Volume 267 — Pennsylvania State Reports

<p>Corporations — Stock subscription — Subscription in articles of incorporation — Liability of subscriben — Transfer of right in shares —Consent—Novation—Release — Estoppel — Attorney-at-law — Statements — Burden of proof — Future calls — Act of May 5, 1911, p. l. jm.</p> <p>1. In an action to recover for'a subscription to tbe Stock of a corporation, where it appears that defendant certified, in the original articles of association of the company, that he had subscribed for twenty shares of stock, the mere fact that he signed the certificate for the purposes of incorporation will not relieve him from liability in so far as the public and creditors are concerned.</p> <p>2. In such case, whatever may be defendant’s rights as between the corporation, its officers and himself, in so far as the public is concerned, the articles of incorporation and the certificate are conclusive. As soon as the company is incorporated by the issuance of letters patent, his subscription as therein expressed, made prior to the legal existence of the company, is binding on him as a subscriber; and he thereby agrees to pay the par value of the shares subscribed, at such times, and in such amounts, as the directors may require.</p> <p>3. A subscriber to stock is generally liable on his subscription, but he can be sued only when a call is made by the board of directors. Until such call is made there is no obligation on him to pay.</p> <p>4. To be relieved of the continuing liability, the subscriber may transfer his right in the shares subscribed, but such transfer must be made as required by law, subject to such regulations as may be provided by the by-laws. Where such transfer is entered on the books of the corporation, he ceases to be liable for future calls; the consent of the corporation is, in effect, a novation, a release of the transferor’s liability; and, unless there is some statutory regulation, the assignor is no longer liable for future calls on stock subscribed for by him, or held in his name.</p> <p>5. Under the law of Pennsylvania, it is the duty of the corporation, when required to do so, to make due and legal transfer of stock sold and assigned, where no call remains unpaid; and, in the absence of some legal reason for not so doing, they cannot escape the performance of this act.</p> <p>6. The provision of the Uniform Stock Transfer Act of May 5, 1911, P. L. 126, providing that nothing therein shall be construed as forbidding the corporation “to hold liable for calls and assessments a person registered on its books as the owner of shares,” is subject to the modification that, if the corporation accepts or consents to the transfer, the transferor will be relieved from liability.</p> <p>7. In an action on a stock subscription, made in the original articles of association, where it appears there was no by-law of the corporation regulating the subject of transfer, and, while the transfer books and stock ledgers were offered, they were not used to record either the sales of stock from the corporation, or any transfers that were made thereafter, and defendant sets up, a§ a defense, a transfer of his subscription, it is incumbent on him to prove some act of the corporation evidencing a consent or acceptance of the transfer, to release him from liability.</p> <p>8. If a corporation fails to provide the proper books to register and record transfers, and an effort is made to recover the amount of the subscription, the fact that the subscriber’s name does not appear as a registered owner, will not relieve him from liability; nor will the fact that his transfer has not been made on the books hold him for his subscription, if he has in fact duly assigned his stock or interest, and the company has acted thereunder or consented to the transfer.</p> <p>9. The mere delivery of the assignment to an officer of the company, or to the attorney for the real incorporators, will not be sufficient, but if delivered to the officers of the company whose duty it is to make the transfer, or whose duty it is to sign and issue new certificates, or to the attorney who was employed for the ■real incorporators, inter alia, to obtain the transfer, statements of such officers or attorney to the effect that the transfer was recognized or acted upon, will, under such circumstances, be sufficient to bind the company; it will be evidence of consent.</p> <p>10. An attorney-at-law employed to procure a charter, unless specifically authorized, cannot accept a transfer in behalf of the company. Such acts are not ordinarily -within the scope of an attorney’s authority. If he has been employed generally to act for the company in this and other matters, or if he has been employed to obtain a charter, using others as incorporators than those intended to be the real stockholders, with express or implied power to have the former transfer all their supposed interest to the latter, then his acceptance of a transfer would no doubt be binding on the company.</p> <p>11. It is not illegal for an attorney to procure disinterested persons to sign a certificate of incorporation with the understanding that, when the charter is granted, a subscription to stock therein is to be assigned to the real owners; but, in a suit to enforce such subscription by a receiver of the company, it is reversible error for the court to charge that the attorney was a proper person to receive an assignment of the stock, and that if he did so, as attorney for the corporation, that would be a good delivery. In such a case the authority of the attorney must be found by the jury from the evidence.'</p> <p>12. It is also reversible error for the court to charge that if the stock for which defendant subscribed in the articles of association, went into, and "was considered by those who received it as a part of, the capital, then he would not be responsible upon that capital gtock......If his transfer of it was accepted by the corporation or those who controlled it,......there could be no recovery against him on that stock, or any unpaid portion of it, in the absence of proof that a demand had been made upon him prior to the time the corporation went into the hands of a receiver.” This was error because defendant would be liable even though his stock "was considered by those who received it as a part of the capital stock,” unless the assignment of the stock was accepted by some one authorized to receive it, and, if it was not so accepted, defendant would be liable if a call were made upon him, by order of court, after "the corporation went into the hands of a receiver.”</p> <p>13. If stock is subscribed with the understanding that it is 'to be then paid in cash, it is immediately due, and the subscriber may be proceeded against without further notice.</p> <p>Statute of limitations — Corporations—Treasurer.</p> <p>14 An action brought by the receiver of a corporation against the treasurer of the company for the amount certified by the defendant as being in his hands as treasurer at the date of the incorporation, is barred by the statute of limitations, where it appears that the suit was brought after the expiration of six years from the date of the incorporation, and after another treasurer had gueceeded him.</p>

<p>Negligence — Railroads—■Automobiles—Collision—Stop, loole and listen — Grade crossing — Contributor negligence — Sudden danger —Confusion of driver — Law or fact — Case for jury — Nonsuit.</p> <p>1. A nonsuit can be entered only in clear cases, when it is inconceivable on any reasonable hypothesis that a mind desiring solely to reach a just and proper conclusion in accordance with the relevant governing principles of law, after viewing the evidence in the light most advantageous to plaintiff, could determine in his favor the controlling issue involved.</p> <p>2. When the standard of care shifts with the circumstances, the jury ordinarily must determine what it is, and if it has been, observed.</p> <p>3. In an action against a railroad company to recover damages for personal injuries sustained in a collision at a grade crossing, the trial court is in error in not submitting the case to the jury, where the evidence tends to show that the approach to a three-track system of defendant’s tracks at the crossing was up a slight incline; that plaintiff stopped, looked and listened at a point, when the front of his car was two or three feet from the first rail, and his seat in the car was nine feet back from the front; that from this point he looked in both directions; that he could see to the right only 600 to 700 feet, because, according to his testimony, his view was obstructed by a small watchman’s box about 400 feet from him, and other obstructions, such as a station, telephone poles, bridge and “different things,” whose distance he'did not locate; that, neither Seeing nor hearing the approach of a train, he drove his car over a narrow roadway composed of loose ballast, to the first track; that the car front was about the middle of this track, when he saw the train about 50 feet away on the second track traveling from the right towards him at a speed of 50 to 55 miles an hour; that before he could stop, the engine struck the car throwing it to the south, the direction from which he was traveling, demolishing it and injuring him; that as the car advanced towards the track, plaintiff’s attention was largely taken up with getting the car under way and keeping on the. road, and that his view was increased very little in the approach, not over 25 or 50 feet, according to his testimony.</p> <p>4. In such a case, the court, taking into consideration the grade, width and composition of the roadway, the vehicle to be driven, the precautions which plaintiff had taken, the difficulty of stopping a car on loose stones and ballast within two or three feet of the tracks on which a train was approaching, — causing bewilderment of mind, — cannot say that plaintiff was guilty of contributory negligence because he did not stop with the front of his car in the middle of the first track, so that he might get a clear view of such track.</p> <p>5. Nor could the court say as a matter of law that the objects intercepting the view were so located that plaintiff must have seen the train .approaching from a sufficient distance to have avoided a collision.</p>

<p>Appeal, No. 3, Jan. T., 1920, by defendants, from decree of C. P. Adams Co., Nov. T., 1917, No. 1, on bill in equity in case of Advance Industrial Supply Co., Inc., v. Eagle Metallic Copper Co., United Milling & Smelting Copper Co., Hamilton W. Shafer and the Blue Mountain Stone Co.</p> <p>Bill in equity for an injunction to restrain the mining and smelting of green stone from a quarry property. Before McPherson, P. J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>The court below entered a decree awarding an injunction. Defendants appealed.</p> <p>Error assigned was the decree of the court, quoting it.</p>

<p>Appeals — Assignments of error — Election law — Nominations—■ Certificates — Academic question — Moot case — Precedent.</p> <p>1. An appeal from an order quashing a writ of mandamus to show cause why a certificate of nomination should not be filed, raises merely an academic question after the election has passed, and would not ordinarily be entertained. If the appellate court considers such an appeal on its merits, owing to the importance to the public of the question involved, such action of the court must not be regarded as a precedent for the determination of such questions in the future.</p> <p>Election law — Nominations—Certificates—Political party — Executive committee — Filling vacancies — Board of citizens — Acts of June 10, 1898, P. L. and June 12,1918, P. L. 719.</p> <p>2. Under the Act of June 12, 1913, P. L. 719, section 2, to qualify as a political party and make nominations as such, the body of the electors, of which the party is composed, must be such that one of its candidates at either the general or municipal election preceding the primary polled at least five per cent of the largest entire vote cast for any elected candidate.</p> <p>3. If a number of persons assemble and organize a political party not meeting the requirements of the act, and appoint an executive committee to make nominations in case of vacancies, and such committee is designated as the executive committee of a political body, the authority given the committee, after the discovery of its lack of power under the Act of 1913, cannot be construed to give its members power to act as a committee of citizens in accordance with the Act of June 10, 1893, P. L. 424, which authorizes a body of citizens which has made original nominations to appoint a committee to fill vacancies and “file the requisite nomination certificate” therefor.</p> <p>4. In such a case the law makes a distinction between combinations existing as political parties, and those not parties, by providing a distinctive procedure for each to follow to secure a place for candidates on the official ballot; and, in determining whether such procedure has been adopted in a given case, the law applicable to the particular character of the combination, must be the guiding principle.</p>

<p>Res adjudicada — Public policy — Case stated — Relevant facts and issues — Judicially ascertained — Maxims—Interest reipublicm ut sit finis litium — Law and equity.</p> <p>1. A formal judicial determination of a governing point at issue in a case-stated is conclusive between the parties.</p> <p>2. A ease-stated, being in the nature of a special verdict, is a judicial ascertainment of facts, which, after affirmance of a judgment thereon, is conclusive between the parties to the suit, on the doctrine of “interest reipublicse ut sit finis litium.” This is equally true of all relevant facts and issues directly connected with the subject-matter of a litigation which might properly have been offered in the prior suit; but only such facts and issues, embraced in the case-stated, as have been acted upon, in the sense that they may be said to be “judicially ascertained” or determined, can be held res adjudicata in a subsequent litigation between the same parties, over the same subject-matter.</p> <p>3. The purpose underlying res adjudicata is more than to serve simply the interest of one who may see fit to invoke the rule; it is a measure of public policy based on the principle that the general welfare requires litigation not to be interminable.</p> <p>4. The courts, for the economy of time belonging to all litigants, will not consider a point which has already been adjudicated between the same parties; and the circumstance that the first suit was at law and the next in equity is not material in the application of this rule.</p> <p>Bes adjudicata — Appeals—Bight of appellee to raise question of res adjudicata on appeal — Failure to except no bar — Stare decisis— Property right — Prior decision of subordinate appellate court.</p> <p>5. If the facts found by a chancellor show that a controlling point in the case had been judicially determined in previous litigation under such circumstances as to make that particular point or issue res adjudicata, where the court below, although refusing a plea to this effect, nevertheless decides the point involved, on the merits, and enters final judgment thereon in favor of the party who contended for the circumstances of the former adjudication, there is no rule or principle which debars the appellee, on an appeal by his antagonist, from successfully suggesting to the appellate court that, in addition to the reasons given by the court below for its final judgment, such judgment is also sustainable on the ground of res adjudicata.</p> <p>6. In such case it is immaterial that' the appellee did not in the court below except to the chancellor’s refusal of its res adjudicata contention. Equity Eule 67, in terms, simply requires an exception taken to all matters which an appellant desires to assign as error; it goes no further.</p> <p>7. The doctrine of res adjudicata has been enforced, to affirm or reverse a judgment in part when offered for the first time in the appellate court.</p> <p>8. Although it is a general rule of practice that a point not presented to the court below cannot be urged, on appeal, to obtain a reversal, still it is equally well established that a correct decision will be sustained for any reason which supports it, particularly where the ground was formally presented to the trial court, even though not acted on there.</p> <p>9. While decisions of subordinate appellate courts are not stare decisis in a higher court, yet, when all other circumstances essential to the application of the doctrine of res adjudicata exist, such decisions will be treated, in a subsequent suit between the same parties, as conclusive. Any other doctrine would be intolerable in cases involving title to property, where, after the first judicial determination, large expenditures might be incurred for improvements, all of which could be swept away by an adverse decision, on the same point, in subsequent litigation, over the same subject-matter, between the same parties.</p> <p>10. When a court of ultimate jurisdiction feels compelled to depart from a prior adjudication of another court of appeal, it of course has the power to do so, just as it may overrule one of its own judgments, but that right will be exercised only where the prior decision presents palpable error committed on a controlling point at issue.</p> <p>11. Where, in a suit in equity for an injunction to restrain the unlawful appropriation of water from a reservoir, it appears that in a previous suit at law between the same parties, the Superior Court, on an appeal from a judgment at law on a case-stated, sustained the contention of plaintiff, the Supreme Court on an appeal from a decree for plaintiff in the equity suit, will not consider matters of law and fact relating to the title to the water in controversy, where such matters might have been, but were not, incorporated in the ease-stated in the former suit, and the court below, in the equity suit, found they were immaterial and of no moment.</p> <p>Equity — Damages—Water—Property in — Use of water — Complete relief.</p> <p>12. Where a bill in equity charges that defendant, a water company, had unlawfully opened a dam and allowed the water to escape from a certain reservoir owned and used by plaintiff, and prays for an injunction and damages, the chancellor in granting an injunction may also award damages under the well established doctrine that, when equity takes cognizance of a case, it will give complete relief.</p> <p>13. In such a case, the award of damages made by the chancellor will be sustained, where the evidence showed that during the months in which the defendant company illegally appropriated plaintiff’s supply, it sent bills to the plaintiff, charging it for water approximately at the rate adopted by the chancellor; that defendant opened the dam and drained off four-fifths of the reservoir’s contents; that its capacity was fixed by survey and four-fifths thereof amounted to the given number of gallons with which the chancellor charged defendant. The water actually stored in the reservoir was the private property of plaintiff, and as such, had a monetary value.</p>

<p>Appeal, No. 2, Oct. T., 1920, by defendant, from judgment of O. P. Westmoreland Co., Feb. T., 1918, No. 468, on verdict for plaintiff, in case of Mary Lynn v. Pittsburgh & Lake Erie Railroad Co.</p> <p>Trespass for death of plaintiff’s husband. Before McConnell, P. J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Verdict and judgment for plaintiff for $5,000. Defendant appealed.</p> <p>Error assigned was, among others, refusal of defendants’ motion for judgment n. o. v.</p>

<p>Negligence — Master and servant — Foreman—Master's liability for acts of foreman — Act of June 10, 1907, P. L. 528 — Province of court and fury — Refusal of motion n. o. v. — Appeals.</p> <p>1. In considering an appeal from the refusal of a motion for judgment non obstante veredicto all facts and inferences from facts must be drawn in favor of the party having the verdict.</p> <p>2. Under the Act of June 10, 1907, P. L. 523,. an employer is liable for the acts of his foreman in charge of a branch of the employer’s business, although the foreman had no power to hire or discharge men.</p> <p>3. Where the cause alleged and proved is a reasonable and probable cause, it is for the jury to say whether or not it was the actual cause of an accident.</p>

<p>Corporations— Officers — Treasurer — Bonds —Principal and, surety — Discharge of sureties — Voluntary associations — Effect of incorporation.</p> <p>1. A bond for the faithful performance of a treasurer’s duty during his present and any subsequent terms to which he may be elected is valid as long as he holds the office.</p> <p>2. If the bond was given to an incorporated beneficial society, by the treasurer of an unincorporated branch or camp of the association, the subsequent incorporation of the camp will not relieve the sureties on the bond, where it appears that the incorporated camp was identical in name with the unincorporated body; that it was in fact the same body, with the same officers; that there was no change in the duties of the treasurer, who continued to hold the valuable papers of the association, including the bond; that the bond embraced all subsequent terms of the treasurer; and was conditioned for the faithful performance of all “the duties now required, or which may hereafter be required of him as treasurer aforesaid.” The subsequent incorporation was not material to the risk, and, being immaterial, would not release the sureties.</p> <p>3. In such case, the delivery of the bond to, and its acceptance by, the local camp was sufficient; and averments that the conditions of the bond had been complied with, and that there was no money due thereon, are sufficiently met by an admitted default and bankruptcy of the treasurer.</p> <p>4. It requires a material change in the duties and responsibilities of an officer or employee to discharge the sureties on his bond.</p> <p>5. A contract of suretyship, though only enforced according to its strict terms, is nevertheless nothing more than a contract, and must be construed according to the intention of the parties.</p> <p>Judgment — Proceedings to open judgment — Pleadings—Principal and surety — Equity—Technical defense — Release of sureties— Subsequent incorporation of voluntary association — Treasurer’s bond — Court sitting as chancellor.</p> <p>6. An application to open a judgment is equitable in substance, and must show a meritorious defense. The court, sitting as a chancellor, will not grant such an application on mere technical grounds, nor to enable the defendant to interpose a technical defense. It is not a question of what might have been interposed before judgment, but what is sufficient to move the conscience of the chancellor after judgment.</p> <p>7. In proceedings to open a judgment, the petition and answer comprise the pleadings, and the court grants relief only upon the ground embraced therein.</p> <p>8. Where a rule is taken by sureties to open a judgment entered on a treasurer’s bond of an unincorporated association, incorporated after the bond was given, a suggestion that the incorporation of the association released the sureties will not be considered, if not embraced in the pleading; especially where such defense is merely technical and not entitled to equitable relief.</p> <p>9. lie who seeks relief from a regular judgment, must allege and prove that it is unjust.</p>

<p>Appeal, No. 142, Jan. T., 1920, by defendant, from judgment of C. P. Franklin Co., Oct. T., 1919, No. 39, for plaintiff, on case-stated, in case of Annie E. Hege v. Samuel J. Ickes.</p> <p>Case-stated to determine marketability of title to realty. Before Gillan, P. J.</p> <p>The court entered judgment for plaintiff on the case-stated. Defendant appealed.</p> <p>Error assigned was entry of judgment for plaintiff.</p>

<p>Equity — Jurisdiction—Pending appeal — Preliminary injunction ■ — Act of May 19,1897, P. L. 68 — Delay in tahing appeal — Appeal— Review.</p> <p>1. A court of equity has no jurisdiction to enjoin a party from proceeding in a matter pending on appeal in another court, where the appeal was not taken from its own order or decree. This is regulated by the Act of May 19,1897, P. L. 67.</p> <p>2. An appeal from an order granting or refusing a preliminary injunction must be promptly taken. If it is delayed until after a decision of the case might have been had on the merits, the order will be affirmed for that reason.</p>

<p>Appeal, No. 154, Jan. T., 1920, by defendant, from judgment of C. P. Clinton Co., July T., 1918, No. 66, for plaintiff on case tried by the court without a jury in suit of New York & Pennsylvania Co. v. New York Central Railroad Co.</p> <p>Assumpsit to recover amount awarded under an order of reparation of the Public Service Commission.</p> <p>The case was tried by McCormick, P. J., without a jury under an agreement of counsel.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court entered judgment for plaintiff for $9,997.57. Defendant appealed.</p> <p>Errors assigned were various findings and rulings of the trial judge.</p>

<p>Negligence — Street railways — Grade crossing — Pedestrian—Looh and listen — Stepping in front of moving car — Contributory negligence per se — Presumption—Anticipating negligence of others.</p> <p>1. It is the fixed duty of a pedestrian to look; and, if necessary because of obstruction to vision, to listen, before stepping upon the track of a street railway; not to do so is negligence per se and bars recovery. The proper place to look is when close to the track or at the edge of the track.</p> <p>2. One who knows that a street railway car is approaching and stops in its path without observation as to its speed or position, is guilty of negligence; and the rule that a pedestrian is not bound to anticipate negligence on behalf of the railway company, cannot excuse his own failure to perform an inflexible duty. Where there is no evidence upon the subject, the presumption is that the traveler at the crossing performed his duty.</p> <p>3. In an action against a street railway company to recover damages for personal injuries, plaintiff cannot recover where the evidence shows that at the time of the accident she walked south, on the east sidewalk of a north and south street, until she reached the north curb of an east and west avenue on which defendant operated a double track street railway; she looked west and Saw a car approaching on the eastbound (south) track, about 150 feet from the crossing; at the same time, seeing people standing on the south side of the avenue in line with the west sidewalk of the street, and where eastbound cars were accustomed to receive passengers, she started to run across the avenue in line with the east walli; on the north and south street, and continued her course without pausing or again looking, until she had nearly crossed both tracks, when she was struck by the car which she had seen approaching, which had not stopped at the intersection, nor given warning of its approach until just before the accident; the car was moving at ordinary speed, which was not reduced at the intersection as required by city ordinance, but stopped in less than a ear length after the accident; plaintiff ran nearly fifty feet and on to the tracks without looking or taking any precaution to ascertain the position of the approaching car, and testified she did not look after leaving the north curb of the avenue; she was a young woman in the full possession of her faculties; it was daylight; and there was nothing to divert her attention.</p>

<p>Negligence — Railroads—•Federal Employers’ Liability Act-Contributory negligence — Rish of employment — Fellow Servant-Shifting cars in yard — Failure to heed signals.</p> <p>1. Under the Federal Employers’ Liability Act one injured in interstate commerce is not deprived of all recovery because of Ms contributory negligence.</p> <p>2. But thereunder he still assumes all the ordinary risks of his employment, unless arising from a breach of some statutory duty.</p> <p>3. An accident occurring in shifting cars in the yards of a railroad company, caused by the failure of a coemployee to heed signals, is a risk of the employment.</p> <p>Appeals — Motion for judgment n. o. v. — Inferences from facts.</p> <p>4. In considering an appeal from the refusal of a motion for a judgment non obstante veredicto, all facts and inferences from facts must be drawn in favor of the party having the verdict,</p> <p>Mr. Justice Kephart dissented.</p>

<p>Appeal, No. 244, Jan. T., 1920, by defendants, from judgment of C. P. No. 3, Phila. Co., Sept. T., 1918, No. 250, on verdict for plaintiff, in case of Thomas Holmes v. Alpin J. Cameron and William P. Denegre, trading as A. J. Cameron & Co.</p> <p>Assumpsit for breach of contract to deliver 108 bags of noils. Before McMichael, P. J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Verdict and judgment for plaintiff for $1,698.92. Defendants appealed.</p> <p>Errors assigned were (1) refusal of instructions for defendant, (2, 3) refusing points, and (4) in overruling defendant’s motion for judgment n. o. v.</p>

<p>Appeal, No. 246, Jan. T., 1920, by plaintiffs, from order of C. P. No. 1, Phila. Co., Sept. T., 1918, No. 16, quashing writ of foreign attachment, and discharging rule for judgment for want of an affidavit of defense, in case of Max Pottash and Harry Pottash, trading as Pottash Brothers, v. Hartenfeld Bag Co.</p> <p>Rule to quash writ of foreign attachment.</p> <p>Rule for judgment for want of an affidavit of defense. Before Shoemaker, J.</p> <p>The court made absolute the rule to quash the attachment, and discharged the rule for judgment.</p> <p>Errors assigned were (1) in making absolute the rule to quash, and (2) discharging the rule for judgment.</p>

<p>Appeal, No. 262, Jan. T., 1920, by defendant, from judgment of C. P. No. 2, Phila. Co., June T., 1917, No. 1941, on verdict for plaintiff, in case of Helen Fisher v. Philadelphia Rapid Transit Co.</p> <p>Trespass for death of plaintiff’s husband. Before Barratt, P. J.</p> <p>Verdict and judgment for plaintiff for $8,500. Defendant appealed.</p> <p>Error assigned, among others, was (4) ruling on evidence, set forth in the opinion of the Supreme Court.</p>

<p>Brokers — Beal estate brokers — Commissions—Failure to consummate sale — Agreement by attorney to pay commissions — Statute of frauds — Act of April 26, 1865, P. L. 808.</p> <p>1. In the ordinary ease of a real estate broker procuring a customer with whom the owner of the real estate is willing to contract, the commission is earned without reference to the outcome of the sale.</p> <p>2. One haying charge of real estate as attorney, may, by special parol agreement, obligate himself personally to pay a broker’s commission for its sale, provided such agreement is original and not collateral to a primary obligation by or on behalf of the owner. Such an agreement is not within the statute of frauds.</p> <p>3. In an action against an attorney-at-law to recover commissions on sale of real estate, the case is for the jury, and judgment on verdict for plaintiff will be Sustained, where the evidence for the plaintiff, although contradicted by defendant, was in effect that defendant individually contracted with them, and as such promised to pay the commission without disclosing an agency; that the first intimation they had that he was acting for another was when he signed his principal’s name to the agreement of sale; and that he then said: “Well, we made this sale for the purpose of making title, you can look to me for the commission.”</p> <p>Practice, C. P. — Trial—Mistake of statements of fact in charge —Duty of counsel to call attention to misstatements by trial judge —Waiver—Statute of frauds — Necessity to plead — Act of May 14, 1915, P. L. 488.</p> <p>4. Where the trial judge makes mistakes in his charge as to matters which are essentially matters of fact, and the judge’s attention is not called to them until after verdict, they afford no ground for reversal.</p> <p>5. A party may not sit silent and take his chances of a verdict, and then, if it be adverse, complain of a matter which, if an error, would have been immediately rectified and made harmless.</p> <p>6. Not decided whether the statute of frauds can be interposed as a defense without being specially pleaded under the Practice Act of May 14, 1915, P. L. 483.</p>

Appeal, No. 165, Jan. T., 1920, by defendant, from judgment of C. P. No. 4, Phila. Co., March T., 1917, No. 1801, for plaintiff on case stated in suit of Smith Company, Limited, v. Antonio Marano. Case stated to determine liability for fish sold by plaintiff to defendant. The facts are stated in the opinion of the Supreme Court. The court below in an opinion by Finletter, J., 28 Pa. Dist.

Appeal, No. 211, Jau. T., 1920, by Thomas O’Bushko, Executor of Barbara Shes-tack, alias Stosh, from decree of O. C. Lackawanna Co., No. 212, year 1918, awarding to Thomas Stosh, surviving husband, allowance of $5,000, in estate of Barbara Shestack, alias Stosh. Petition for allowance to husband of $5,000 under intestate law. Before Sando, P. J. The court made the allowance. Thomas O’Bushko, executor, appealed. Error assigned was decree of court making allowance.

<p>Negligence — Automobiles — Infant — • Running down child on street — Duty of driver — Speed—Evidence.</p> <p>1. In an action against the owner of an automobile to recover damages for injuries to a little girl, nine years old, the case is for the jury, and a judgment on verdict for plaintiff will be sustained where the evidence for plaintiff, although in material essentials contradicted by that of defendant, tends to show that the child, about two o’clock p. m., was walking along the north side of an east and west street approaching a north and south street, the latter twenty-six feet wide, from curb to curb, with a trolley track in the centre; when she reached the northeast comer of these streets, she looked north and south before starting over; she saw a northbound trolley car, at the next street to the south, and waited on the sidewalk until it passed; that she then started over the street, walking, and not running, on a flagstone crossing, and when within two feet of the west curb, and about to step upon it, was struck by defendant’s car; she was found under one of its rear wheels; the chauffeur gave no signal of the approach of the car; from the west rail of the track to the west curb of the street there was a space of more than nine feet; and the chauffeur stated that he did not see the child until the' automobile struck her.</p> <p>2. That the child was found under the rear wheels of the car was some evidence that the ear was not running at a moderate speed.</p> <p>3. In such a case, even if the child did pass over the trolley track after the street car had passed the intersecting street, the chauffeur must have seen her, if, as was his duty, he had been looking, as he approached the crossing, to see whether pedestrians were upon it; for his car did not strike the child until she had walked over the entire space between the trolley track and the curb.</p> <p>Negligence — Verdict—Excessive verdict — Abuse of discretion— Appeal.</p> <p>4. The refusal of the court below to reduce or set aside verdicts as excessive, cannot be regarded as an abuse of discretion reviewable by an appellate court, unless the amounts awarded to plaintiffs are so grossly excessive as to shock the court’s sense of justice, and the impropriety of allowing them to stand is most manifest.</p> <p>5. Verdicts of $10,000 for a little girl, nine years old, for personal injuries and $3,500 for her father, will not be set aside as excessive and unjust, where it appears that the child, before she was injured, was in perfect health; that according to the testimony of medical experts the bony structures of her pelvic cavity were crushed in the accident; that the cavity was distorted and permanently deformed; that her injuries would result in the lack of development of her sexual organs; that the condition of her pelvis was incurable; and that she would have a permanent limp in her walk.</p> <p>Negligence — Evidence—Striking out evidence — Gautioning fwry —■.Failure to request — Assignments of error.</p> <p>6. The appellate court will not review the action of the trial judge in not cautioning the jury against the effect of evidence which was stricken out, where no request was made for such cau- . tion.</p>

Appeal, No. 11, Jan. T., 1920, by defendant, from order of C. P. Schuylkill Co., Jan. T., 1919, No. 184, reversing decision of the Compensation Board, which reversed an award of the referee in favor of the claimant, in the case of Amy Smith v. Phila. & Reading Railway Co. Appeal from decision of the compensation board reversing award of the referee in favor of claimant.

<p>Wills — Revocation—Nuncupative will — Act of April 8, 1888, P, L. 2b9.</p> <p>1. Declarations by a party on his deathbed as to disposition of his property, with directions to secure a scrivener, cannot operate as a nuncupative will; the desire indicated was rather the disposition of his property by a written instrument.</p> <p>2. A will drawn by testator’s attorney and duly executed in the presence of two witnesses, will not be revoked by the expressed desire of the testator, where it appears that the testator stated his desire to change his will so as to give his estate to his two children by his divorced wife; that he directed that some one be sent for to draw a new will; that he persisted for twenty-four hours thereafter in such desire until he became unconscious and shortly afterwards died; that diligent efforts were made by his divorced wife to secure a scrivener; that testator asked her and a friend of such wife to be “dependable witnesses”; and that five days elapsed, after testator’s death, before an alleged nuncupative will, of which the divorced wife was one of the witnesses, was reduced to writing.</p> <p>3. Such a writing, even if it were a nuncupative will, could not be held to revoke the previous will, in view of the Act of April 8, 1833, P. L. 249, which expressly provides that a prior will can be revoked by a nuncupative will only when the latter is “committed to writing in the lifetime of the testator, and after the writing thereof [is] read to or by him, and allowed by him, and proved to be so done by two or more witnesses.”</p>

Appeal, No. 63, Oct. T., 1919, by defendant, from judgment of County Court of Allegheny Co., No. 1005, 1918, awarding order of support in case of Commonwealth ex reí. Milly I. Speer v. William A. Speer. Petition for order of support. Before Kennedy, P. J. The facts are stated in the opinion of the Supreme Court. The court below made an order of support. Defendant appealed. Errors assigned were (1) overruling plea of res adjudicata, (2) judgment awarding order of support.

Appeal, No. 38, Jan. T., 1920, from judgment of Superior Ct., March T., 1919, No. 24, reversing judgment of C. P. Lackawanna Co., June T., 1918, No. 181, affirming judgment of alderman, in case of S. M. Holly, otherwise known as Lottie Holly v. Wallie Travis. Appeal from judgment of Superior Court. See Holly v. Travis, 71 Pa. Superior Ct. 527. The Superior Court reversed the judgment of the court of common pleas.

Appeal, No. 90, Jan. T., 1920, by plaintiff, from decree of C. P. Lackawanna Co., Oct. T., 1918, No. 18, dismissing bill in eguity, in case of Thomas H. Hull et al. v. Lackawanna Coal Co., Ltd. Bill in equity to enjoin working vein of coal. Before Newcomb, J. From the record it appeared that both parties claimed title from Maria B. Hull and others, from whom defendant took a deed dated June 8, 1894.

Appeal, No. 196, Jan. T., 1920, by plaintiff, from order of C. P. Lackawanna Co., Oct. T., 1919, No. 937, making absolute rule to open judgment in case of United Security Life Insurance Co. v. Perugini Union Mut. Belief Association. Buie to open judgment. Before Edwards, P. J. From the record it appears that the judgment was entered upon a bond accompanying a mortgage.

<p>Appeal, No. 226, Jan. T., 1920, by plaintiff, from judgment of C. P. Lackawanna Co., Oct. T., 1918, No. 301, on demurrer by defendant, in case of Carbondale City School District v. Andrew Hourigan, Receiver and Trustee of the Wyoming Engineering Construction Co. of Wilkes-Barre.</p> <p>Assumpsit for breach of contract.</p> <p>The defendant filed an affidavit of defense in the nature of a demurrer.</p> <p>Newcomb, J., filed the following opinion:</p> <p>Whether the cause of action here stated is a subject of litigation in this court is a disputed question about which no opinion need be now expressed.</p> <p>It appears by the pleadings that suit is founded upon an alleged breach by the construction company of its contract with plaintiff; that the company was after-wards adjudged a bankrupt; and thereupon Mr. Hourigan, this defendant, became the receiver of its assets and eventually the trustee of the bankrupt’s estate.</p> <p>If he is officially responsible, therefor, the responsibility must be enforced in the court having jurisdiction of his official account.</p> <p>Again, in his capacity of receiver he can only be sued by leave of the court which he serves as agent. In that behalf his status and functions vary materially from those attaching to his office of trustee. Hence the attempt to charge him in both capacities is anomalous, to say the least.</p> <p>Plaintiff has manifestly mistaken its remedy.</p> <p>The demurrer is accordingly sustained and judgment on tlie pleadings is entered for defendant.</p> <p>Plaintiff appealed.</p> <p>Error assigned was the judgment of the court.</p> <p>At the argument on appeal, the appellant prayed the court to permit the record to be amended by dropping the word “receiver” after the name of Andrew Hourigan so that the suit would stand against him as trustee only.</p>

<p>Appeals — Excessive verdict — New trial — Discretion of court.</p> <p>Where a verdict for plaintiff for $9,472.05 in an action for deceit, is set aside as being against the weight of the evidence, and subsequently a verdict for plaintiff on a second trial for $24,504.65 is set aside and a new trial granted, the action of the trial court in setting aside the second verdict and granting a new trial, will not be reversed, where the appellate court, from an examination of the record is convinced that there was no abuse of discretion on the part of the lower court in making such order.</p>

Appeal, No. 71, Oct. T., 1919, by plaintiffs, from judgment of C. P. Allegheny Co., Jan. T., 1914, No. 1558, on verdict for defendant, in case of Almeda O. Kunkel and Fidelity Trust Company v. William B. Kunkel. Assumpsit to recover the sum of $5,000, alleged to have befen paid under a mistake of fact. Before Carpenter, J. At the trial the court gave binding instructions for defendant. Yerdict and judgment for defendant. Plaintiff appealed.

<p>Appeal, No. 257, Jan. T., 1920, by defendant, from judgment of C. P. Berks Co., Sept. T., 1919, No. 34, for plaintiff, on case-stated, in suit of William B. Bechtel, Executor of Jacob A. Phillippi, alias Jacob A. R. Phillippi, v. Horace P. Fetter.</p> <p>Case-stated to determine marketability of title to real estate. Before Wagner, J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>The court below entered judgment for plaintiff on the case-stated. Defendant appealed.</p> <p>Error assigned was entry of judgment for plaintiff.</p>

<p>Appeal, No. 76, Jan. T., 1920, by plaintiff, from order of C. P. No. 2, Phila. Co., Dec. T., 1917, No. 2857, making absolute rule to set aside service of writ in case of Prank P. Miller Paper Co. v. Keystone Coal & Coke Co.</p> <p>Assumpsit for breach of contract to deliver coal.</p> <p>Rule to set aside service of writ.</p> <p>The court, in an opinion by Rogers, J., 28 Pa. Dist. R. 775; 18 Pa. C. C. R. 72, made the rule absolute.</p> <p>Error assigned was order making the rule absolute.</p>

Appeals, Nos. 189 and 190, Jan. T., 1920, by plaintiffs, from order of C. P. No. 2, Phila. Co., Dec. T., 1916, No. 2650, refusing to take off nonsuit in case of George Brown and Lottie Brotvn, his wife, v. City of Philadelphia. Trespass to recover damages for personal injuries. Before Wbssel, J. The facts are stated in the opinion of the Supreme Court. The trial judge entered a compulsory nonsuit which the court subsequently refused to take off. Plaintiffs appealed.

<p>Promissory notes — Considerations — Valuable and moral — Insolvency — Creditors—Fraud—Past illicit intercourse — Adultery—* "Just before generous</p> <p>1. The transfer by an insolvent of an appreciable portion of his estate in consideration of past sexual intercourse, is merely voluntary, and is subject to be set aside, as fraud upon his creditors.</p> <p>2. Where a married man solicits an adult married woman to have illicit intercourse with him, and she deliberately consents, and subsequently he gives promissory notes to her, stating that he recognized the wrong she had suffered, and wanted to make amends, such notes are not based on a sufficient consideration, as against creditors, if it appears that they represented about one-fourth of the maker’s entire estate, and were given at a time when the latter was hopelessly insolvent, in which condition he continued until his death.</p> <p>3. The law says that a debtor must be just before he is generous, and good conscience, as well as natural justice, dictates that he must care for his creditors before he can indulge in liberality, even toward others to whom he may properly feel a sense of duty.</p> <p>4. Contracts between men and women to compensate the latter for actual or supposed damage from past illicit cohabitation, have been upheld frequently; but such a contract has never been sustained where there is deliberate and unextenuated adultery on the part of the woman, and actions prejudicial to creditors on the part of the man.</p> <p>5. Valuable and moral considerations discussed and illustrated.</p>

<p>Appeals, Nos. 16 and 17, Oct. T., 1920, by Anson W. Burchard, Executor, from decrees of O. O. Allegheny Co., March T., 1919, Nos. 173 and 256, allowing claims of the Commonwealth of Pennsylvania for direct inheritance tax in estates of Theodore R. Hostetter, Jr., a minor, and Rosetta R. Hostetler, deceased.</p> <p>Exceptions to adjudication.</p> <p>The court dismissed the exceptions and awarded to the Commonwealth the amount of the claim for the direct inheritance tax. Anson W. Burchard, executor of Theodore R. Host’etter, Jr., under a will valid by the laws of New York, appealed.</p> <p>Errors assigned were the decrees of the court.</p>

<p>Negligence — Street railways — Automobiles—Gollision— Gratuitous guest in automobile — Known danger — Testing danger — -Contributory negligence — Gross-examination—Confession of fault.</p> <p>1. "Where dangers, which are either reasonably manifest or known to an invited guest, confront the driver of a vehicle, and the guest has an adequate and proper opportunity to control or influence the situation for safety, if he sits by without warning or protest and permits himself to be driven carelessly to his injury, this is negligence which will bar recovery.</p> <p>2. Although a guest is not required to exercise the same degree of care and watchfulness as the driver, and the carelessness of the latter is not imputed to the former, yet a passenger must bear the consequences of his own negligence, when he joins in testing a danger; but the extent to which one, in the position of a guest, should appreciate an impending peril, and act in relation thereto, depends upon the facts peculiar to each case; unless these are manifest and the inferences to be drawn therefrom clear beyond peradventure, the issues involved must be submitted to the jury for determination. Moreover, the authorities recognize the fact that, in measuring the adequacy of the opportunity for control, there are occasions when any pronounced effort in that direction might do more harm than good.</p> <p>3. In an action by an invited guest in an automobile against a street railway company to recover damages for personal injuries Sustained in a collision at a crossing, the case is for the jury where the evidence tends to show plaintiff was seated at the right of the driver on tbe front seat of tbe automobile at tbe time of tbe accident; both plaintiff and the driver were well acquainted with the general character of the crossing, the location of the track and the trolley time schedule, and knew the near side of the street was the designated and usual stopping place; the automobile was proceeding south on a north and south street which crosses at right angles an east and west street on which was a single track railway used for operating cars in both directions; the latter street was 69 feet between house lines, and the first rail of the tracks was 27 feet 4 inches from the north house line; the automobile was proceeding at a speed of from 10 to 12 miles an hour on the right of the middle of the street, six feet from the west curb line; the speed was not appreciably checked as the crossing was approached, and, due to the buildings on both highways, no extended view could be had along the east and west street, in either direction, before the house line was reached; the driver gave frequent warnings by Sounding a “good loud” electric horn and, at the first available place, looked east and then west; 37 feet north of the house line on the east and west street, at a point six feet from the west curb of the other street it was possible to see 88 feet to the west, owing to the first story of the corner building being cut at an angle, and, at the house line, a view of two or three blocks could be had in that direction; the trolley car approached from the west at a rate of 25 miles an hour giving no warning; the driver of the automobile either could not or did not control his machine so as to bring it to a stop before reaching the track; in an effort to prevent a collision, the driver swung sharply to the left, and the motorman applied the airbrake but the two vehicles crashed together, the “left front point” of the car striking the automobile a glancing blow; as the automobile drew near the crossing, plaintiff looked west, saw the car, at the first possible moment, — when seated in the automobile she was about 30 feet, and the car at least seventy feet, from the place of collision; she at once exclaimed “Oh, the car,” and that was all she did to avoid the accident.</p> <p>4. In such case, plaintiff testified on cross-examination that she knew a trolley car was “about due at the time”; defendant’s attorney then said, “But you were willing to take a chance with him in going across without stopping or slowing up to see if there was a ear coming,” adding the query, “Weren’t you?” to which she answered, ‘Wes, sir.” Held, that, under the circumstances of this case, the court could not say as a matter of law that plaintiff’s testimony amounted to a confession that she willingly joined the driver in testing a known danger; that was for the jury to decide. 5. Plaintiff was not obliged to anticipate that she was taking a chance on a trolley car advancing at the negligent rate of 25 miles an hour, particularly when the near side of the street was the designated and usual stopping place.</p> <p>Hardie v. Barrett, 257 Pa. 42, explained.</p>

<p>Bes adjudicata — Decision of court of subordinate jurisdiction— Stare decisis — Suit to secure advisory judgment.</p> <p>1. Where a decision of the Superior Court has already been obtained upon a definite point, involving the construction of a will, and no manifest error appears therein, the Supreme Court does not feel called upon to, and will not, discuss at length a second amicable action, although between other parties, amicably brought to get the Supreme Court’s opinion on the same matter, particularly where the appeal raises no new question nor any issue which is of importance to others than the parties immediately concerned.</p> <p>Will — Devise—Estate in fee simple — Estate tail — Act of April 27,1855, P. L. 868 — Devise not subject to debts of devisee — Spendthrift trust — Provision repugnant to fee — Buie in Shelley’s Case.</p> <p>2. Testator devised to his son his real estate “to have and to hold the same......for and during the period of his natural life, the said life estate not to be subject to any debts, engagements or liabilities which he may contract in future or may have contracted in the past. Upon the decease of my said son the principal...... gshall vest absolutely in the heirs of the body of my said son share and share alike for ever. And in case of the death of any one or more of said heirs of the body of my son, prior to said son’s death, such one share or shares shall vest in their respective issue or heirs of their respective bodies.” Held, (a) that the son took an estate tail, which, under the Act of April 27, 1855, P. L. 368, was converted into an estate in fee simple; (b) that the provision directing that the estate should not be subject to the son’s debts, was repugnant to the fee, and had no controlling importance.</p> <p>3. Where superadded words of limitation combined with those of distributive modification engrafted upon terms of inheritance, indicate no intent to change the course of descent from the general scheme fixed by the inheritance laws, such words indicate an intent to create an estate tail, which under the Pennsylvania act becomes a fee simple.</p> <p>4. A devise of an absolute estate for life in real estate coupled with a provision that the estate shall not he subject to the devisee’s debts, does not create a valid spendthrift trust, where no trustee is named to hold the life estate, and where the executor is not vested with any trust functions. Such a provision is repugnant to the fee.</p>

<p>Appeal, No. 213, Jan. T., 1920, by defendant, from judgment of O. P. No. 1, Phila. Co., Dec. T., 1916, No. 4918, on verdict for plaintiff in case of W. Austin Thompson v. John W. DeLong, deceased, J. Wayne DeLong, substituted as administrator c. t. a.</p> <p>Trespass to recover damages resulting from the negligent demolition of a wall. Before Patterson, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict and judgment for plaintiff for $5,000. Defendant appealed. '</p> <p>Errors assigned were (1) refusal of defendant’s motion for judgment n. o. v. (9) instructions quoted in the opinion of the Supreme Court; (11) admission of evidence concerning certain photographs in evidence.</p>

<p>Road law — Report of jury of view — Damages—Delay in payment —Interest on award — Execution—Mandamus—Amendment—Expiration of term of entry — Final judgment — Time for appeal.</p> <p>1. When a judgment has been obtained against a municipality, the city cannot, in subsequent proceedings to collect the adjudicated debt, enter defenses on the merits.</p> <p>2. Mandamus for the payment of an award is a writ of execution; and a determinative order relating to execution is in character a judgment, which, when of a final nature, is appealable.</p> <p>3. When an outstanding writ of execution is altered or interfered with in any final manner by the court from which it issued, if the immediate proceedings, leading to such action, is had on rule, or in other formal manner, with notice and opportunity to be heard given to the opposite party, the determination reached falls within the definition of a final judgment, and the party aggrieved need not move to set aside the order in question, but may appeal directly therefrom.</p> <p>4. Where execution is issued, or subsequently altered, without a rule or other formal proceeding affording defendant an opportunity to be heard, proper practice requires that he promptly move the court below to set aside the execution or revoke the order comr plained of, before an appeal lies — this, in justice to the court of original jurisdiction and for the benefit of the appellate tribunal.. Even in such case, however, if enough appears upon the record to decide the dispute involved, it is not always essential to move the court below in the premises before taking an appeal.</p> <p>A jury of view appointed in 1916 to assess damages for property taken in 1909, awarded the claimant, in 1918, a sum stated, “with compensation for delay in payment of the same at the rate of 6 per cent per annum from December 9, 1909.” This was confirmed on September 13, 1918. Subsequently, on March 31, 1919, a mandamus was issued, which, instead of combining the principal amount with ascertained interest to date of confirmation, and commanding payment thereof, plus interest on the aggregate from that date to the day of payment, simply called for the principal sum of the award “with interest from December 9, 1909.” The mandamus was presented to the city treasurer and marked “Presented for payment” on April 3, 1919. On May 20, 1919, claimant entered with proper notice a rule to amend the writ, so as to provide for the principal amount “with interest thereon at the rate of 6 per cent per annum from December 9, 1909, to September 13, 1918, and interest on the aggregate total from September 13, 1918, to date of payment, together with costs.” This rule was made absolute July 7, 1919, and the mandamus amended accordingly. On July 15, 1919, the city entered a rule to strike from the writ the amendatory words, alleging they changed the award. At the same time it moved for a rule to vacate the confirmation of the report, set aside the mandamus and allow an appeal nunc pro tunc, alleging as ground therefor that no deduction for rent had been allowed by the jury of view, as should have been done under a ruling by the Supreme Court made since the confirmation of the award. On January 22, 1920, the court entered orders discharging both of the city’s rules. Thereupon the city took three appeals, alleging error in amending the mandamus, and in discharging the two rules.</p> <p>Held: (a) That, while it would have been better for the jury to have added the principal amount of the award and compensation for delay in one sum, thus stating its award as a total, the method pursued in the amendment did not change the real character of the award.</p> <p>(b) That the confirmation of the report invested the award with the character of a final judgment; and where no fraud or clerical error was shown, the quarter sessions could not be charged with error in having refused to disturb its judgment after the expiration of the term of entry, and, particularly, where the time for appeal also had expired.</p> <p>(c) That the city should have appealed from the order permitting the amendment, within the time allowed for appeal — otherwise the statutory period could always be extended by entering a rule to set aside.</p> <p>(d) That it was too late for the city, on the appeals actually taken by it, to raise questions as to the validity of the award, and its amendment, or as to the merits of the ease.</p> <p>6. In such a case to the extent that defendant’s several motions involve facts outside the record, they were addressed to the discretion of the court below, and so far as they involve record facts or issues of law based thereon, they were passed upon and duly adjudicated when final action was had on the report of the board of view by confirmation, and on plaintiff’s rule to amend by making it absolute; none of the matters thus determined will be inquired into again.</p> <p>Appeals — Practice, Supreme Court — Statement of question involved — Record not showing point was raised below.</p> <p>7. Where, on appeal, a point is not suggested by the statement oí questions involved, and the record fails to indicate that it was raised in the court below, it will not be considered by the appellate court.</p> <p>Contract — Change by court without consent of parties — Mandamus — Endorsement by city solicitor.</p> <p>8. Endorsement of mandamus by city solicitor “interest on said writ is properly payable up to” a certain date, does not, it seems, make it, in addition to being a writ of execution, also a contract between the parties — which cannot be changed without their joint consent.</p>

<p>Negligence — Railroads—Master and servant — Federal Employers Liability Act — Reasonable precautions — Switching yard — Assumption of risk — Fellow servant.</p> <p>1. The failure to give warning of the approach of a switching locomotive moving backwards at the rate of two or three miles an hour, either by ringing a bell, sounding a whistle or by calling to an experienced section hand engaged in removing ice between the tracks and carrying it across the tracks in a railroad switching yard, is not evidence of negligence on part of the railroad company, in an action to recover damages for the death of such section hand caused by being struck by the locomotive, where it appears that he was a man of mature years and had been employed in the yard for some time, and that he had an unobstructed view of the approach of the locomotive for a distance of 150 feet.</p> <p>2. The ringing of bells and sounding of whistles on passing trains and engines moving forwards and backwards in a railroad switching yard tends to confuse workmen, and failure to give warning of such a character, does not constitute negligence on the part of the railroad company.</p> <p>3. An experienced section hand employed in a railroad yard to repair tracks, clean switches, and remove rubbish, snow and ice, and carry it across the tracks, while so engaged, assumes the risk of injury by being struck by switch engines used in switching cars in the usual way, as an incident to his employment, where there is nothing to prevent him from observing the approach of the trains.</p> <p>4. Under the Federal Employers Liability Act, except in cases specified in section 4, the employee assumes the risk due to the negligence of other employees if the danger is obvious and fully known to the employee.</p> <p>Ærkfetz v. Humphreys, 145 U. S. 418, followed.</p> <p>Wain a v. Penna. R. R., 251 Pa. 213, distinguished.</p>

<p>Appeal, No. 224, Jan. T., 1920, by Joseph Ulrich, from decree of C. P. No. 5, Phila. Co., Sept. T., 1919, No. 4908, declaring his wife a feme sole trader in the case of Petition of Marie Louise Mallet Ulrich.</p> <p>Petition to declare a woman a feme sole trader. Before Martin, P. J.</p> <p>The court granted the prayer of the petition. Respondent appealed.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned was the decree of the court.</p>

<p>Appeal, No. 48, Jan. T., 1920, by plaintiff, from order of C. P. Berks Co., March T., 1918, No. 66, J. D., making absolute rule to open judgment in case of Franklin F. Massey, now to use of Myers-town Trust Co. v. Franklin F. Massey et al.</p> <p>Rule to open judgment entered on judgment note. Before Endlich, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court made the rule absolute. Plaintiff appealed.</p> <p>mirror assigned was order making rule absolute.</p>

Appeal, No. 15, Oct. T., 1920, by William M. Craig, from decree of O. C. Allegheny Co., Dec. T., 1917, No. 258, dismissing petition for specific performance in estate of Samuel McBride. Before Petition for specific performance. Before Trimble, J. The opinion of the Supreme Court states the facts. The orphans’ court entered a decree dismissing the petition. Wm. M. Craig, petitioner, appealed. Error assigned was (10) decree dismissing petition.

Appeal, No. 228, Jan. T., 1920, by defendant, from judgment of C. P. No. 2, Phila. Co., March T., 1918, No. 1097, on -verdict for plaintiffs, in case of Robert Edmund Ralston and Carrie Ralston, his wife, v. Phila. Rapid Transit Co. Trespass for personal injuries to plaintiff’s wife. Before Barratt, P. J. Verdict and judgment for Robert Edmund Ralston for $2,000. Defendant appealed.

<p>Appeal, No. 227, Jan. T., 1920, by defendant, from judgment of C. P. No. 2, Phila. Co., March T., 1918, No. 1097, on verdict for plaintiff in case of Robert Edmund Ralston and Carrie Ralston, his wife, v. Philadelphia Rapid Transit Co.</p> <p>Trespass for personal injuries. Before Barratt, P. J.</p> <p>Verdict and judgment for Carrie Ralston for $3,000. Defendant appealed.</p> <p>Errors assigned were refusal of (1) instructions for defendant, and (2) judgment for defendant n. o. v.</p>

<p>Ejectment — Evidence—Burclen of proof — Pleadings—Answer— Act of May 8,1901, P. L. lh%.</p> <p>1. Under section 2 of the Act of May 8, 1901, P. L. 148, the evidence, on the trial of an action of ejectment, must be limited to tbe issues raised by tbe pleadings.</p> <p>2. Where an answer in ejectment in effect admits that plaintiff bad at one time a good title and right of possession, defendant has tbe burden of proof of showing this right has ended.</p>

<p>Equity — Specific performance — Contract to sell real estate — Insufficient description — Reference by name — Pleadings—Bill—Allegata et probata — Statute of frauds — Parol evidence.</p> <p>1. Equity will not decree the specific performance of a contract unless its terms are clear and capable of ascertainment from the instrument itself; nor will it decree such performance where the agreement is so ambiguous and contradictory in its terms as to make its meaning indefinite and uncertain; nor unless the writing contains an identification of the property. The essential basis of a decree for specific performance of a contract to convey real property is a definite present agreement in regard to a specific piece of land, clearly designated as present to the minds of both parties, and to be conveyed by one to the other. It is not the function of a court of equity to make a contract for the parties nor to supply any material stipulation thereof.</p> <p>2. An agreement to sell real estate will not be specifically enforced, where the land is merely described as “the property situate in the Borough of Duryea, County of Luzerne, State of Pennsylvania, bounded and described as follows, to wit: Being Lot Number......in Square or Block Number......and situate upon street called and known as Main Street, said lot is......feet wide in front and rear, and......feet in depth and improved silk mill and all sills machinery, tools and equipment formerly Dutton Silk Mill.”</p> <p>3. Where the bill to enforce such -an agreement includes in its description one lot and part of another but does not allege that the mill covers the entire lots, and prays for the conveyance of such land, but not for the conveyance of the silk mill, a sufficient doubt arises so as to preclude specific performance, inasmuch as the description of the lot in the contract is bad, and that of the mill not sufficient to include the lots set out in the bill.</p> <p>4. Eeal estate may be described by reference to a plan, a plot, a lot number, or a prior conveyance, or by name, but plaintiff cannot enforce specific performance by making a futile attempt to describe a lot, and then confine the reference to the improved silk mill to “formerly Dutton Silk Mill,” without mentioning any land appurtenant thereto.</p> <p>5. While parol evidence cannot supply an omission in the terms of the written contract, it may be admitted to apply the description to the subject-matter thereof.</p>

<p>Appeal, No. 52, Jan. T., 1920, by plaintiffs, from order of C. P. Luzerne Co., Dec. T., 1911, No. 199, sustaining exceptions to' referee’s report, in case of Elizabeth D. Wilson Strong and May D. Strong, Executors of Theodore Strong, deceased, v. Abram Nesbitt.</p> <p>Assumpsit to recover purchase price and interest because of breach of covenant of general warranty com tained in deed for coal.</p> <p>The case was referred to Joseph D. Coons, Esq., as referee, who reported in favor of plaintiffs. The court in an opinion by Fuller, P. J., sustained the exceptions to the report of the referee, and entered judgment for defendant on the ground that neither eviction nor damage had been established. Plaintiffs appealed.</p> <p>Errors assigned were sustaining exceptions and entering judgment for defendant.</p>

<p>Negligence — Automobile-—-Infant—Not wholly "darting out” case — Public crossing — Duty of chauffeur — Evidence of negligence in defendant’s case — Undue speed — Charge of court.</p> <p>1. A party is entitled to the benefit of all the affirmative facts helpful to his case, notwithstanding they may be adduced by his opponent’s testimony. The prime object of a trial, where the facts are disputed, is to elicit the truth; that is what the jury is to seek after and find, if they can, upon a consideration of all the evidence submitted to them.</p> <p>2. A driver need not stop, if he can, with reasonable certainty, pass in front, or in the rear, of a pedestrian; to thus divert the movement of his car, at a public crossing, he is under the definite duty of having it under control; if an accident cannot he avoided without stopping, he must stop his ear. He is not, per se, negligent when he deflects his machine to pass around a pedestrian in the act of crossing the street at a public crossing, and cannot, in the exercise of due care, be charged with neglect in not anticipating the unexpected thing to happen; it naturally follows that he must anticipate the expected thing to happen; an illustration of the former would be the negligent act of a person of mature mind; of the latter, the negligent act of a child.</p> <p>3. When an automobile driver deflects his car to pass around a little child, he must expect from it (the most natural thing from one of this age) some heedless, thoughtless, capricious act, the negligent act which comes from childish sportiveness, characteristic of an immature mind.</p> <p>4. Where an automobile driver sees a child in a place of danger, or has reason to apprehend that it might run into a place of danger, and has sufficient time to stop his car if under proper control, it is his duty to exercise such care as would be reasonably necessary to avoid a collision.</p> <p>5. When children are on a street playing at a public crossing, plainly visible as the driver approaches, and one of them is- in the act of crossing the street, in view of the driver, 50 feet away, his obvious duty, on approaching the crossing, is to bring his car under such control as the circumstances demand; with his car thus under control, as he approaches, if he attempts to pass the child in the rear, his car should still be under control, the control that good sense demands, so that, responsive to the child’s irrational acts, he can stop to avoid injury; he should expect children’s negligent acts; the sudden twisting and turning of the child, caused by the movement of the car or the noise it made, would not excuse him.</p> <p>6. When a child is in a place of safety and exhibits no intention to move until the car is so near it cannot be stopped, and the child suddenly darts in front of the driver and is injured the owner of the car is not chargeable with negligence because of the failure of the driver to stop the ear, the theory of law being that there was want of notice and lack of time after the notice was given for the driver to escape the impending danger.</p> <p>A In an action against the owner of a motor truck to recover damages for personal injuries to a child between 3 and 4 years of age, the evidence tended to show that the child started to cross, from the west, a north and south street at a public crossing, where some children were playing on the sidewalls and roadway on the eastern side of the street. The truck approached the northern crossing of the east and west street, running directly south, a little west of the centre of the north and south street, astride the west rail of a single track street car line. A witness for plaintiff stated that the truck shot suddenly from the east out of the intersecting east and west street, but he was the only witness who so testified. A witness for defendant testified that tbe child was about half a yard below the east and west street, when it darted across the other street; another witness for defendant stated that the child was in the centre of the tracks when she first observed it, and that the truck was then at the north house line of the east and west street. When the child was in or coming- close to the centre of the north and south street, the truck was about 50 feet from her, or the width of the street plus the off-set, 14% feet. The driver of the car saw her at the first rail on the western side. The accident occurred in the evening, the street was well lighted, and no obstacle obscured the vision of the driver. In attempting to pass the little girl, he deflected his car to the rear, blowing his horn as a warning; this noise caused the child to turn back towards her home, and then, evidently frightened, she ran forward again to where the children were playing. Her acts confused the driver. When she made the last turn to go over to the children, the driver turned his car in that direction, the fender struck her, knocking her down, the car passing over her body and inflicting serious injury. The car did not stop until it ran on the sidewalk and struck an awning pole, the impact bending the pole. Held:</p> <p>(a) That the court erred in submitting the case to the jury only on the strength of the testimony of the single witness for plaintiff, as to the direction from which the truck came, without giving any weight to the contradictory testimony of defendant’s witnesses on that subject;</p> <p>(b) That the court erred in limiting the case to but one circumstance, namely, the sudden turning of the car from one street to the other;</p> <p>(e) The court erred in failing to instruct the jury that, where the truck approached in direct view, as it did from the north, according to defendant’s witnesses, children of immature minds could not be charged with the duty “to take care of themselves,” and that, as to them, when the negligent act of the one who causes the injury is made to appear, consequent liability follows;</p> <p>(d) That the court erred in charging that, if the child suddenly changed her mind, and ran back in front of the machine again, and again the automobile was turned, it was not by the driver’s negligence that the accident occurred;</p> <p>(e) That the court erred in not giving full effect to evidence which tended to show that the child was in the centre of the street, in motion, and in plain view of the driver, who had ample opportunity to stop his car before he reached the child;</p> <p>(f) That there was sufficient evidence of undue speed, shown by the distance the car ran after the accident, and the force with which it struck the awning pole.</p>

Appeal, No. 56, Jan. T., 1920, by plaintiff, Matilda Silberstein, from judgment of C. P. No. 4, Phila. Co., Dec. T., 1917, No. 1807, on verdict for defendant, in case of Matilda Silberstein by her father and next friend, Adolph Silberstein, and Adolph Silberstein, in his own right, v. Showell, Fryer & Co., Inc.

<p>Public officers — Removal—Elected officers — Appointed officers — • City cleric — Cities of the third class — Power of councils to remove * — Act of June B7, 1918, P. L. 568 — Constitution, article VI, section 4 — Words and phrases — “Election”—“Appointment.”</p> <p>1. Under section 3, article IX, of the Act of June 27, 1913, P. L. 568, which authorizes the councils of a city of the third class “to elect a city clerk, whose term of office and compensation shall be fixed by ordinance,” a city clerk is an appointed and not an elective officer, and as such he may he removed by councils under the provisions of article VI, section 4, of the Constitution, which provides that “appointed officers, other than judges of the courts of record, and the superintendent of public instruction, may be removed at the pleasure of the power by which they shall have been appointed.”</p> <p>2. An election is the embodiment of the popular will, the expression of the sovereign power of the people. In common parlance, an election is the casting and receiving the ballots, counting them, and making the return. The term carries with it the idea of a choice by the body of the voters in a municipality or an expression of the popular will, expressed at the polls. An appointment on the other hand, may be made by a single person, or by a body such as a city council.</p>

<p>Appeal, No. 252, Jan. T., 1920, by defendant, from judgment of C. P. Berks Co., Aug. T., 1918, No. 13, on verdict for plaintiff, in case of Harry Russell Luken, by his next friend and guardian, Milton C. Kreider, v. Pennsylvania Railroad Co.</p> <p>Trespass for death of plaintiff’s father. Before Wagner, J.</p> <p>The circumstances of the accident are stated in the opinion of the Supreme Court.</p> <p>Verdict and judgment for plaintiff for $4,700. Defendant appealed.</p> <p>Errors assigned, among others, were (7) refusal of binding instructions for defendant, and (8) refusal of defendant’s motion for judgment n. o. v.</p>

<p>Appeal, Nos. 6 and 241, Jan. T., 1920, by Sarah Langerwisch, from decrees of O. C. Monroe Co., setting aside report of appraisers and vacating their appointment and dismissing exceptions to adjudication in estate of Diedrich Langerwisch, deceased.</p> <p>Petition of Sarah Langerwisch, widow of Diedrich Langerwisch, to appoint two appraisers to appraise, and set apart for her, property of the decedent to the value of $5,000, to which she claimed to be entitled. Shull, P. J.</p> <p>The record showed decedent died testate leaving no issue. The widow elected to. take against the will.</p> <p>The case turned on the constitutionality of t'he Act of July 11, 1917, P. L. 755.</p> <p>The court below held that the act applied only to cases of actual intestacy and set aside the report of the appraisers, vacated their appointment, and dismissed exceptions to the adjudication: 28 Pa. Dist. R. 470. The widow appealed.</p> <p>Errors assigned were the decrees of the court.</p>

<p>Appeal, No. 125, Jan. T., 1920, by B. F. Duke, purchaser of realty, from order of O. C. Franklin Co., discharging rule to set aside sale of real estate in estate of Frank B. Fogelsanger, deceased.</p> <p>Buie to set aside sale of real estate. Before Gillan, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court discharged the rule to set aside the sale. B. F. Duke, purchaser of realty, appealed.</p> <p>Error assigned was the order of the court.</p>

Appeal, No. 129, Jan. T., 1920, by Carrie B. Martin, from decree of O. C. Franklin Co., dismissing appeal from register of wills in estate of Peter Rouzer, deceased. Appeal from register of wills. The facts are stated in the opinion of the Supreme Court.

<p>Appeal, No. 212, Jan. T., 1920, by plaintiffs, from judgment of C. P. Carbon Co., Oct. T., 1917, No. 49, refusing to take off nonsuit, in case of John Fisher et al. v. John S. Ronemus and Hugh McGorry, as custodians of the Death Beneficial Fund raised and created by the Organization of Mine Workingmen of the Village of Nesquehoning on account of the death of James Gallagher, 2d.</p> <p>Assumpsit for death benefits. Before Barber, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court entered a compulsory nonsuit, which it subsequently refused to take off. Plaintiffs appealed.</p> <p>Errors assigned were (1) denial of plaintiffs’ motion for judgment for want of a sufficient affidavit of defense; (2) in overruling plaintiffs’ offer of proof, set forth in the opinion of the Supreme Court; and (3) refusal to take off nonsuit.</p>

Appeal, No. 230, Jan. T., 1920, by defendants, from judgment of C. P. Northampton Co., July T., 1919, No. 47, for relator on petition for… Held: that the averment of an intention to file a bill in equity to restrain the officers from mismanagement, and the need of information to that end is sufficient ground for granting the mandamus; and also that the fact that t'he petitioner is interested in a competing company is not a good and sufficient reason for refusing it.” We…

<p>Appeal, No. 231, Jan. T., 1920, by Harvey D. P. Dietrich, from judgment of C. P. Northampton Co., July T., 1919, No. 17, for relator on petition for mandamus in case of Com. ex rel. Henry Wilde v. Penna. Silk Co., a corporation; D. H. Keller, President; Harvey D. P. Dietrich, Treasurer, and Levan B. Flory, Secretary of said corporation.</p> <p>Petition for mandamus.</p> <p>The answer to the petition denied that Harvey D. P. Dietrich was treasurer of the company or that he had any authority to give the relator access to the books. Plaintiff demurred to the answer.</p> <p>The court entered judgment for relator.</p> <p>Harvey D. P. Dietrich appealed.</p> <p>Error assigned was decree of court, including name of appellant.</p>

<p>Negligence — Runaway horse — Sudden emergency — Choice of two courses — Charge of court — Allegata et probata.</p> <p>1. The mere fact of a runaway does not imply negligence. If a team without fault of the driver is running away, and he is confronted with a sudden emergency which offers two equally dangerous courses, in selecting either one of them he is not to he convicted of negligence even if the one selected is an error of judgment from which an injury follows; hut, when the emergency is created because of his own unusual conduct amounting to negligence, the owner will be liable for injuries following the selection of one of two dangerous courses whether the selection is through an error of judgment or not.</p> <p>2. In an action against the owner of a team to recover damages for personal injuries plaintiff’s statement charged negligent and reckless driving and nothing more. Plaintiff’s case showed that while she was walking on the south 'side of a street running east and west she noticed the team coming towards her along a dead-end street which terminated at the street on which she was walking. The horses were “running wild” and the driver was whipping them. The team was driven on to the sidewalls and she was injured. Defendant’s case showed that the team was hauling a wagon containing several thousand pounds of ice. It consisted of two horses, one, recently purchased, roadworthy, and not green, accustomed to work in harness, but not “city broke,” without having shown any disposition to run away. The other was considered safe, with a record of having been driven in the city for two or three years. The new horse was high spirited, but both left the stable at a walk. Before they had gone far, the new horse started prancing, and as the team turned into the dead-end street they were on a run and could not be held in by their experienced driver, nor Stopped by two stable men who attempted to do so. To prevent a collision with an automobile at the turn into the street along which plaintiff was walking, and to check the team, it was directed to a pole on the south side of the street and the wagon crashed into the pole, with the result that plaintiff was injured. Held, that, as defendant’s proof set up a clear case of runaway and denied that the horse was abused, it was reversible error for the trial judge to refuse to charge in effect as follows: “As there was no evidence of prior bad traits, and if this was a runaway (in the manner) as testified to by defendant, the defendant in the exercise of ordinary care did all that was necessary for it to do to avoid the accident.”</p> <p>3. Such instructions did not destroy plaintiff’s theory of the case, nor call for binding directions. It presented defendant’s theory, and when the jury found the horse ran away “as testified to,” they must consider plaintiff’s evidence, and her view of the case; but, if defendant’s testimony was believed, and it could be believed only if the horse “ran away” as “testified to,” then the point correctly stated the law as to the duty imposed.</p> <p>4. To hold defendant for negligence in permitting the team to go out of the stable with a new high spirited, but not green, horse, working with a horse considered safe, it must appear that the horse, or team, had a propensity to run away, which the defendant knew, or had good reason to believe.</p> <p>5. In such a case where it is not averred by the statement of claim, nor shown by plaintiff’s proofs that there was any want of care on the part of the defendant in permitting the new horse to go out with the other horse, or that the new horse was not properly harnessed, or that a curb bit was necessary, it is reversible error for the court to submit such matters to the jury as bearing upon defendant’s negligence.</p>

<p>Negligence — Townships—Roads—Defective road — Contributory negligence — Nonsuit—Failure to exercise senses — Warning—Notice.</p> <p>1. The driver of a wagon, or other vehicle, is required, at all times, in the exercise of due care, to make use of all his faculties when engaged in traveling along a public highway, to discover dangers. He must, at certain places pause to afford his faculties full play that he may better protect himself; when he has reason to suspect from the condition of the highway or an unusual disturbance of his vehicle, or team, that a danger exists, or something is wrong with the highway, it is his duty to stop his vehicle, and investigate. If, notwithstanding the warning given by the ordinary use of his faculties, or the condition of his vehicle, he persists in going forward, the municipality will not be liable for any injury that may befall him.</p> <p>2. In such a case the plaintiff was guilty of contributory negligence, as he did not use his faculties as the law requires, either in looking, feeling or appreciating difficulties plainly patent to an ordinary person. He should have seen the diverging roads and separating horses, and noticed the tilting of the wagon, and taken precautions accordingly.</p>

Appeal, No. 18, Oct. T., 1920, by Anna Barbara Brant, from decree of O. O. Allegheny Co., May T., 1919, No. 180, dismissing exceptions to adjudication in estate of William Remensnyder, deceased. Exceptions to adjudication. Trimble, J., filed the following opinion: The question involved is whether there are dry or active trusts with respect to certain shares of stock owned by the decedent and bequeathed by him t'o Ms daughters. Win.

Appeal, No. 168, Jan. T., 1920, by plaintiff, from judgment of C. P. No. 2, Phila. Co., Dec. T., 1917, No. 2869, on verdict for defendant, in case of John Bardis to the use of Midvale Steel & Ordnance Company and John Bardis v. Philadelphia & Reading Railway Company. Trespass to recover damages for personal injuries. Before Wessel, J. The circumstances of the accident are stated in the opinion of the Supreme Court. The trial judge gave binding instructions for defendant.

<p>Corporations — Stochholders—Right of stochholder to sue to redress company’s wrong — Fraud, mismanagement, etc., prejudicial to plaintiff — Notice to directors — Equity—Specific performance.</p> <p>1. Where a stockholder institutes a suit in equity in his own name to enforce a right of the corporation of which he is a member, he must set forth facts necessary to give him standing to assert rights that are ordinarily enforced by the corporation. The board of directors has the power to sue, and on them rests the burden of whether they should engage in such litigation.</p> <p>2. Before the stockholder may intervene he must use every effort to cause the directors to act. Statements should be presented to the directors, showing the wrong complained of, not necessarily in detail, but facts essential to sustain a complaint of wrongdoing. Mere general charges and blanket averments, without a statement of facts, will not be sufficient. Insolvency and fraud need not be averred, though they may be, but acts must appear which are prejudicial and harmful to the corporation’s rights. Sufficient responsible data should be given to enable them to determine the question with some hope of success.</p> <p>3. A corporation should not be put to the hazard of expensive litigation to satisfy the imaginary grievance of disappointed stockholders ; therefore, there must be something of substance on which to base the charge of wrongdoing. If the officers, through misconduct or otherwise, fail to proceed, after receiving due and sufficient notice, and there is not time to remove them and elect other officers, the shareholder, upon showing his effort to induce the corporation to proceed, and that he left nothing undone which he might have done to prevail on the corporation to bring such action, may institute proceedings in equity for relief.</p> <p>4. A bill is properly dismissed where there are no charges of wrongdoing, or injury, or acts, prejudicial to plaintiff or his comjnany, or of mismanagement, fraud, or carelessness.</p> <p>Street railways — Lease—Rental—Dividends—Payment by lessee company through lessor company to latter’s stochholders.</p> <p>5. Stockholders do not have standing to bring such action merely because the lease directs payment of dividends. Such payments pass through the corporate management and not directly to the stockholder.</p>

<p>Evidence — Cross-examination—Hostile witness — Surprise—Leading questions — Not bound by testimony — Discretion of court — ■ Abuse — Appeal—Criminal law — Murder—Testimony of witness before coroner.</p> <p>1. The rule that a party calling a witness is not permitted to ask 'leading questions, and is bound by his testimony, is liberally construed in modern practice. It apparently proceeds upon the theory that a rigid adherence in practice in ordinary cases would be mala fides to the tribunal, and the weight of authority is in favor of the rule that where a party is surprised in the testimony of a witness unexpectedly turning hostile, counsel may exercise the right of cross-examination of the witness, or impeach his testimony by other witnesses. Such exceptions have been recognized in Pennsylvania, and are permitted, to prevent a failure of justice. Whether such practice will be permitted, is within the sound discretion of the court, and its action will not be reversed by the appellate court unless there is an abuse of that discretion.</p> <p>2. Where, in a murder case, a witness for the Commonwealth, is shown to have given testimony before the coroner, directly opposed to that which he gave at the trial, the trial court does not abuse its discretion in permitting his cross-examination by the Commonwealth, when the latter is taken by surprise, especially where the witness testified that the evidence given before the coroner was correct and thereby made it substantive evidence.</p> <p>Criminal law — Murder—First degree — Second degree — Charge of court — Harmless errors.</p> <p>3. Where the evidence, in a trial for murder, is sufficient to support a verdict of murder in the first degree, and the defendant is convicted of murder in the second degree, the trial judge cannot be convicted of error in submitting the evidence as to murder in the first degree to the jury, and in pointing out to them the distinctions in the several degrees of murder.</p> <p>Practice, Supreme Court — Exceptions taken to charge — Rule enforced.</p> <p>4. The rule requiring exceptions to be taken to the charge of the court will be enforced by the Supreme Court on hearing of appeal.</p>

<p>Appeal, No. 202, Jan. T., 1920, by defendant, from judgment of C. P. No. 1, Phila. Co., Dec. T., 1917, No. 2516, on verdict for plaintiff in case of Smith, deMacedo & Co., Inc., v. Swift & Co.</p> <p>Assumpsit to recover damages for loss by reason of an alleged misrepresentation on the part of defendants’ agent on a sale of merchandise. Before Bregy, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict and judgment for plaintiff for $4,666.01. Defendant appealed.</p> <p>Errors assigned were receiving evidence as to resale of goods, refusal to strike it out, and refusal of new trial.</p>

<p>Contracts — Indemnity against accident — Negligence—Increased risk — Notice of suit to subcontractor — Record—Railroads—Construction work — Repair of station — Passenger.</p> <p>1. Where contractors enter into a contract and covenant “to provide and make all proper, necessary and sufficient precautions, safeguards and protections” against the happening of any accident during the progress of the work, and to indemnify and save harmless the indemnitee “from the payment of all sums of money by reason of all or any such accidents,” the contractors are not insurers as to any accident that may happen in the course of the work, but only as to such as may occur through failure to provide proper, necessary and sufficient safeguards in nd about the work.</p> <p>2. The parties adopted for their rule of conduct the common acceptation of the meaning of the term negligence, — -lack of ordinary care under the circumstances. To charge the contractors with liability, it is not enough to show that the indemnitee paid out money on account of an accident, but it must appear that the accident occurred through the failure of the indemnitor to provide sufficient safeguards, — in other words, negligence or the failure to use care by the indemnitor, its agent, employees or subcontractor.</p> <p>3. The limit of the indemnitor’s liability embraced the indemnitee’s liability to strangers invited on the premises in the usual and ordinary use of it, but the indemnitee could not increase the hazard by adding additional burdens on the indemnitor; if by special invitation or direction, the traveling public were requested to use the premises worked over, to such, an extent as to materially interfere with the contractor’s work, and the indemnitor was subjected to an increased risk not contemplated by the contract nor by the nature and condition of the work that he undertook and must have expected, such interference would cast the primary responsibility on plaintiff, from whom a recovery was had. Such act of the indemnitee would not be within the terms of the indemnity clause; so, if the bureau of information was, by act of plaintiff, thrown open for general use of the public, contrary to the expectation of the defendant, and not to be fairly anticipated, the rule thus stated would apply.</p> <p>4. During the course of the construction work by a subcontractor, an intending passenger at a railway station tripped over a piece of granite used in connection with the work, and was injured. Averring negligence in the railroad company in not providing a safe station, by carelessly placing a slab of granite, so that phe would trip over it, the woman injured sued the railroad company, and recovered a verdict and judgment. Subsequently, the railroad company sued on the indemnity clause, and, at the trial, offered in evidence the record of the former suit. It appeared that notice of this suit had not been given to the contractors, but only to the subcontractors. Held:</p> <p>(a) That while the record of the former suit was prima facie evidence, it was such only as to the facts therein contained, and it was not conclusive upon the indemnitor.</p> <p>(b) That the notice to the subcontractor was not sufficient notice to bind the idemnitor.</p> <p>(c) That the indemnitors, while liable to the railroad company upon the indemnity clause, were not liable to third persons for injuries caused by the negligent acts of the subcontractor.</p> <p>(d) That the record of the former suit did not show that the wrong complained of by the indemnitee, was within the terms of the indemnity contract.</p> <p>(e) That while the former trial showed an unsafe station, it was necessary in the second case to show that it was unsafe because the indemnitors or their representatives failed to provide proper, sufficient and necessary safeguards, through which failure plaintiff was compelled to pay the sum of money occasioned thereby.</p> <p>(f) That on the evidence offered by the railroad company to bring the suit within the contract, the case was properly submitted to the jury, and that a judgment on a verdict for defendant ghould be sustained.</p>

<p>Poor law — Poor district — Immunity of sovereign state — Negligence of employees and inmates — Firing timber.</p> <p>1. Poor districts, acting as public agencies in the performance of functions necessary to the well-being of the government, are invested with the immunity which attaches to the sovereign state, and therefore not liable for the negligence of their officers or employees.</p> <p>2. A poor district cannot be held liable for a loss of timber destroyed by fire caused by the negligent acts of the inmates of the poorhouse while cleaning land and burning brush on a tract leased by the poor district from plaintiff.</p>

<p>Worhmen’s compensation — Compensation agreement — Settlement with tort-feasor — Advance payment — Subrogation.</p> <p>1. Where a widow executes a compensation agreement with her husband’s employer, whereby she accepts a sum stated as compensation for his death, and subsequently settles a suit which she had brought against a third party, who had negligently caused his death, for a sum less than that named in the compensation agreement, and the referee refuses the employer’s request to terminate the agreement, but the compensation board modifies it so as to treat the sum paid to the widow by the tort feasor as an advance payment, such action of the board will be confirmed by the courts.</p> <p>2. In such case, the rights of the children, unless changed by death, are fixed by the agreement, and cannot be affected by any action of the mother. So far as she is concerned, the compensation board having modified the agreement, their action in that respect cannot be changed by the court.</p> <p>3. Rights of subrogation under the compensation act do not relate to the award or agreement of compensation. They relate rather to the rights as between the employer and the one who caused the injury.</p>

Appeal, No. 205, Jan. T., 1920, by Charles A. Blessing, Jr., Administrator, from decree of O. C. Phila. Co., Jan. T., 1919, No. 572, sustaining appeal from register of wills, in estate of Charles A. Blessing, deceased. Appeal from decision of register of wills granting letters of administration in estate of Charles A. Blessing, deceased. Before Gest, J. The opinion of the Supreme Court states the facts.

<p>Appeal, No. 209, Jan. T., 1920, by plaintiffs, from order of C. P. No. 1, Phila. Co., June T., 1918, No. 235, refusing to take off nonsuit in case of Gilbert S. Parker and Ernest L. Parker, executors of Gilbert L. Parker, deceased, v. Henry It. Lewis and Mary J. Lewis, his wife.</p> <p>Assumpsit for breach of contract to convey real estate. Before Shoemaker, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The trial judge entered a compulsory nonsuit, which the court subsequently refused to take off. Plaintiffs appealed.</p> <p>Error assigned ivas refusal to take off nonsuit.</p>

Appeal, No. 222, Jan. T., 1920, by defendant, from judgment of C. P. No. 5, Phila. Co., June T., 1918, No. 4358, on verdict for plaintiff, in case of William J. O’Brien v. Christian Bieling. Trespass to recover damages for personal injuries. Before Martin, P. J. The opinion of the Supreme Court states the facts. Verdict and judgment for plaintiff for $1,675. Defendant appealed. Error assigned, inter alia, was refusal of judgment for defendant n. o. v.

Appeal, No. 263, Jan. T., 1920, by William A. Lockhart, a brother of testatrix, from decree of O. C. Phila. Co., Oct. T., 1918, No. 213, dismissing exceptions to adjudication, in estate of Josephine Lockhart, deceased. Exception to adjudication.

<p>Banlcs and bcmhing — Ghechs—Negotiable instruments — Defective endorsement — Guaranty—Failure to present in time — Affidavit of defense.</p> <p>Where a cheek was irregularly endorsed and payment refused for that reason and shortly after the bank failed, an affidavit of defense, in an action on the cheek, by the holder against the drawer, which avers that “plaintiff was grossly negligent in not collecting the check before the close of the full business day next succeeding that on which it was given to plaintiff, to wit, July 14th; that had the check been presented for payment......, properly endorsed, in accordance with the usual banking customs, on July 15, 1919, it would have been paid, as the balance standing to the credit of the defendant in the said bank on that day was” sufficient to pay the check, will prevent the entry of judgment.</p>

Appeal, No. 109, Jan. T., 1920, by defendant, from decree of C. P. Luzerne Co., Oct. T., 1917, No. 5, on bill in equity in case of Martha B. Culver v. John S. Thompson, Executor and Trustee of estate of Joseph Loder, deceased. Bill in equity to compel payment and extinguishment of a debt secured by a mortgage and for “other and further relief.” Before Fuller, P. J. The facts are stated in the opinion of the Supreme Court.

<p>Appeal, No. 128, Jan. T., 1920, by plaintiff, from judgment of Superior Ct., March T., 1919, No. 40, reversing judgment of C. P. Luzerne Co., July T., 1918, No. 110, awarding peremptory mandamus in case of Prank P. Slattery v. Puller R. Hendershot, County Controller of Luzerne County.</p> <p>Appeal from judgment of Superior Court.</p> <p>See 72 Pa. Superior Ct. 240.</p> <p>The case turned upon the right of plaintiff, district attorney of Luzerne County, to receive $250 for services to the Commonwealth in a criminal case appealed to the Supreme Court.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The Superior Court reversed the order of the common pleas awarding the mandamus. Plaintiff appealed.</p> <p>Error assigned was judgment of Superior Court, quoting it.</p>

<p>Landlord and tenant — Lease—Warrant to confess judgment — ■ Assignment of lease — Entry of judgment against assignee.</p> <p>Where a lease, containing a warrant for the confession of judgment against the lessee, is signed by the lessee, and subsequently the lessee assigns the lease to another who accepts it “according to its full tenor and effect,” the lessor has no right to enter judgment against the assignee, on the warrant, inasmuch as the warrant signed by the original lessee was not the warrant of the assignee.</p>

Appeal, No. 293, Jau. T., 1920, by plaintiff, from judgment of C. P. Luzerne Co., July T., 1917, No. 475, on yerdict for defendant, in case of Mary E. Kulp v. William A. Markley et al., Executors of Amanda E. Markley, deceased. Issue to determine proper distribution of fund raised by sheriff’s sale of real estate. Before Woodward, J. The facts are stated in the opinion of the Supreme Court. Yerdict and judgment for defendants on the essential point submitted to the jury.

<p>Constitutional law — Title of act — Warehouse receipts — Act of March 11, 1909, P. L. 19.</p> <p>Tbe Act of March 11, 1909, P. L. 19, entitled “An act relating to warehouse receipts,” is sufficient in its title to give notice of a clause in tbe act prohibiting a disregard by a warehouseman of a receipt issued by him, and providing a penalty for its disregard, certain to result in a wrong to some one.</p>

<p>Beneficial associations — Lodge system, — Casualty company — Assuming obligations of other company — Application—Laws—Insurance policies — Act of May 11, 1881, P. L. HO — Evidence—Prima facie — Presumption—Burden of proof — Oral evidence — Admission or statement of counsel.</p> <p>1. Certificates of membership in beneficial associations are not insurance policies -within the meaning of the Act of May 11, 1881, P. L. 20; hence, when the application for membership and laws of an association of this kind are by reference made part of the contract of membership, they must, if obtainable, be placed in evidence by plaintiff in a case against the association, unless he gives a good and legally sufficient reason for not doing so, or defendant produces them. Of course, if it be shown the association in question is conducting an insurance business that will suffice.</p> <p>2. If the application and laws are expressly referred to in and made part of the contract sued upon, they must be presumed to exist, until proof to the contrary appears.</p> <p>3. The character of the business of an incorporated association having the name of “Fraternities Accident Order” must be determined by the proved facts, although the presumption is that the business is what the association, in its certificate of membership, declares it to be; but this is prima facie only, and may be overcome by evidence.</p> <p>4. In an action upon a contract of membership of such an order, to recover death benefits, it is reversible error for the court to rule as a matter of law that the certificate of membership was a “contract of life insurance,” notwithstanding the presumption to the contrary, and the fact that the evidence depended upon to make out plaintiff’s case, both in this and other respects, was largely oral, which required the issues to be submitted to the jury — particularly the question whether the “Fraternities Accident Order” was actually carrying on an insurance business.</p> <p>5. Where all obligations of the Fraternities Accident Order are assumed by a casualty company, the latter stands in the same position as the order. The latter’s certificate remains the contract or application of the order, the casualty company merely undertaking to carry out its terms. The application for membership and the by-laws of the order are, prima facie, parts of the contract, to be received in evidence for the purpose of accurately determining the extent of the casualty company’s liability.</p> <p>6. In such case, plaintiff must either obtain, and attach to the contract in suit, copies of the application and by-laws, or prove the refusal of defendant to produce them on notice, unless he otherwise legally explains their absence.</p> <p>1. Where plaintiff stood squarely on a position that the order conducted an insurance business, and the notes of testimony stated: “Counsel for defendant says there is no question for the jury and ask binding instructions for defendant,” such statement of counsel must be construed to mean that they simply contended the proofs 'relied upon by plaintiff were insufficient to sustain her position, and not that, if such contention failed, they admitted the right of the trial judge summarily to withdraw the ease from the jury and pass upon the oral evidence, as he did in directing a verdict for plaintiff.</p>

<p>Appeal, No. 236, Jan. T., 1920, by plaintiff, from judgment of C. P. Huntingdon Co., Sept. T., 1917, No. 27, on verdict for defendant, in case of J. Emmett Sebree v. Huntingdon Water Supply Company. Before Brown, C. J., Moschzisker, Frazer, Walling, Simpson and Kephart, JJ. Affirmed.</p> <p>Trespass to recover damages for injury to land and crops. Before Bailey, P. J.</p> <p>The facts are stated in the opinion of the Supreme Court. See also Sebree v. Huntingdon Water Supply Co., 72 Pa. Superior Ct. 553.</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Error assigned, among others, was in refusing binding instructions for plaintiff “for such damage as he has sustained to lands, crops or fences.”</p>

Appeal, No. 248, Jan. T., 1920, by plaintiff, from judgment of C. P. Lackawanna Co., March T., 1918, No. 177, for defendant, on affidavit of defense raising question of law only, in case of Phoebe Atherton v. Clearview Coal Co. Trespass for injuries to property alleged to have resulted from the negligent mining of coal. Before Edwards, P. J. The opinion of the Supreme Court states the facts.

<p>Criminal law — Murder—Accomplice — Evidence — Witnesses— Charge — Undue weight io certain witness — Interest—Alibi—When case for court and when for jury.</p> <p>1. A person is not an accomplice merely because he was present at the commission of a crime and failed thereafter to report it.</p> <p>2. Where a witness admits being present at the time a murder is committed, but testifies that he was only a terrified onlooker, a charge is erroneous which deals only with the weight to be given to the testimony of an accomplice.</p> <p>3. Under such circumstances if he was an accomplice his testimony in this respect is untrue, and the jury should be told that, while his credibility is for them, they are at liberty to disregard it entirely if they believe he testified falsely to this material fact.</p> <p>4. In a murder case the trial judge should be careful not to give or seem to give too great weight to the testimony of any witness or class of witness.</p> <p>5. It is error to charge the jury in a murder case that the test in deciding as to the truthfulness of defendant’s evidence, is in determining whether or not he impressed them as a shifty, evasive and slick witnesses.</p> <p>6. In a murder case the jury should not be told that witnesses for the defense might be found interested because they were assisting counsel for defendant at the trial, or that they might find corruption or carelessness from that fact.</p> <p>7. It is for the jury to say whether or not a defendant is guilty of the crime with which he is charged, even though it is difficult to understand bow it could have been committed as narrated by tbe witnesses, unless tbe proof of tbe alleged exculpatory circumstances is so clear as to require tbe court to rule tbereon as a matter of law.</p>

<p>Insurance — Fire insurance — Description of property — Construction of contract — Doubt—Statement of subagent’s employee — Waiver — Endorsement or policy — Estoppel—Custom—Evidence.</p> <p>Eire insurance policies described the property insured as being “merchandise, stock, materials and supplies, chiefly broom corn, their own or held in. trust or on consignment or sold but not removed, contained in a frame warehouse building detached about 100 feet from factory.” On account of its defective condition the warehouse was tom down and two smaller buildings erected, No. 1 on the site of the old building, .and No. 2 some 100 feet from No. 1, and about the same distance from the factory. During the construction,- the broom corn was removed to near-by bams, and, upon the completion of the buildings, it was removed to the new warehouse, No. 1 receiving the broom corn for immediate use, and No. 2 that for storage. During the construction period the change on the policies was provided for by a “binder,” and when the new warehouses were completed the binders were removed and specific insurance was taken out on No. 1 and No. 2; and the old policies were put in force “to cover as originally written.” Later the contents of No. 2 were destroyed by fire, and it was claimed that the loss was covered by the original policies, or that the company was estopped from asserting the contrary, because a counterman, an employee of the insurance company’s subagent, said, when the binders were cancelled and the new arrangement was made, that “the form was broad enough to cover any warehouse around there, that is a frame warehouse.” The policy provided that the company should not be bound by any waiver of any condition of the policy by an agent or other representative unless the same were endorsed thereon or added thereto. There was no evidence that the counterman was authorized to make the statement which he did. Reid:</p> <p>(a) That the original policies did not cover the broom corn contained in warehouse No. 2.</p> <p>(b) That the endorsement on the policies “policy to cover as originally written” covered the broom com in the warehouse first described and afterwards rebuilt.</p> <p>(c) That the words of the counterman were a mere expression of opinion.</p> <p>(d) That even if the words of the counterman were more than the expression of an opinion they did not bind the company in view of the express stipulation of the policy as to waivers by agents and representatives.</p> <p>(e) That it was proper to reject an offer to prove by custom that the policy covered the contents of building No. 2, where there was nothing to show that the counterman had authority to waive by parol the conditions of the policy, nor any attempt to prove such custom.</p> <p>2. In such case to determine whether the policies insuring the broom corn in the premises as described, will cover a part of the same broom corn contained in building No. 2, regard must be had xo the meaning of the language employed, the apparent purpose of the parties, the situation and uses of the property, and the nature of the contract as evidenced by the policy. Recovery can be had only when the loss is brought fairly within the terms of the contract or by reasonable intendment covered by it.</p> <p>3. If doubt exists as to the meaning, it should be resolved in favor of the assured rather than in the interest of the insurer.</p>

<p>Appeal, No. 280, Jan. T., 1920, from judgment of O. P. No. 2, of Phila. Co., Dec. T., 1918, No. 4353, refusing to take off nonsuit, in case of Levinton et al., trading as Union Novelty Mfg. Co., v. North Branch Fire Ins. Co.</p>

<p>Criminal law — Murder—Degrees—Murder of second degree— Presumption — Insanity—Evidence—Charge — Jury to determine degree — Constitutional right of defendant.</p> <p>1. On the trial of an indictment for murder, the accused may not plead guilty of murder of the first degree. The law presumes that the offense is murder of the second degree, and the burden is on the Commonwealth to prove that a felonious homicide had been committed, and that there existed in the killing every ingredient or essential element of murder of the first degree.</p> <p>2. Such burden remains unchanged throughout the entire case —exactly where it stood when the case opened, and so continues until it closes. The burden never shifts. Whenever the evidence is all in, if the Commonwealth has not, on the whole evidence, by whichever side introduced, established beyond a reasonable doubt the guilt of the accused and the degree that it contends for, the accused is entitled to an acquittal or to such verdict as is called for by meeting this burden. The burden on the Commonwealth is not discharged until the jury has solemnly adjudicated these facts.</p> <p>3. When the trial judge instructs the jury that “they may find a verdict of murder of the first degree, murder of the second degree or manslaughter,” he entirely nullifies such instruction by subsequently saying, “If he is not insane, then he is guilty of murder of the first degree.”</p> <p>4. On the trial of an indictment for murder, where the defense is insanity, and the trial judge, without impropriety, tells the jury that the Commonwealth’s evidence standing alone, if believed, would be murder of the first degree, he commits reversible error by further charging as follows: “The defendant, however, sets up that he was not responsible for his actions at the time he killed his wife......If the perpetrator of an offense of this character is insane, the law does not hold him responsible......Now has he satisfied you, by a fair preponderance of the evidence, that, at the time he shot his wife, he did not know what he was doing, or that it was wrong to kill......That is the question you must answer — ■ practically the only question in the case for you to determine. We repeat, the question is, has he satisfied you by a fair preponderance of the evidence in this case that he was insane......There is no evidence in this case of the insanity of the defendant, or any evidence of any peculiar conduct on his part to which any one has testified that would warrant the jury in concluding that the defendant was insane.”</p> <p>5. Such instructions took away from the jury the right to determine all the questions in the case, — whether a crime had been committed, whether the defendant was responsible for its commission, and the degree thereof. The trial judge not only swept away the legislative injunction “that the jury before whom any person indicted for murder shall he tried, shall, if they find such person guilty thereof, ascertain in their verdict whether it he murder of the first or second degree,” but went further, and took from defendant the constitutional right, given to every accused person, to have a jury ascertain and pass upon the facts submitted by the Commonwealth, and decide as to his guilt or innocence.</p>

<p>Appeal, No. 171, Jan. T., 1920, by Catherine S. Nulling and the Provident Life & Trust Co., executors under the will of William Brewster Wood, deceased, from decree of O. C. Phila. Co., Jan. T., 1904, No. 623, dismissing exceptions to adjudication in estate of Alan Wood, Jr., deceased.</p> <p>Exceptions to adjudication of Gest, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court, in an opinion by Anderson, J., 28 Pa. Dist. R. 755, dismissed the exceptions to the adjudication. Catherine S. Nulling and the Provident Life and Trust Co., executors of William Brewster Wood, appealed.</p> <p>Error assigned was decree dismissing exceptions to adjudication.</p>

<p>Judgment — Opening judgment — Equity—Answer on information and belief — Burden of proof — Evidence—Clear, precise and indubitable — Transferee as use-plaintiff — Appeal—Review.</p> <p>1. An answer on information and belief to a petition to open judgment, while it need not be overcome by the evidence of two witnesses, or what is equivalent thereto, yet stands as a denial, and places the burden of proof on defendants, who seek to strike down their own solemn written obligation, and to do so must present evidence that is clear, precise and indubitable.</p> <p>2. Where an application is made to open a judgment, the relief demanded is in equity, and the applicant or complainant must make out a case which would justify a chancellor in entering the decree.</p> <p>3. In such a case the defendant being an interested witness, his sole uncorroborated testimony is not sufficient to overcome his written promise to pay.</p> <p>4. Where judgment notes are transferred to a use-plaintiff after maturity, such use-plaintiff stands in the same position as the payee would if no transfer had been made.</p> <p>5. Where an appeal from an order opening a judgment turns upon legal questions and deductions from facts, and therefore comes before the appellate court for review upon the merits rather than to see that the chancellor has properly exercised his discretion, and the application to open is based upon the uncorroborated testimony of the defendant, and such testimony is not clear, precise and indubitable, and in several material respects throws doubt upon the averments of his petition, the order opening the judgment will be reversed.</p> <p>6. If such a case should go to trial on the same evidence, it would be the duty of the court to direct a verdict for the plaintiff,</p>

<p>Appeal, No. 46, Jan. T., 1920, by defendant, from judgment of Superior Court, March T., 1919, No. 36, affirming judgment of C. P. Luzerne Co., Dec. T., 1918, No. 391, on case-stated, in suit of Trustees of the State Hospital of the Middle Coal Field of Pennsylvania v. Lehigh Valley Coal Co.</p> <p>Case-stated to recover for treatment of defendant’s employees removed to plaintiff’s hospital “by permission of defendant.”</p> <p>Appeal from Superior Court. See 71 Pa. Superior Ct. 545.</p> <p>The Superior Court affirmed the judgment of the court of common pleas. Defendant appealed.</p> <p>Error assigned was judgment of Superior Court, quoting it.</p>

<p>Wills — Trusts and trustees• — Life estate — Spendthrift trust— Appeals — Jurisdiction of orphans’ court — Question not raised below.</p> <p>1. The general rule is that a gift of the income of land without interposition of a trustee, and with no gift in remainder, is a gift of the land itself. If, however, a testator intends a spendthrift trust to attach to property given to a daughter for life under an earlier clause, this intent necessarily cuts down the legal estate to an equitable one subject to the trust created by the later clause of the will.</p> <p>2. Where a testator gives to his daughter for life “the net rents, issues and profits” of real estate, subject to necessary expenditure for taxes, water rents, insurance and repairs, and also a money legacy of $10,000, and after making other devises and bequests to children and grandchildren named, as well as to third persons, directs that the income, legacies and devises so given “for the benefit” of his daughter and other persons mentioned, “are to be for their separate respective and exclusive use and benefit,” so that they shall not be sold or parted with by way of anticipation, nor subject to judgments, debts or liabilities of the beneficiaries, the daughter takes an equitable estate for life with the legal estate vested in the trustees.</p> <p>3. In such ease, where the daughter takes an appeal from a decree against her, she cannot on the appeal raise an objection to the jurisdiction of the orphans’ court for the first time, on the ground that the account under consideration did not include items of rents and profits from the real estate devised to her, and therefore that the construction of such clause was not properly before the court.</p>

<p>Appeal, No. 64, Oct. T., 1920, by plaintiff, from order of C. P. Somerset Co., Feb. T., 1919, No. 98, entering judgment for defendant n. o. v., in case of Mary J. Bowser v. Citizens Light, Heat & Power Co.</p> <p>Trespass for death of plaintiff’s husband. Before Bailey, P. J., specially presiding.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Yerdict for plaintiff for $3,500. The court subsequently entered judgment for defendant n. o. v. Plaintiff appealed.</p> <p>Error assigned was, inter alia, entry of judgment n. o. v., quoting record.</p>

<p>Water worlcs — Municipal plant — Bates — Classification — Discrimination — Higher rates for patrons beyond city limits — Charge for service connections — Equity—Pleadings—Bi$—■Averments— Prayers.</p> <p>1. A city owning and operating a water works is not guilty of charging excessive and discriminatory rates merely because it requires water users residing beyond the city limits to pay an advance of twenty-five per cent over the city rates, and, in addition, the actual cost of the extension of the Service into their respective properties, although such latter charge is not made against patrons within the city.</p> <p>2. Proper classification of patrons of a water corporation, municipal or otherwise, is permitted, and the classification here attacked is justifiable.</p> <p>3. To sustain a proceeding in equity, the bill should sufficiently aver the actual infringement of a legal right.</p> <p>4. It seems the bill must aver that the rates are excessive and discriminatory, and the omission of such averments are not supplied by a prayer that the rates be decreed excessive and discriminatory.</p> <p>5. It seems also that the bill should aver that plaintiff had made application to the water commissioners designating the property to which he wished water furnished and that such application had been refused by them.</p>

<p>Appeal, No. 292, Jan. T., 1920, by James A. Snodgrass, from order of Q. S. Crawford Co., Feb. Sess., 1920, No. 7, declaring tbe election of sheriff invalid, in case of the Contested Election of James A. Snodgrass for Sheriff of Crawford Co.</p> <p>Petition to contest election. Before Prather, P. J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>The court declared the election invalid. James A. Snodgrass, respondent, appealed.</p> <p>Errors assigned, among others, were (1) (2) overruling motion to quash proceedings, (3) allowing amendments to petition, (7) (12) findings of court quoted in opinion of Supreme Court, quoting record.</p>

<p>Contracts — Illegal contracts — Burden of proof — Monopoly—Consolidation of business — Public policy — Corporations—Specific performance — Fraud—Equity—Findings of fact — Appeal—Review.</p> <p>1. The courts will refuse to enforce a contract founded in illegality.</p> <p>2. Where a party to a contract asserts its illegality, the burden of proof is upon him to show how and why it is unlawful.</p> <p>3. A court of equity will always look through the form to the substance, and will refuse to enforce a contract if it is in fact monopolistic, no matter how innocent the transaction may seem.</p> <p>4. Findings by the court below that a transaction is not fraudulent will not be reviewed by the Supreme Court, if there is evidence to support it.</p> <p>5. A consolidation of rival businesses is not necessarily illegal.</p> <p>6. A transaction will not be held illegal, simply because a monopoly incidentally and collaterally results from a legitimate business transaction.</p> <p>7. Public policy does not require a corporation, about to retire from business, to abstain from selling its assets to a competitor.</p> <p>Equity — Remedy at law — Answer—Demurrer—Waiver — Jurisdiction — Specific performance — Act of June 7, 1907, P. L. kh-0.</p> <p>8. Objection to a bill in equity that there is a full, complete and adequate remedy at law, will be deemed waived, unless this question is raised by an answer or demurrer explicitly so stating, as required by Act of June 7, 1907, P. L. 440.</p> <p>9. Specific performance of a contract will be granted when it is clearly the only adequate remedy for a breach thereof.</p>

Appeal, No. 91, Jan. T., 1920, by William D. Rhodes, Assignor, from order of C. P. Blair Co., Oct. T., 1918, No. 252, awarding writ of possession in assigned estate of William D. Rhodes. Petition for writ of possession. Baldrige, P. J., filed the following opinion: William D. Rhodes and wife, on September 30, 1918, executed and delivered to David F. Rhodes a general deed of assignment for the benefit of creditors of William D. Rhodes.

<p>Appeal, No. 191, Jan. T., 1920, by Vincent L. McFarlin and Samuel R. McFarlin, Administrators, from decree of O. C. Blair Co., No. 689%, O. C. 1919, confirming report of auditor in Estate of Ellissia M. McFarlin, deceased.</p> <p>Petition for review.</p> <p>Exceptions to report of Robert W. Smith, Esq., auditor.</p> <p>Baldrige, P. J., filed the following opinion:</p> <p>Ellissia M. McFarlin died, intestate, in the City of Altoona, September 24, 1916. Letters of administration on her estate were granted to Vincent L. McFarlin and a nephew, Samuel R. McFarlin. On April 27,1917, the administrators filed their final account, which was duly confirmed, showing a balance in their hands, after the payment of collateral tax of $363.38, and distributed the net balance of $7,667.32, and attempted to account for the distribution thereof in their account and took credit for paying $3,000 to Mrs. Margaret Young, a sister of this decedent, and $3,904.17 was appropriated by Vincent L. McFarlin, one of the administrators.</p> <p>On May 16, 1919, a petition was presented to this court for a review of the proceedings, alleging that the decedent years ago had given birth to an illegitimate son who was living and had no notice of any proceedings in his mother’s estate.</p> <p>An auditor was appointed to make distribution of the funds in the hands of the administrators, who, after a full hearing, directed that the $7,262.72 remaining in the hands of the accountants was due and payable to William H. McFarlin, the only child of the decedent. Exceptions were filed by the accountants to the auditor’s conclusions.</p> <p>We cannot profitably add very much to what has been so well set forth by the auditor. It has been frequently ruled in this State that when accountants make voluntary distribution amongst next of kin they do so at their own risk. If any additional authorities are necessary than those set forth in the report of the auditor, White’s Estate, 163 Pa. 388, could be mentioned as an authority wherein the facts are not entirely dissimilar from the case at bar. The facts in that case disclose that an auditor was appointed to make distribution of funds in the hands of the executor, but no notice thereof was given to William White Buckley, an infant and nonresident of the State. A bill of review was granted. Mr. Justice Williams, delivering the opinion for the appellate court, said: “It was doubtless the result of haste and thoughtlessness on the part of the children of the testator, and of a mistaken confidence in his professional opinion on the part of the attorney and auditor. But whatever the fact may be as to the manner in which the proceedings were conducted, the conclusion is inevitable that it was not such an adjudication as could conclude the infant against whom it was rendered without a hearing and without notice. As a settlement of the accounts of the executors it may be conclusive, at least it is not now questioned, but as a decree of distribution it was a nullity so far as the interest of the petitioner is concerned.” Thus in this case in so far as an attempted distribution of the estate is concerned it is entirely void.' It was not disputed that the elder accountant at least knew of the birth of the child and of a visit he paid his mother in the City of Altoona. The mere fact that the accountants had heard nothing from him for a number of years raised no legal presumption of his death; Blair County never was his home. There was no testimony offered to show that the son and claimant was absent or unheard of at his last place of domicile for the statutory period of seven years, in accordance with the Act of 1885, P. L. 155, and, therefore, there was no presumption of death arising. “The place where his absence is to be taken account of is his home, or the place where he customarily stays, rather than a locality far distant”: Shultz’s Est., 46 Pa. Superior Ct. 546; Morrison’s Est., 183 Pa. 155.</p> <p>The accountants rely mainly on the Act of 1903, P. L. 70, interpreted by them to mean that where an estate of the mother of an illegitimate has been actually paid and received by the collateral heirs the illegitimate child is debarred from any participation in the estate.</p> <p>An act was passed in 1901, P. L. 639, to regulate and define the legal relations of an illegitimate child, or children, its or their heirs, with each other and the mother and her heirs. This act was amended by the Act of 1903, the title of which is, “To amend an act, etc., ......where the estate of such illegitimate or mother has not been actually paid to and received by collateral heirs or the Commonwealth.” Section 4 is as follows: “The intent of this act is to legitimate an illegitimate child and its heirs, as to its mother and her heirs; but is not intended to change the existing law with regard to the father of such child, or their respective heirs and legal representatives. This act shall apply to all cases, now pending, where the estate of such illegitimate or its mother has not been actually paid to and received by collateral heirs or relatives or the Commonwealth, as well as to all such cases happening after the passage of this act.”</p> <p>It seems quite obvious that the intent of the legislature was that this law applied to all cases then pending where there was not an actual payment to the collateral heirs, as well as to all cases of illegitimacy in the future. There is no intended inclusion of all cases of illegitimacy where money had been paid to and received by collateral heirs. If that were so one could with very little difficulty or inconvenience render the act practically nugatory by filing an account and making a payment to collateral heirs; the illegitimate child would in that event be entirely debarred. This was not the intent of the legislature, nor does the language bear such an interpretation.</p> <p>It is contended upon the part of the son that he is entitled to interest on the fund for distribution.</p> <p>The decedent died on September 24, 1916, and the account was filed April 27,1917. Amongst the assets was a mortgage due from the administrators. We think it but just that this exception should be sustained, and that interest be allowed on that sum during that period, amounting to $130.</p> <p>Interest is further claimed on the fund of $7,262.17 from the date of the filing of the account, April 27, 1917, to the filing of the report of the auditor on August 15, 1919, and it is asked that the accountants be surcharged with $1,002.25 for that item.</p> <p>.Under the circumstances we think the rate of interest is too high, but that the accountants ought to be charged with interest at the rate of three per cent amounting to $501.12. With this modification in the interest the report of the auditor is confirmed.</p> <p>Vincent L. McFarlin and Samuel R. McFarlin, administrators, appealed.</p> <p>Errors assigned were in the following form:</p> <p>1. The learned court erred in finding as a matter of law that the Act of 1903, page 70, had no application to this case.</p> <p>2. The learned court erred in holding and approving the finding of the auditor that fraud had been proven.’</p> <p>3. The learned court erred in holding that the seven years’ absence of William H. McFarlin from Pennsylvania was not sufficient to protect the said administrators in their distribution of the estate from being surcharged.</p>

<p>Appeal, No. 250, Jan. T., 1920, by defendant, from judgment of C. P. Erie Co., Feb. T., 1918, No. 488, for plaintiff, on case tried by court without jury, in suit of P. T. Foley v. Equitable Investment Co.</p> <p>Issue to determine the amount due on a judgment entered on a judgment note. Before Whittelsey, P. J.</p> <p>The case was tried by agreement of counsel by the court without a jury.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court entered judgment for plaintiff refusing to allow a set-off claimed by defendant. Defendant appealed.</p> <p>Error assigned was judgment of court, quoting it.</p>

<p>Negligence — Railroads—Operation of switch engine in yard — ■ Signals — Failure to give signal — Car inspector — Death—Custom —Yard movement cases — Risk of employment — Contract—Waiver —Notice—Release.</p> <p>1. Where it is the custom, in the operation of switch engines in a railroad company’s yard, not to give signals to employees in the yard, the company cannot be held liable for negligence in failing to give such signal, in an action brought to recover damages for the death of one of its car inspectors, who had been employed in the yard for six months prior to his death.</p> <p>2. The knowledge and acquiescence of such custom, on the part of the deceased, wrote an implied waiver into his contract of employment, releasing the company from such alleged negligence.</p> <p>3. The employee assumed the risk of his employment under the undisputed facts of the case.</p> <p>Curtis, Admr., v. Erie R. R. Co., 267 Pa. 227, applied.</p>

<p>Appeal, No. 6, J an. T., 1921, by plaintiff, from judgment of C. P. Lackawanna Co., Jan. T., 1920, No. 769, for defendant, on demurrer to return on petition for mandamus, in case of Com. ex rel. Raniero Giombetti v. James P. Conroy, Burgess, et al., Councilmen of the Borough of Winton, Lackawanna County.</p> <p>Petition for mandamus. Before Edwards, P. J.</p> <p>The prayer of the petition was for a peremptory mandamus to compel defendants to recognize petitioner as a member of the borough council of Winton. The court granted an alternative writ of mandamus to which defendants made return. The relator demurred to the return. The court held that the proper remedy was quo warranto, sustained the demurrer, and entered judgments for defendants. Relator appealed.</p> <p>Error assigned was judgment, quoting it.</p>

Appeal, No. 47, Jan. T., 1920, by plaintiff, from judgment of O. P. Northampton Co., June T., 1918, No. 116, for plaintiff on case tried by court without a jury, in suit of First Nat. Bank of Easton v. Ætna Casualty & Surety Co. Assumpsit on a bond of suretyship. Before Stew-ART, P. J. The opinion of the Supreme Court states the facts. The court entered judgment for plaintiff for $5,350. Plaintiff appealed.

<p>Appeal, No. 253, Jan. T., 1920, by the Commonwealth, from decree of O. C. Phila. Co., July T., 1918, No. 38, dismissing exceptions to adjudication disallowing collateral inheritance tax in estate of Rosalie Butcher, deceased.</p> <p>Exceptions to adjudication. Before Anderson, J.</p> <p>From the record it appears that the testatrix by her will gave all of her residuary estate “unto my niece (and daughter of my heart) Florence Addicks.”</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The auditing judge disallowed the collateral tax claimed by the Commonwealth.</p> <p>The court dismissed the exceptions in an opinion by Gummey, J., Henderson, J., filing a dissenting opinion, in which Gest, J., concurred. See 48 Pa. C. C. R. 580; 29 Pa. Dist. R. 109.</p> <p>The Commonwealth appealed.</p> <p>Error assigned was decree dismissing exceptions.</p>

Appeal, No. 284, Jan. T., 1920, by plaintiffs, from judgment of C. P. No. 5, Phila. Co., Sept. T., 1919, No. 4825, in favor of defendant, in case of Armitt Brown and Frederick W. Cavanagh, co-partners, trading as Armitt Brown & Co. and Danser & Co. v. Mutual Trust Company. Trespass for torts in issuing overdraft and aiding and abetting same. Before Martin, P. J. The facts are stated in the opinion of the Supreme Court.

<p>Negligence — Judgment—Opening—Fraud ■— Perjury — Surprise —After-discovered evidence — Equity—Maxims—Interest rei publics — Nemo debet bis vexari, etc.</p> <p>1. The general rule is that an act for which a court of equity will set aside or annul a judgment between the same parties, rendered by a court of competent jurisdiction, has relation to fraud extrinsic or collateral to the matter tried by the first court, not to fraud in the matter on which the judgment was rendered.</p> <p>2. By the expression “extrinsic or collateral fraud” is meant some act or conduct of the prevailing party which has prevented a fair submission of the controversy.</p> <p>3. The reason for the rule is that there must be an end of litigation; and, where a party has had his day in court and knows what the issues are, he must be prepared to meet and expose perjury then and there.</p> <p>4. The court will not set aside a judgment because it was founded on perjured evidence, or for any other matter which was actually presented and considered in the judgment assailed.</p> <p>5. Where a judgment in a personal injuries ease in favor of plaintiff, has been affirmed by the appellate court, and thereafter defendant obtains a rule on plaintiff to show cause why the judgment should not be opened, the verdict set aside, and a new trial granted, such rule is properly discharged, where the only ground alleged in support of it was perjury on the part of plaintiff in his testimony, in swearing falsely and knowingly to several elements in his case, with the result that the court and jury were misled thereby and an excessive verdict was rendered by the jury.</p> <p>6. When the issues of fact are so squarely made that each party knows what the other will attempt to prove, and neither is under any necessity of depending on the other to prove the facts to be as he himself claims, the courts have refused to grant relief on the ground of false or perjured testimony by the Successful party or his witnesses. The fact that the introduction of the false testimony was not anticipated by the party against whom the judgment was rendered, and he was therefore taken by surprise, will not take the case out of the general rule; for perjury on the part of a plaintiff is not considered as constituting a case falling within the rule permitting a court of equity to relieve a party from a judgment taken against him through his mistake, inadvertence, surprise, or excusable neglect.</p> <p>7. Where the unsuccessful party has been prevented from exhibiting fully his case by fraud or deception practiced on him by his opponent, as by keeping him away from court on false promise of compromise; or where the defendant never had knowledge of the suit, being kept in ignorance by the acts of the plaintiff; or where an attorney fraudulently or without authority assumes to represent a party and connives at his defeat; or where the attorney regularly employed corruptly sells out his client’s interest to the other side, — these and similar cases which show that there has never been a real contest in the trial or hearing of the case are reasons for which a new suit may bo sustained to set aside and annul tbe former judgment or decree and open tbe case for a new and fair hearing.</p> <p>8. Tbe Supreme Court will not, on tbe merits of tbe case, review the discretion of tbe lower court in refusing a new trial on account of alleged perjury of plaintiff, where it appears that the counter affidavits filed by plaintiff to defendant’s petition traversed every material averment set out in tbe petition, with explanations, where tbe traverse was not specific, which would, in tbe opinion of tbe court, make a conviction of perjury improbable and unsafe, and it also appears that tbe trial was a fair one in which defendant was fully advised by tbe pleadings of tbe nature and character of tbe evidence plaintiff would be required to produce to establish bis case.</p>

<p>Criminal law — Murder—Degrees—Murder of second degree— Presumption — Burden of proof — Insanity—CTia/rge of court.</p> <p>1. On the trial of an indictment charging felonious homicide, the presumption is that the offense of the accused is no higher than murder of the second degree, and the burden is always on the Commonwealth to rebut this presumption by proof, establishing, to the satisfaction of the jury, that the crime is of the first degree. This burden never shifts, but continues to rest upon the Commonwealth throughout the entire trial, and the accused is not called upon to rebut a presumption of a degree of guilt which does not exist.</p> <p>2. Where insanity is set up as a defense, and the court correctly charges the jury that if they find from a fair preponderance of the evidence that the prisoner had not consciously committed the crime charged against him, he should be acquitted on the ground of insanity, it is reversible error for the court to further charge that, if the prisoner was sane at the time of the commission of the offense, the law presumes it to be murder of the first degree and that the jury should so find.</p> <p>3. In such case, the court, having charged that under the indictment a verdict of murder of the first degree, murder of the second degree, or voluntary manslaughter could be found and sustained, almost instantly added: “We have to deal in this ease only with the offense of murder of the first degree.” Immediately after this the jury was told that if the prisoner’s insanity had not been established, “there is no evidence that we can discover that would diminish the offense from that of murder of the first degree.” Held, that no matter what the testimony may have shown, and no matter what counsel for the prisoner may have admitted in addressing the jury, before whom they could waive no right of their client, such utterances by the court were erroneous, since they must have been understood by the jury as taking from them, to whom the law had exclusively committed it, the question of tha degree of the guilt of the accused.</p>

<p>Appeal, No. 289, Jan. T., 1919, by plaintiffs, from decree of C. P. Schuylkill Co., in equity, Nov. T., 1913, No. 3, refusing injunction in the case of Emanuel Breisch et al., supervisors of Union Township, Schuylkill Co., Pennsylvania, v. Locust Mountain Coal Co. et al.</p> <p>Bill in equity to enjoin defendant from excavating coal in highway. Before Berger, J.</p> <p>Statement of facts by Mr. Justice Kephart: Krebs Road in Union Township was a much traveled public highway from the Borough of Shenandoah to Krebs Station, near Ringtown, Schuylkill County. Along both sides and under this road the Locust Mountain Coal Company owns the coal; under the road and on either side it consists of three veins, the uppermost 25 feet thick, the next two seven feet thick. It runs near the surface and can be removed only by stripping, the usual method of mining being impossible by reason of the pitch of the veins and the stratification between them in this locality. To remove the coal, a partial destruction of the road by the stripping operation was necessary, and defendants, after consultation with the several supervisors, built a new road, making a change in the route from Krebs Station to Shenandoah, increasing the distance a little over a half mile. Thereafter, defendants excavated across Krebs Road to a depth of 14 feet for about 50 feet'; whereupon, in 1913, the Union Township supervisors filed this bill, praying for a mandatory injunction to compel the restoration of the public road to the condition that existed before the excavations and obstructions were made. On October 27th the preliminary injunction then granted was continued because of the proceedings to open a new road, and, upon agreement of defendants to pay the cost thereof, the injunction was so modified as to permit the company to extend the work of excavation north and south. The basis of the order was an agreement signed by the attorneys in the case, and then defendants continued their excavation, stripping along the Krebs Road for a distance of 550 feet to a depth of about 60 feet, in the Townships of Union and West Mahoning. The proceedings to vacate and supply the whole or a part of the Krebs Road, as instituted by the parties, were set aside; the one instituted by defendants by the Superior Court: see Krebs Road, 64 Pa. Superior Ct. 492.</p> <p>There is nothing in the record showing any further • proceedings to legally vacate this highway. The complainants’ successors in office again pressed for the mandatory injunction, but, because of the changed conditions of the parties, the apparent reliance and acquiescence for many years by plaintiffs on the agreement of defendants and the work carried on in accordance therewith, with the laches of plaintiffs, the court below refused the mandatory injunction, retaining the bill that defendants might carry out the agreement of October 27th. Hence this appeal. Were complainants entitled to a mandatory injunction as prayed for?</p> <p>The court refused an injunction but retained the bill until the parties should carry out the agreement to supply a new road.. Plaintiffs appealed.</p> <p>Errors assigned were overruling exceptions to findings, and decree of court, quoting them.</p>

<p>Appeal, No. 281, Jan. T., 1920, by plaintiff, from order of C. P. No. 3, Pbila. Co., Dec. T., 1917, No. 1405, refusing to take off compulsory nonsuit in case of Charles Flanigan v. William L. McLean, individually, and trading as the Evening Bulletin, publisher and owner thereof, also trading as the Bulletin and the Bulletin Company.</p> <p>Trespass to recover damages for personal injuries alleged to have been sustained by being struck by defendant’s autotruck. Before Davis, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court entered a compulsory nonsuit which it subsequently refused to take off. Plaintiff appealed.</p> <p>Error assigned was refusal to take off nonsuit, quoting record.</p>

<p>Landlord and tenant — Lease—Surrender of possession on sale — • Time of notice — Agreement to sell — Title—Ejectment—Judgment hy confession — Proceedings to open — Equity—Technicality.</p> <p>1. A written agreement for the sale of a building constitutes a sale within the meaning of a lease providing for the surrender of possession by the tenant on notice that the property has been sold, so that a notice to the tenant to vacate is valid although given prior to the passing of the legal title.</p> <p>2. Technical questions in ejectment under a lease, not suggested in the petition to open the judgment, cannot be considered inasmuch as proceedings to open a confessed judgment are purely equitable in form, wherein the petition and answer comprise the pleadings, and the court grants relief only upon the grounds embraced therein.</p> <p>3. Not decided, as to authority to confess judgment on warrant in lease after the lessor has, in efEect, surrendered possession of the premises occupied by him, or whether such judgment could be confessed, under the terms of the lease, before an action of ejectment had actually been brought.</p> <p>4. An application to open a judgment is equitable in substance and must rest on a meritorious and not on a mere technical defense.</p> <p>Judgments — Proceedings to open — Appeals—Review of order— Merits of case — Discretion of court.</p> <p>5. An appeal from an order refusing to open a judgment which depends upon legal questions and deductions from undisputed facts, is before the appellate court for review on the merits, and not to determine whether the court has properly exercised its discretion.</p>

<p>Appeal, No. 78, Jan. T., 1920, by defendant, from judgment of C. P. No. 4, Phila. Co., March T. 1918, No. 3573, on verdict for plaintiff in case of Delia Fitzpatrick v. Anne W. Penfield.</p> <p>Trespass for the death of plaintiff’s son. Before Fin-letter, J.</p> <p>At the trial it appeared that plaintiff’s minor son was killed on March 10,1918, by the fall of a wall, which it was alleged defendant had left standing, without proper care, after a fire on February 3, 1917. The boy at the time of the accident was playing with other boys on a lot owned by Howard B. French, which adjoined the lot owned by defendant', on which the wall stood.</p> <p>Other facts appear by the opinion of the Supreme Court.</p> <p>Verdict and judgment for plaintiff for $2,009. Defendant appealed.</p> <p>Errors assigned, among others, were (2, 3) the affirmance of the 9th point of defendant and the answer thereto, quoted in the opinion of the Supreme Court.</p>

<p>Wills — Direction to pay debts — Power of sale — Conversion — Lien of decedent's debts — Fiduciary Act of June 7, 1917, P. L. Jflf7, section SO.</p> <p>1. A direction “to pay all my just debts and funeral expenses” in one item of a will, and in another, an authority to the executors “to make sale of any of my real estate” do not work a conversion at the moment of the testator’s death, breaking the descent and vesting the entire estate as personalty, where there is nothing in the will upon which could be predicated a positive direction to sell or a necessity to sell to execute the will, nor such a blending of real and personal property as would create a fund to devolve as personalty.</p> <p>2. The mere blending of real and personal estate without a clear and indubitable intent to create a common fund and bequeath it as money will not constitute a conversion.</p> <p>3. The law does not favor conversions.</p> <p>4. As a general rule conversion takes place from the death of the testator where testator intended there should be a conversion, but when there is no intention to convert out and out and the power is discretionary in the executors or trustees, the land passes to the heirs at law as land.</p> <p>6. At the moment of testator’s death, the lien of the unscheduled debts attach, to be released only in the manner provided by law, i. e., by judicial sale, or other appropriate remedy.</p> <p>6. Where there is an absolute direction to sell for the payment of debts, the purchaser is hound to see to the payment of the recorded debts, hut he is not bound to see to the payment of general debts, as they become payable in the ordinary course of administration; but' where the power of sale is discretionary, conversion takes place when the land is sold.</p> <p>7. Section 30 of the Fiduciaries Act of June 7, 1917, P. L. 447, makes no change in the law as it previously existed with respect to the lien of general debts against a decedent’s real estate where a discretionary power to sell is given as mentioned in the act.</p> <p>8. It was not tbe intention of section 30 of tbe Fiduciaries Act of 1917, to change the course of devolution nor to break the current of descent by holding that a conversion took place from the moment of the testator’s death, under a mere authority in the will to sell realty.</p> <p>9. Section 30 of the Fiduciaries Act of 1917, did not intend to take away from general creditors the land as security for the payment of debts. It still remained such security and the lien of general debts attach thereto, but such debts will be discharged not only by judicial sale, but also by sale under the discretionary power of sale contained in the will.</p> <p>10. To bring a case within this section and act, it must be clear that the statutory direction has been followed, and, as the general debts are liens, then, in a case under the act, the land having passed as land and the lien having attached, when the land is sold under the power before the expiration of the year, while the purchaser may buy free from the lien of general debts because he is not required to see to the application of the purchase money (which is merely another way of stating that he takes the land free of debt), the creditor still has a claim on the purchase money realized from the sale. If no sale is then held and the creditor is diligent and files his claim of record, it will remain as a lien under the law to be discharged when the executor exercises his discretionary power. If he does not so exercise it, the lien will still stand as a lien under the law applicable thereto.</p> <p>Statutes — Construction—Prior law — Common law — Presumption — Legislative intent.</p> <p>11. legislative enactments are to be expounded as near to the use and reason of the prior law as may be, when this can be done without violation of its obvious meaning; for, it is not to be presumed the legislature intended to make any innovation upon the common law, further than the ease absolutely requires.</p>

<p>Negligence — Street railways — Automobiles— Quest — Contributory negligence — Evidence—Presumption from location of parties • — Proximate cause.</p> <p>1. Where a guest in an automobile is seated in the rear of the machine, and has no control whatever over its operation, the negligence of tbe driver, in contributing to a collision with a street car, cannot be imputed to the guest.</p> <p>2. Where a guest in an automobile was found, immediately after a collision between the automobile and a street car, lying at the intersection of the streets where the accident occurred, the inference is that the guest was thrown from the automobile by reason of contact with the street car.</p> <p>3. A judgment on a verdict for plaintiff, in an action against a street railway company for a death caused by a collision between a ear of defendant and an automobile in which deceased was riding, will be sustained, where the evidence for plaintiff, although contradicted, tended to show that the car was running from 20 to 30 miles an hour, that no signals were given, and that the automobile was dragged 150 to 200 feet from the place of the collision.</p> <p>Appeals — Consideration of evidence — Verdict.</p> <p>4. A plaintiff who has recovered a verdict in his favor, is entitled, on appeal, to have the evidence considered in the light most advantageous to himself, and he must be given the benefit of every fact and inference reasonably deducible therefrom.</p>