that they had been on top of them “a couple of times,” and the watchman was in view “every day” they played around or sat on top of them; that the accident was caused by a runaway engine which collided with a train coming from the opposite direction, thus upsetting itself, or the locomotive of the train; that, as a result, the freight cars on the adjoining track on which plaintiff was seated, were struck in the rear, and plaintiff was injured by being caught between two of them; and it was admitted by defendant’s counsel at the trial that the engineer, of the running engine, lost control of the mechanism in such a way that the brakes would not work, as a result of which the engine gained speed just prior to the accident, and “both the engineer and fireman jumped to save their lives.”</p> <p>4. In such a case, when counsel for defendant undertook to admit the circumstances which gave rise to and attended the runaway engine, knowledge peculiarily within the possession of the defendant, and failed to state facts which would relieve his client from the implication of negligence put upon it by those already proved or admitted, it was for the jury to say whether, on the evidence and admission, defendant was guilty of negligence in the premises.</p> <p>5. Where a thing is shown to be under the management of defendant and the accident is such as in the ordinary course of things does not happen if proper care is used, the burden is on defendant to prove that the accident did not arise from want of care.</p> <p>6. As no contributing cause intervened to interrupt the sequence of events, which were set in motion by the railroad company’s failure to maintain control of its instrumentalities, the jury was warranted in finding defendant’s negligence to be the proximate cause of plaintiff's injury.</p>

<p>Appeal, No. 123, Jan. T., 1920, by defendant, from judgment of C. P. No. 1, Phila. Co., June T., 1917, No. 5548, on verdict for plaintiff in case of George O. Seward v. Pennsylvania Salt Manufacturing Co.</p> <p>Assumpsit by vendee of merchandise for alleged breach of contract to deliver goods. Before Shoemaker, J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Verdict and judgment for plaintiff for $34,500. Defendant appealed.</p> <p>Errors assigned were various instructions and rulings.</p>

<p>Negligence — Infants—Attractive appliance — Stringing wire on fence — Notice as to children — Probability that injury would result —Insurer of safety — Burden of proof.</p> <p>1. One is liable only for natural and probable consequences, such as might and should be foreseen, in the light of common experience, as likely to result from the act complained of.</p> <p>2. Owners and occupiers of real estate and those having the lawful right to use the same, are bound to exercise ordinary care with respect to the rights of children, as well as others on the property. The law demands due, reasonable and ordinary care; but, where an appliance, machine, structure or object, is not obviously or inherently dangerous, and has been in daily use, and has proved uniformly adequate, safe and convenient, it may be further continued without the imputation of negligence, although it might have been made safer at slight expense.</p> <p>3. Where the owner of land brings or permits thereon something of an artificial nature, which is both attractive and dangerous to children, he is bound to use reasonable care for their protection, but he is never held negligent for failure to anticipate injury to children or adults from appliances not dangerous nor likely to become so.</p> <p>4. Although an infant plaintiff’s tender age precludes contributory negligence in an accident case, yet the infant cannot establish its case, except by proof of negligence on part of defendant.</p> <p>5. In an action against a telephone company to recover damages for injuries to a child five years old, sustained from a fall, caused by his tripping on a telephone wire strung by defendant along an iron fence separating the premises of the child’s father from an adjoining property, a nonsuit is properly entered, where it appears that the fence in question was one known as a “hairpin fence” about three feet high; that defendant, under a contract with the adjoining owner, had established a telephone in his house, which was connected up by a wire extending along such owner’s side of the top rail of the fence, and attached thereto; that the wife of such owner informed defendant’s foreman, when the wire was being placed, that children in the neighborhood went from one house to the other, and asked that the wire be put where children would not be playing; that thereafter she called the attention of a workman wearing defendant’s uniform that the wire sagged, but nothing was done; that there was a clothespole in the fence from which a clothesline extended to the porch of such owner, and that plaintiff, assisted by the pole and the clothesline, would climb over the fence and play with the owner’s children; that, at the time of the accident, plaintiff, in attempting to get over the fence, caught his foot in the wire and was thrown, so that his face struck upon a cement walk on the neighbor’s side; that, at the point where his foot caught, the wire was against the fence, and had sagged to within about eighteen inches of the ground, but did not form a loop in the sense of a noose, so as to imprison the boy’s foot; and that the boy’s parents were away from home when the wire was installed, but saw it on their return, and that neither they nor their neighbors required its removal before the accident, although they both permitted their children to climb the fence and play around it.</p> <p>6. In such a case the fact that defendant’s foreman was notified that children played in the yard, and was requested to put the wire where they would not be playing, is important as notice of the habits of the children, but does not fasten liability upon defendant, in the absence of evidence tending to show that the wire was so placed as to create a probability that injury would result therefrom. It did not impose on defendant the liability of an insurer of the safety of the children, especially those of a third party.</p> <p>Mr. Justice Simpson filed a dissenting opinion.</p>

<p>Appeal, No. 92, Jan. T., 1920, by Philadelphia Trust Company, guardian of Elizabeth S. Field, the younger, from decree of O. C. Philadelphia Co., April T., 1891, No. 505, dismissing exceptions to adjudication in estate of Elizabeth S. Field, deceased.</p> <p>Exceptions to adjudication of Gummey, J.</p> <p>From the record it appeared that the court in banc, in an opinion by Anderson, J., (Henderson and Gest, JJ., dissenting), dismissed the exceptions to the adjudication and refused to award the fund to the Philadelphia Trust Co., guardian. See 28 Pa. Hist. B. 514. The trust company appealed.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Errors assigned were dismissal of exceptions to adjudication and decree.</p>

<p>Guardian and ward — Appointment of guardian — Persons of same religious persuasion — “Shall he preferred” — Parental grandfather —Maternal uncle — Discretion of court — Welfare of child — Act of June 7,1917, P. L. U7.</p> <p>1. The mere fact that a father, being a Protestant, had promised the mother, a Catholic, previous to marriage, that children of the marriage should be brought up in the Catholic faith, which promise he afterwards confirmed in a letter to the children, does not in itself compel the court to appoint as guardian of the children a person of the Catholic faith, under see. 59 (B) of the Fiduciaries Act of June 7,1917, P. L. 447, which provides that “persons of the same religious persuasion as the parents of the minors shall in all cases be preferred by the court in their appointment as guardians of the persons of such minors.”</p> <p>2. In such a ease the court, in the exercise of a sound discretion, taking into account all the circumstances of the case, and the welfare of the minors, may, after the death of both parents, appoint as guardian a paternal grandfather, a Protestant, rather than a maternal uncle, a Catholic, where it appears that the grandfather is of excellent character and high standing, possessed of considerable property, fond of the children, and has stated to the court that he had no desire in any way to interfere with the religious training of the children, would permit their attendance at a Catholic church, and would bring them up as Catholics until they were old enough to choose for themselves in such matters.</p> <p>3. The provision of the Act of June 7, 1917, P. L. 447, which requires that persons of the same religious persuasion “shall be preferred” by the court, is not to be. construed as a positive command to appoint such person, regardless of considerations relating to fitness, or as taking from the court its discretion, nor in any way to relieve it of its duty to choose such person as, in its opinion, shall be best fitted to look after both the physical and spiritual welfare of the minor. The act requires that, as between two persons of equal standing and ability in other respects, the court is to appoint the one of the same religious faith as the parents, and only to this extent is the provision of the act intended to be mandatory. Otherwise the words “shall be appointed” would doubtless have been used instead of “shall be preferred.”</p> <p>4. Even if it should be assumed that the agreement and express desire of the father were the equivalent of a religious “persuasion” within the meaning of the act, the court was not bound to appoint, as guardian, a person of the same religious persuasion, but had the right, in the exercise óf a sound discretion, to appoint a person, who, in its opinion, was best fitted to care for the minors.</p>

<p>Decedents’ estates — Claim for board -and lodging — Family relation — Nephew and -aunt — Presumption—Periodic payments — Domestic services — Evidence-—-Burden of proof.</p> <p>1. Ordinarily, an implied promise exists to pay for services rendered and accepted, and the burden is on the person denying liability to show no debt was, in fact, intended. This rule does not PPly? however, where the services are rendered by members of a family to each other, as such services, are usually performed without expectation of remuneration; consequently, where the family relation exists, no action can be maintained for board, lodging and washing, unless an express promise or agreement to pay is proven. Relationship alone, however, is sufficient to overcome the presumption, only in the case of parent and child. The closer the relationship the less expectation of payment, and greater strictness of proof to overcome the presumption is required.</p> <p>2. The existence of a family relationship between an aunt and nephew, does not, in itself, rebut the promise which the law implies to pay for such services as board, lodging and washing furnished by the aunt to the nephew.</p> <p>3. In such a ease a claim by the aunt against her deceased nephew’s estate for board, room, washing, etc., for $30 per month for six years, less a credit of $25 paid, will be sustained where the evidence shows that the deceased lived with, his aunt during such time and that the services were rendered, but, so far as the proofs show, no demand was made for payment; that he was a druggist, thirty-one years old at the time of his death; that he had ample funds in bank to meet his necessities, and no one was dependent upon him for support; that he had stated to witnesses that he was paying his board, although admitting .at the same time that none, in fact, had been paid; and that the aunt-acknowledged that she had received $25 on account.</p> <p>4. The appellate court cannot say, in such case, that the court below erred in concluding the evidence for the estate was insufficient to rebut the presumption of intention to pay for such services.</p> <p>5. In such a case, there is no application of the presumption of periodic payments, as in cases of claims for domestic services.</p>

<p>Evidence — Opinion of adverse witness — Written statement — Contradictions — Res gestes.</p> <p>1. An expression of opinion by an adverse witness, prior to the trial, is not admissible in evidence unless it contradicts his opinion received in evidence at the trial.</p> <p>2. This rule is not affected by the fact that the opinion is in a written statement, other parts of which contradict evidence actually given at the trial.</p> <p>3. Nor by the fact that if the opinion is excluded the other parts . of the statement will not alone accurately express the meaning. The remedy in such case is to explain the true meaning to the jury.</p> <p>4. A statement made by plaintiff’s husband, since deceased, at the place of the accident and within three minutes thereafter, is part of the res gestae.</p> <p>Practice, Supreme Court — Assignments of error — Consideration of evidence — Motion for judgment n. o. v. — Objection not made at trial.</p> <p>5. In considering assignments of error to the refusal of the court below to give binding instructions or to enter judgment non obstante veredicto, the evidence must be considered in the light most favorable to appellee.</p> <p>6. An objection not made at the trial will not be considered on appeal.</p>

<p>Appeal, No. 134, Jan. T., 1920, by plaintiff, from order of O. P. Schuylkill Co., Sept. T., 1917, No. 149, refusing to take off nonsuit in case of George, Gasser v. Philadelphia & Reading Railway Co.</p> <p>Trespass to recover damages for personal injuries and for injuries to a buggy. Before Bechtel, P. J.</p> <p>The court entered a compulsory nonsuit which it subsequently refused to take off. Plaintiff appealed.</p> <p>Error assigned was refusal to take off nonsuit.</p>

<p>Contract — Sales—Oral agreement — Secret discount — Evidence— Cashbook entries — Book not in evidence — Striking out evidence — Charge of court — Comment-on failure to produce evidence.</p> <p>1. In an action to recover a balance on sale of automobiles, defendant set up an oral agreement wherein plaintiff, as an inducement to the purchase, agreed to pay defendant a secret discount of three per cent on the price. To establish this, defendant’s bookkeeper testified that he had made an entry in the cashbook of such payment of three per cent, but that he had not the book in court. On motion the testimony as to the entry in the book was stricken from the record, but the evidence as to the fact that a book existed as a cashbook and that entry was made therein was not stricken out. Held, that the court committed no error in commenting on this matter in its charge as follows: “When a matter is referred to [by a witness] which is pertinent and relevant and valuable evidence, if the evidence is not produced in court to corroborate the statement of the witness, the jury have a right to question in their mind whether or not the book or the paper or the bit of evidence would corroborate the witness, if it was produced in court. There is no explanation of why the book is not here, and the defendant ought to have explained it. Therefore, to my. mind, the evidence to the effect that an entry was made in the book is of very little value.”</p> <p>2. In such a ease, while the corroborating evidence was cumulative, it was, nevertheless, important, material and convincing, if true. If the book had been produced in court, showing an entry, it would have been strong evidence in support of the oral inducement made at or about the time the cash payment was alleged to have been placed in this book of many daily transactions. The difficulty in fraudulently making up a book of this kind would lend strength to the truth of the entry. The observation in the charge was perfectly proper. It did not attempt to destroy or weaken the material fact of the defense, namely, the existence of the inducing oral agreement.</p> <p>3. It is not similar to a case where defendant had sufficiently met plaintiff’s case, and no good reason existed for further elaboration of his defense by calling other witnesses or producing other evidence, and the court erroneously comments on the want of, or failure to produce, such further evidence in support of what had already been sufficiently proven, thereby leading the jury to believe the failure to call the witnesses was decisive of the case, without considering whether the matters already before the jury were gufficient to meet plaintiff’s ease, regardless of the absence of the witnesses.</p>

<p>Worhmen’s compensation — Employers—Subcontractors—Second subcontractor s employees — Act of June B, 1916, P. L. 786, Article III, Section SOB (b) — Notice.</p> <p>1. The employee o£ a second subcontractor is an employee of the general contractor within the meaning of article III of the Workmen’s Compensation Act of June 2, 1915. The act did not intend to limit the “hiring a laborer” to a “contractor” standing in immediate contractual relation with the employer (original contractor) ; it intended to include those laborers or employees who did work in furtherance of the employer’s business, and who were employed by one having a lawful right or duty to engage in the business undertaken by the employer.</p> <p>2. The relation of employer to those employed about the premises includes only those whose work is a part of that embraced within the terms of the employer’s contract with the owner.</p> <p>3. A stranger without lawful authority from or through the employer (original contractor) could not force himself into a position where the employer would be held for compensation liability to his (the stranger’s) employees. He must be entrusted with the work by one who had the right to so entrust him, and this right has been so broadened by the terms of the act as to exclude some of the ordinary rules of master and servant, principal and agent, contractor and contractee, as applied and understood at common law.</p> <p>4. If the original contractor desired to protect himself from liability, he could have done so by posting notices or by providing for compensation liability in his subcontract. Eailing to do so, he became, by the clear intendment of the act, liable to the employees of the second subcontractor.</p> <p>5. The act intended to throw the burden on the man who secured the original contract from the owner, to the end that employees of any degree doing work thereunder, might always be protected in compensation claims.</p> <p>6. Article II, sec. 203; art. Ill, sec. 302, and art. Ill, see. 302b, of the Workmen’s Compensation Act, read in connection, indicate a legislative intent to hold the original contractor for compensation liability to the employees of at least a second subcontractor.</p> <p>7. In determining liability under the Workmen’s Compensation Law, the courts must be guided by the clear intendment of the act as expressed by the words and definitions there used; if prior judicial decisions tend to limit or curtail the effect of words and phrases that are used with a certain meaning defined by the act, the legal rule announced by such decisions must give way to what the lawmaking body prescribed the use and meaning of the words to be. Such action within the legislative authority must control.</p> <p>8. An award of compensation for the death of a workman will be sustained, where the referee finds that a general contractor for the construction of a building entered into a contract with a subcontractor by which the latter was to perform a portion of the work; that the subcontractor entered into a contract with a second Subcontractor by which the latter undertook to perform the same work according to the plans and specifications furnished by the original contractor; that the deceased workman was an employee of the second subcontractor and was killed in the course of his employment; that the general contractor, a corporation, did not post the notices required under the Workmen’s Compensation Act limiting their liability; that it had control over the building where the deceased was at work; that neither the general contractor nor the subcontractor had control over the employees of the second subcontractor, but both were interested in securing completion of the work in accordance with the plans and specifications; that the work performed by the second subcontractor was a part of the regular business of the general contractor; and that it did not appear that the general contractor knew of the contract between the subcontractor and the second subcontractor.</p> <p>Constitutional law — Title of act — Notice—Index—Workmen’s compensation — Use of word “employer” in title — Act of June 2, 1915, P. L. 786.</p> <p>9. The Act of June 2, 1915, P. L. 736, entitled “An act defining the liability of an employer to pay damages for injuries received by an employee in the course of employment; establishing an elective schedule of compensation; and providing procedure for the determination of liability and compensation thereunder,” is sufficient in its title to indicate the liability of an original contractor to pay damages for injuries to employees of a second subcontractor. The act is not unconstitutional in so far as its title is concerned.</p> <p>10. When the word “employer” was used in the title, and the title further indicated he was to pay damages on a fixed schedule to his employee for injuries received in the course of his employment, any one in the position of an employer, would seek, in the act, information as to the extent of his liability, and he would there find that under certain conditions an original contractor was an employer to the employees of a subcontractor.</p> <p>11. The title to an act need not be an index of its contents. If the title contains words which would lead the ordinarily inquiring mind to an investigation of their purport, as set forth in the act, the title will be sufficient to embody such provisions as naturally relate to the language used.</p>

<p>Sunday laws — Fairmount Park of Philadelphia — Playing hall— Eqmty — Jurisdiction—Finding of facts — When conclusive on appeal — Act of April 22,179h, 3 Sm. L. 177.</p> <p>1. Where a bill in equity for an injunction, to restrain the park commissioners of Fairmount Park, Philadelphia, from licensing or permitting outdoor games to be played in the park on Sunday, avers that the playing of such games was in violation of the Act of April 22, 1794, 3 Sm. L. 177, and was a public nuisance, and the court below finds as a fact that the evidence failed to prove that a resolution passed by the commissioners, or games played in the park, constituted a public or private nuisance, or that the playing of such games on Sunday had been licensed either by the commissioners or the chief engineer, such finding, although excepted to in the court below, if not assigned as error on appeal, is conclusive, and the appellate court will consider the case as consisting of mere alleged violations of the Act of 1794.</p> <p>2. A court of equity has no jurisdiction to entertain a bill for an injunction to restrain a violation of the Sunday law of April 22, 1794, inasmuch as the act provides a penalty for its violation, and there is therefore an adequate remedy at law. If such penalty is not a sufficient deterrent, it is for the legislature to provide another.</p> <p>3. A crime is an act committed or omitted in violation of a public law either forbidding or commanding it, and a bill in equity will not lie having for its sole purpose an injunction against the mere commission of a crime.</p> <p>Appeals — Practice, Supreme Court — Assignments of error — Statement of questions involved — Exceptions—Hem-say—Evidence.</p> <p>4. Where the appellant’s statement of the questions involved does not include matters complained of in assignments of error, such matters will not be considered by the appellate court.</p> <p>5. WThere no exception is taken to a ruling of the trial court, sustaining an objection to the admission of testimony, an assignment of error based on such ruling, will not be considered.</p> <p>6. An assignment of error based on a ruling sustaining an objection to the admission of evidence, will not be considered, where the offer was simply one of hearsay evidence.</p> <p>7. An assignment of error merely averring that the court erred in dismissing complainant’s exception, will not be considered, inasmuch as it fails to disclose what the exception was which the court dismissed.</p>

<p>Sheriff’s sale — Setting aside sale — Advertisement—Mistake as to hour of sale — Inadequate price — Bond for resale.</p> <p>The Supreme Court -will sustain the action of the lower court in setting aside a sheriff’s sale of realty, where it appears that the property was advertised for sale by the sheriff under two writs of levari facias issued respectively on judgments obtained on a first mortgage, and on what is claimed by appellee to be a second, in which he is the mortgagee; that on the first writ the sheriff advertised in two newspapers and by handbills that the property would he sold on October 30, 1918, at 2 p. m., and, on the second, that he would sell it on the 13th of the following month at the same hour; that, as required by law, he advertised the sale in a legal periodical, hut his advertisement in that periodical fixed the sale at 1 p. m.; that at that hour on October 30th, a number of persons went to the courtroom in which, according to the advertisement, the sale would he held, and left before 2 o’clock; that the sale was held at that time, and the property knocked down to the appellant at $8,500, which was the only bid offered; that the judgment upon which the first writ had issued- was for $7,554.52, entered January 14, 1914, and the bid of appellant left less than $300 for subsequent liens; that appellee had no actual knowledge until November 11, 1918, that the property had been sold on October 30th, and promptly filed his petition to have the sale set aside; that the court below found that $12,000 was an adequate price for the property, and that the petitioner has given a bond, with approved surety, that at a second sale he would bid at least that sum for it.</p>

<p>Appeal, No. 101, Jan T., 1920, by Frank G. Rambo and Cora K. Rambo, from decree of O. C. Montgomery Co., March T., 1919, No. 56, awarding direct inheritance tax to the Commonwealth in estate of Jane G. Rambo, deceased.</p> <p>Appeal from appraisement for direct inheritance tax of real estate situate in Massachusetts and Connecticut of which the testatrix died seized. Before Solly, P. J.</p> <p>The Commonwealth claimed that the real estate had been converted into personalty by the terms of the will of the testatrix, and that the tax was due thereon.</p> <p>The material portions of the will are as follows:</p> <p>“2. I give, devise and bequeath all my property, real, personal and mixed, and wheresoever situate, unto my five children [naming them] in equal shares to each. ......I direct, however, that the share of my daughter, Mary G. Anders, shall be placed in trust, and my trustee shall invest the same in safe legal securities, and pay the income derived therefrom, semi-annually, unto my said daughter, Mary G. Anders, for and during the term of her natural life, and at and after her decease, I direct that her share so placed in trust, shall be divided equally among my surviving children......</p> <p>“3. I nominate, constitute and appoint my daughter, Cora K. Rambo, and my son, Frank G. Rambo, to be executors of this my ivill, and my said son, Frank G. Rambo, to be the trustee of the share of my said daughter, Mary G. Anders......I authorize and direct my executors and trustee, and the survivor of them, to sell all my personal and real estate at public or private sale for such price or prices and at such times and on such terms as to them may seem proper.”</p> <p>The court held that there was a conversion of the real estate into personalty, and entered a decree in favor of the Commonwealth for $1,684.49: see 35 Mont. Co. R. 176. The executors appealed.</p> <p>Error assigned was the decree of the court.</p>

<p>Appeal, No. 27, Jan. T., 1920, by Anna Bisbing, from decree of O. C. Chester Co., Dec. T., 1918, No. 27, dismissing exceptions to auditor’s report in estate of Eugene Bisbing.</p> <p>Exceptions to report of Thomas W. Pierce, Esq., auditor. Before Hause, J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>The court dismissed the exceptions to the auditor’s report. The exceptions were to the finding that claimant was not deceased’s wife, and to the distribution. Anna Bisbing, the claimant, appealed.</p> <p>Error assigned was decree dismissing exceptions.</p>

<p>Appeals — Practice, Supreme Court — Statement of questions involved — Assignments of error — After-discovered evidence — New trial — Abuse of discretion — Opening judgment — Removal of record by appeal.</p> <p>1. An assignment of error based on the refusal of the trial judge to allow the testimony of a witness at the first trial to be read at the second, will not be considered, where the question raised by such assignment, is not included in the statement of questions involved.</p> <p>2. An assignment of error complaining of the refusal of the court below to award a new trial, in view of after-discovered evidence, will be dismissed, where there is no abuse of discretion by the court below refusing a third trial on that ground.</p> <p>3. An assignment of error to the refusal of the court below to open a judgment, will not be considered, where it appears that at the time the application to open was made, the record had been removed to the appellate court by an appeal taken nearly six months before, and that the judgment was consequently no longer under the control of the lower court.</p>

<p>Appeal, No. 14, Jan. T., 1920, by defendant, from judgment of C. P. Schuylkill Co., July T., 1918, No. 227, affirming decision of Workmen’s Compensation Board, in case of Apolonia Ambrose v. Coxe Brothers & Co., Inc.</p> <p>Appeal from decision of Workmen’s Compensation Board, in a hearing de novo, sustaining award in favor of claimant. Before Bechtel, P. J.</p> <p>The court affirmed the award. Defendant appealed.</p> <p>Error assigned was affirmance of decision of Workmen’s Compensation Board.</p>

<p>Appeal, No. 178, Jan. T., 1920, by plaintiffs, from decree of O. P. Lycoming Co., June T., 1919, No. 1, dismissing bill in equity in case of Samuel L. Whitney et al. v. Jersey Shore Borough.</p> <p>Bill in equity for an injunction, etc. Before Whitehead, P. J.</p> <p>The case was heard on bill, answer and replication.</p> <p>The court dismissed the bill. Plaintiffs appealed.</p> <p>Errors assigned were (2) decree dismissing the bill, and (3) imposing upon plaintiffs, as part of the costs, defendant’s counsel fees.</p>

Appeal, No. 73, Jan. T., 1920, by Commonwealth of Pennsylvania, from decree of O. C. Lycoming Co., June T., 1918, No. 16, dismissing appeal from appraisement made for the direct inheritance tax in Estate of Lucy Smith DeWitt, deceased. Appeal from appraisement of lands situate in West Virginia, made for the purpose of assessing the direct inheritance tax thereon.

<p>Appeal, No. 127, Oct. T., 1919, by defendant, from judgment of C. P. Allegheny Co., on verdict for plaintiff in case of Farmers & Mechanics Bank v. Aspinwall-Delafield Co.</p>

<p>Appeal, No. 97, Jan. T., 1920, by plaintiff, from decree of C. P. Chester Co., in Equity, No. 632, dismissing bill in equity in case of White Heat Products Co. v. Charles W. Thomas.</p> <p>Bill in equity for injunction. Before Hause, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court dismissed the bill. Plaintiff appealed.</p> <p>Error assigned was decree dismissing bill.</p>

Appeal, No. 208, Jan. T., 1920, by Martha L. Smith et al., from decree of O. C. Chester Co., dismissing exceptions to auditor’s report in estate of Jabez B. Lawton, deceased. Exceptions to report of Guy W. Knauer, Esq., auditor. The opinion of the Supreme Court states the facts. The court, in an opinion by Hause, J., dismissed the exceptions. Martha L. Smith and Amy A. Faddis, children of decedent, appealed. Error assigned was in awarding to the wife her allowance as widow.

Appeal, No. 234, Jan. T., 1920, by plaintiff, from order of C. P. Schuylkill Co., March T., 1919, No. 247, entering judgment for defendant for want of a sufficient statement of claim, in case of Dodson Coal Co. v. Warren Delano. Assumpsit to recover the value of certain improvements to a coal property.

Appeal, No. 60, Jan. T., 1920, by defendant, from judgment of C. P. Wayne Co., March T., 1917, No. 202, for plaintiff, on agreed statement of facts, in case of May Pinkney, Administratrix of the estate of Robert P. Pinkney, deceased, v. Erie Railroad Co'. Trespass to recover damages for death of plaintiff’s husband. Before Si-iull, P. J., specially presiding. The case was submitted to the court on an agreed statement of facts. No right of appeal was reserved in the agreement.

<p>NegligenceI —< Infants — >Railroad—> Contributory negligence — Trespassers — Operation of cars on bridge — Permissive way — Choice of ways — Trespass signs — Notice.</p> <p>1. Where a walk has become a permissive way, those using it are licensees, and not trespassers, and the rule as to the latter has no application. As to tbe former it is the duty of the owner of the premises to exercise reasonable care to avoid inflicting injury upon those using the way.</p> <p>2. It is the duty of those moving railroad cars over a permissive crossing, to look ahead, and see if the tracks are clear.</p> <p>3. In an action against a coal company to recover damages for personal injuries to a boy nine years old, the case is for the jury and judgment on a verdict for plaintiff will be sustained, where the evidence tends to show, defendant owned a bridge constructed over a ravine on its private property, on which it operated coal cars on a double track railroad; that on each side of the tracks was a plank walk, four to five feet in width, and protected on the outerside by a railing; that, for many years prior to the accident, people, both adults and children, had used the walk daily as a short cut between two localities, and for other purposes, including attendance on ball games, going for cows, etc.; that, on the day of the accident, plaintiff, in going after cows, was crossing the bridge on one of the walks, with three other boys, and had just passed a coal car standing on the adjoining track, when it suddenly moved forward, as the result of a bump of another car, and knocked him down, so that he was injured; that the car overhung the walk nearly two feet leaving only a narrow space for pedestrians, which space was occupied in part by a pile of coal; that defendant gave no warning of the movement of the cars; and a brakeman, in charge of the cars, testified he could have seen the boys but did not look, although he knew people were accustomed to use the walk.</p> <p>4. In such a case, it cannot be affirmed, as a matter of law, that plaintiff was precluded from using the walk because of trespass signs posted over fifty feet from the bridge; nor because other boys had been warned to keep away, nor because plaintiff might have gone for the cows by another route.</p> <p>5. A child, nine years old, will not be held guilty of contributory negligence as a matter of law, but, if of sufficient capacity, may be as a matter of fact, and that is for the jury; so also was the father’s act in permitting the boy to go.</p>

<p>Wills — Construction—Circumstances of testaitor — Life estate to widow — Power to consume — Remainders—Widow’s claim for $5,-000 under Act of April 1, 1909, P. L. 87 — Appraisement.</p> <p>1. While the courts should search for the intent of the testator only “within the four corners of the will,” yet, when occasion calls for it, they must consider the will and interpret its meaning in the light of all the circumstances by which testator was surrounded when lie made it, and, to this end, Ms family, and the amount and character of his property, may and ought to be taken into consideration.</p> <p>2. Testator died on June 24,1917, leaving to survive him a widow and half-brothers and half-sisters, but no father, mother, children or descendants. By the first clause of his will, he devised all of his real estate to his widow for “the period of her natural life,” and by the second clause bequeathed his personal property to her to use the income during her natural life; with the right to consume the principal when “necessary for her maintenance.” He then provided as follows: “All the rest, residue and remainder of my estate, real, personal and mixed, subject to the life .estates heretofore devised and bequeathed to my said wife, I give, devise and bequeath unto such persons as shall be entitled to receive the same under the intestate laws of Pennsylvania.” The widow elected to take under the will. She then sought to have set aside to her, out of the residue, and as her share thereof, real and personal property to the value of $5,000, according to the Act of April 1, 1909, P. L. 87. The property was duly appraised, and all of the real estate and part of the personal property was set aside to her. The appraisement showed that the value of the real estate was much less than $5,000. By agreement between the widow and the heirs, the value of the whole estate, real and personal, was fixed at $45,000, and there was nothing to show that, at the time the will was written, testator possessed any other or additional real estate. The court below set aside the appraisement. Held, (a) that it was apparent from the language of the will that it was not testator’s intention that the widow should take an absolute fee in all of the real estate; (b) that, since the widow was given power to consume, if necessary for her maintenance, all or any part of , the personal property, it was impossible, prior to her death, to tell what constituted the “rest, residue and remainder,......real, personal and mixed”; (c) that it was probably not testator’s intention to include the widow among the persons entitled to take the residuary estate “under the intestate laws”; (d) that, as no distribution under the intestate laws could arise until after the widow’s life interest ended, she had no present right to the $5,000, and was confined to the provisions for her benefit contained in the first two clauses of the will; and (e) that, as the widow was never entitled to an appraisement, the court below was justified in setting it aside.</p>

<p>Criminal law — Murder—Self-defense—Burden of proof — Reasonable doubt — Evidence.</p> <p>1. Self-defense in a murder case is an affirmative defense as to which the burden of proof rests upon defendant, but it is not necessary to establish it beyond a reasonable doubt. A fair preponderance of the evidence is all that is required; and it is reversible error to charge that “where any doubt on that subject exists self-defense is not established,” inasmuch as there may be a doubt as to a fact established by the preponderance of the evidence.</p> <p>2. Such a statement is equivalent to saying that self-defense must be established beyond a doubt, which is incorrect, for it ignores the distinction between fairly preponderating evidence, and that which is beyond a reasonable doubt.</p> <p>Criminal law — Murder—Charge of court — Misstatement of law —Reversible error — Harmless error — Technical objections.</p> <p>3. Courts will not be astute to sustain technical objections in a criminal trial, when substantial justice has been accorded defendant; but where clear error appears in the charge upon the vital and controlling defense set up, the appellate court cannot judicially say that no harm was done the defendant, and, therefore, no reversible error was committed.</p> <p>4. A misstatement of the law in one part of the charge is not cured by a correct statement thereon in another part, as it is impossible to know which the jury accepted.</p> <p>Criminal law — Murder—Chai'ge—Reasonable doubt — Opinion of one furor.</p> <p>5. One part of a charge may clear up that which is obscure but cannot cure that which is legally wrong in another part, unless the latter be withdrawn.</p> <p>6. On the trial of an indictment for murder it is not error for the trial judge to refuse to charge that “if the jury or any member of the jury have a reasonable doubt of the guilt of the defendant, defendant must be acquitted.” To Send a jury out with instructions that they must acquit if one of their number has a reasonable doubt of guilt, without further explanation, would in many cases result in a miscarriage of justice. To say that a juror should not agree to a conviction so long as he entertains a reasonable doubt of guilt is sound, but to say that his doubt must result in an acquittal, is not.</p> <p>Criminal law — Murder—Evidence —; Veight — Admissibility — Winding of a hnife — Admission of hnife in evidence — Remoteness as to time.</p> <p>7. In a murder trial defendant admitted that he cut the deceased with a knife, and threw it away in an alley. A search for it there the next morning was fruitless. It was shown however that a few minutes after the homicide, defendant was seen standing in the alley in front of an open cellar window, and two and a half months thereafter a knife was found in that cellar near the window, with what looked like blood stains upon it. Meld, that the trial judge committed no error in admitting the evidence relating to the knife, and also the knife itself, as a circumstance for consideration of the jury.</p> <p>8. In such a case the evidence would have been too remote if the knife had heen found in the alley or some other accessible place; but as it was found in the cellar, where it might not be discovered for months, the question of remoteness affected the weight of the evidence rather than its admissibility.</p> <p>Griminal law — Murder — Stab wound — Knife — Expression of opinion by trial judge.</p> <p>9. On the trial of an indictment for murder, where it appears that a stab opened the largest artery in'the body of the deceased, and that he died the same night, the trial judge is warranted in expressing the conclusion that death resulted from a knife wound where he leaves such question entirely to the jury.</p> <p>Griminal law — Murder—Lying in wait — Charge—No request.</p> <p>10. At a murder trial, where there is no contention that the murder was committed by lying in wait, it is not necessary for the trial judge to explain the law relating to that species of murder, especially if no instruction with reference thereto is requested.</p>

<p>Road law — Change of grade — Pavement—Damages—Benefits— Assessments — Foot front rule — Appeal—Act of May 15, 1918, P. L. 215.</p> <p>1. Where a municipality cuts down the grade of a road, the owner of the abutting property is entitled to damages measured by the difference in the market value of the property before and after the improvement; ‘but the municipality is entitled to the benefits special to abutting properly and no less so because all other properties along the line of the improvement may be similarly situated.</p> <p>2. The abutting owner, however, is not to he charged with any general indefinite appreciation of the value of the property in the neighborhood, as distinguished from special benefits to his and other abutting properties resulting from the improvement.</p> <p>3. The development of an. important avenue is of common advantage to all property in the vicinity, whether located thereon or not, and this the .abutting owner is entitled to share with his neighbors; hence, in passing upon the question of the market value of abutting property, as affected by the improvement, the jury should not charge the owner with any general appreciation of land values in the locality thus indirectly resulting from the development of the avenue and common to nonabutting as well as abutting property. However, the difference between the two because of the direct contact of the latter with the improvement is marked, and must be considered by the jury, and the city given credit for the special advantages thereby accruing, although like advantages also accrue to other properties upon the line of the improvement.</p> <p>4. An appeal from an award of viewers brings up the whole case, including both damages and benefits, as it is from the net amount only (Act of May 15, 1913, F. L. 215), and the proceedings in the common pleas are de novo.</p> <p>5. So far as relates to the pavement, in a change of grade proceeding in a city, the benefit conferred thereby is its cost as properly assessed against urban property by the foot front rule.</p>