Volume 269 — Pennsylvania State Reports

Appeal, No. 50, Oct. T., 1920, by plaintiffs, from judgment of O. P. Allegheny Co., Jan. T., 1920, No. 1406, for defendant on case-statéd, in suit of Gibson D. Packer and Hallock C. Sherrard, executors of Ralph E. Clemson, deceased, v. Daniel M. Clemson, guardian of estate of Richard E. Clemson, a minor. Case-stated to determine ownership of certificate of stock. Before Carpenter, J. The court entered judgment for defendant on the case-stated. Plaintiffs appealed.

<p>Tenants in common — Operation of oil well — Removal of material by one of associates — Actions—Assumpsit—Parties—Partnership —Trial on merits — Waiver of defects.</p> <p>1. Where three tenants in common operate an oil well, but not as partners, and one of them removes material from an abandoned well, under circumstances showing that he was a purchaser, assumpsit may be maintained against him for the value of such material.</p> <p>2. If his name is joined as a party plaintiff with his two associates in the action against himself, the insertion, even if a misjoinder, is waived by the parties going to trial upon the merits.</p> <p>Appeals — Assignments of error — Charge—Reduction of charge to writing — General exceptions.</p> <p>3. Where no request has been made in the .court below that the charge be reduced to writing and filed of record, assignments of error relating to the charge cannot be considered on appeal.</p> <p>4. Where nothing but a general exception has been taken to a charge, only basic and fundamental errors can be considered.</p>

Appeal, No. 111, Oct. T., 1920, by defendant, from judgment of O. P. Allegheny Co., April T., 1918, No. 1564, on verdict for plaintiff in case of Caroline Bonistalli, now Caroline Gilardi, administratrix of William A. Bonistalli v. Joseph Bonistalli. Assumpsit to recover proceeds of policy of life insurance. Before Ford, J. The opinion of the Supreme Court states the facts. Yerdict and judgment for plaintiff for $2,545.93. Defendant appealed.

Appeal, No. 112, Oct. T., 1920, by plaintiff, from judgment of O. P. Allegheny Co., April T., 1918, No. 1534, for defendants n. o. v., in case of John T. Frazier v. Mabel I. Foreman et al. Ejectment for house and lot in 22d ward of Pittsburgh. Before Swearingen, J. The opinion of the Supreme Court states the facts. At the trial the jury returned a verdict for plaintiff. Subsequently the court entered judgment for defendants n. o. v. Plaintiff appealed.

Appeal, No. 121, Oct. Ti, 1920, by plaintiff, from order of C. P. Allegheny Co., July T., 1919, No. 671, refusing to take off nonsuit in case of W. F. Bartoe v. Bixler Coal & Coke Co. Assumpsit for breach of contract. Before Stone, 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>Bes adjudicada — Stare decisis — Courts—Subordinate appellate court — Municipal lien.</p> <p>1. While the 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, involving the same subject-matter, as conclusive.</p> <p>2. Where, on a scire facias sur municipal lien, it is decided that a particular street is not a public highway, and the decision is affirmed by the Superior Court, it will be conclusive in proceedings on a later lien between the same parties, and relating to the same land, where there is nothing to show that, before the later improvements had been authorized, the locus had, in some formal manner, become a public street.</p>

<p>Appeal, No. 47, Oct. T., 1920, by plaintiff, from judgment of O. P. Beaver Co., Dec. T., 1917, No. 534, on verdict for defendants, in case of E. T. Kurtz, Receiver, etc., v. H. J. Lawrence et al.</p> <p>Assumpsit on a promissory note. Before Baldwin, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict and judgment for defendants. Plaintiff appealed.</p> <p>Error assigned, inter alia, was (2) refusal of motion for judgment for plaintiff n. o. v., quoting record.</p>

<p>Municipalities — Streets—Flow of water from one borough to another — Damnum absque injuria.</p> <p>Every municipality has the right to the natural, proper and profitable use of its land, and to open, grade and improve its streets, and if, in the course of such use without negligence, unavoidable loss is brought upon an adjoining borough, through an 'increased flow of water with sand, gravel and stones, it is damnum absque injuria.</p>

<p>Mortgage — Assignment—Notice of lease — Inquiry—Knowledge —Subrogation—Payment of money into court.</p> <p>Where an owner of land, subject to a mortgage, executes a lease of the mineral under the land, and after the lessee has been in open, notorious and undisputed possession of the leasehold for many years, of such character as to give notice to all the world, the mortgage is foreclosed and a levari facias issued for the ¡sale of the land, the lessee is entitled, on the refusal of the assignee of the mortgage to accept the debt, interest and costs, and after demand for a larger and exorbitant sum, to pay the money into court, and be subrogated to the mortgagee’s rights.</p>

Appeal, No. 179, Oct. T., 1920, by plaintiff, from order of O. P. Butler Co., June T., 1920, No. 30, discharging rule for judgment for want of a sufficient affidavit of defense, in case of E. E. Abrams v. Samuel Sherwin. Assumpsit for rental under coal lease. Before Rsiber, P. J. The opinion of the Supreme Court states the facts. The court discharged a rule for judgment for want of a sufficient affidavit of defense. Plaintiff appealed.

Appeal, No. 41, Oct. T., 1920, by plaintiffs, from judgment of O. P. Washington Co., Aug. T., 1919,-No. 51, for defendants on case-stated, in suit of Samuel A. Wright et al. v. Eliza Laird et al. Case-stated in ejectment for land in Hanover Township. Before Brownson, J. The opinion of the Supreme Court states the facts. The court entered judgment for defendant on case- , stated. Plaintiffs appealed. Error assigned, inter alia, was judgment, quoting it.

<p>Criminal law — Murder—Charge—Failure to instruct as to degree — Act of March SI, 1860, P. L. 1$2.</p> <p>A judge, in a murder trial, commits reversible error, where he states to the jury that the charge against the prisoner is murder of the first degree, and then repeatedly tells them that, if the homicide was committed in perpetrating or attempting to perpetrate a robbery, tbe prisoner was guilty of murder of tbe first degree, without any intimation that the Act of March 31, 1860, P. L. 402, expressly imposes upon the juiry the duty of fixing the degree of guilt, no matter what was charged -or proved by the Commonwealth.</p>

Appeal, No. 6, Oct. T., 1920, by plaintiffs, from judgment of O. P. Allegheny Co., Oct. T., 1917, No. 791, on verdict for defendant in case of Samuel Franklin McKee and Howard M. Ray-nor, executors of Laura J. Raynor, deceased, v. Emma H. Russell. Scire facias to revive judgment. Before Reid, J. The opinion of the Supreme Court states the facts. Verdict and judgment for defendant. Plaintiffs appealed.

<p>Negligence — Railroads—Grossing tracks at. station — Contributory negligence — Presumption.</p> <p>Where a person at a railroad station, at which there are four tracks, waits until a train has passed on the second track, then starts to cross, and is struck by an express train on the fourth track and killed, the question of defendant’s negligence and the deceased’s contributory negligence is for the jury, where the evidence shows that the night was dark, that the safety gates were up, and that the express train approached the crossing at great speed, without headlight and without signal from bell or whistle. The presumption of due care by deceased made his negligence a question of fact.</p>

Appeal, No. 100, Oct. T., 1920', by plaintiff, from order of C. P. Allegheny Co., July T., 1919, No. 2084, refusing to take off nonsuit, in' case of Louis Falco v. Allegheny Valley Street Railway Co. Trespass for personal injuries. Before Brown, 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 order refusing to take off nonsuit, quoting it.

Appeal, No. 129, Oct. T., 1920, by defendant, from decree of O. P. Allegheny Co., Jan. T., 1920, No. 211, on bill in equity, in case of William A. Seifert v. Ernest F. Rusch. Bill in equity for conveyance of real estate and for accounting of mesne profits. Before Swearingen, J. The opinion of the Supreme Court states the facts.

Appeal, No. 140, Oct. T., 1920, by defendants, from judgment of C. P. Allegheny Co., Jan. T., 1920, on verdict for plaintiff in case of Jacob Feldgus, trading under the name of Feldgus Glove Co. v. Jacob M. Friedman and Abe Friedman, trading under the name of Enterprise Leather Co. Assumpsit for goods sold and delivered. Before Shaeer, P. J. The opinion of the Supreme Court states the facts. Verdict and judgment for plaintiff for $4,863.91. Defendants appealed.

<p>Appeal, No. 107, Oct. T., 1920, by Eugenia R. Baum, widow, from decree of O. C. Allegheny Co., Oct. T., 1918, No. 4, dismissing exceptions to adjudication in estate of Rickard B. Baum, deceased.</p> <p>Exceptions to adjudication.</p> <p>The opinion of the Supreme Court states the case.</p> <p>The court, in an opinion by Shafer, P. J., specially presiding, dismissed exceptions to adjudication: See 29 Pa. Dist. R. 449; 68 Pitts. L. J. 145. Eugenia R. Baum, widow, appealed.</p> <p>Error assigned was decree, quoting it.</p>

Appeal, No. 117, Oct. T., 1920, by plaintiff, from order of O. P. Allegheny Co., July T., 1917, No. 1534, entering nonsuit, in case of Morgan McDonald v. E. V. Babcock, Mayor, et al. Issue in mandamus proceedings. Before Carpenter, J. At the trial, the court entered a nonsuit which it subsequently refused to take off. Plaintiff appealed. Error assigned was entry of nonsuit.

<p>Appeal, No. 118, Oct. T., 1920, by plaintiff, from judgment of C. P. Allegheny Co., July T., 1919, No. 1994, for defendant n. o. v., in case of Philip Keller v. Walker D. Hines, Director General of Railroads, operating the Pennsylvania Lines west of the Pennsylvania Railroad Co.</p> <p>Trespass for personal injuries. Before Stone, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff for $1,750. The court entered judgment for defendant n. o. v. Plaintiff appealed.</p> <p>Error assigned was judgment, quoting it.</p>

Appeal, No. 141, Oct. T., 1920, by plaintiff, from order of C. P. Allegheny Co., April T., 1912, No. 2724, granting new trial, in case of P. J. Osterling y. Third United Presbyterian Congregation of Pittsburgh. Assumpsit for compensation for services as architect. Before Stone, J. At the trial the jury returned a verdict for plaintiff for $8,520. Defendant moved for a new trial on the ground that the verdict was against the weight of the evidence.

Appeal, No. 136, Oct. T., 1920, by plaintiff, from judgment of O. P. Allegheny Co., April T., 1919, No. 752, for defendant n. o. v., in case of George M. Schmidt, minor, by his next friend and brother Louis E. Schmidt v. West Penn Railways Co. Trespass for personal injuries. Before Kline, J. The opinion of the Supreme Court states the facts. Verdict for plaintiff for $4,291.25.

<p>Appeal, Nos. 133 and 134, Oct. T., 1920, by plaintiffs, from order of O, P. Allegheny Co., Oct. T., 1919, No. 1926, refusing new trial in case of C. L. Williams et ux. v. Kaufmann & Baer Co.</p> <p>Trespass for personal injuries. Before Brown, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court refused motions for new trial. Plaintiff appealed.</p> <p>Error assigned, among others, was order, quoting it.</p>

<p>Appeal, No. 124, Oct. T., 1920, by defendant, from judgment of C. P. Allegheny Co., July T., 1919, No. 2015, on verdict for plaintiff, in case of Thomas M. Schmitt v. Republic Collieries Co.</p> <p>Assumpsit to recover balance alleged to be due on contract of employment. Before Carnahan, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict and judgment for plaintiff for $7,500. Defendant appealed.</p> <p>Error assigned was refusal of certain instructions, appearing by opinion of Supreme Court, quoting them.</p>

<p>Contract — Bale—Corporate sioch — Repurchase—Demand to repurchase — Damages—Measure of damages.</p> <p>1. Where a seller of corporate stock agrees to repurchase the same at par within one year from the date of the sale, “unless sold before the expiration of said one year from the date hereof,” the obligation upon the seller to repurchase the bonds, does not arise until the end of the year, and the purchaser has a reasonable time thereafter in which to demand a. repurchase.</p> <p>2. The general rule that the measure of damages for the buyer’s refusal to accept goods, is the difference between the contract price and the market value, does not apply to the exchange of specific corporate stock at par value, for other property, with an agreement to repurchase the game at par.</p> <p>Appeals — New trial — Error of law.</p> <p>3. The granting of a new trial is properly subject to review when based upon an error of law.</p>

Appeal, No. 149, Oct. T., 1920, by Albert L. Brahm, heir, from decree of O. C. Allegheny Co., April T., 1920, No. 73, sustaining exceptions to adjudication in estate of Susanna K. Brahm, deceased. Exception to adjudication. The opinion of the Supreme Court states the facts. The court sustained the exceptions, in an opinion by Trimble, J. Albert L. Brahm, heir, appealed. Error assigned was decree, quoting it.

<p>Contract — Sales—Payment—•Waiver—Parol evidence to vary writing — Breach of contract — Cancellation—Case for court.</p> <p>1. Parol evidence is inadmissible to vary the terms of a written contract for the sale of goods, (1) where the alleged evidence relates to oral statements made before the written agreement was signed; (2) where the evidence consists of declarations by one of the parties, "made after the date of the written contract, but relates merely to an understanding of what occurred, and not of what actually took place; and (3) where the statements referred to a cancellation of the contract, which was, in fact, affirmed.</p> <p>2. The mere fact of receiving payment, or several payments, after the date when the purchaser is bound to make them, does not operate as an abrogation of the written agreement, nor will it be a waiver of strict compliance with the terms of the writing as to amounts falling due thereafter."</p> <p>3. Where the purchaser of goods under a written agreement first breaches the contract, the seller has a right to cancel it, and, where he does, the purchaser cannot recover damages.</p>

<p>Will — Codicil—Trusts and trustees — Separate use trust — Legacy.</p> <p>1. A will and codicil are construed together, and the latter revokes the former only so far as repugnant thereto.</p> <p>2. Where a father creates a spendthrift trust for his daughter in his will, and by codicil gives a legacy in trust for her use, the additional sum given by the codicil will be held for her separate use as provided by the will.</p>

<p>Appeal, No. 167, Oct. T., 1920, by plaintiff, from judgment of C. P. Allegheny Co., Jan. T., 1919, No. 85, on verdict for defendant in case of Ellwood Lumber Co. v. City of Pittsburgh.</p> <p>Appeal from award of board of viewers. Before Carnahan, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned were various rulings and instructions, quoting the record.</p>

<p>Negligence — Damages — Evidence — Loss of boohs — Proper search for boohs — Secondary evidence — Earning power — Profits.</p> <p>1. In a personal injury ease, where plaintiff who conducted a detective agency, testifies that his books of account, covering several years, were lost, and the evidence offered by him is manifestly insufficient as to the search which he made for them, the admission of secondary evidence as to profits, and as to what the hooks would show, constitutes cause for reversal.</p> <p>2. In such case, if the books cannot he found, and plaintiff testifies that he averaged $10,000 a year profit out of the business, defendant is entitled to information of the details of the business, of the system under which plaintiff employed numerous assistants, referred to in his testimony, of the receipts and expenditures and of the value of his own personal work, as distinguished from profits on capital invested or from the labor of others.</p>

<p>Appeal, No. 145, Oct. T., 1920, by defendants, from order of O. P. Allegheny Co., Jan. T., 1920, No. 785, entering judgment for plaintiff n. o. y. in case of Louise Kustus v. Louis Hager et al.</p> <p>Issue devisavit vel non to determine testamentary capacity of Henry T. Hager, deceased. Before Stone, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict and judgment for defendants upon which judgment was entered for plaintiff n. o. y. Defendants, who were the contestants, appealed.</p> <p>Error assigned was above judgment, quoting record.</p>

<p>Courts — Jurisdiction—Superior Court.</p> <p>1. The jurisdiction of the Superior Court is purely Statutory, and it cannot review judgments of the lower courts unless expressly authorized so to do.</p> <p>Appeals — Review —Jurisdiction— Certiorari — Examination of opinion of court below.</p> <p>2. Although an appeal is not expressly given, appellate courts can always review, on certiorari, questions regarding the jurisdiction of the lower courts or touching the constitutional rights of the litigants.</p> <p>3. In determining these matters, if the case is one not arising in the course of the common law, the appellate court may examine the opinion of the court below in order to ascertain the reasons for its action.</p> <p>Constitutional law — Public meetings — Streets—Municipalities— Ordinance — Discrimination.</p> <p>4. Neither the 14th amendment to the federal Constitution, nor sections 7 and 20 of the Bill of Eights of the state Constitution, vest in the citizens a constitutional right to hold public meetings upon the streets of a municipality.</p> <p>5. Streets are not intended for the purpose of assemblage, but of passage.</p> <p>6. He who claims the right to use the streets for the purpose of assemblage, must show some constitutional or statutory authority so to do, either directly given thereby or by the municipality in the exercise of a power thereby conferred upon it.</p> <p>7. The courts cannot interfere with a municipality’s exercise of conferred power, if exercised in a reasonable, lawful and constitutional manner.</p> <p>8. Where it appears that a municipal officer has acted in accordance with a discretion legally vested in him, the courts have no power to interfere therewith.</p> <p>9. The courts may overturn arbitrary and intentional unfair discrimination in the administration of an ordinance, as fully as they may review an arbitrary and intentional discrimination appearing in’ the ordinance itself.</p>

<p>Appeal, No. 159, Oct. T., 1920, by Jane McCully and Mary McCully Black, next of kin, from decree of O. C. Allegheny Co., April T., 1920, No. 261, dismissing exceptions to adjudication in estate of Ann McCully.</p> <p>Exceptions to adjudication.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court, in an opinion by Miller, P. J., dismissed the exceptions to the adjudication: see 68 Pitts. L. J. 744. Jane McCully and Mary McCully Black, next of kin, appealed.</p> <p>Error assigned whs the decree of court, quoting it.</p>

<p>Contract — Parol agreement — Written agreement — Terms in contemplation of written agreement — Pcurt consideration — Parol agreement to convey realty — Statute of frauds.</p> <p>An agreement of terms, in contemplation of a written contract, is not a perfect agreement upon which an action can be maintained. To produce this effect, it must be shown, by the acts or declarations of the parties, that they intended the agreement to be operative before execution, and without regard to the writing. This principle is peculiarly applicable to a case where the agreement of one of the parties to convey real estate as part of the consideration is invalid as contrary to the statute of frauds.</p> <p>Maitland v. Wilcox, 17 Pa. 231, followed.</p>

Appeal, No. 151, Oct. T., 1920, by defendant, from order of O. P. Allegheny Co., July T., 1917, No. 1515, refusing new trial- in case of F. J. Willenpart v. Otis Elevator Co. Trespass for serious personal injuries sustained by expert electrician. Before Brown, J. Verdict and judgment for plaintiff for $14,500. Defendant moved for a new trial on the ground that the verdict was excessive. The court refused the motion. Defendant appealed.

Appeal, No. 160, Oct. T., 1920, by defendant, from judgment of O.. P. Allegheny . Co., Jan. T., 1918, No. 1464, on verdict for plaintiff in case of Sarah J. Humbert v. Colonial Trust Co., Admr., of estate of John Humbert, deceased. Assumpsit on a contract for services. Before Carpenter, J. The opinion of the Supreme Court states the facts. Verdict and judgment for plaintiff for $9,360. Defendant appealed.

<p>Appeal, No. 172, Oct. T., 19(20, by defendant, from judgment of O. P. Allegheny Co., Oct. T., 1919, No. 51, on verdict for plaintiff, in case of Augusta Roblin v. Supreme Tent of the Knights of the Maccabees of the World.</p> <p>Assumpsit for death benefits. Before Carpenter, J.</p> <p>The opinión of the Supreme Court states the facts.</p> <p>Verdict and judgment for plaintiff for $2,220. De- ■ fendant appealed.</p> <p>Error assigned, among others, was refusal of judgment n. o. v., quoting the record.</p>

<p>Appeal, No. 173, Oct. T., 1920, by plaintiff, from order of C. P. Allegheny Co., July T., 1919, No. 216, refusing judgment for plaintiff n. o. v., in case of Joseph. C. Roush v. Nicholas Herbrick and Theo. H. Dcehla, trading as Penn Baking Co., and Elevator Construction Co.</p> <p>Issue in proceedings by a purchaser at sheriff’s sale of real estate, to obtain possession. Before Debw, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Error assigned, inter alia, was refusal of judgment n. o. v., quoting record.</p>

Appeal, No. 177, Oct. T., 1920, by defendant, from judgment of Superior Court, April T., 1920, No. 82, reversing order of C. P. Allegheny Co., Oct. T., 1919, No. 884, quashing writ of replevin, in case of Automobile Securities Co. v. John A. Swisshelm. Appeal from Superior Court. The opinion of the Supreme Court states the facts. The Superior Court reversed the order quashing writ. Defendant appealed. Error assigned, among others, was judgment of Superior Court, quoting it.

Appeals, Nos. 183 and 184, May T., 1920, No. 130, by Fidelity -Trust Co., guardian for Louis Darlington Dowling, a minor, and Commonwealth Trust Co., guardian for Barbara Lane Darling-ton, a minor, from decree of O. C. Allegheny Co., May T., 1920, No. 130, dismissing exceptions to adjudication in estate of Edith Darlington Ammon, deceased. Exceptions to adjudication.

<p>Deeds — Deed by trustee — Good record title — Constitutionality of Act of July 11,1917, P. L. 756.</p> <p>1. On a case-stated in ejectment, where the court is asked merely to decide whéther or not a deed from a person named as “trustee” “passes a good record title,” the court will decide the question in the affirmative, if it appears that the deed in question was made a quarter of a century before, and that it recited that the grantor, described as “trustee, party of the first part,” made the deed “in pursuance of a request of the cestui que trust of the first party.”</p> <p>2. Not decided whether the word “trustee,” after the name of a grantee in a deed, without more, is sufficient to put any one accepting a deed of such grantee on inquiry as to the extent of his authority to convey.</p> <p>3. On a case-stated not raising the point, it is not necessary to decide the constitutionality of the Act of July 11, 1917, P. L. 756, which, undertakes to validate deeds theretofore made by “trustees without setting forth the authority to convey.”</p> <p>Practice, C. P.- — Case-stated—Facts not stated.</p> <p>4. Whatever is not distinctly and expressly agreed upon and set forth in a case-stated, must be taken not to exist.</p>

Appeal, No. 27, Oct. T., 1920, by Anna Bedell, administratrix of Margaret O. Bedell, from order of O. P. Allegheny Co., April T., 1916, No. 298, discharging rule to open judgment, in case of Fred W. Scott v. Milton Bedell and Margaret C. Bedell, the latter now deceased. Rule to open judgment. Before Carpenter, J. The opinion of the Supreme Court states the facts. The court discharged the rule. Anna Bedell, administratrix, appealed. Error assigned was above order, quoting it.

<p>Criminal law — Murder—Evidence — Circumstantial evidence — ■ Presumption — 'Weapon—Motive—Declarations—State of mind — III will.</p> <p>1. In a case of circumstantial evidence, the proof derived from the circumstances is a question of natural presumption, and is to be determined by the jury, and not by the court.</p> <p>2. What the accused said, as much as the things he did, on the night of the crime, are circumstances in the ease to be considered by the jury in determining his guilt or innocence.</p> <p>3. Where the prisoner admitted that things he said on the night of the crime, were false, the jury is entitled to consider these false statements, and to draw from them the conclusion that his purpose in telling the untruths was to conceal the truth, and that his reason for the concealment of the truth, was that he knew, if told, it would injure him.</p> <p>4. On a murder trial, a shotgun, ramrod and oily rags, and a shell loaded with number six shot, taken from defendant’s overalls worn by him on the night of the crime, are properly admitted in evidence, where it appears deceased was shot by a gun loaded with number six shot, of the same bore as the shell, and the other evidence tends to show that the articles in question had been used by defendant in connection with the crime.</p> <p>5. Threats uttered by defendant against deceased, his wife, are admissible, if made close in time before the crime — in this case from three to five months.</p> <p>6. In such case the admission of the threats in evidence, is proper, not only as threats, but as declarations showing defendant’s state of mind and his ill will towards his wife.</p>

<p>Appeals, Nos. 260, 261, 262 and 263, Jan. T., 1921, by defendants, from judgments of O. & T. Erie Co., Nov. T., 1920, No. 50, on verdict of guilty of murder of the first degree, in cases of Commonwealth v. Milton Hudson, Robert Trammel, William Stragin and Steve Schiop.</p> <p>Indictment for murder. Before Rossiter, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict, murder of the first degree on which sentence of death was passed on each defendant separately. Defendants appealed.</p> <p>Errors assigned were (1, 2) admission of confessions, quoting record, and (3) sentences, quoting them.</p>

Appeal, No. 2, May T., 1921, by defendant, from judgment of O. & T. Dauphin Co., June T., 1920, No. 46, on verdict of murder of the first degree, in case of Commonwealth v. Charles Byrd, alias Willie Palmer. Indictment for murder. Before Henry, P. J., special-. ly presiding. The opinion of the Supreme Court states the facts. Verdict, murder of the first degree, on which sentence of death was passed. Defendant appealed.

Appeals, Nos. 40 and 41, Jan. T., 1921, by defendant, from judgments of C. P. Crawford Co., Sept. T., 1918, Nos. 64 and 65, on verdict for plaintiffs, in cases of William A. Doud v. Walker D. Hines, Director General of Railroads, and Edith Doud and William A. Doud, her husband, v. Walker D. Hines, Director General of Railroads. Trespass for personal injuries. Before Prather, P. J. The opinion of the Supreme Court states the facts.

Appeal, No. 108, Jan. T., 1921, by E. J. Maginnis, Third Assistant District Attorney, from order of Q. S. Schuylkill Co., March T., 1920, Misc. Docket 35, making absolute rule to disbar In re Rule against E. J. Maginnis. Rule to show cause why E. J. Maginnis should not be disbarred. Before Bechtel, P. J., Berger and Koch, JJ. See 16 Schuylkill L. R. 396. The opinion of the Supreme Court states the facts. The court made the rule absolute. Respondent appealed.

Appeal, No. 36, Jan. T., 1921, by defendants, from judgment of C. P. No. 5, Sept. T., 1918, No. 1591, on verdict» for plaintiff, in case of State Bank of Avon v. William W. Luff and Liberty Title & Trust Co., executors and trustees under will of Samuel M. Mallalieu, deceased, and Samuel R. Conrey, late trading as Mallalieu & Conrey. Assumpsit to recover for breach of promise to give note in consideration for delivery of goods.

Appeal, No. 261, Jan. T., 1920, by plaintiff, from order of C. P. No. 1, Pbila. Co., June T., 1917, No. 5439, refusing to take off nonsuit in case of Fred Null v. Mastbaum Bros. & Fleisber, Inc. Trespass for wrongful eviction, and for alleged wrongful detention of plaintiff’s goods on leased premises. Before Bregy, P. J. Tbe opinion of tbe Supreme Court states tbe facts. At tbe trial tbe court entered a compulsory nonsuit wbicb it subsequently refused to take off.

Appeal, No. 6, Oct. T., 1921, by Jacob Margolis, from order of C. P. Allegheny Co., Jan. T., 1920, No. 2068, making absolute rule to disbar, in re Jacob Margolis. Rule to show cause why respondent should not be stricken from the roll of attorneys. Before Shafer, P. J., and Ford and Swearingen, JJ. The opinion of the Supreme Court states the facts. The court made the rule absolute. Respondent appealed. Error assigned, among others, was (5) order, quoting it.

Appeal, No. 259, Jan. T., 1920, by plaintiff, from judgment of C. P. No. 1, Pbila. Co., June T., 1916, No. 3260, on verdict for defendant, in case of Mary E. Moncur v. Western Life Indemnity Co. Assumpsit on policy of life insurance. Before Patterson, J. The opinion of the Supreme Court states the facts. Verdict and judgment for defendant. Plaintiff appealed. Errors assigned were various rulings and instructions, appearing by the opinion of the Supreme Court.

Appeal, No. 113, Oct. T., 1920, by plaintiff, from order of O. P. Allegheny Co., Jan. T., 1920, No. 260, making absolute rule to quash traverse, in case of Commonwealth ex rel. Catherine Hibbert v. Eleanor H. Davidson, an alleged lunatic. Rule to quash traverse. The court, in an opinion by Drew, J., quashed the traverse. Plaintiff appealed. Error assigned was above order, quoting it.

Appeal, No. 155, Oct. T., 1920, by plaintiff, from judgment of O. P. Allegheny Co., April T., 1919, No. 1079, on verdict for defendant in case of John Francis Hughes, by his father and next friend, William Hughes and William Hughes v. The Murdoch Storage & Transfer Co. Trespass for personal injuries to a boy fourteen years old. Before Drew, J. The opinion of the Supreme Court states the facts. At the trial the court gave binding instructions for defendant.

Appeal, No. 115, Oct. T., 1920, by plaintiff, from decree of O. P. Allegheny Co., Jan. T., 1920, No. 2034, dismissing bill in equity in case of Mary O. Wilson y. Thomas L. Brown, George L. Brown, William M. Wishart, J. Howard Myers, these four individually and as trustees, Thomas L. Andrews, trustee, Richard Muse, and Marshall Foundry Co. Bill in equity to compel cancellation of stock alleged to have been fraudulently issued.

<p>Landlord and tenant — Termination of lease — Surrender—Estoppel-Principal and agent — Provision against altering terms — Construction against lessor — Novation.</p> <p>1. Tbe primary consideration in tbe termination of tbe relation of landlord and tenant, is that the respective rights and liabilities of the parties cease to exist, and nothing remains by way of covenant to hold any of the parties.</p> <p>2. The making of a new lease by a lessor during the existence of an outstanding lease and in hostility to it, the tenant under the original lease giving up possession to a stranger, effects a surrender by operation of law; there was a complete novation.</p> <p>3. Under such circumstances the owner is estopped from denying a surrender took place or that the first lease had been annulled.</p> <p>4. In such case, a provision in the original lease, negativing the agent’s authority to alter or waive any of its terms, has no application, inasmuch as the agent’s general authority gave him the right to'execute a new lease, even if the making thereof effected the gurrender of the first lease, by operation of law. Under such circumstances the right reserved should be construed against the lessor.</p> <p>5. Such lease is not a dependent and consistent estate for the benefit of the original lessee, though taken in the name of the lessor owner.</p>

<p>Evidence — Witness—Competency—Party dead — Principal and agent — Orphans’ court — Findings—Review on appeal — Act of May 88,1887, P. L. 158 — Attorney—Gontingent fee.</p> <p>1. Where one is authorized by another to act for her as an agent (the principal being disclosed) in employing an attorney on a contingent fee, the agent, after the principal’s death, is a competent witness, under the Act of May 23, 1881, P. L. 158, for the attorney to prove the contract of employment. The agent’s competency cannot be attacked because of a bare possibility that an action might be brought against her.</p> <p>2. Where the orphans’ court finds as a fact, upon competent evidence, that a decedent had made, in her lifetime, a contract of employment with an attorney-at-law based on a contingent fee, such finding will not be reversed on appeal, in the absence of manifest error.</p> <p>Contract — Compromise agreement — Settlement of dispute— Fraud.</p> <p>3. Where a dispute exists, and the parties enter into an agreement for the purpose of settling the dispute, they will be bound by the agreement; but if there has been a concealment amounting to a fraud, by one of the parties, the agreement will not be binding upon the other.</p> <p>Accord and satisfaction — Liquidated claim — Consideration.</p> <p>4. To validate an accord and satisfaction based on a liquidated claim that is due, there must be a proper consideration, -with an assent or meeting of the minds of the parties. If the party receiving payment takes a less sum, he must understand that he takes it in full satisfaction of his claim, to constitute an accord and satisfaction.</p>

Appeal, No. 61, Oct. T., 1920, by plaintiffs, from decree of O. P. Allegheny Co., Oct. T., 1917, No. 1345, dismissing bill in equity, in case of Henry A. Phillips et al. v. Thomas Donaldson. Bill in equity for an injunction to restrain the operation of a public garage. Before Wasson, J. The opinion of the Supreme Court states the facts. The court dismissed the bill. Plaintiffs appealed.

<p>Appeal, No. 60, Oct. T., 1920, by plaintiffs, from decree of O. P. Allegheny Co., Oct. T., 1917, No. 1344, dismissing bill in equity in case of Henry A. Phillips and Margaret E. Phillips v. David A. Dunseith and Allegheny Auto Co.</p> <p>Bill in equity for injunction. Before Wasson, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court dismissed the bill. Plaintiffs appealed.</p> <p>Error assigned, among others, was decree, quoting it.</p>

<p>Trusts and trustees — Mother as trustee for daughter — Payment of principal — Payment of income — Presumption—Gifts—Advancement — Evidence—Findings of fact.</p> <p>1. A finding of fact by the common pleas that a deceased mother, who had been trustee for her daughter, had paid no part of the principal of the trust to her daughter, will not be reversed, in the absence of manifest error.</p> <p>2. Large payments, equalling the amount of the principal, paid by the mother to her daughter from time to time, will be presumed, after the mother’s death, to be payments on account of interest, and not advancements or gifts; and this is especially the case where it appears that the daughter, although in need, admitted that she had never made any demand on her mother for any of the accumulated income. This is strong proof that such income had been paid to her.</p>

<p>Trust and trustees — Husband and wife — Disposal of personal property in husband’s lifetime — Fraudulent intent —■ Gift inter vivos.</p> <p>1. During his life a man may dispose of his personal property by voluntary gift, or otherwise, as he pleases, and it is not a fraud upon the rights of his widow or children.</p> <p>2. Where a married man executes a deed of trust of personal property for the benefit of his son, and brothers and sisters, and delivers to the trustee the personal assets involved, without further control over them, his wife, after his death, cannot have the deed declared invalid on the ground that it was in fraud of her rights.</p> <p>3. The fraudulent intent which will defeat a gift inter vivos cannot be predicated of the husband’s intent to deprive his wife of her distributive share in his estate as widow.</p>

Appeal, No. 181, Oct. T., 1920, by plaintiff, from judgment of O. P. Allegheny, Co., July T., 1919, No. 823, on verdict for defendant, in case of William Ward, trading as the William Ward Machinery Co., v. United Coal Co., now the Hillman Coal & Coke Co. Assumpsit for breach of contract. Before Carpenter, J. The opinion of the Supreme Court states the facts. Verdict and judgment for defendant. Plaintiff appealed.

Appeal, No. 191, Oct. T., 19)20, by plaintiff, from decree of O. P. Allegheny Co., July T., 1919, No. 1552, dismissing bill in equity in case of Beman Thomas Co. v. John F. White et al. Bill in equity for an injunction to restrain sale of real estate. Before Carpenter, J. The opinion of the Supreme Court states the facts. The court dismissed the bill. Plaintiff appealed. Error assigned was decree, quoting it.

Appeal, No. 31, Jan. T., 1921, by plaintiff, from order of C. P. No. 1, Phila. Co., Sept. T., 1919, No. 2657, discharging rule for judgment for want of sufficient affidavit of defense, in case of Commonwealth Finance Corporation, Inc., v. Manuel Ferrero and Guiseppe Sterti, trading as Ferrero & Sterti. Replevin to recover motor truck. Before Shoemaker, J. , The opinion of the Supreme Court states the facts. The court discharged the rule. Plaintiff appealed.

Appeal, No. 43, Jan. T., 1921, by defendant, from judgment of C. P. No. 1, Phila. Co., March T., 1918, No. 4953, on verdict for plaintiff, in case of Eva M. Rapp, to use of J. H. Weaver & Co., and herself, and the State Workmen’s Insurance Fund v. Central Railroad of Pennsylvania. Trespass for death of plaintiff’s husband Before Patterson, J. The opinion of the Supreme Court states the facts. Verdict and judgment for plaintiff for $11,679. Defendant appealed.

Appeal, No. 54, Jan. T., 1921, by defendant, from judgment of C. P. No. 2, Phila. Co., Dec. T., 1918, No. 4254, on verdict for plaintiff, in case of Frank F. Harmer v. American Railway Express Co. Trespass for personal injuries. Before Rogers, J. The opinion of the Supreme Court states the facts. Verdict and judgment for plaintiff for $4,500. Defendant appealed. Error assigned was refusal of new trial, quoting record.

Appeal, No. 76, Jan. T., 1921, by defendant, from judgment'of C. P. No. 4, Phila. Co., Sept. T., 1918, No. 1056, on verdict for plaintiff in case of William J. Boyd v. E. F. Houghton & Co. Assumpsit for salary. Before McCullen, J. The opinion of the Supreme Court states the facts. Verdict and judgment for plaintiff for $2,144.67. Defendant appealed.

<p>Appeal, No. 90, Jan. T., 1921, by defendant, from order of C. P. No. 4, Phila. Co., Dec. T., 1919, No. 6774, sustaining decision of Workmen’s Compensation Board, in case of Edythe N. Lupfer v. Baldwin Locomotive Works.</p> <p>Appeal from affirmance of award of referee by Workmen’s Compensation Board. Before Audenried, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court affirmed the decision of the board. Defendant appealed.</p> <p>Error assigned, inter alia, was order, quoting it.</p>

<p>Negligence — ■Municipalities — Ice on sidewalk — Contributory negligence — Snow concealing ice — Case for court.</p> <p>1. While a pedestrian is required to use only ordinary care, yet it is his duty to keep a general lookout so as to observe dangers directly in his path.</p> <p>2. A pedestrian cannot recover damages from a city for injuries sustained by a fall at night on an icy sidewalk, where it appears that the walk on which he fell was well lighted, and the ridge visible and he knew of the general icy condition of the walks.</p> <p>3. Had such danger been concealed by snow, the question of the pedestrian’s negligence would have been for the jury.</p>

<p>Negligence — < Automobiles — ■Collision between — Crashing into house — Proximate cause.</p> <p>1. When an autotruck negligently driven strikes another truck, with the result that the latter is deflected from its course, and crashes into a building, injuring an occupant, the injured person may maintain an action against the owner of the truck negligently driven.</p> <p>2. In such case the negligent act of the driver is the proximate cause of the accident, as no independent cause intervened.</p> <p>3. The wrongdoer is liable for the consequences flowing from his act, although, in advance, the result actually occurring might have seemed improbable.</p> <p>4. If the original act was wrongful, and would naturally, according to the ordinary course of events, prove injurious to others, and result, and actually does result, in injury, through the intervention of other causes not wrongful, the injury shall be referred to the wrongful cause, passing through those which were innocent.</p> <p>Negligence — 1Damages—Fright—Physical injury.</p> <p>5. There can be no recovery for injuries resulting from fright, or a nervous shock, unaccompanied by physical injury.</p> <p>6. While a recovery should not be sustained upon dubious evidence of a physical injury, it cannot be affirmed as matter of law that the physical injury must be externally visible.</p> <p>Evidence — Expert opinion — Hearsay.</p> <p>7. An expert may express an opinion on an assumed state of facts, which the evidence tends to establish, but not on what some one told him, nor on what he learned from another, nor from some unstated history of the case recounted to him by someone not named.</p>

<p>Equity — Specific performance — Vendor and vendee — Time essence of contract — Tender—Delay—Averment in bill — Conclusion from facts.</p> <p>1. Where a contract for the sale of land provides in express terms for performance of the agreement by a day named, and that time was to be the essence of the contract, the vendee must tender the purchase money on the day specified, or otherwise lose his right to enforce the contract.</p> <p>2. In such case, delay in making tender is not supported by an allegation that the sellers were equitable owners of the premises under a contract with the real owner, and had not acquired the legal title, and that they therefore could not convey the property on the day fixed.</p> <p>3. Such an allegation in a bill in equity for specific performance, is a mere conclusion, which may not be warranted by the facts.</p>

Appeal, No. 129, Jan. T., 1921, by defendant, from judgment of C. P. No. 4, Phila. Co., Sept. T., 1919, No. 4572, for plaintiff on case tried by court without jury, in case of Germantown Trust Co., executor of Frank Griffenberg, deceased, v. C. N. Risser. Assumpsit to recover proceeds of life insurance policy. Before McCullen, J. The case was tried without a jury by agreement of counsel under the Act of April 22, 1874, P. L. 109.

<p>Contract — Sale of real estate — Principal and agent — Ratification ■ — Fraud—Specific performance.</p> <p>1. An agreement for the sale of real estate signed only hy an agent, but thereafter consented to in writing by the owner, will not be specifically enforced against the latter, if the consent was obtained by fraud.</p> <p>2. Ratification of a contract, the consent to which was obtained by fraud, can be shown only by acts of affirmance after the fraud becomes known.</p> <p>3. Acts which can be valid only if the party repudiates the contract, will be held to exclude a claim that it has been ratified, even though nothing has been specifically said on the subject.</p>

<p>Negligence — ■Automobiles—Taxicab—Pedestrian at street crossing — Contributory negligence — Case for jury.</p> <p>Where a pedestrian is run down by a taxicab while he is standing, on a dark and wet night, in the street at a crossing waiting for a street car, and there is evidence tending to show that the chauffeur did not have his automobile under proper control and did not exercise reasonable care under the circumstances, the questions of the contributory negligence of the person injured, and the negligence of the chauffeur, are for the jury.</p>

<p>Contract — Written contract — Construction—Party’s construction of contract.</p> <p>1. Plaintiff, a corporation, engaged in the business of building kilns, entered into a written contract with defendant whereby the latter was to finance the construction of kilns for those who might apply to plaintiff for that purpose. The applicant for a kiln was to pay defendant the agreed price for a kiln, called the “cash price.” Plaintiff was to do all the work, for which it was to receive from defendant, what the agreement defined as the “contract price,” being 88 per cent of the “cash price.” The “contract price” was to be payable, $1,000 on signing the agreement, 25 per cent of the “cash price,” when certain work was done, a further sum of 25 per cent of the “cash price” when a second portion of the work was finished, a still further sum of 25 per cent of the “cash price,” when a third portion of the work was done, and the “remainder of the contract price” upon completion, of the work. Meld, that plaintiff, as to the percentage items, was entitled to receive from defendant after the initial payment of $1,000, 25 per cent of the “cash price” paid by the applicant to defendant, and not 25 per cent of the “contract price,” which was but 88 per cent of the total cost.</p> <p>2. Only in case of doubt or ambiguity in a written contract can the parties’ own construction be resorted to.</p>

<p>Negligence — Iceman—Delivery of ice on dangerous premises — ■ Contributory negligence — Case for jury.</p> <p>1. The owner or occupant of premises who induces others to come upon it by invitation, express or implied, owes to them the duty of using reasonable or ordinary care to keep the premises in a safe and suitable condition.</p> <p>2. Where an iceman in delivering ice steps in a pool of oil on his customer’s premises and is injured, the question of his contributory negligence and the customer’s negligence is for the jury, where the evidence is that the oil had been suffered to remain there for several hours, and is conflicting as to whether plaintiff could or could not have seen the oil before stepping into it.</p> <p>Negligence — Damages—Nanning power — Loss of TvcmA — Increased expenses of conducting business.</p> <p>3. The amount a plaintiff is bona fide compelled to pay another to do what he could have done, but for the injury, is always recoverable as a loss of earning power.</p> <p>4. Where a person loses the use of a hand, and is required to pay twice as much for help as he paid prior to the accident, the increased cost of help is an element of damages.</p>

Appeal, No. 67, Jan. T., 19£1, by defendant, from order of C. P. No. 3, Phila. Co., March T., 1920, No. 3274, making ¿bsolute rule for judgment for want of a sufficient affidavit of defense, in case of Wayne Title & Trust Co. v. Herbert A. Treat. Assumpsit against maker of promissory note.

<p>Negligence — Street railways — Automobile—Collision — Crossing —Case for jury.</p> <p>1. It is the duty of a driver of a vehicle, on nearing a street crossing, to look for an approaching street car immediately before entering on the track.</p> <p>2. The rule does not require him, absolutely regardless of conditions, after having performed his duty before entering on the first track and found the way apparently clear, to again look before entering on the second track. Whether he performs his duty under the circumstances, is for the jury.</p> <p>3. A driver of a vehicle may assume that a motorman will not approach a crossing at an excessive speed.</p>

<p>Appeal, No. 44, Jan. T., 1921, by defendant, from judgment of C. P. No. 1, Phila. Co., Dec. T., 1916, No. 2453, on yerdict for plaintiff, in case of Townsend Herbert v. Northern Trust Co., Adm’r c. t. a., of estate of George Kunzmann, deceased.</p> <p>Assumpsit for breach of general warranty in deed. Before Patterson, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Yerdict and judgment for plaintiff for $2,590.83. Defendant appealed.</p> <p>Errors assigned were various rulings and instructions, appearing by the opinion of the Supreme Court.</p>

<p>Wills — Construction—Buie against intestacy — Life estate — Provision for widow of son — Equality of distribution.</p> <p>1. An intestacy is never favored, and a construction should not be adopted which tends to such a result if it can be avoided by a reasonable interpretation of the will.</p> <p>2. A will should be construed to give a life estate to a widow of a son in a trust fund created for the benefit of the son, where a reasonable interpretation of the will considered as a whole favors such construction.</p> <p>3. There is a presumption that testator intended equality of distribution among his beneficiaries.</p>

<p>Appeal, No. 124, Jan. T., 1921, by defendants, from judgment of C. P. No. 1, PMla. Co., March T., 1918, No. 836, on verdict for plaintiff in case of George S. Gandy v. Marc Klaw, Abraham L. Erlanger, Samuel F. Nirdlinger and J. Fred Zimmerman, jointly and severally, and Marc Klaw and Abraham L. Erlanger, trading as Klaw & Erlanger, and Samuel F. Nirdlinger and J. Fred Zimmerman, trading as Nixon & Zimmerman, individually, jointly and severally (Arthur S. Arnold, A. L. Erlanger and Real Estate Title Ins. & Trust Co., executors, substituted as defendants for Samuel F. Nirdlinger.</p> <p>Assumpsit for repairs. Before Shoemaker, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict and judgment for plaintiff for $10,000. Defendants appealed.</p> <p>Errors assigned were various rulings and instructions, appearing by the opinion of the Supreme Court.</p>

<p>Vendor and vendee — Option—Acceptance — Change of terms — ■ Consideration.</p> <p>1. Where a lease of real estate gives to the tenant an option to purchase the same “within one year” with settlement within thirty days of notice of exercise of option, and the tenant by writing, two months after the date of the lease, gives notice of the acceptance of the option with settlement on a date stated about six month^ thereafter, and time to be the essence of the contract, such written notice, accepted by the owner with hand money, is binding on the ■ tenant, and if he fails to make settlement on the day stated, he cannot thereafter and within the year, exercise the option on the terms specified in the lease.</p> <p>2. In such case, the extension of time from thirty days to almost six months for settlement, was a new, good and sufficient consideration, from the owner, for the covenants on the part of the tenant as to the cancellation of the original option, the making time for performance, not later, than the six months mentioned, as of the essence of the contract, and a stipulation for payment as liquidated damages for breach.</p> <p>Appeals — Assignments of error — Failure to set forth decree— Grouping of exceptions.</p> <p>3. Assignments of error in an appeal from a decree dismissing a bill in equity, are improper, which do not set forth the decree, and which group in one assignment the dismissal of various excepitions to requests for findings.</p>

Appeal, No. 151, Jan. T., 1921, by plaintiff, from decree of C. P. No. 4, Phila. Co., March T., 1919, No. 3815, dismissing bill in equity, in case of Montgomery Bros., Inc., v. Marshall Montgomery and Montgomery-Stewart Corporation. Bill in equity for injunction. Before McCullen, J. The opinion of the Supreme Court states the facts. The court dismissed the bill. Plaintiff appealed.

Appeal, No. 163, Jan. T., 1921, by defendant, from decree of C. P. No. 5, Phila. Co., March T., 1918, No. 2036, on bill in equity, in case of O. G. Loeliger v. Edson Bros. Bill in equity for accounting. Before Monaghan, J. The opinion of the Supreme Court states the facts. The court entered a decree for an accounting. Defendant appealed. Error assigned, inter alia, was decree, quoting it.

<p>Street railway — Rates—Change of rates — Contract with municipality.</p> <p>The Public Service Commission may authorize a street railway company to increase its rates of fare, although a city ordinance granting to the compány the use of streets provided that a rate therein specified should not be increased.</p> <p>City of Scranton v. Public Service Commission, 268 Pa. 192, followed.</p>

<p>Appeal, No. 228, Jan. T., 1921, by Estate of Louis H. Sellars, deceased, et al., from decree of O. C. Phila. Co., July T., 1890, No. 33, dismissing exceptions to adjudication, in estate of Kitturah C. Gunnell, deceased.</p> <p>Exceptions to adjudication of Lamorelle, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court, in an opinion by Thompson, J., 29 Pa. Dist. R. 1139, dismissed the exceptions. Estate of Louis H. Sellars et al., heirs, appealed.</p> <p>Error assigned, inter alia, was decree, quoting it.</p>

<p>Appeal, No. 188, Jan. T., 1921, by defendant, from decree of C. P. No. 2, Phila. Co., March T., 1920, No. 2763, on bill in equity, in case of Walter K. Bachrach v. Ferdinand D. Fleming and Wm. T. Moffly et al., executors of estate of John W. Moffly, deceased.</p> <p>Bill in equity to compel conveyance of rea_ estate. Before Stern, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court entered a decree for conveyance of the real estate in question. Defendant, Ferdinand D. Fleming, appealed.</p> <p>Error assigned, among others, was decree, quoting it.</p>

Appeal, No. 193, Jan. T., 1920, by plaintiff, from order of C. P. No. 1, Pbila. Co., June T., 1920, No. 3097, discharging rule for judgment for want of a sufficient affidavit of defense, in case of Commercial Finance Co. v. L. G. G. DeMartelly and Alexander N. Mogab. Assumpsit on a contract of writing. Before Shoemaker, J. The opinion of the Supreme Court states the facts. The court discharged rule for judgment for want of sufficient affidavit of defense. Plaintiff appealed.

Appeal, No. 198, Jan. T., 1921, by plaintiff, from decree of C. P. No. 3, Phila. Co., Sept. T., 1919, No. 3967, dismissing bill in equity, in case of Charles Mansfield v. Donald V. Redding and Robert Montgomery. Bill in equity for specific performance. Before McMichael, P. J. The opinion of the Supreme Court states the facts. The court dismissed the bill. Plaintiff appealed. Error assigned, among others, was decree, quoting it.

Appeal, No. 209, Jan. T., .1921, by plaintiff, from order of C. P. No. 1, Pbila. Co., June T., 1920, No. 2872, discharging rule for judgment for want of sufficient affidavit of defense, in case of Simon Blum v. William F. Moran. Replevin for goods consigned for sale. Rule for judgment for want of sufficient affidavit of defense. Before Patterson, J. The opinion of the Supreme Court states the facts. The court discharged the rule. Plaintiff appealed.

<p>Will — Devise—Gift—Election to take property — Vesting of title —Buies of construction — Presumption—Evidence—Act of April 8, 1888, P. L. £1(9.</p> <p>1. A devise of a property vests in the devisee a fee simple title thereto upon acceptance of the gift, though he is to be charged with its value as thereafter appraised.</p> <p>2. Where the gift, however, is coupled with a right to refuse to accept it, the title does not vest until a decision upon this point.</p> <p>3. It is of the nature of a right to elect one of two things, that actual ownership shall not he acquired until the election is made.</p> <p>4. A presumption of fact must always give way to adverse proof on the subject.</p> <p>5. Where a person who is entitled to elect to take property dies without having exercised the right, neither his personal representatives nor heirs can make the election unless the will expressly so provides.</p> <p>6. Section 12 of the Act of April 8, 1833, P. L. 249, does not apply in cases where a child survives his parents.</p> <p>I. Every word in a will must be given effect, if it is reasonably possible so to do.</p> <p>8. Where every word in a will may be given its plain meaning, without destroying the sense, an enlarged meaning is not allowable for the purpose of carrying out a supposed but unexpressed intention of the testator.</p> <p>9. The question in expounding a will is not what the testator meant but what is the meaning of his words.</p>

<p>Negligence — Street railways — Automobile — Collision — “Stop, looh and listen” — Contributory negligence.</p> <p>In an action against a street railway company for damages for personal injuries resulting from a collision between a street car and an automobile, plaintiff cannot recover because of contributory negligence, where the testimony fails to show that he either looked, listened, or made any effort to discover whether the road was clear immediately before entering upon the trolley track.</p>

Appeal, No. 197, Jan. T., 1921, by defendant, from decree of C. P. No. 5, Pbila. Co., June T., 1914, No. 5019, on bill in equity, in case of Margaret Corrigan, executrix of Bridget Conway, v. James F. Conway. Bill in equity for reconveyance of real estate. The opinion of the Supreme Court states the facts. The court in an opinion by Martin, P. J., 27 Pa. Dist. R. 701, entered a decree for a reconveyance. Defendant appealed.

Appeals, Nos. 116 and 117, Jan. T., 1921, by Edward Conner, son of Camilla Lewis, deceased, from decrees of O. C. Phila. Co., April T., 1904, Nos. 420 and 421, dismissing exceptions to adjudications in estates of David Lewis, deceased, and Camilla Lewis, deceased. Exceptions to adjudications of Henderson, J. Before Lamorelle, P. J. The opinion of the Supreme Court states the facts. The court dismissed the exceptions in both estates.

Appeal, No. 115, Jan. T., 1921, by defendant, from order of O. P. No. 3, Phila. Co., March T., 1920, No. 611, making absolute rule for judgment for want of sufficient affidavit of defense, in case of James S. Aber to use of Harry Sklarow v. Pennsylvania Co. for Insurances on Lives & Granting Annuities. Assumpsit for real estate broker’s commissions. Before Ferguson, J. The opinion of the Supreme Court states the facts.

Appeal, No. 233, Jan. T., 1921, by plaintiff, from order of O. P. No. 3, Pbila. Go., Dec. T., 1919, No. 2584, discharging rule for judgment for want of sufficient affidavit of defense, in case of Powers-Buchanan Co. to use of Hood Tire Co., Inc., v. F. Wade Powers. Assumpsit to recover moneys alleged to have been improperly withdrawn from the funds of plaintiff by defendant for his personal use when he was president of plaintiff company.

Appeal, No. 242, Jan. T., 1921, by plaintiff, from decree of O. P. No. 4, Phila. Co., June T., 1920, No. 4437, dismissing bill in equity, in case of Joseph Safron, assignee of Benjamin Dobkin, v. David McBurney & Son, Agents, Anna M. Sandberger et al. Bill in equity for specific performance. Audenried, P. J., filed the following opinion: .

<p>Appeals — Equity—Preliminary injunction — Dissolution of injunction — Error of law — Practice, equity — Oil and gas lease — Forfeiture — Failure to pay rent — Protection of lessor.</p> <p>1. On appeal from decree dissolving preliminary injunction, the established practice is to determine whether, on the facts as disclosed by the record, an injunction should have been granted, and to withhold any expression of opinion on the merits until after the final hearing and decree.</p> <p>2. Where on such appeal it appears, from the facts as presented by the record, that the court below based its action on a funda-, mental error of law, the propriety of the decision is squarely raised, and may be disposed of without infringement of the governing rule.</p> <p>3. Where the court below dissolves a preliminary injunction in violation of the rule that a provision in an oil and gas lease rendering the lease void for failure to pay rent as stipulated, is for the protection of the lessor, the appellate court will reverse the decree, and direct that the injunction be reinstated.</p>

Appeal, No. 55, Jan. T., 1921, by Irene McGraw, widow, from decree of O. C. Philadelphia Co., Oct. T., 1918, No. 315, dismissing exceptions to adjudication, in estate of John J. McGraw, deceased. Exceptions to adjudication of Henderson, J. The opinion of the Supreme Court states the case. The court dismissed the exceptions, Irene McGraw, widow, appealed. Error assigned was decree, quoting it.

<p>Appeal, No. 188, Oct. T., 1920, by plaintiffs, from order of C. P. Allegheny Co., Jan. T., 1919, No. 100, refusing to take off nonsuit, in ease of Alexander McK. McGunnegle et al., heirs of Maria L. McGunnegle, deceased, v. Pittsburgh & Lake Erie R. R. Co.</p> <p>Trespass for injuries to land. Before Shaeeer, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>At the trial the following offer was made: Plaintiffs’ counsel offers in evidence the following averments of the statement of claim which are not contradicted by the affidavit of defense:</p> <p>“The plaintiffs are children and heirs at law of Maria L. McGunnegle and as such are the owners of the real estate hereinafter described, the title to which was vested in Maria L. McGunnegle during her lifetime.”</p> <p>“Defendant’s counsel objects to the offer. I do not think the averment of ownership by the plaintiff in an action of this sort is admitted.” Objection sustained. Exception. (2)</p> <p>The court entered a compulsory nonsuit, which it subsequently refused to take off. Plaintiff appealed.</p> <p>Errors assigned were (1) refusal to take off nonsuit and (2) ruling on evidence, quoting bill of exceptions.</p>

<p>Appeal, No. 72, Oct. T., 1920, by defendant, from judgment of C. P. Venango Co., Jan. T., 1916, No. 14, on verdict for plaintiff in case of Trustees of Methodist Episcopal Church in Franklin Borough v. Equitable Surety Co.</p> <p>Assumpsit on bond of suretyship. Before Criswell, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict and judgment for plaintiff for $21,516.75. Defendant appealed.</p> <p>Errors assigned, were (1-9) various instructions and (10) refusal of judgment for defendant n. o. v., quoting the record.</p>

<p>Appeals, Nos. 109 and 110, Jan. T., 1921, by William Wilbelm, from orders of C. P. Schuylkill Co., May T., 1920, Nos. 313 and 381, making absolute rules to disbar in case of William Wilhelm, an attorney.</p> <p>Rules to disbar attorney.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court in an opinion by Berger, J., made the rules absolute. Respondent appealed.</p> <p>Errors assigned, among others, were orders, quoting them.</p>

<p>Contract — Exchange of corporate securities — Breach—Measure of damages — Damages—Stock transfer stamp — Taking advantage •of own wrong — Act of June It, 1915, P. L. 828.</p> <p>1. In an action for breach of contract of exchange of corporate securities, the measure of damages is the value of the securities defendant agreed to deliver to plaintiff, less the value of the securities pláintiff engaged to deliver to defendant, each being valued as of the date of the breach of the contract by defendant.</p> <p>2. In such case, it is proper for the court to refuse to permit defendant to show the time, circumstances and price at which plaintiff acquired the stock he agreed to transfer to defendant.</p> <p>3. An agreement for the exchange of securities does not require a stock transfer stamp as required by the Act of June 4,1915, P. L. 828, where the contract consists of a written offer, and a verbal acceptance, and there was a breach by defendant of the contract immediately after the verbal acceptance.</p> <p>4. In such case, as defendant failed to carry out his agreement, and by doing so prevented the transfer, he is not in a position to take advantage of his own wrong to defeat plaintiff’s claim for damages.</p>

Appeal, No. 81, Jan. T., 1921, by plaintiff, from order of C. P. No. 4, Phila. Co., Sept. T., 1919, No. 416, refusing to take off nonsuit, in ease of Robert L. Buehler v. United States Fashion Plate Co. Assumpsit on employment contract. Before Atjden-RIED, 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.

<p>Appeal, No. 130, Jan. T., 1921, by defendant, from judgment of C. P. No. 1, Phila. Co., Dec. T., 1918, No. 4045, on verdict for plaintiff in case of Thomas Joyce v. Ernest B. Smith.</p> <p>Trespass for personal injuries. Before Patterson, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>- Verdict for plaintiff for $7,750, on which judgment was entered for $5,000, all above that amount having been remitted. Defendant appealed.</p> <p>Errors assigned were, (1) refusal of binding instructions for defendant, and (2) refusal to withdraw a juror, quoting the record.</p>

<p>Trusts and trustees — Charitable trusts — Inculcating principles of honor and moral courage among students of a particular public school — Indefiniteness—Wills.</p> <p>1. A bequest creates a charitable trust, where its intention is to “inculcate” the “highest principles of honor and moral courage” among the “students” and “graduates” of a well-known public high school for young men, in a great city and to practically encourage and reward “the practice” of such “high principles.”</p> <p>2. Such a trust will have a tendency to promote the well-doing and well-being of an indefinite number of persons.</p> <p>3. The question, in such case, is not whether the testator created a technical public charity, but whether he set up a charitable trust.</p> <p>4. The fact that testator did not formulate practical plans for carrying his broadly conceived charitable idea into effect, is of no moment, so long as his general intent is ascertainable, and he has vested others with authority to work out and put in operation the details necessary to make his idea of practical use to those he intended to benefit.</p> <p>5. Such a trust cannot be pronounced illegal for indefiniteness.</p>

<p>Principal and agent — Commissions for sale of real estate — Continuity of negotiations — Case for jury.</p> <p>1. The agent for the sale of real estate is entitled to his commissions if the sale is consummated, through his efforts, without a break in the negotiations.</p> <p>2. If the agent has produced a purchaser, who is able and willing to buy on the price and terms fixed by the owner, it is not material that the negotiations are concluded directly with the owner.</p> <p>3. If the agent produces evidence that he procured a purchaser and that the sale was consummated without a break in the negotiations, and the principal, on the other hand, offers proof tending to show that the negotiations with the purchaser were ended on the same day that he was produced, but subsequently taken up as a new proposition, not connected with the agent, the case is for the jury on the conflicting evidence.</p>

<p>Contract — Sale—Delivery of possession — Sheriff’s interpleader —Fraud—Evidence—Case for the fury.</p> <p>1. To render a transfer of personal property valid as against creditors, it must be accompanied by such change of possession as is consistent with the nature of the property, and the situation of the parties.</p> <p>2. On a sheriff’s interpleader, where defendant claims under an execution against a corporation, and plaintiff claims that the goods levied, upon were sold to him by the corporation by a bill of sale, a verdict for plaintiff should be sustained, where the evidence tends to show plaintiff had bought the goods in good faith, and had them removed to a building leased by the president of the corporation individually but which contained no articles of the corporation, that no one had access to this building except plaintiff and his agent, that his name was written on many of the goods, and that some of the goods were sold by the president of the corporation, the proceeds being accounted for to plaintiff, less a personal commission to the president himself.</p>

<p>Principal and surety — Bond—Joint and several bond — Delivery • — ■Consideration—Surety company — Insurance—Subrogation.</p> <p>1. Untrue statements made by the principal debtor in a bond to the surety therein, will not operate to relieve the latter, if made without the knowledge of the obligee.</p> <p>2. Where a bond is joint and several, the surety will be held liable even though the principal debtor does not sign it, or signs after the liability has accrued, especially if the principal debtor is primarily liable for the debt aside from the provisions of the bond, which contains also a clause entitling the surety to subrogation to the obligee’s claim against the principal debtor.</p> <p>3. A bond or other instrument in writing imposing liability, is delivered when it is deposited in the mail, directed to the obligee or to some one, other than the obligor’s agent, to deliver it to the obligee.</p> <p>4. Where the terms of an obligation are definitely agreed upon, either orally or by correspondence, and by reason thereof the obligee surrenders an existing bond which is received and retained by the obligor, the later bond will be binding upon the parties as of the time the minds met in regard to it though it is contemplated that thereafter it shall be put in writing and delivered to the obligee.</p> <p>5. A party cannot receive and retain the consideration of a contract and yet claim to avoid liability on it.</p> <p>6. Where an obligation is returned to a surety simply for the purpose of correcting a mistake therein, the consideration having been paid at the time it was entered into, the obligee is not bound to disclose to the surety information which he acquired after its execution.</p> <p>I. A corporation issuing surety bonds for profit, is not relieved from liability by a variance from the contemplated method of performance unless such change is a material one.</p> <p>8. Such a company, though called a surety company, is in effect an insurance company, with the liabilities appertaining thereto.</p>

Appeal, No. 21, Jan. T., •1921, by defendant, from judgment of C. P. Lehigh Co., Oct. T., 1918, No. 93, on verdict for plaintiff, in case of Harry A. Grammes et al., trading as L. F. Grammes & Sons, v. Central R. R. Co. of New Jersey. Assumpsit for nondelivery of 41 barrels of scrap brass. Before Groman, P. J. The opinion of the Supreme Court states the facts. Verdict and judgment for plaintiff for $3,088.71. Defendant appealed.

<p>Appeals, Nos. 91 and 92, Jan. T., 1921, by plaintiffs, from orders of C. P. Montgomery Co., June T., 1919, Nos. 72 and 73, discharging rules for judgment for want of sufficient affidavits of defense, in cases of T. Wistar Brown, 3d, et al., partners, who survive William M. Longstreth, and who with the said William M. Longstreth, were partners, trading as Schell, Longstreth & Co. v. Earl D. Unger et al., trading as Perkiomen Knitting Mills.</p> <p>Buies for judgments for want of sufficient affidavits of defense. . Before Miller, J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>The court discharged the rules. Plaintiffs appealed.</p> <p>Errors assigned were orders, quoting them.</p>

<p>Appeal, No. 255, Jan. T., 1921, by defendant, from decree of C. P. Montgomery Co., April T., 1920, No. 4, in equity, awarding injunction, in case of George W. Long, individually, and on behalf of all other taxpayers of the School District of Cheltenham Township.</p> <p>Bill in equity for an injunction. Before Miller, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court entered a decree awarding an injunction. Defendant appealed.</p> <p>Error assigned, inter alia, was decree, quoting it.</p>

<p>Beneficial associations — Fraternal societies — Corporations—Flections — Postponement of meeting — Illegal meeting — Quo warranto —Moot case.</p> <p>1. Where the grand officers of an incorporated fraternal society, ■who are the highest authority when the governing committee of the society is not in session, postpone with proper notice a biennial convention at which officers are elected, and cancel all arrangements for such meeting, including the lease of a hall, and no appeal is taken from such action to any tribunal inside or outside the fraternity, a convention called by a faction of the society, without notice to the. members generally, and meeting in the hall originally intended for the convention, but not presided over by the officers designated for the purpose, cannot legally elect officers or transact other business.</p> <p>2. An appeal by relators from a judgment against them in quo warranto proceedings may be dismissed, where the term of office, for which they claim to have been elected, has expired.</p>

Appeal, No. 241, Jan. T., 1921, by defendants, from decree of C. P. No. 1, Pbila. Co., Sept. T., 1919, No. 2638, on bill in equity, in case of Juda Rabinowitz et al. v. Harry Rosen et al. Bill in equity for injunction to enjoin violation of building restriction in deed. Before Shoemaker, J. The opinion of the Supreme Court states the facts. The court awarded an injunction. Defendants appealed. Error assigned, inter alia, was above decree, quoting it.

Appeals, Nos. 201 and 202, Jan. T., 1921, by Grace Tetlow Sauveur and Henry Tet-low, 2d, from decree of O. O. Montgomery Co., June T., 1919, No. 45, refusing issue devisavit vel non, in estate of Henry Tetlow, deceased. Appeal from decision of register of wills admitting will to probate.

Appeal, No. 306, Jan. T., 1921, by defendants, from judgment of C. P. Lehigh. Co., April T., 1920, No. 91, for plaintiff, on case-stated, in suit of Samuel E. Snyder v. Joseph John Platzer et ux. Case-stated to determine marketability of real estate. Before Henninger, J. The opinion of the Supreme Court states the facts. The court entered judgment for plaintiff. Defendants appealed. Error assigned was judgment, quoting it.

<p>Appeal, No. 217, Jan. T., 1921, by plaintiff, from decree of C. P. Fayette Co., No. 989, in equity, dismissing bill in case of G-. W. Thompson, stockholder of Southern Connellsville Coke Co. v. Southern Connellsville Coke Co. and Charles Detwiler et al.</p> <p>Bill in equity for injunction. Before Van Swearingen, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court dismissed the bill. Plaintiff appealed.</p> <p>Error assigned, inter alia, was above decree, quoting it.</p>

Appeal, No. 307, Jan. T., 1921, by defendant, from judgment of C. P. Lehigh Co., June T., 1920, No. 127, for plaintiff on case stated, in suit of Ira Wise, Guy Wise and Charles G. Kaiser, trustee for children of Asa Wise, under will of J ames Wise, deceased, y. Helen E. Rupp. Case-stated to determine marketability of real estate. Before Henninger, J. The opinion of the Supreme Court states the facts.. The court entered judgment for plaintiffs on case-stated.

<p>Husband, and wife — Alienation of wife’s affections — Evidence— Burden of proof — Harmless error — Appeal.</p> <p>1. In an action for damages for alienation of a wife’s affections, where it appears that the wife left plaintiff’s home and took up her residence in another city, the burden is on plaintiff to establish the fact of alienation, and that the wife’s action was due to inter-meddling on the part of defendant.</p> <p>2. A letter written by defendant to the wife shortly after her marriage containing endearing expressions, and expressing surprise at her marriage, .is not proof of subsequent interference by defendant.</p> <p>3. Declarations by defendant that he intended to get her back, and would supply what she needed, while evidence of an intent to do the acts charged, are not proof that they were actually carried out.</p> <p>4. A deed of real estate by defendant to the wife for a nominal consideration, executed after the suit was brought, is admissible, but, where it would not have added sufficient weight to the evidence already before the jury to warrant a finding that the affections of plaintiff’s wife had been alienated by defendant, its exclusion is no ground for reversal.</p> <p>5. The exclusion of letters written by plaintiff to his wife previous to their separation showing affectionate relations between them, is not ground for reversal of a judgment for defendant, where it appears that such letters were merely cumulative of other ample evidence to support this feature of plaintiff’s case.</p>

Appeal, No. 85, Jan. T., 1921, by defendant, from order of C. P. No. 1, Phila. Co., March T., 1918, No. 2630, M. L. D., making absolute rule for judgment for want of sufficient affidavit of defense, in case of City of Philadelphia to use of the Barber Asphalt Paving Co. v. William T. Clark. Scire facias sur municipal lien for paving street. Buie for judgment for want of sufficient affidavit of defense. The opinion of the Supreme Court states the facts.

Appeal, No. 190, Oct. T., 1920, by plaintiff, from decree of C. P. Allegheny Co., April T., 1920, No. 946, dismissing bill in equity, in case of Manufacturers Light & Heat Co. v. J. C. Lamp, V. A. Auld and Peoples Natural Gas Co. Bill in equity for specific performance of contract for purchase of natural gas. Before Shaeer, J. The opinion of the Supreme Court states the facts. The court dismissed the bill. Plaintiff appealed.

Appeal, No. 78, Jan. T., 1921, by defendant, from order of C. P. No. 4, Phila. Co., Sept. T., 1919, No. 740, making absolute rule for judgment for want of a sufficient affidavit of defense, in case of Republic Foreign Products Co. to use of tbe Barrett Co. v. Southwark Foundry & Machine Co. Assumpsit by selling agent for commissions for procuring contract. Before Audenried, P. J. The opinion of the Supreme Court states the facts.

<p>Promissory notes — Affidavit af defense — Averments of statement not denied — Practice, C. P. — Act of May lit, 1915, P. L. ¡¡SS.</p> <p>1. In an action on a promissory note, all of the averments of the statement not specifically denied in the affidavit of defense must be taken as admitted, under the Act of May 14,1915, P. L. 483.</p> <p>Promissory notes — Demand—Waiver—Act of May 16, 1901, P. L. 20If.</p> <p>2. A demand for payment of a promissory note on the day the note fell due, is not necessary to hold an endorser, where such demand would have been an idle and useless ceremony, and if enforced would have defeated the very purpose the parties sought to accomplish in delivering the obligation.</p> <p>3. Such a demand is not necessary where the note by its tenor became due the day following its date, and it appears that at such time all of the persons who were to endorse it had not done so, that the purpose of the note was to take the place of other obligations, and that the note itself provided for semiannual payments of interest.</p>

<p>Appeals — Assignments of error — Separate questions — Rule 26.</p> <p>1. An assignment of error which endeavors to raise three separate questions, offends against Rule 26 of the Supreme Court.</p> <p>Decedents’ estates — Orphans’ court sale — Bond—Resale—Act of June 7,1917, P. L. U7.</p> <p>2. Where a bond has been entered in accordance with the Act of June 7, 1917, P. L. 447, after the orphans’ court has decreed a sale of a decedent’s real estate, a second bond need not be ordered in a decree for a resale, as the one already entered will cover the proceeds of the second sale.</p> <p>3. Where at an orphans’ court sale of real estate for the payment of debts, three properties are put up separately, and then put up as a whole, and the bid for the properties offered as a whole is much larger than the aggregate bids when put up separately, one of the parties in interest cannot demand that the sale should be set aside, because the bids on two of the properties exceeded the amount of the scheduled debts, where it appears that there was interest due on the debts, that the expenses of1 selling the estate were not known, and the other party interested did not complain.</p>

<p>Appeal, No. 226, Jan. T., 1921, by plaintiff, from order of C. P. Lehigh Co., Oct. T., 1917, No. 126, refusing to take off nonsuit, in case of Frederick L. Pfeifly v. Monroe D. Henry.</p> <p>Trespass for slander. Before Groman, P. J.</p> <p>.The opinion of the Supreme Court states the facts.</p> <p>At the trial the court entered a compulsory nonsuit, which it subsequently refused to take off. Plaintiff appealed.</p> <p>Error assigned was order, quoting it.</p>

<p>Appeal, Nos. 207 and 358, Jan. T., 1921, by E. M. Anderson et al., from decree of O. C. Chester Co., No. 8448, appointing trustee in estate of Joseph Anderson, deceased.</p> <p>Petition for appointment of trustee. Before Hause, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court entered a decree appointing a trustee.</p> <p>Geo. F. Anderson and Hárry I. Anderson, next of kin and administrators d. b. n. c. t. a., and Eber M. Anderson, next of kin, appealed.</p> <p>Error assigned was above decree, quoting it.</p>

Appeal, No. 246, Jan. T., 1921, by plaintiff, from judgment of C. P. Chester Co., Oct. T., 1918, No. 6, on directed verdict for defendant, in case of Lydia D. Fisher v. Pennsylvania R. R. Co. Trespass for death of plaintiff’s husband. Before Hause, J. The opinion of the Supreme Court states the facts. At the trial the court affirmed request for binding instructions for defendant and judgment was entered accordingly. Plaintiff appealed.

<p>Appeals — Objection not made in court below.</p> <p>1. Ordinarily an objection not made in the court below will not be considered on appeal.</p> <p>Judgment — Opening judgment — Affidavit for rule.</p> <p>2. It is not essential that an affidavit for a rule to open a judgment entered for want of a sufficient affidavit of defense, should aver that the matters omitted from the original affidavit could not have been discovered by the exercise of reasonable diligence before judgment was entered.</p> <p>3. This is especially so where the omitted matters are set forth in the supplemental affidavit of defense filed by leave of the court below.</p>

<p>Appeal, No. 144, Jan. T., 1911, by plaintiff from judgment of C. P. No. 4, Pbila. Co., June T., 1919, No. 456, for defendant n. o. v., in case of John Camac v. Phila. Rapid Transit Co.</p> <p>Trespass for personal injuries. Before Audenried, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>At the trial the jury returned a verdict for plaintiff for fl0,000. Subsequently the court entered judgment for defendant n. o. v. Plaintiff appealed.</p> <p>Error assigned was entry of judgment for defendant n. o. v., quoting record.</p>

<p>Principal and agent — Agent for sales — Commissions—Contract.</p> <p>1. Where a contract of employment of a sales agent contemplates actual sales in a commercial sense, and not mere contracts to sell, the agent is entitled to receive commissions only on moneys actually received by his principal as a result of sales made by the agent.</p> <p>2. If, in such case, the agent avers in his statement of claim that certain sales had been cancelled, or were about to be cancelled, in fraud of his rights, he must set out the particulars of such wrongdoing, and also facts as to the orders, the cancellation of which is averred to be threatened, or a legal excuse for failure to furnish such information.</p>

Appeal, No. 251, Jan. T., 1921, by defendant, from judgment of C. P. Delaware Co., Sept. T., 1919, No. 82, on verdict for plaintiff, in case of S. Harry Conover v. Samuel Bloom. Trespass for personal injuries and for injuries to an automobile. Before Hause, J., specially presiding. The opinion of the Supreme Court states the facts. Verdict and judgment for plaintiff for $2,500. Defendant appealed.

<p>Tax sales — Redemption—Reconveyance—Act of June A 1901, P. L. S61p — Denial of title — Question for court — Lack of interest or consideration.</p> <p>1. The privilege of redemption of land sold for taxes has always been liberally construed in Pennsylvania under tax sales acts.</p> <p>2. Where a petitioner for a reconveyance of real estate sold at a tax sale, avers that he was the owner in fee of the land before the sale, and sets forth, in his petition, the place of record of the deed to himself, an answer is insufficient which denies the petitioner’s ownership in general terms, and avers that the deed obtained by him was without a valuable consideration and not executed in good faith. The grantor alone was interested in the consideration.</p> <p>3. An averment of petitioner’s lack of interest in the land, if supported by facts set forth, would make necessary the determination of the question by the court.</p> <p>Practice, G. P. — Pleadings—Reference to place of record of deed —Evidence—Act of May 1J¡., 1915, P. L. J^88 — Buies of court of Philadelphia County.</p> <p>4. Under the rules of court of Philadelphia County, and the Practice Act of May 14, 1915, P. L. 483, reference to the place of record of documents, in a pleading, is sufficient without setting forth in full the instrument in question.</p>

Appeal, No. 212, Jan. T., 1921, by plaintiff, from judgment of C. P. Lackawanna Co., Oct. T., 1916, No. 422, on verdict for defendant, in case of Martin J. Lynott v. Scranton Coal Co. Trespass for personal injuries. Before Maxey, J. The opinion of the Supreme Court states the facts. The court gave binding instructions for defendant. Verdict and judgment for defendant. Plaintiff appealed.

<p>Workmen’s Compensation Act — Minors—Employment in industrial establishment — Insurance—Making out case by showing illegal contract.</p> <p>1. A minor illegally employed in an industrial establishment is not a compensable employee under the Workmen’s Compensation Act.</p> <p>2. Where an employer’s insurance policy covers injuries sustained by employees, (a) under the Workmen’s Compensation Act and (b) where a “liability is imposed upon the employer by the laws of Pennsylvania for damages on account of such injuries,” the court cannot limit the claims to those arising under the Compensation Act, as the policy was manifestly intended to reach common law liability, based on an employment not specifically within the terms of the Compensation Act.</p> <p>3. Such a policy is not a contract to indemnify against the consequences of the violation of a penal statute relating to the employment of minors under sixteen, and therefore contrary to public policy. It is a contract to indemnify against loss through accidents to employees.</p> <p>4. The illegal employment of a minor under sixteen was an incidental and independent transaction, in no way primarily connected with the issuing or working out of the policy.</p> <p>5. It is only when a party is obliged to make out his case by showing an illegal contract or transaction, that he is not entitled to recover.</p>

<p>Beneficial association — Buies for government — Duty of members to obey rules.</p> <p>1. When a number of persons associate for tbe purpose of forming a beneficial association, submitting themselves to certain rules and regulations, they inaugurate their own laws of government, and must be obedient to such laws.</p> <p>Bes adjudicata — New matters — Equity.</p> <p>2. Where all the issues which can enter into the determination of a point at issue are adjudicated in a previous equity hearing, other new matters which could have been passed upon, should have been presented, and, if omitted from any cause, the judgment or decree entered at the first hearing, is conclusive as to the parties to the suit or their privies.</p> <p>Bes adjudicata — Courts—Courts of ultimate jurisdiction — Appeals.</p> <p>3. When a court of ultimate jurisdiction feels compelled to depart from a prior adjudication of another court of appeal, it has the power to do so, but the right will be exercised only where the prior decision presents palpable error committed on the controlling point at issue.</p>

Appeal, No. 221, Jan. T., 1921, by defendants, from decree of C. P. No. 1, Phila. Co., Sept. T., 1919, No. 2879, on bill in equity, in case of Joseph Stryjewski et al. v. John B. Panfil et al. Bill in equity for mandatory injunction for possession of church property, etc. Before Patterson, J. The opinion of the Supreme Court states the facts. The court entered a decree awarding injunction in accordance with the prayers of the bill. Defendants appealed. .

Appeal, No. 224, Jan. T., 1921, by Francis P. Garran, alien property custodian, from decree of O. C. Phila. Co., Oct. T., 1919, No. 872, dismissing exceptions to adjudication, in estate of John Henry Gruner, deceased. Exceptions to adjudication of Gest, J. The opinion of the Supreme Court states the facts. The court in an opinion by Henderson, J., 29 Pa. Dist. R. 1095, dismissed the exceptions.

<p>Appeal, No. 35, Oct. T., 1920, by defendants, from judgment of C. P. Venango Co., Aug. T., 1918, No. 47, on verdict for plaintiff, in case of J. M. Murdoch v. Homer D. Biery et al., trading as Homer D. Biery Lumber Co.</p> <p>Trespass to recover treble damages for unlawful cutting of timber trees. Before Criswell, P. J.</p> <p>Tbe opinion of tbe Supreme Court states tbe facts.</p> <p>Verdict and judgment for plaintiff for $3,492, upon which judgment was entered for $2,600, all above that amount having been remitted. Defendants appealed.</p> <p>Errors assigned were various rulings on evidence, and instructions indicated in the opinion of the Supreme Court.</p>

Appeal, No. 178, Jan. T., 1921, by defendants, from decree of C. P. No. 3, Phila. Co., Dec. T., 1919, No. 2301, on bill in equity in case of John E. McCully, administrator of Annie Monroe, deceased, v. Sims McCrary and Virginia McCrary, bis wife. Bill in equity for tbe cancellation of a deed alleged to bave been forged. Before Davis, J. Tbe opinion of tbe Supreme Court states tbe facts. Tbe court entered a decree in accordance with tbe prayers of tbe bill.

<p>Workmen’s compensation — Miner—Death from injuries — Findings — Evidence.</p> <p>An allowance for the death of claimant’s husband, a miner, will he sustained, where there is competent and sufficient evidence to support a finding that the deceased was hit on the head by a dump wagon while engaged in his work, that he immediately became ill, in a short time lapsed into unconsciousness, and died as a result of a rupture of an artery in the brain.</p>

<p>Appeal, No. 390, Jan. T., 1921, by defendant, from judgment of O. & T. Lackawanna Co., Oct. T., 1920, No. 14, on verdict of guilty of murder of the first degree, in case of Com. v. David Jones.</p> <p>Indictment for mnrder.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Yerdict of guilty of murder of the first degree on which judgment of sentence was passed. Defendant appealed.</p> <p>Errors assigned were (1-3) various rulings quoting the bill of exceptions; (4) the charge as a whole, quoting it, and (5) the sentence, quoting it.</p>