Volume 268 — Pennsylvania State Reports

<p>Criminal law — Murder—Confession—Duress—Interpreter—Evidence — Stenographer—Appeal—Review.</p> <p>1. On trial of indictment for murder, a confession signed by defendant is properly admitted in evidence, where it appears defendant was an Italian, who, while he understood English to some extent, spoke through an interpreter; that his confession was translated into English by the interpreter, taken in shorthand, reduced to longhand, and the writing read to defendant in Italian by the same interpreter and in English by the district attorney; that defendant then signed all the pages of the writing; and that the interpreter and the witnesses who heard the examination, with the exception of the Stenographer, who was not called, testified as to what took place, the interpreter testifying that the interpretation was correct and was understood by defendant and that the statement was a correct transcription of defendant’s story.</p> <p>2. In such case, it is not material that the stenographer was not called, as his statement would add nothing of probative value relative to the competency of the writing. The correct practice is to call the interpreter.</p> <p>3. Testimony of a shorthand reporter, based on his notes, is incompetent to prove the testimony or statements of witnesses, given in a foreign language unknown to the reporter, and through an interpreter.</p> <p>4. Written statements by a defendant, deliberately and seriously prepared, are always admissible as substantive evidence in a case.</p> <p>5. If the defendant admits that the written confession signed by him, is correct, such writing becomes substantive proof.</p> <p>6. Objection made at the bar of the Supreme Court on appeal, that a confession was secured by. duress, threats and violence will not be considered, where there is no assignment of error covering it, and the record does not show that the confession when offered in evidence, was objected to on that ground.</p> <p>7. A verdict of guilty of murder of the first degree will be sustained, where it appears defendant, by signed confession, admitted he killed deceased, that the defense set up was partly self-defense and partly insanity; that the evidence of defendant himself showed facts consistent with deliberate and premeditated killing, and that the court in its charge gave the defendant the benefit of the different positions assumed by him throughout the trial.</p> <p>Criminal law — Murder—Separation of jury.</p> <p>8. The fact that a juror in a murder trial, after the jury had been sworn, goes to a dentist, but without consent of the court, under custody of an officer of the court, while the rest of the jury remain in the custody of another officer, is not ground for a new trial, where the evidence shows that no harm was done by such separation of the jury; but the conduct of the officer in so acting without the consent of the court, is most reprehensible and worthy of the severest punishment.</p>

<p>Appeal, No. 195, Jan. T., 1920, by Charles O. Filbert, from decree of O. C. Berks Co., File No. 2392, Term 1919, dismissing rule for issue devisavit vel non in Estate of Albert S. Weber, deceased.</p> <p>Rule for issue devisavit vel non. Before Schaeffer, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court discharged the rule. Charles O. Filbert appealed.</p> <p>Error assigned was decree dismissing rule for issue.</p>

<p>Appeal, No. 188, Jan. T., 1920, by plaintiff, from ¡judgment of C. P. No. 1, Phila. Co., March T., 1919, No. 765, for defendant on questions of law raised by affidavit of defense in case of Cramp & Co. v. Central Realty Corporation of Philadelphia.</p> <p>Assumpsit for balance alleged to be due on building contract. Before Shoemaker, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court below entered the following judgment:</p> <p>“Judgment for plaintiff for $34,290.09, and for the amount claimed in deductions, $57,465.17, with leave to defendant to file an affidavit to the merits of the latter claim. Judgment for defendant on the questions of law raised as to the amount claimed for extra work, $13,-606.05, and as to the amount claimed for consequential damages $44,452.15.”</p> <p>Plaintiff appealed.</p> <p>Error assigned was judgment of court, quoting it'.</p>

<p>Appeal, No. 294, Jan. T., 1920, by defendant, from judgment of O. & T. Luzerne Co., April T., 1919, No. 45, on verdict of guilty of murder of the first degree in case of Com. v. Tony DePalma, alias Tony Palma.</p> <p>Indictment for murder. Before Strauss, J.</p> <p>The opinion of the Supreme Court states the facts. Verdict of murder of the first degree, upon which judgment of sentence was passed. Defendant appealed.</p> <p>Errors assigned were various rulings and instructions get forth in the opinion of the Supreme Court.</p>

<p>Appeal, No. 286, Jan. T., 1920, by defendants, from judgment of C. P. Cumberland Co., Feb. T., 1919, No. 121, on verdict for plaintiff in case of Big Spring Electric Co. v. S. M. Kitzmiller and E. J. Kitzmiller, trading as S. M. Kitzmiller & Bro.</p> <p>Assumpsit to recover balance alleged to be due for bonds sold and delivered. Before McPherson, P. J., specially presiding.</p> <p>Tbe opinion of the Supreme Court states the facts.</p> <p>Verdict and judgment for plaintiff for $50,540.25. Defendants appealed.</p> <p>Errors assigned were instructions, quoting them.</p>

<p>Appeal, No. 156, Jan. T., 1920, by plaintiff, from judgment of C. P. Northampton Co., July T., 1916, No. 20, on verdict for defendants in case of Eugene Rissmiller v. Evangelical Lutheran Congregation, Saint Peters, Plainfield Township, Northampton County, and German Evangelical Reformed Congregation of Plainfield.</p> <p>Assumpsit for breach of contract. Before McKeen, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict and judgment for defendants. Plaintiff appealed.</p> <p>Errors assigned were refusal of various challenges to jurors, and various rulings and instructions.</p>

<p>Appeal, No. 31, Jan. T., 1919, by defendant, from decree of C. P. Luzerne Co., Feb. T., 1910, No. 1, on bill in equity in case of Plymouth Township v. Larksyille Borough.</p> <p>Bill in equity to ascertain indebtedness and assets of Plymouth Township and Larksyille Borough at time of incorporation of borough. Before O’Boyle, J.</p> <p>The case was referred to Charles Kuscheke, Esq., as master, whose report was confirmed by the court.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court entered a decree confirming the master’s report, and imposing upon the borough 57.96 per cent of the cost of a state highway constructed under an agreement between the county commissioners, the township supervisors and the State highway commissioner. The borough appealed.</p> <p>Error assigned was decree of court summarized in the opinion of the Supreme Court.</p>

Appeal, No. 38, J an. T., 1921, by defendant, from judgment of C. P. No. 5, Phila. Co., Dec. T., 1915, No. 2934, on verdict for plaintiff and for an accounting in case of Norman B. Miller v. Belmont Packing & Rubber Co. formerly known as Clement Re-stein Company. Assumpsit for royalties. Before Martin, P. J. The opinion of the Supreme Court states the facts. Verdict for plaintiff on which the court entered an order directing defendant to account. Defendant appealed.

<p>Wills — Codicil—Revocation—- Republication — Construction of codicil.</p> <p>1. A codicil and a will must be construed together.</p> <p>2. A codicil revokes the will only in so far as it is -inconsistent with the original writing.</p> <p>S. A codicil serves as a republication of the will as of the date of the codicil.</p> <p>Will — Legacies—Lapse of part of residue — Gift to class — T.nten~ iion — Survivorship—Codicil.</p> <p>4. A “gift to a class” is a gift of an aggregate sum to a body of persons uncertain in number at the time of the gift to be ascertained in the future, who are to take in equal or other definite proportions, the share of each being determined for its amount upon the ultimate number.</p> <p>5. Members who are to constitute a class are determined at the time of distribution.</p> <p>C. Whether a gift is to a class or to the individuals constituting the class depends upon the intention of the testator as indicated by the language of the will.</p> <p>7. If, at the time of making the gift, the number of beneficiaries is certain and the share each is to receive is in no way dependent in amount upon the number who shall survive, it is not a gift to a class but to the individuals.</p> <p>8. Even though the beneficiaries be named the gift may still be one to a class if it appears from the will that the testator so intended, and that the enumeration was merely for the purpose of fixing with certainty the members of the class.</p> <p>9. Where a testatrix gives her residuary estate to her ten nephews and nieces share and share alike, naming them, and directs that should any die before receiving his or her share, without leaving children, the share of such deceased should become a part of the residuary fund and go to the survivors, and thereafter the testatrix executes a codicil, revoking the residuary bequest to a nephew and a niece, giving them, in place thereof, a specified money legacy, no intestacy results as to any part of the residuary estate, but the residue will be divided among the remaining eight nephews and nieces in accordance with the original terms of the will.</p> <p>10. In such a ease there is no application of the rule that if a legacy fails it passes to the next of kin and not to the remaining residuary legatees.</p>

<p>Appeal, No. 139, Jan. T., 1920, by Gertrude Sears, a legatee, from decree of O. C. Tioga Co., Sept. T., 1916, No. 3, dismissing exceptions to auditor’s report in Estate of Sarah M. Billings.</p> <p>Exceptions to report of G. Mason Owlett, Esq., auditor. Before Smith, P. J., specially presiding.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court dismissed the exceptions. Gertrude Sears, a legatee, appealed.</p> <p>Errors assigned were (1-8) dismissal of exceptions, and (9) decree, quoting them.</p>

<p>Eminent domain — Talcing land for lateral railroad — Damages—■ Agricultural purposes — Underlying minerals — Evidence.</p> <p>1. In a proceeding to determine damages due to an owner of a farm over which a lateral railroad is being constructed, where it appears that 14 acres of the 150 acres constituting the farm are underlaid with a peculiar and valuable kind of limestone, and that this portion is cut off by a creek from the rest of the farm, and that the railroad is being constructed beside the base of a cliff along the creek in such a way as to interfere with the quarrying of the limestone, the measure of damages is the market value of the land before and after the taking, and not the value of the farm as a farm useful for agricultural purposes only.</p> <p>2. In such a case it is proper to permit the owner to show that the farm had a special value as a source of supply of limestono useful for fluxing’ purposes in the manufacture of steel, distinct and apart from its value for agriculture; that the farm was ripe and ready for development for that special purpose; to he followed by evidence of witnesses familiar with the value of such limestone lands, showing the market value for such land.</p> <p>Appeals — Evidence—Rejection—Wrong reason for rejection — • Harmless error.</p> <p>3. Where an offer of evidence is objected to by counsel for a wrong reason, and the court rejects the offer for another and also a wrong reason, the error of the court in rejecting the offer, for the reason stated by himself, would be unimportant and harmless error only if the objection made by counsel had been well taken. The evidence having been rejected, the error is complete.</p>

<p>Promissory notes — Evidence—Case for jury — Contract—Statute of limitations — Statute of frauds — Original undertalcing.</p> <p>1. In an action founded on a promissory note, a judgment on a verdict for plaintiffs will be sustained, where the evidence for plaintiffs tended to show that defendant had agreed, for a consideration to pay the note in suit, under an agreement by which the defendant undertook to pay certain indebtedness owing by himself and associates to plaintiffs in pursuance of a settlement of a suit brought against defendant by his associates to recover a share of certain profits, and that this indebtedness had never been paid.</p> <p>2. In such a case where it appears that defendant had agreed, in order to pay the indebtedness, to raise funds by selling certain property belonging to plaintiffs, no cause of action arose until the expiration of a reasonable time within which defendant might carry out the arrangement to sell the property. The statute of limitations therefore did not run against the suit based on the note until that time, although the note by its terms was more than six years due.</p> <p>3. Where in such case, it appears that the consideration for defendant’s promise was the- release of plaintiff’s claim against him for certain commissions, plaintiffs may sue defendant on one of the notes in question, although not parties thereto, nor to the agreement between defendant and his associates. A contractual relation existed between the parties, defendant’s undertaking being an original one, supported by a consideration moving' from plaintiffs consisting of the retention of the commissions in defendant’s hands.</p> <p>4. Neither is the agreement within the statute of frauds, inasmuch as defendant, by virtue of the transaction, made the debt his own; hence the case is not one of a mere promise to pay the debt of another.</p> <p>Evidence — Written instrument — Parol evidence — Consideration ¡ — Contemporaneous parol agreement.</p> <p>5. Parol evidence is admissible to show the consideration mentioned in a writing is not the true one.</p> <p>6. It may be shown by parol evidence that a written release, covering all claims to date, was given as a matter of form under a parol agreement by which the release was to be used for a specific purpose only, and that the consideration mentioned therein was not the true consideration.</p> <p>7. Where a writing is induced by a contemporaneous parol agreement, subsequently’ violated, restricting its use for a particular purpose, parol evidence may be introduced to show the true consideration.</p>

<p>Foreign attachment — Garnishment—Emergency fleet corporation — Federal agency — Corporations—State courts — Federal courts —Jurisdiction — Concurrent jurisdiction — Federal Act of Sept. 7, 1916, Comp. Stat., section 81h6f — Statutes—Construction.</p> <p>1. The Emergency Eleet Corporation, incorporated under the laws of the District of Columbia in pursuance of the authority given to the Shipping Board under the Federal Shipping Act of Sept. 7, 1916, section 11 (U. S. Comp. Stat., section 814'6f), to form a corporation for the purpose of carrying out the act, with powers defined to be for the “purchase, construction, equipment, lease, charter, maintenance and operation of merchant vessels in the commerce of the United States,” is subject to a writ of foreign attachment issued from a state court, although such corporation is a federal agency, with all of its stock held by the United States, has the right of eminent domain, and the President, under the emergency fund provisions of the Urgent Deficiencies Act, and under other acts, designated the corporation to perform certain duties similar to those embodied in its certificate of incorporation. The work of such a corporation is the work of a business corporation pure and simple.</p> <p>2. When the government embarks in industrial enterprises through corporate form, it places its money and its sovereign position in the same plane as any other stockholders buying stock in the same corporation.</p> <p>3. Where the garnishee is a public officer charged with a governmental duty or is in fact a branch of the government exercising governmental function the courts have refused to permit moneys to be attached in their hands.</p> <p>4. Corporations organized under the laws of the District of Columbia may, in the absence of legislation to the contrary, be sued' in the state courts, although the federal courts have concurrent jurisdiction.</p>

<p>Contract — Sale—Evidence—Parol evidence — Burden of proof— Modification of written contract — Sales Act of May 19, 1915, P. L. 51fS — Consideration—Part performance.</p> <p>1. It is a general rule at common law that the parties to a written agreement may modify it by a subsequent parol agreement.</p> <p>2. Under the Sales Act of May 19, 1915, P. L. 543, a parol modification of a written contract for the sale of goods exceeding in amount $500, is valid, if the modified agreement is acted upon and partly performed.</p> <p>3. In an action for a breach of a written contract for the sale of coke in amount in excess of $500, the vendor, the defendant, may prove not only that the written contract had been modified by a parol agreement to accept less coke, but also that for seven months thereafter coke had been delivered, accepted and paid for under the modified agreement. The burden of proof is on defendant to prove the modification of the contract and part performance of the modified contract.</p> <p>4. In such case, evidence that plaintiff, during the seven months after the modification of the original contract, bought other coke of defendant at the market price, is relevant only as tending to show a modification of the original contract.</p> <p>5. The consideration for the modified contract, as well as the original contract, is the mutual obligations of the parties.</p> <p>6. Part performance will validate a parol contract for the sale of personalty.</p>

Appeal, No. 255, Jan. T., 1920, by plaintiff, from judgment of C. P. Lancaster Co., Oct. T., 1918, No. 53, on verdict for defendant, in case of Ephraim S. Herr v. Geo. Al. Lollar. Trespass for malicious prosecution. Before HassLER, J. The opinion of the Supreme Court states the facts. Verdict and judgment for defendant. Plaintiff appealed. Error assigned, among others, was binding instructions for defendant, quoting it.

Appeal, No. 297, Jan. T., 1920, by plaintiff, from order of C. P. Lancaster Co., Feb. T., 19.19, No. IS, refusing to take off nonsuit in case of William O. Pritchard v. D. M. Wenger. Trespass for libel. Before Landis, P. J. The writing upon which the suit was based, is a letter addressed by defendant to two of the directors of the National Store Specialty Company and is as follows: “Address all communications to the firm and not to individuals.

Appeal, No. 185, Jan. T., 1920, by defendant, from judgment of C. P. Northumberland Co., Dec. T., 1917, No. 242, on verdict for plaintiff in case of Calvin N. Furman v. C. H. Broseious. Trespass to recover damages for personal injuries. Before Moser, J. The opinion of the Supreme Court states the facts. Verdict and judgment for plaintiff for $5,062.50: See 4 Northumberland Legal Journal 196. Defendant appealed.

<p>Appeal, No. 116, Jan. T., 1920, by defendants, from order of C. P. Lancaster Co., May T., 1919, No. 38, entering judgment for plaintiff, in ease of Jennie E. Mendenhall, administratrix of Wilson W. Jackson, deceased, who was the transferee of David C. Jackson, v. Wilson W. Jackson, administrator of Amanda Jackson, Mortgagor, with notice to Jennie E. Mendenhall, administratrix of Wilson W. Jackson, who was administrator of Amanda Jackson, deceased, and Venie Carnathan et al., owners and terre-tenants.</p> <p>Scire facias sur mortgage.</p> <p>Rules for judgment for want of sufficient affidavit of defense by appellants, and for judgment for want of affidavit of defense by other defendants.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court made absolute the rules for judgment. Defendant appealed.</p> <p>Error assigned, among others, was in entering judgment for plaintiff for $3,556.23.</p>

<p>Appeal, No. 280, Jan. T., 1919, by Jacob B. Harnish, devisee, from decree of O. C. Lancaster Co., Sept. T., 1917, No. 22, dismissing exceptions to adjudication in estate of Jacob F. Harnish, deceased.</p> <p>Exceptions to adjudication. Before Smith, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court dismissed exceptions to the adjudication. Jacob B. Harnish, devisee and legatee under the will of Jacob F. Harnish, deceased, appealed.</p> <p>Error assigned, among others, was decree of court, quoting it.</p>

<p>Wills — Construction—Remainder—Life estate — Gift "divided, among my relations" — "Upon and after."</p> <p>1. While the gift of a remainder “upon and after” the expiration of a life estate, does not necessarily prevent its vesting at the death of testator, yet it will be so held if the language of the will, taken in its entirety, clearly discloses this to have been the intent.</p> <p>2. This is the usual legal conclusion where the gift to the remaindermen is found only in a direction to “divide” the estate among them, after the death of the life tenant.</p> <p>3 A son cannot be “relatives” in a gift to “relatives” after the death of the son as life tenant; the plural form of the word excludes this possibility.</p> <p>4. That the remainder is to be “divided among my relatives” after the death of the son as life.tenant, leads to the same conclusion. ‘Divided among” carries with it the thought that more than two are to take. '</p>

<p>Negligence — Electric company — Fire caused by excessive current ■ — Declarations of employee — Evidence — Pleading — Bes ipsa loquitur.</p> <p>1. In an action against an electric company to recover damages for the burning of plaintiff’s building, alleged to have been caused by an excessive current, where there is evidence that fuses had frequently been burned out and been replaced by defendant, declarations made by one of defendant’s employees, after replacing a fuse shortly before the fire, to the effect that he had put in ,a heavier fuse, which would stop blow-outs, are admissible as explanatory of his work.</p> <p>2. In such case, where it appears that the apparatus within the transformer is submerged in oil, testimony of one of defendant’s employees that the day after the fire, when at or near the transformer in question, he detected the odor of burning oil, but was not certain that it came from the transformer, is for the jury, inasmuch as it would indicate excessive heat at the point in question, and thus might tend to support plaintifE’s contention that the transformer had broken down, thereby causing a high voltage current to enter the building and cause the fire.</p> <p>3. If plaintiffs assert that their property was destroyed by reason of an excessive current, they cannot recover, if the proof shows that it was destroyed by a low current, for the burden is on them to show, not only that the fue was caused by electricity, but that it was caused by a high voltage current.</p> <p>4. While an electric company is not an insurer, yet, when its customer is injured by an excessive current of electricity entering liis premises on the company’s wires, the burden is on the company to oner such explanation as will relieve it of responsibility. Under such circumstances, the doctrine of res ipsa loquitur applies.</p> <p>Evidence — Experts—Hypothetical question.</p> <p>5. Where there is no objection made to a hypothetical question propounded to an expert witness, the answer of the expert should not be disregarded by the trial judge on the ground that the question omitted some essential features. Such course is not fair; for had an objection been made, the question might have been reformed, or the defects supplied by other evidence.</p> <p>Practice, O. P. — Trial—Gase for jury — Gircumslanlial evidence —Evidence—Scintilla—New trial.</p> <p>6. A case supported by substantial, though circumstantial, evidence, cannot he taken from the jury because of the strength of opposing proof.</p> <p>7. When a plaintiff’s claim is supported by more than a scintilla of evidence, it must go to the jury, even where a verdict in his favor would be so greatly against the weight of the evidence as to require the granting of a new trial.</p> <p>Appeals — Review—Judgment on whole record,- — Act of April 20, 1911, P. L. 70.</p> <p>8. Where a judgment is entered for a defendant on the whole record after a jury has disagreed, as provided by the Act of April 20, 1911, P. L. 70, the appellate court, in reviewing the same, must assume the truth of plaintiff’s evidence, and consider all favorable inferences that can be drawn therefrom.</p> <p>9. Under the Act of 1911, judgment can be granted on the entire record only where binding instructions should have been given to the jury.</p>

<p>Appeals, Nos. 289 and 290, Jau. T., 1920, by Clayton R. Anstine, Wilbur O. Bressler and Austin M. Grove, members of council of York City, from judgment of C. P. York Co., April T., 1920, Nos. 88 and 89, for plaintiffs, on demurrer to return to petition for mandamus, in cases of John F. Buttorff v. City of York, Clayton E. Anstine et al., members of council, and E. S. Hugentngler, Mayor, and Prank A. Free v. City of York, Clayton R. Anstine et al., members of council, and E. S. Hugentngler, Mayor.</p> <p>Petition for mandamus.</p> <p>Demurrer to return. Before Wanner, P. J., specially presiding.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court entered judgment for plaintiffs on the demurrers and awarded the writs. Clayton R. Anstine,</p> <p>Wilbur C. Bressler and Austin M. Grove, councilmen, appealed.</p> <p>Errors assigned were decree, (1) quoting it, and (2) quoting demurrer and decree.</p>

<p>Appeal, No. 27, Jan. T., 1919, by plaintiff, from judgment of O. P. No. 4, Phila. Co., Sept. T., 1916, No. 3644, on judgment for defendant n. o. v. in case of United States National Bank of Portland v. Union National Bank of Philadelphia.</p> <p>Trespass for loss of amount of check alleged to be dne to defendant’s negligence in failing to give proper notice that check had been forged. Before Finletter, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The check and its endorsements were in the following form:</p> <p>EVERETT BANK</p> <p>Everett, Pa. Nov. 2, 1911 No. 7089</p> <p>Pay to the order of O. S. Snyder $3000 00/</p> <p>Three thousand Dollars</p> <p>To Union National Bank Philadelphia, Pa.</p> <p>Not over three thousand $3000f</p> <p>G-. W. Derrick</p> <p>Cashier.</p> <p>Endorsed — O. S. Snyder E. Leonard L. Orville Wilcoxon</p> <p>Pay to the order of any bank, banker or trust Co., all prior endorsements guaranteed Nov. 15, 1911. The United States National Bank 24-11 Portland, Ore. 24-11 R, W. Schmeer, Cashier (Received payment Nov. 20 1911 Through the Clearing House).</p> <p>Verdict for plaintiff for $2,168.41. Subsequently the court entered judgment for defendant n. o. v.</p> <p>Error assigned was entry of judgment for defendant n. o. v.</p>

<p>Appeal, No. 291, Jan. T., 1920, by plaintiff, from order of C. P. Luzerne Co., March T., 1920, No. 316, reversing decision of Workmen’s Compensation Board making an award in case of rlmegunda Kuca v. Lehigh Valley Coal Company.</p> <p>Appeal from decision of Workmen’s Compensation Board making award for death of plaintiff’s husband, Joseph Kuca. Before Woodward, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court sustained the appeal, reversed the decision of the board, and entered judgment for defendant, instead of remitting the record for further hearing. The claimant appealed.</p> <p>Error assigned was, among others, order of court.</p>

<p>Appeal, No. 133, Jan. T., 1920, by defendant, from order of C. P. Mifflin Co., May T., 1919, No. 155, making absolute rule for judgment for want of sufficient affidavit of defense, in case of Second National Bank of Reading v. William J. Yeager.</p> <p>Assumpsit on promissory note. Before Bailey, P. J.</p> <p>The opinion of the Supreme Court states the material averments of the affidavit of defense.</p> <p>The court made absolute a rule for judgment for want of a sufficient affidavit of defense. Defendant appealed.</p> <p>Error assigned was order of court, quoting it.</p>

Appeal, No. 267, Jan. T., 1920, by defendant, from judgment of C. P. Northumberland Co., Dec. T., 1917, No. 47, on verdict for plaintiff in case of J. R. Smith v. Shamokin Borough. Trespass to recover damages for personal injuries. Before Cummings, P. J. The opinion of the Supreme Court states the facts. Verdict and judgment for plaintiff for $1,850. Defendant appealed. Error assigned, among others, was refusal of binding instructions for defendant, quoting record.

<p>Appeal, No. 26, Jan. T., 1920, by defendant, from judgment of O. P. Luzerne Co., Dee. T., 1919, No. 299, reversing decision of Workmen’s Compensation Board which had reversed the report of the referee awarding compensation, in case of Edna May Knorr v. Central Railroad of New Jersey.</p> <p>Appeal from decision of Workmen's Compensation Board. Before Strauss, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court reversed the decision of the Compensation Board, which had reversed the award of the referee. The defendant appealed.</p> <p>Error assigned, among others, was judgment of court, quoting it.</p>

<p>Appeals, Nos. 28, 29, 30, 32, 33 and 39, Oct. T., 1920, by plaintiffs, from judgments of Superior Court, April T., 1919, Nos. 86, 87, 88, 89, 90 and 91, affirming orders of Public Service Commission, in cases of Greensburg Borough et al. v. Public Service Commission.</p> <p>Appeals from judgments of Superior Court. See 73 Pa. Superior Ct. 75.</p> <p>Tbe opinion of tbe Supreme Court states tbe facts.</p> <p>Tbe Superior Court affirmed tbe order of tbe Public Service Commission. Plaintiffs appealed.</p> <p>Errors assigned were, (1) judgment of Superior Court, quoting it, and (2-11) dismissal of assignments of error 1-10, quoting them.</p>

<p>Appeal, No. 5, May T., 1920, by Edna Groninger Kochenour from decree of Orphans’ Court of Dauphin County, dismissing petition to vacate certain proceedings in estate of Charles Elliott Groninger, deceased.</p> <p>Case-stated to determine whether Charles Elliott Groninger had a vested or contingent interest in an estate under his father’s will. Before Kunkel, P. J.'</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Tlie court held that the interest was a vested one, and dismissed the petition. The petitioner, Edna Groninger Kochenour, appealed.</p> <p>Errors assigned were (1) finding interest vested, and (2) order of court dismissing petition, quoting record.</p>

<p>Street railways — Consent of municipality — Rates—Public Service Commission — Regulation of rates — Constitutional law — Municipalities — State and federal Constitution — Police power — Change of rates fixed by city — Obligation of contract — Consenting ordinance.</p> <p>1. Where a municipality, in giving its consent, in accordance with article XVII, section 9, of the Constitution, to a street railway company to use its streets, limits the fare, it is conclusively presumed to know that the sovereign police power of the State, under article XVI, section 3, to modify the terms of the consenting ordinance, will be supreme whenever the well-being of the public so requires.</p> <p>2. The police power of the State includes the power to regulate charges for service rendered to the public by public service corporations irrespective of ordinances or contracts limiting such charges to particular sums.</p> <p>3. An order of the Public Service Commission authorizing a street railway to change a rate fixed by the city ordinance granting consent to the use of city streets, does not violate any constitutional rights of the city to insist upon the continuance of the lower fare, for no guch right exists.</p>

<p>Appeal, No. 8, Jan. T., 1920, by plaintiff, from decree of C. P. Lackawanna Co., May T., 1918, No. 9, dismissing bill in equity in case of City of Scranton v. Scranton Railway Co.</p> <p>Bill in equity to restrain street railway from maintaining its tracks, poles and wires in the streets of Scranton because of its alleged illegal action in increasing its rates of fare over the sum fixed by the ordinance granting it the right to use the streets. Before Searle, P. J., specially presiding.</p> <p>The court dismissed the bill for lack of jurisdiction. ITaintiif appealed.</p> <p>Error assigned was, inter alia, decree, quoting it.</p>

<p>Public Service Commission — Jurisdiction—Street railway rates —Act of July 26,19IS, P. L. 187If.</p> <p>Under the Act of July 28, 1913, P. L. 1371, the Public Service Commission has jurisdiction in the first place to adjudge the reasonableness of rates charged by public service corporations. Until it has acted the courts have no jurisdiction.</p>

<p>Appeals, Nos. 37, 40 and 41, Jan. T., 1920, by defendants, from decree of C. P. No. 5, Pbila. Co., Dec. T., 1917, No. 3913, on bill in equity in case of Mary Lowber Thomson v. Fidelity Trust Company, Louis Rodman Wanamaker, testamentary guardian of Rodman Wanamaker, the second, and William L. Nevin, guardian of the Estate of Thomas B. Wanamaker, Jr.</p> <p>Bill in equity for accounting and for conveyance of real estate. Before Martin, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court entered a decree in accordance with the prayers of the bill. Defendants appealed.</p> <p>Error assigned was, inter alia, the decree of the court.</p>

<p>Appeal, No. 300, Jan. T., 1920, by defendant, from judgment of C. P. York Co., April T., 1920, No. 182, for plaintiffs, on case-stated, in suit of Michael D. Barnitz et al. v. Leon S. Hydeman.</p> <p>Case-stated to determine marketability of title to real estate. Before Gill an, P. J., specially presiding.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court entered judgment for plaintiffs on the case-stated. Defendant appealed.</p> <p>Error assigned was above judgment, quoting it.</p>

Appeal, No. 46, Jan. T., 1921, by plaintiffs, from judgment of C. P. Franklin Co., April T., 1920, No. 2, for defendant, in case of G. H. Bartle and J. R. Ruthrauff, administrators d. b. n. c. t. a. of estate of John Lortz, deceased, v. John H. Shook Home of Aged. Amicable action in assumpsit on case-stated to determine right of plaintiffs, administrators d. b. n. c. t. a., to convey real estate. Before Gillan, P. J. The court entered judgment for defendant.

<p>Trusts and trustees — Sale of real estate — Administrator d. b. n. e. t. a.- — Proper person to'male sale.</p> <p>1. The substituted trustee and not the administrators d. b. n. c t. a. is the proper person to make a sale of the real estate as directed by the will where the testator created an express trust and devised the estate to the same person named as executor and trustee to hold, manage, sell and dispose of the same and the executor had performed his functions as executor and filed his account as trustee and was discharged and the court appointed a trustee in his place.</p> <p>2. Trust duties imposed upon an executor including power of sale for distribution, may pass to the administrator c. t. a. but not where such duties have been specifically committed to a testamentary trustee.</p>

<p>Equity — Restoration of property pledged — Fraud — Trust and trustees — Findings of fact.</p> <p>1. A bill in equity for a decree requiring defendant, a bank, to restore to plaintiff certain property which he had pledged to it, is properly dismissed, when the court finds, from sufficient evidence, that plaintiff had been guilty of bal faith, that the property in question did not belong to him, but to a trust estate, and that he had juggled with it for his own benefit.</p> <p>2. In such a ease the court, in dismissing the bill, may properly decree that the property in question shall “remain in the possession of defendant subject to the further order of the court.”</p>

<p>Appeal, No. 184, Jan. T., 1920, by plaintiff, from judgment of C. P. York Co., Jan. T., 1917, No. 832, of non pros, on question of law raised by affidavit of defense, in case of Edward Edwards v. Western Maryland Railway Co.</p> <p>Trespass for personal injuries.</p> <p>Motion for judgment on question of law raised by affidavit of defense. Before Ross, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court entered judgment of non pros. Plaintiff appealed.</p> <p>Error assigned was judgment of non pros., quoting it.</p>

<p>Appeals — Equity—Preliminary injunction — Review.</p> <p>On an appeal from a decree granting or refusing a preliminary injunction, the appellate court looks only to see if there were apparently reasonable grounds for the court’s action. The decree will be sustained if such grounds appear. On appeal from the final decree all questions involved will be open for consideration.</p>

<p>Public service companies — Bates—Equity—Jurisdiction—Public Service Commission — Act of July 26,1918, P. L. 1871¡.</p> <p>A court of equity has no jurisdiction to entertain a bill which has for its purpose the regulation of fates of a public service company. The Public Service Commission has sole jurisdiction in such cases under the Act of July 26, 1913, P. L. 1314.</p>

Appeal, No. 110, Oct. T., 1920, by plaintiff, from decree of C. P. Allegheny Co., April T., 1920, No. 2406, dismissing bill in equity in case of City of Pittsburgh v. Philadelphia Co. and Equitable Gas Co. Bill in equity to compel gas company to furnish gas to a city free of cost. Before Fobd, J. The court dismissed the bill. Plaintiff appealed.

<p>Appeal, Nos. 19 and 20, by plaintiff, from judgments of Superior Court, April T., 1918, Nos. 110 and 111, affirming orders of Public Service Commission, in cases of Peoples Natural Gas Co. et al. v. Public Service Commission.</p> <p>Appeals from judgments of Superior Court. See 70 Pa. Superior Ct. 446.</p> <p>The Superior Court affirmed the orders of the Public Service Commission directing the Peoples Natural Gas Co. to file, post and publish their rates. That company-appealed.</p> <p>Error assigned was the action of the Superior Court in not sustaining the assignment of error to the above order, quoting it.</p>

<p>Note by Reporter. — This appeal was subsequently reinstated, when new assignments of error were filed. Vide next case.</p>

<p>Appeal, No. 258, Jan. T., 1920, by defendant, from judgment of C. P. Lancaster Co., April T., 1919, No. 73, on verdict for plaintiff, in case of Anna Hess v. John F. McAleer, administrator of Harry C. McAleer.</p> <p>Assumpsit for wages for domestic services. Before Hassler, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict and judgment for plaintiff for $2,570.92. Defendant appealed.</p> <p>Errors assigned, among others, were (5, 6) answers to points, substantially as given in the opinion of the Supreme Court, quoting them.</p>

<p>Appeal, No. 70, Oct. T., 1919, by plaintiff, from judgment of C. P. Allegheny Co., April T., 1919, No. 1273, for defendant on question of law raised by affidavit of defense, in case of Suburban Water Company v. Oakmont Borough.</p> <p>Assumpsit for water supplied to borough.</p> <p>Affidavit of defense in nature of demurrer. Before Carpenter, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court entered judgment for defendant. Plaintiff; appealed.</p> <p>Terror assigned was sustaining demurrer and entering judgment, quoting demurrer, judgment and exception.</p>

<p>Appeal, No. 81, Jan. T., 1920, by plaintiff, from judgment of C. P. Fayette Co., Dec. T., 1918, No. 360, affirming decision of Workmen’s Compensation Board sustaining report of referee in disallowing claim for compensation for death of J. P. Wilson in case of Lucy Wilson v. H. C. Frick Coke Co.</p> <p>Appeal from decision of Workmen’s Compensation Board.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court affirmed the decision of the Workmen’s Compensation Board sustaining report of referee disallowing the claim. Lucy Wilson, widow, appealed.</p> <p>Error assigned was judgment of court, quoting it.</p>

<p>Boroughs — Dedication, of land — Acceptance of dedication — Dvidence — V erdict — Review.</p> <p>1. The appellate court will not reverse a judgment on a verdict against a borough, on an issue between the borough and persons claiming ownership of a strip of land in the borough where the sole question submitted to the jury was whether the land in suit had been dedicated to the borough, and dedication had been accepted by the borough, and there is sufficient evidence to sustain the verdict.</p>

Appeal, No. 25, Jan. T., 1920, by defendants, from judgment of C. P. Schuylkill Co., Sept. T,, 1918, No. 93, on verdict for plaintiffs, in case of E. E. Shifferstine et al. y. C. E. Sitler et al. Assumpsit on bond of collector of taxes of school district. Before Koch, J. The opinion of the Supreme Court states the facts. The court gave binding instructions for plaintiffs. Verdict and judgment for plaintiffs for $10,700. Defendants appealed.

<p>Will — Devise of one-third to widow — Estate to children if widoiv dies in testator’s lifetime — Survival of widow — Intestacy—-Title to real estate.</p> <p>1. Where a testator gives, devises and bequeaths to his wife “her one-third interest” in his estate “if she survives me if not the estate to be equally divided” among his children, without any disposition of the remaining two-thirds, the survival of the widow vests in her one-third of the estate absolutely and creates an intestacy as to the other two-thirds.</p> <p>2. In such ease, after the death of the widow intestate, the children take one-third of the estate as heirs of their mother, and, with the other two-thirds vested in them by descent from the father, theymay make a good title to all of the real estate of which their father died seized.</p>

Appeal, No. 90, Oct. T., 1920, by defendant, from judgment of O. & T. Allegheny Co., March T., 1919, No. 39, on verdict of guilty of murder of the first degree in case of Commonwealth v. Frank Dombek. Indictment for murder. Before Carpenter, J. The opinion of the Supreme Court states the facts. Verdict of guilty of murder of the first degree upon which judgment of sentence was passed. Defendant appealed. Error assigned was sentence, quoting it.

<p>Negligence — Street railways — Collision between street car and wagon — Contributory negligence.</p> <p>A driver of a wagon cannot be convicted of contributory negligence as a matter of law, in a collision between Ms wagon and a street car, where the evidence shows that he started to cross over a street in the middle of which was a track about 26 feet from the curb; that, when he turned his horse to cross the track, the car which struck him was from 250 to 275 feet away; that he drove at a walk onto the track, and, seeing the approaching car about 160 to 170 feet distant, urged his horse on, and, when the horse was on the track, the car was about 85 or 90 feet away; that the wagon was struck by the car; and that, just before the collision, the motorman acted as if he was turning off the current, but, instead of doing so, turned it on.</p>

Appeal, No. 63, January T., 1920, by plaintiff, from decree of C. P. Northumberland Co., No. 445, in equity, dismissing plaintiff’s bill for injunction in case of Shamokin & Mount Carmel Transit Co. v. Mount Carmel Borough, Thomas Evans et al., Councilmen, and Joseph S. Nowakoski, Chief Burgess, defendants. Bill in equity for an injunction.

Appeal, No. 340, Jan. T., 1919, by defendant, from judgment of O. and T. Adams Co., Jan. T., 1919, No. 7, on verdict of guilty of murder of the first degree in case of Commonwealth v. Clarence R. Collins. Indictment for murder. Before McPherson, P. J. The opinion of the Supreme Court states the facts. The jury returned a verdict of guilty of murder of the first degree, on which judgment of sentence was passed. Defendant appealed.

<p>Appeal, No. 119, J an. T., 1921, by Henry J. Trainer and John E. McLean, Jr., et al., from order of Q. S. Phila. Co., June T., 1920, quashing proceedings in the matter of the nomination of Harry C. Eansley.</p> <p>Petition to contest the nomination, at a primary election, of a candidate for Congress.</p> <p>The petition on behalf of Charles Delaney alleged fraud at a primary election for the nomination of a candidate for Congress in the Third Congressional District of Pennsylvania, held on May 18, 1920. The petition prayed that certain ballot boxes be opened, the ballots counted according to law, and a true return be made thereof. Harry C. Eansley, the candidate returned as nominated, moved that the proceedings he quashed, on the ground that the quarter sessions had no jurisdiction to entertain the petition. The court, in opinions by Patterson, J., and Shoemaker, J., in which opinions Bregy, P. J,, concurred, held there was nothing in the Acts of May 19,1874, P. L. 208; July 12,1913, P. L. 719, or July 9, 1919, P. L. 839, which gave the quarter sessions jurisdiction over such a contest, and they accordingly entered an order quashing the proceedings. See 29 Pa. Dist. R. 626.</p> <p>The petitioners appealed.</p> <p>Error assigned was the order of the court.</p>

<p>Appeal, No. 334, Jan. T., 1919, by defendant, from judgment of O. & T. Delaware Co., Sept. T., 1917, No. 262, on verdict of guilty of murder of the first degree in case of Commonwealth v. Domenico Diaco.</p> <p>Indictment for murder. Before Johnson, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict of guilty of murder of the first degree, upon, which the court passed sentence of death. Defendant appealed.</p> <p>Errors assigned were as stated in the opinion of the Supreme Court.</p>

Appeal, No. 104, Oct. T., 1920, by defendant, from judgment of O. P. Allegheny Co., April T., 1920, No. 2515, for plaintiff on case-stated in case of H. H. Robertson Co. v. Globe Indemnity Co. Case-stated in assumpsit by subcontractor on a bond given to the Commonwealth under the provisions of the State Highways Act of May 31, 1911, P. L. 468. Before Ford, J. The opinion of the Supreme Court states the facts.

<p>Election law — Congressmen—Nominations—Primary election — ■ Recount — Acts of July 18, 1918, P. L. 719, and July 9, 1919, P. L. 858 — Appeals—Certiorari—Considering opinion of court helow.</p> <p>1. Section 15 of the Act of July 12, 1913, P. L. 719, as amended by the Act of July 9, 1919, P. L. 852, does not authorize the commissioners, in computing the vote cast at a primary election, or the court on appeal from their action, to determine the qualifications of those who actually voted, or to exclude a poll because of defects in the election machinery.</p> <p>2. Only such matters can be considered on a contest of the election, which “shall originate and be conducted as in cases of general elections.”</p> <p>8. The only effect of the provision authorizing a recount of the ballots — although the fraud or error alleged is “not manifest upon the general return of the votes” made by the election officers — is to make clear the right to a recount, although the returns are in all respects regular and complete and consonant with each other.</p> <p>4. The duty imposed upon the court, on an appeal from the action of the commissioners in computing the vote, to “make such decree as right and justice may require,” is not greater than the duty of the latter to “correct, compute and certify the votes of such election district justly, regardless of any fraudulent or erroneous returns made by the election officers.”</p> <p>5. The provisions in said acts that “no appeal shall be allowed from any order or decree of the court of common pleas in pursuance of this section,” does not prevent an appellate court from considering jurisdictional matters on certiorari.</p> <p>6. In considering such matters in election cases, the appellate court may examine the opinion of the court below, in order to discover the reasons for its action.</p>

Appeal, No. 161, Oct. T., 1920, by plaintiff, from order of C. P. Clarion Co., Aug. T., 1917, No. 23, refusing to take off nonsuit in case of Pittsburgh Annual Conference of the Methodist Protestant Church, an unincorporated religious society, by F. W. Perkins, President, and E. J. Headley, Secretary, v. C. E. Cyphert et al. Ejectment. Before Sloan, P. J. The opinion of the Supreme Court states the case.

<p>Negligence — Amendment of statement — Pleading—Unsafe appliance — Negligence of vice-principal — Act of June 2k, 1895, P. L. 286 — -Change of cause of ■action — Statute of limitation.</p> <p>1. A plaintiff may amend his statement, so as to simplify his complaint, or render it more specific, but cannot shift his ground by introducing a new agency as the cause of the accident, when a suit thereon would be barred by the statute of limitations.</p> <p>2. Where a statement in trespass for personal injuries, instituted after the Act of June 24, 1895, P. L. 236, avers negligence in furnishing a chain of insufficient strength for a purpose intended, such statement cannot be amended more than two years after the accident, so as to charge the accident to the negligence of defendant’s vice-principal in fastening a chain to a beam.</p>

Appeal, No. 94, Oct. T., 1920, by defendant, from judgment of C. P. Jefferson Co., Aug. T., 1916, No. 127, on verdict for plaintiff in case of C. G. Fuller v. Stewart Coal Co. Trespass to recover damages for personal injuries. Before Corbet, P. J. The opinion of the Supreme Court states the facts. Yerdict and judgment for plaintiff for $2,500. Defendant appealed. Errors assigned were as stated in the opinion of the Supreme Court, quoting the record.

Appeal, No. 128, Oct. T., 1919, by defendant, from judgment of C. P. Jefferson Co., Nov. T., 1919, No. 205, on verdict for plaintiff in case of Charles Allegro v. Rural Valley Mutual Fire Insurance Co. Assumpsit on policies of fire insurance. Before Cor-bet, P. J. The opinion of the Supreme Court states the facts. Verdict and judgment for plaintiff for $2,692. Defendant appealed.

<p>Appeal, No. 175, Oct. T., 1920, by defendant, from judgment of C. P. Somerset Co., May T., 1920, No. 55, on verdict for plaintiff in case of Elizabeth Lynch v. Meyersdale Electric Light, Heat & Power Co.</p> <p>Trespass for death of plaintiff’s husband. Before Berkey, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict and judgment for plaintiff for $5,357. Defendant appealed.</p> <p>Errors assigned were various rulings and instructions, appearing by the opinion of the Supreme Court, quoting record.</p>

<p>Appeals — Review—Binding instructions — Evidence.</p> <p>1. In determining- whether or not binding instructions should have been given by the court below, all the evidence and inferences therefrom favorable to the opposite party, must be taken as true, and all unfavorable to him, if depending solely upon testimony, must be rejected.</p> <p>Railroads — Grossings—Destruction of crossing.</p> <p>2. Where two public ways cross, each must bo operated with due regard to the rights of users of the other, and neither can be destroyed except in the manner and subject to the liabilities provided by law.</p> <p>Road law — Vacation of street — Public Service Compcmy Act of July 86, 1918, P. L. 1ST If. — Damages—Constitutional law — Sale of lots with plan of streets — Acceptance by municipality.</p> <p>3. The Constitution of the State does not provide for the recovery of damages for the vacation of a street, but liability therefor may be imposed by statute.</p> <p>4. The Public Service Company Act of July 26, 1913, P. L. 1374, and the acts relating t-o boroughs impose liability for the vacation of streets.</p> <p>5. When a municipality vacates so much of a public street as crosses the tracks of a railroad company, it is liable to those legally and actually damaged, irrespective of the ownership of the fee in the part vacated.</p> <p>6. Where damages are allowed for the vacation of a street, the property owners fronting upon the part thereof which thereby becomes a cul-de-sac may recover damages therefor if actually injured.</p> <p>7. Where the owner of a tract of land lays out streets and sells lots therein in accordance with a plan of the improvement, which streets are thereafter accepted as public streets by the municipality in which the tract is situated, a subsequent vacation thereof as public streets will not affect the lot owners’ private rights to the use of the street, ,and any interference therewith must be compensated in damages.</p>

Appeal, No. 91, Oct. T., 1920, by plaintiff, from judgment of O. P. Westmoreland Co., May T., 1918, No. 292, on verdict for defendant, in case of I. V. Garvey v. Elizabeth Thompson. Ejectment for land in Burrell Township. Before Copeland, P. J. The opinion of the Supreme Court states the case. Verdict and judgment for defendant. Plaintiff appealed. Errors assigned were various ridings and instructions.

<p>Appeal, No. 154, Oct. 1., 1920, by defendant, from decree of C. P. Westmoreland Co., at 1000 in Equity on bill in equity awarding injunction in case of S. T. Lopes et al. v. Greensburg Borough. School District.</p> <p>Bill in equity for injunction. Before McConnell, P. J,</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court entered a decree awarding a perpetual injunction. Defendant appealed.</p> <p>Error assigned, among others, was decree, quoting it.</p>

<p>Will — Construction — Later clauses — Repugnant clauses — All standing together — Trusts.</p> <p>1. The rule that the later of incompatible clauses in a will must prevail, is invoked only as a last resort, and when there is an utter repugnancy.</p> <p>2. A will must be so construed, if possible, as to give effect to all its provisions.</p> <p>3. A clause in a will is never construed by itself but in connection with the entire document.</p> <p>4. The fact that a later clause in a will, standing alone, gives the residuary estate directly to a legatee, is not controlling, where it appears that an earlier clause expressly subjects that estate to a trust.</p>

<p>Appeal, No. 24, Oct. T., 1920, by the Cambria Trust Co., front ¡order of C. P. Cambria Co., dismissing exceptions to auditor’s report in the assigned estate of Clyde R. Barkley.</p> <p>Exceptions to report of Walter E. Glass, Esq., auditor. Before Stephens, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court dismissed the exceptions. The Cambria Trust Co. appealed.</p> <p>Error assigned was order dismissing exceptions, and decree, quoting them.</p>

Appeal, No. 144, Oct. T., 1920, by plaintiff, from order of C. P. Cambria Co., Sept. T., 1916, No: 421, refusing to take off nonsuit in case of Pasquale Falduto v. Hastings Coal & Coke Co. Trespass for personal injuries. Before O’Connor, P. J. The opinion of the Supreme Court states the facts. The court entered a compulsory nonsuit which it subsequently refused to take off. Plaintiff appealed. Error assigned was refusal to take off nonsuit, quoting record.

<p>Appeal — Equity—Practice — Preliminary injunction — Dissolution — Dismissal of bill not ashed for by defendant.</p> <p>1. A decree dissolving a preliminary injunction will be sustained on appeal, where it appears that there were reasonable grounds for the action of the court below.</p> <p>2. The dismissal of a bill in equity, not asked for by defendant, before an answer has been filed, is wholly irregular, and will be reversed on appeal.</p>

<p>Appeal, No. 176, Oct. T., 1920, by defendants, from order of C. P. Cambria Co., Sept. T., 1920, No. 216, vacating a staying order in habere facias possessionem, Sept. T., 1920, No. 33, in case of Porch Bros., Inc., v. J. A. Davis and William Whitney, trading as “The Franklin.”</p> <p>Proceedings vacating order staying writ of habere facias possessionem.</p> <p>The opinion of the Supreme Court states the case.</p> <p>The President Judge, Stephens, P. J., made an order vacating an order staying writ of habere facias possessionem. Defendants appealed.</p> <p>Error assigned was order, quoting it.</p>

Appeal, No. 164, Oct. T., 1920, by Alma B. Dailey, widow of Frank K. Dailey, from decree of O. C. Cambria Co., sustaining exceptions to widow’s appraisement in interest of Frank Kennedy Dailey, deceased, in estate of Jennie Kennedy Dailey, deceased. Exceptions to widow’s appraisement. The opinion of the Supreme Court states the facts. The court sustained the exceptions. Alma B. Dailey, widow of Frank Kennedy Dailey, appealed.

Appeal, No. 65, Oct. T., 1920, by plaintiff, from judgment of C. P. Jefferson Co., Nov. iT., 1917, No. 9, on verdict for defendant, in case of Juliette Wery v. Buffalo, Rochester & Pittsburgh Railway Co. Trespass for death of plaintiff’s husband. Before Cor-bet, P. J. At the trial the court gave binding instructions for defendant. Verdict and judgment for defendant. Plaintiff appealed.

<p>Appeal, No. 114, Oct. T., 1920, by Mahlon G. Specbt and William H. Cramer, executors of Emanuel Specbt, deceased, from decree of O. C. Somerset Co., No. 118, 1916, for specific performance in estate of Emanuel Specht.</p> <p>Petition for specific performance of agreement to sell real estate. Before Kooser, P. J., and Prather, P. J., specially presiding.</p> <p>Tbe opinion of tbe Supreme Court states tbe facts.</p> <p>Tbe court entered a decree of specific performance, directing tbe executors of Emanuel Specht to execute a deed for tbe land in question to Joseph W. Wagner, upon payment of tbe purchase money. Tbe executors appealed.</p> <p>Errors assigned, inter alia, were (28, 29) decree, quoting it.</p>

<p>Appeal, No. 86, Oct. T., 1920, by plaintiff, from judgment of C. P. Yenango Co., April T., 1920, No. 2, for defendant on question of law raised by affidavit of defense in case of Kate A. Bunce v. Charles R. Galbrath.</p> <p>Trespass for fraud in procuring execution of will. Before Criswell, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court entered judgment for defendant on the question of law raised by the statement of claim and affidavit of defense. Plaintiff appealed.</p> <p>Error assigned was, inter alia, judgment of court, quoting it.</p>

<p>Appeal, No. 137, Oct. T., 1920, by plaintiff, from order of O. P. Mercer Co., Oct. T., 1918, No. 127, entering judgment for defendant on question of law raised by the affidavit of defense, in case of Sharon Ry. Co. v. Erie R. R. Co.</p> <p>Assumpsit on lease. Before McLaughry, P. J.</p> <p>The question of law involved was raised by the statement of claim and affidavit of defense. Plaintiff claimed to recover the amount of a federal income tax upon rentals received from the defendant, which it had been required to pay under the Act of Congress of October 3, 1917.</p> <p>A lease from the Sharon Railway Co. to the Nypano Railroad Co., assigned to the Erie Railroad Co., contained the following provisions:</p> <p>“It is the intention hereof that the rent to be paid under this lease shall be sufficient, and only sufficient, to pay the annual interest on the bonds and dividends of six (6%) per centum per annum on the capital stock of the lessor now issued and outstanding and hereafter issued and outstanding under the provisions of this lease or any agreement supplementary to or amendatory hereof, and to provide for the payment of the current expenses of the lessor, including the expenses of keeping up its corporate organization.</p> <p>“The lessee shall pay all taxes, duties and assessments, of every name and nature, that may accrue or be assessed, charged or levied upon said demised premises or any part thereof, and upon the receipts for transportation of persons and property on said demised railroads, and upon the business of said demised railroads, so long as this lease shall continue, by the state or national government, or by municipal or other competent authority; and shall also pay all taxes assessed or charged to the lessor, during the continuance of this lease, by the State of Pennsylvania or the national government, upon the bonds of the lessor and the interest paid thereon and upon the capital stock of the lessor and the dividends paid thereon, provided that the amount of said bonds and stock shall not exceed the limits herein stipulated nor be issued at prices lower than those herein stipulated.”</p> <p>The court entered judgment for defendant. Plaintiff appealed.</p> <p>Error assigned was judgment, quoting it,</p>

Appeals, Nos. 80 and 82, Oct. T., 1920, by plaintiff, from decrees of C. P. Armstrong Co., Dec. T., 1919, Nos. 75 and 78, dismissing bills in equity in case of Oliver W. Gilpin v. James E. Brown et al. Bills in equity for partition. Before King, P. J. The opinion of the Supreme Court states the case. The court entered decrees dismissing the bills. Plaintiff appealed. Errors assigned were decrees, quoting them.

<p>Appeals — Interlocutory decree — Equity—Amendment of bill.</p> <p>A decree that unless plaintiff amends his bill within thirty days it will be dismissed is interlocutory, and if no final decree has been made dismissing the bill, the appeal from the interlocutory decree will be quashed.</p>

Appeal, No. 122, Oct. T., 1920, by defendant, from judgment of C. P. Armstrong Co., March T., 1920, No. 87, for plaintiff, on case-stated in suit of Margaret E. Houser y. O. E. Houser. Case-stated in ejectment for land in Wayne Township. Before King, P. J. The opinion of the Supreme Court states the facts. The court entered judgment for plaintiff on the case-stated. Defendant appealed. Error assigned was judgment, quoting it.

Appeal, No. 53, Oct. T., 1920, by C. W. Fisher, legatee, from decree of O. C. Westmoreland Co., Aug. T., 1918, No. 12, dismissing exceptions to decree of distribution in estate of II. E. Fisher, deceased. Exceptions to decree of distribution. Before Copeland, P. J. Testator’s will provided, inter alia, as follows: “6.

Appeal, No. 75, Oct. T., 1920, by George and Jacob Whitehead, executors, from decree of O. O. Westmoreland Co., Aug. T., 1919, No. 31, dismissing exceptions to adjudication in estate of Peter Whitehead, deceased. Exceptions to adjudication. Before Copeland, P. J. From the record it appeared that testator bequeathed all of his personal property to his widow after payment of debts and funeral expenses.

<p>Dower — Assignment of dower interest to owner in fee — Merger —Intention—Mortgage—Assignment—Interest.</p> <p>1. Merger is a question of intent, and will not take place against the wishes of the party affected by it.</p> <p>2. Where land has been subjected to a recognizance to secure a dbwer interest, and an interest-bearing mortgage hag been given in the amount of the recognizance to secure the payment of the annual installments of the dower interest and the payment of the principal on the death of the widow, the dower will not be deemed to have merged in the fee, by the acquisition of the dower by the owner of the land, whore it appears that such owner subsequently sold the land subject to’the mortgage, and there is nothing to show that he intended a merger. In such case, the representatives of the deceased owner may recover, in a 'suit on the mortgage, the unpaid interest installments.</p> <p>3. In such ease, the conveyance subject to the mortgage carried with it interest on the mortgage, where there was nothing to indicate that principal only and not interest also was intended.</p>

Appeal, No. 147, Oct. T., 1920, by defendant, from judgment of O. P. Westmoreland Co., May T., 1919, No. 695, on verdict for plaintiff in case of Frank Vrostyak v. Mary Hasso Zitko. Assumpsit on lost judgment note and for money borrowed. Before Beacom, P. J., specially presiding. The opinion of the Supreme Court states the facts. Verdict and judgment for plaintiff for $2,694.66. Defendant appealed.

<p>Public Service Commission — Evidence — Pules of evidence — Written contract — Proof of contract — Record—Presumption—Act of July 36, 1918, P. L. 1874.</p> <p>1. The Public Service Company Act of July 26, 1913, P. L. 1374, contains no provision relating to the kind of evidence which may be received and acted upon by the commission; but, the commissioners not being considered as judges learned in the law, the legislature did not contemplate that the strict rules of evidence should be applied to their hearings.</p> <p>2. In a crossing proceeding between a railroad company and an electric railway company, the latter cannot allege that a Contract between the railroad company and the railway company’s predecessor in title, was not proved in accordance with law, where it appears that a copy of the contract in question was offered by counsel for the railroad company, with a statement that it was a copy of the agreement taken from the files of the company, where the originals of all agreements were kept, and had been prepared and verified by himself, such paper being presumably a copy of one on file, with the commission, as required by the Act of 1913, and its accuracy not being challenged.</p>

<p>Criminal law — Murder — Evidence—Declarations—Bes gestee — Statement on leaving home.</p> <p>1. On. the trial of an indictment for murder, declarations made by deceased to his wife when leaving home about an hour previous to the time he met his death, to the effect that he intended to meet defendant are admissible as part of the rest gestee.</p> <p>2. If made at a time previous to leaving, the declaration amounts merely to a statement of a purpose to do a future act and is not competent as explanatory of the act itself, inasmuch as the person in the meantime may have changed his purpose.</p> <p>Criminal law — Murder—Charge—Context—Inadequacy of charge —Failure to ash for instructions — Appeal.</p> <p>3. In a murder trial, where the evidence for the Commonwealth is circumstantial and voluminous, and that of the prisoner, setting up an alibi, is simple in character and brief, the charge will not be reversed on appeal as inadequate on the ground that it referred fully to the Commonwealth’s evidence and insufficiently to that of defendant, where the court gave brief but correct and sufficient instructions as to the alibi, and at the close asked if any matter had been omitted, to which no response was made.</p> <p>4. A portion of a charge cannot be alleged as error on the ground that it gave the jury a certain impression, where a careful reading of the language immediately preceding shows that the statement was not susceptible of the construction for which the prisoner contended.</p> <p>Criminal law — Murder—Witness under indictment — Credibility —Charge.</p> <p>5. In a murder case, where a witness for the Commonwealth is alleged to have been indicted as an accessory for the purpose of attacking his credibility, it is not reversible error for the trial judge, if it developed from the testimony that there was nothing to implicate the witness, to refer to this fact, in view of the attack on his credibility, by showing the pending indictment.</p>

<p>Judgment — Opening judgment by default — Mistake of counsel— Act of May 14, 1915, P. L. 48S — Practice, O. P.</p> <p>1. Relief will be granted from a judgment entered by default, as a result of the mistake or oversight of counsel, where application is promptly made, a reasonable explanation or excuse for the default offered, and a defense shown upon the merits. The Act of May 14, 1915, P. L. 483, makes no change in this respect.</p> <p>2. A judgment for $12,000 entered for failure to file an affidavit of defense within fifteen days from service of statement, will be opened, where defendant petitions to open the judgment six days after its entry, files an affidavit of defense on the merits, and shows that its counsel misapprehended the new practice-under the Act of May 14, 1915, P. L. 483, as to filing an affidavit prior to the return day, and also relied upon an agreement of the bar that judgment should not be taken for default during a period set as a vacation.</p> <p>3. Section 12 ¡of the Act of May 14, 1915, P. L. 483, is to be construed to mean that a defendant, who has not filed his affidavit of defense within fifteen days, is in default and liable to have judgment entered against him but not as a prohibition against filing the affidavit after the time limit, where judgment has not been entered, or, if entered, upon a rule to open it.</p> <p>Appeals — Judgments—Opening judgment — Act of May BO, 1891, P. L. 101 — Abuse of discretion.</p> <p>4. The Act of May 20, 1891, P. L. 101, authorizes an appeal from a decision on an application to open a judgment. While such application is an appeal to the discretion of the court, its action will be reversed where such action is expressly based upon legal grounds which are untenable, or where there has been an abuse of discretion.</p> <p>5. To deprive a party of trial by jury in a case involving over $12,000, because of an honest oversight of counsel, speedily corrected, constitutes an abuse of discretion.</p> <p>Practice, O. P. — Amendment—Mistake in name of defendant corporation.</p> <p>6. Where, in a writ and statement served upon a defendant corporation, there is a mistake as to its corporate name, the mistake may be corrected by amendment after judgment, without opening the judgment.</p> <p>7. The act allowing amendments contains no restrictions as to the time of making them.</p>

<p>Appeal, No. 158, Oct. T., 1920, by Mary S. Davis, decedent’s daughter, from decree of O. O. Greene Co., March T., 1920, No. 1920, dismissing exceptions to auditor’s report in estate of William P. Hoskinson, deceased.</p> <p>Exceptions, to report of Joseph Patton, Esq., auditor. Before Kay, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The auditor held no interest was liable on legacies. The court dismissed exceptions thereto. Mary S. Davis, decedent’s daughter, appealed.</p> <p>Error assigned, inter alia, was decree, quoting it.</p>

<p>Appeal, No. 97, Oct. T., 1920, by defendants, from order of C. P. Indiana Co.; Sept. T., 1919, No. 378, reversing decision of Workmen’s Compensation Board which affirmed disallowance of compensation by referee, in case of Sarah Minerva Stahl v. Watson Coal Co., defendant, and Ætna Life Insurance Co., Insurance Carrier.</p> <p>Appeal from decision of Workmen’s Compensation Board. Before Langham, P. J.</p> <p>From the record it appeared the board sustained the finding of the referee disallowing compensation for the death of D. W. Stahl, plaintiff’s husband.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Error assigned was order of court, quoting record.</p>

<p>Appeal, No. 162, Jan. T., 1921, by plaintiff, intervener, from judgment of Superior Court, April T., 1920, No. 12, affirming order of the Public Service Commission, Application Docket, No. 3355, 1920, in ease of William Shaffer, Intervener, v. Public Service Commission and Coehranton Telephone Co. and Merchants & Farmers Telephone Co.</p> <p>Appeal from Superior Court. See 74 Pa. Superior Ct. 597.</p> <p>Tlie opinion of the Supreme Court states the case.</p> <p>The Superior Court affirmed the order of the Public Service Commission approving of the consolidation of the two telephone companies. William Shaffer, intervener, appealed.</p> <p>Errors assigned were action of Superior Court in not sustaining assignments of error (1, 2) averring error in the Public Service Commission in approving the merger, and (3) in not holding it unconstitutional, quoting record.</p>

<p>Innkeepers — Loss of money in hotel — Negligence—Bailment for hire — Ordinary care — Ordinary negligence — Carelessness of guest on another occasion — Evidence—Act of June 12,1918, P. L. 181.</p> <p>1. In action by guest against hotel keeper for loss of money alleged to have been caused by defendant’s negligence, evidence that plaintiff had been careless with other money of his own on another occasion, in the same hotel, is irrelevant and should be excluded.</p> <p>2. Protecting the property of a guest is for the joint benefit of both host and guest, and stands on the basis of bailment for hire, where the bailee is required to use ordinary care and is liable for ordinary negligence.</p> <p>3. Where a hotel instáis a vault divided into boxes, each having a door with an individual lock and key, with a master key for all, and a guest places money in one of the boxes, receiving a key therefor, and the master key is retained at the office, evidence that the master key was delivered to any guest, known to the hotel clerks, who held a key to one of the boxes, is affirmative evidence of negligence on the part of the hotel, in a suit by the guest for the loss of his money.</p> <p>4. In such case, where plaintiff founds his case entirely on an allegation of negligence, the Act of June 12, 1913, P. L. 481, does not apply, as the act does not attempt to relieve an innkeeper from liability from loss, as a result of his own negligence or that of his servants. If the court treats the act as a controlling factor, it is cardinal error.</p> <p>5. A guest in availing himself of the facilities appointed by a hotel for the safe keeping of his valuables, is bound to use ordinary care, according to the circumstances.</p> <p>Practice, C. P. — Charge—Contradictory instructions — Appeal— Review.</p> <p>6. Whore an answer to a point, not assigned as error, is contradictory to the charge, which is assigned as error, the appellate court will consider that the jury may have been misled by the contradictory instruction.</p>

<p>Appeal, No. 21, Oct. T., 1920, by plaintiff, from decree of O. P. Greene Co., No. 202, in Equity on bill in equity in case of Louis Illig v. Chartiers Southern Railway Co.</p> <p>Bill in equity to restrain proceedings at law. Before Rat, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court granted a preliminary injunction, which it subsequently dissolved, and entered a decree approving the bond in controversy.</p> <p>Error assigned, inter alia, was decree, quoting it.</p>

<p>Appeal, No. 165, Oct. T., 1920, by plaintiff, from order of O. P. Lawrence Co., March T., 1920, No. 99, affirming decision of Workmen’s Compensation Board in case of Mintie Blake, claimant, v. Effa M. Wilson, written also as Efffe M, Wilson.</p> <p>Appeal from decision of Workmen’s Compensation Board. Before Emery, P. J.</p> <p>Tbe opinion of tbe Supreme Court states tbe facts.</p> <p>Tbe court affirmed tbe decision of tbe board disallowing claim. Plaintiff, widow of Carrett H. Blake, appealed.</p> <p>Error assigned was order of court, quoting it.</p>

<p>Appeals — Objections not made in court below.</p> <p>1. Objections not made in the court below will not be considered on an appeal from its judgment or decree.</p> <p>Contracts — Construction—Performance—Words.</p> <p>2. Actual performances of services in accordance with the provisions of a contract, is ample proof of acceptance of the terms pf the contract.</p> <p>3. Words not technical must receive their normal meaning, unless the context compels a contrary conclusion.</p> <p>4. A claimant who renders services under a written agreement which provides he shall receive compensation at a specified rate "while I [the promisor] need care,” is entitled to the payment only while care is needed and actually given.</p>

Appeal, No. 26, Oct. T., 1920, by plaintiff, from order of C. P. Lawrence Co., Dec. T., 1919, No. 70, opening judgment, in case of Thomas V. Barnes v. C. H. Elder et al. Eule to open judgment. Before Emery, P. J. The opinion of the Supreme Court states the case. The court made absolute the rule to open the judgment. Plaintiff appealed. Error assigned was above order, quoting record.

Appeal, No. 2, Oct. T., 1920, by Elizabeth McDonald, widow, from decree of O. O. Washington Co., Nov. T., 1919, No. 29, dismissing petition for share in distribution in estate of Charles A. McDonald. Petition by widow to share in distribution. Before Hughes, P. J. The opinion of the Supreme Court states the facts. The court dismissed the petition. Elizabeth McDonald, widoiv and petitioner, appealed. Error assigned, inter alia, was decree, quoting it.

Appeal, No. 130, Oct T., 1920, by plaintiff, from judgment of C. P. Beaver Co., Sept. T., 1919, No. 396, sustaining decision of Workmen’s Compensation Board sustaining award of referee disallowing claim in case of Elizabeth Lindway v. Pennsylvania Company. Appeal from decision of Workmen’s Compensation Board. Before Baldwin, P. J. The opinion of the Supreme Court states the facts. The court entered judgment sustaining the decision of the board. Plaintiff appealed.

<p>Negligence — Railroads—Crossings—Automobile—Stop, look and listen — Presumption of due care.</p> <p>1. There can be no presumption of due care as against facts clearly proven.</p> <p>2. In an action for death of plaintiff’s husband in a collision at a grade crossing between an automobile which he was driving and a train, plaintiff cannot recover, where a number of witnesses for defendant testify that deceased did not stop, look and listen, and the only witness for plaintiff stated in effect that deceased stopped, but at a point when his car was about to cross the first rail, and that a sudden lurch of the car drove it upon the track in which position it was struck near the front end.</p> <p>3. To stop at a place so near the tracks that a slight unexpected moving of the automobile will cause it to enter upon them, is equivalent to a failure to stop, since the stop is too late to serve its purpose.</p>

<p>Contracts — Sale—Covenant of indemnity — Personal liability— Parol evidence — Act of June 12,1878, P. L. 205.</p> <p>1. Where a sale is made subject to a specified indebtedness, ordinarily this operates only as a covenant of indemnity to the grantor.</p> <p>2. If the parties so intend, however, it will be held to create a personal liability to the holder of the encumbrance, even though the grantor was not himself personally liable for the debt.</p> <p>3. Such intention may be established by parol evidence.</p> <p>4. In a dispute between those who are not parties to a written instrument, it is not necessary, in order to show their real intention, to either aver or prove anything was omitted from the writing by fraud, accident or mistake.</p> <p>5. The Act of June 12, 1878, P. L; 205, does not apply to sales of personal property.</p> <p>Evidence — Witness—Attomey-at-law—Party dead.</p> <p>6. An attorney-at-law who drew a written agreement, but is not interested in the case, is a competent witness though one of the parties thereto has died.</p> <p>Statute of limitations — Agreement under seal — Presumption of payment — Practice, Orphans’ Court.</p> <p>7. The statute of limitations does not apply to an agreement under seal; liabilities created thereby continue in force until the presumption of payment arises.</p> <p>8. It is too late to claim the benefit of the statute of limitations on exceptions to an adjudication in the orphans’ court.</p>

<p>WorJcmeris compensation — Minor—Trespass—Moisting machine —Acts of May 15,1915, P. L. 286, and June 2, 1915, P. L. 786.</p> <p>1. The workmen’s compensation law does not apply to a minor who is incapable of entering into a contract and has been employed in violation of an act of assembly.</p> <p>2. A minor so employed can, therefore, maintain an action of trespass for personal injuries received during the course of his employment.</p> <p>3. A crane used in hoisting heavy materials and then moving them from place to place, is a hoisting machine within the meaning of section 5 of the Act of May 13, 1915, P. L. 286.</p> <p>Statutes — Construction—Acts passed at same session.</p> <p>4. Where two statutes are passed at the same session of the legislature, each must, if possible, be given full effect without ¡one infringing upon the domain of the other.</p>

Appeal, No. 78, Oct. T., 1920, by plaintiff, from decree of C. P. Allegheny Co., Oct. T., 1918, No. 278, dismissing bill in equity in case of Martha McConville v. Martha J. Ingham and the Mellon National Bank of Pittsburgh. Bill in equity for injunction and an accounting. Before Carnahan, J. The opinion of the Supreme Court states the facts. The court dismissed the bill. Plaintiff appealed. Error assigned was decree, quoting it.

<p>Appeal, No. 139, Oct. T., 1920, by defendant, from judgment of O. & T. Beaver Co., March T., 1920, No. 5, on verdict of guilty of murder of the .second degree, in case of Commonwealth v. Oonsarvia Pava.</p> <p>Indictment for murder. Before Baldwin, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Yerdict of guilty of murder of the second degree, on which sentence was passed. Defendant appealed.</p> <p>Errors assigned were various rulings and instructions appearing by opinion of Supreme Court, quoting record.</p>

<p>Appeal, No. 8, May T., 1920, by Samuel H. Putnam, a creditor, from decree of C. P. Dauphin Co., Commonwealth Docket 1908, No. 28, in case of Commonwealth et al. and M. Hampton Todd, Attorney General, v. Traders & Mechanics Bank of Pittsburgh.</p> <p>Bill in equity for appointment of receiver.</p> <p>Exceptions to auditors’ report. Before McCarrell, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court dismissed the exceptions. Samuel H. Putnam, a creditor, appealed.</p> <p>Errors assigned were (1-8) dismissal of exceptions, quoting exceptions without quoting decree; (9) final decree, quoting it.</p>

<p>Principal and agent — Mortgage—Assignment of leases to pay mortgage interest out of rentals — Construction by parties — Set-off —Mortgagee in possession.</p> <p>1. Where the owners o£ real estate subject to a first and second mortgage, assign the rentals to the holder of the second mortgage, and constitute him their attorney to manage the real estate, collect the rentals, and therefrom pay expenses, taxes and interest on the first mortgage, the agent cannot apply the rentals to payment oí the interest on his own mortgage in preference to that on the first mortgage. That is the plain meaning of the contract and the construction the parties put upon it.</p> <p>2. In such case, as the assignee of the rentals receives the fund, as agent and for a special purpose> he cannot assume the position of a mortgagee in possession, and set-off, against any part of the fund, the principal’s indebtedness to himself; the claims are not in the same right.</p>

Appeal, No. 88, Oct. T., 1920, by defendant, from judgment of O. P. Allegheny Co., July T., 1917, No. 39, on verdict for plaintiff in case of F. H. Bodman v. Nathaniel Fisher & Co. Assumpsit on contract of agency for the sale of shoes in specified territory. Before Kline, J. The opinion of the Supreme Court states the facts. Verdict and judgment for plaintiff for $2,600. Defendant appealed.

<p>Appeal, No. 95, Oct. T., 1920, by defendant, from judgment of C. P. Allegheny Co., April T., .1918, No. 1674, on verdict for plaintiff in case of David Stonecipher v. William Keane.</p> <p>Ejectment for house and lot in 30th Ward, Pittsburgh. Before Carpenter, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict and judgment for plaintiff. Defendant appealed.</p> <p>Errors assigned were, inter alia, (1, 2) rejection of evidence of Mrs. Lawler, appearing by opinion of Supreme Court, quoting record.</p>

<p>Appeals, Nos. 102 and 103, by defendants, from judgments of C. P. Allegheny Co., April T., 1919, Nos. 1902 and 1903, on verdicts for plaintiffs in cases of Hillman Transportation Co. v. Home Insurance Co. of New York and Hillman Transportation Co. v. Insurance Co. of North America.</p> <p>Assumpsit on policies of marine insurance. Before Swearingen, J.</p> <p>The cases were tried together.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict and judgment (No. 1902) for plaintiff and against Home Insurance Co. for $2,152, and (No. 1903) against Insurance Co. of North America for $23,683. Defendants appealed.</p> <p>Error assigned, inter alia, was refusal of defendants’ motion for judgment n. o. v.</p>

<p>Appeal, No. 111, Oct. T., 1919, by plaintiff, from judgment of C. P. Indiana Co., March .T., 1917, No. 182, on verdict for plaintiff in case of James W. Pattison v. Buffalo, Rochester & Pittsburgh Ry. Co.</p> <p>Appeal from report of jury of view. Before Lang-HAM, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Yerdict and judgment for plaintiff for $1,720. Plaintiff appealed.</p> <p>Error assigned was portion of charge recited in opinion of Supreme Court, quoting it.</p>

<p>Appeal, No. 86, Jan. T., 1921, by defendant, from judgment of C. P. No. 3, Phila. Co., March T., 1916, No. 4939, on verdict for plaintiff in case of Pennsylvania Co. for Insurances on Lives and Granting Annuities, Trustee under will of Mary J. Miles, deceased, v. Philadelphia.</p> <p>Appeal from report of board of view. Before Ferguson, J.</p> <p>:The opinion of the Supreme Court states the facts.</p> <p>Verdict and judgment for plaintiff for $520,000. Defendant appealed.</p> <p>Errors assigned were various rulings on evidence and instructions appearing by the opinion of the Supreme Court.</p>

<p>Appeal, No. 169, Oct. T., 1920, by American Window Glass Co. and Window Glass Machine Co., intervening defendants, from decree of O. P. Clarion Co., Feb. T., 1920, No. 2, awarding specific performance in case of Charles E. Andrews, Jr., v. New Bethlehem Window Glass Co., defendant, and American Window Glass Co. and Window Glass Machine Co., intervening defendants.</p> <p>Affirmed.</p> <p>Bill for specific performance. Before Sloan, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court entered a decree awarding specific performance. The intervening defendants appealed.</p> <p>Error assigned was, inter alia, the decree.</p>

<p>Appeal, No. 174, Oct. T., 1920, by defendant, from judgment of C. P. Armstrong Co., June T., 1919, No. 133, on verdict for plaintiff in case of J. S. Beck v. United States Railroad Administration (Director General of Railroads).</p> <p>Trespass to recover damages for personal injuries. Before King, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict and judgment for plaintiff for $2,417.50. Defendant appealed.</p> <p>Error assigned was refusal of defendant’s motion for judgment n. o. v., quoting record.</p>

<p>Appeal, No. 274, Jan. T., 1920, by plaintiff, from judgment of C. P. Bradford Co., May T., 1915, No. 210, on verdict for defendants in case of W, D. Browning v. Edwin L. Rodman and Nina B. Rodman.</p> <p>Issue to determine amount due on judgment. Before Maxwell, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict and judgment for defendants. Plaintiff appealed.</p> <p>Errors assigned were, (1) refusal of plaintiffs motion for judgment n. o. v., quoting record; (2-10) answers to points, and portions of charge, quoting them.</p>

<p>Railroads — Eminent domain — Condemnation of land — Evidence —Experts—Price of other lands — Damages—Amount—New trial ■ — Discretion—Waters—Rivers—Navigable rivers — -Low watermarlc.</p> <p>1. A witness in a railroad land damage case cannot be asked the price paid for a part of the same piece of land by the railroad company.</p> <p>2. In grants of vacant lands, streams not actually navigable belong to the owner of the tract, or, where they form a boundary, the grantee acquires title to the center.</p> <p>3. Large rivers and principal streams, navigable, belong to the Commonwealth, and a grantee takes title to low watermark as to such streams.</p> <p>4. An act of assembly, declaring a stream navigable which is in fact navigable, will not cause that stream to be considered as a non-navigable river prior to the act; so that a grantee, bounding thereon, will not take title to the middle of the stream.</p> <p>5. Where a river is in fact navigable it always remains So, notwithstanding declarative legislation with respect to it.</p> <p>6. Erosions from an owner’s land, caused by excavations made by one having the right of eminent domain, are elements of damage.</p> <p>7. A court may instruct the jury to use their good sense or “horse sense,” where the estimates of damage range from $4,000 to $160,000, and where the extent of the taking is a small strip along a former condemnation.</p> <p>8. There is no abuse of discretion in refusing a new trial under such circumstances.</p>

<p>Appeal, No. 52, Oct. T., 1920, by plaintiff, from judgment of Superior Court, April T., 1919, No. 69, reversing judgment of C. P. Mercer Co., Jan. T., 1915, No. 431, discharging rule to strike off or reduce a municipal lien for paving, in case of Sharpsville Borough v. Ford Randall.</p> <p>Appeal from judgment of Superior Court. See 73 Pa. Superior Ct. 61.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The Superior Court reversed the order of the lower court, reinstated the rule, and made it absolute. Plaintiff appealed.</p> <p>Error assigned was, inter alia, the judgment of the Superior Court, quoting it.</p>

<p>Appeal, No. 19, Oct. T., 1920, by defendant, from judgment of C. P. Allegheny Co., Oct. T., 1916, No. 1117, on verdict for plaintiff in case of John H. Eicher v. Bruckman Lumber Co.</p> <p>Trespass for personal injuries resulting in death. Before Evans, J.</p> <p>The case was amended so as to make Martha M. Eicher, administratrix of John H. Eicher, deceased, the plaintiff.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict and judgment for plaintiff for $3,500. Defendant appealed.</p> <p>Error assigned was (3) order refusing judgment for defendant n. o. v., quoting it.</p>