Volume 270 — Pennsylvania State Reports

<p> WUls—Construction—"Issue"—Life estate—Estate in fee simple —Act of July 9,1891, P. L. 218—Pule in Shelley’s Case. </p> <p>1. If it appears that by the word “issue” testator meant issue living at a particular period, as at the death of the first taker, and not the whole line of succession which would be included under the term “heirs o£ the body,” the word “issue” must necessarily be construed to be a word of purchase; and the rule in Shelley’s Case can have no application.</p> <p>2. The Act of July 9, 1891, P. L. 218, entirely changed the presumption which formerly existed in favor of. an indefinite failure of issue and substituted a statutory presumption that, in the absence of something else in the instrument indicating a contrary intent, a definite failure is to be presumed.</p> <p>3. By “something else in the instrument” is meant something in addition to the words under investigation; that is to ¡say, some context or explanation, supplementing the words in question, which shows that, by the latter, testator meant an indefinite failure of issue.</p> <p>4. The rule in Shelley’s Case is 'a rule of law, and when technical words such as “heirs” or “heirs of the body” are used, the rule applies; but the word “issue” in and of itself, never had such technical significance.</p> <p>5. The intention of the testator that a devise should fall within the rule in Shelley’s Case, must be found in each case before the rule is applied thereto. In asceidaining such intention, where the word “issue”, is used, the Act of July 9, 1891, P. L. 213, as construed, when it controls, sweeps away much of the old law and gives a plain guide for the future.</p> <p>6. Where a testatrix indicates that she intends to give her daughter an estate for life by using the expression “during her life” three times, and also refers to her daughter’s interest as “the estate in her care,” a direction that the estate should go to “her issue if she leaves any at her death......but, if she leaves no such lawful issue,” then over, will be construed as giving to the daughter a life estate only. The rule in Shelley’s Case has no application.</p>

<p>Appeal, No. 135, dan. T., 1921, by plaintiff, from decree of C. P. Delaware Co., March T., 1919, No. 101, dismissing bill in equity, in case of Charles W. Gorsuch v. Frank Berman et ux.</p> <p>Bill in equity for specific performance. Before Johnson, 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, among others, was aboye decree, quoting it.</p>

<p> Workmen’s compensation—Findings as to injuries—Course of employment—Eviction. </p> <p>A finding by a referee, sustained by the Workmen’s Compensation JBoard and the court below, that an employee was injured while attempting to reach his work on premises used by his employer in the conduct of its business, will bej sustained on appeal, if based on competent evidence.</p>

Appeal, No. 11, Jan. T., 1921, by plaintiff, from judgment of C. P. Schuylkill Co., Nov. T., 1919, No. 356„ dismissing appeal from decision of Workmen’s Compensation Board, which reversed allowance by referee in favor of claimant, in case of Katie Hutno v. Lehigh Coal & Navigation Co. Appeal from, decision of Workmen’s Compensation Board.

<p>Appeal, No. 12, Jan. T.,, 1921, by plaintiff, from judgment of C. P. Schuylkill Co.,. Jan. T., 1920, No. 73, affirming decision of Workmen’s'. Compensation Board disallowing claim, in case of Mike: Lesko v. Lehigh Valley Coal Co.</p> <p>Appeal from decision of Workmen’s Compensation Board. Before Koch, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court affirmed the decision of the Workmen’s. Compensation Board, disallowing the claim: See. Pa. C. C. R. 399; 28 Pa. Disk R. 844; 15 Schuylkill L. R. 334. Plaintiff appealed.</p> <p>Error assigned, among others, Avas above decree, quoting it.</p>

<p> Workmen’s compensation—Injury while at work—Death—Course of employment—Evidence. </p> <p>An allowance of a claim for death of claimant’s husband will be sustained, where there is competent and sufficient evidence to support a finding that deceased while at work in rolling a log in the course of his work, was struck or jarred by the log when it slipped from its hooks, and that as a consequence of the injury he suffered hemorrhage from the kidneys, and died nine days after the accident and by reason thereof.</p>

Appeal, No. 180, Jan. T., 1921, by defendant, from judgment of C. P. Lycoming Co., March T., 1918, No. 320, on verdict for plaintiff, in case of Selina Roberts v. Yallamont Traction Co. Trespass for personal injuries. Before Whitehead, P. J. The opinion of the Supreme Court states the facts. Verdict and judgment for plaintiff for |5,000. Defendant appealed. Error assigned was portion of charge quoted in opinion of Supreme Court.

Appeal, No. 268, Jan. T., 1921, by defendant, from judgment of C. P. Schuylkill Co., Sept. T., 1920, No. 285, affirming decision of Workmen’s Compensation Board which sustained award of allowance of referee, in case of Anna Dumbluskey v. Phila. & Reading Coal & Iron Co. Appeal from decision of Workmen’s Compensation Board. Before Bechtel, P. J. The opinion of the Supreme Court states the facts. The court affirmed the opinion of the Workmen’s Compensation Board.

Appeal, No. 357, 'Jan. T., 1921, by Max Lewis and Benjamin Superstine, from decree of O. C. Schuylkill Co., dismissing petition for conveyance of real estate, in estate of E. J. Fry, deceased. Petition for conveyance of real estate. Before Wilhelm, P. J. The opinion of the Supreme Court states the facts. The court dismissed the petition. Max Lewis and Benjamin Superstine appealed. Error assigned, among others, was above decree, quoting it.

<p>Appeal, No. 239, Jan. T., 1921, by defendants, from order of C. P. No. 3, Phila. Co., March T., 1920, No. 3189, affirming decision of Workmen’s Compensation Board setting aside final receipt, in case of John A. Hughes v. American International Shipbuilding Corporation and Employers Liability Assurance Corporation.</p> <p>Appeal from order of Workmen’s Compensation Board setting aside final receipt. Before Ferguson, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court sustained the decision of the board. Defendants appealed.</p> <p>Error assigned was above order, quoting it.</p>

Appeal, No. 248, Jan. T., 1921, by plaintiffs, from decree of C. P. No. 2, Phila. Co., Sept. T., 1919, No. 5622, dismissing bill in equity, in case of Susan W. Rossmassler (nee Susan W. Nice) and Katherine S. Nice Ellis v. Louis N. Spielberger et al., voting trustees and Franklin B. Kirkbride, assignee of creditors. Bill in equity for injunction, and for cancellation of voting trust certificates and certificates of stock and for general relief.

Appeal, No. 235, Jan. T., 1921, by defendant, from judgment of C. P. No. 3, Phila. Co., June T., 1918, No. 5634, on verdict for plaintiff, in case of Mark P. Wells to use of Southwestern Surety Insurance Co. v. Philadelphia. Assumpsit for balance for construction of certain buildings under municipal contract. Before Ferguson, J. The opinion of the Supreme-Court states the facts. Verdict and judgment for plaintiff for $42,850.55. Defendant appealed.

Appeal, No. 42, Oct. T., 1921, by defendant, from order of C. P. Allegheny Co., Jan. T., 1921, No. 1904, making absolute rule for judgment for want of sufficient affidavit of defense, in case of Louanna D. Pattin v. Mary S. Scott. Assumpsit for unpaid balance of purchase price of real estate. . Buie for judgment for want of a sufficient affidavit of defense. Before Brown, J. The opinion of the Supreme Court states the facts. The coxirt made the rule absolute.

Appeal, No. 223, Jan. T., 1917, by defendant, from judgment of C. P. No. 2, PMla. Co., March, T., 1916, No. 2620, on verdict for plaintiff, in case of Ray D. Piper v. Adams Express Co. Trespass for personal injuries. Before Rogers, J. The opinion of the Supreme Court states the facts. Verdict and judgment for plaintiff for $7,500. Defendant appealed. Error assigned, among others, was refusal of defendant’s motion for judgment n. o. v.

<p>Appeal, No. 61, Jan. T., 1921, by defendant, from decree of C. P, Schuylkill Co., May T., 1920, No. 43, affirming decision of compensation board, which sustained an award, by referee in favor of claimant, in case of Mrs. Michael Tracey v. Philadelphia & Reading Coal & Iron Co.</p> <p>Appeal from decision of compensation board. Before Koch, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court affirmed the decision of the compensation board: See 16 Schuylkill L. R. 185. Defendant appealed.</p> <p>Error assigned, inter alia, was above decree, quoting it.</p>

<p>Appeal, No. 39, Jan. T., 1921, by defendants, from decree' of Superior Court, Oct. T., 1919, No. 98, reversing decree of C. P. Montgomery Co., Oct. T., 1916, No. 8, dismissing bill in equity, in case of H. F. Spayd v. Ringing Rock Lodge No. 665, Brotherhood of Railroad Trainmen et al.</p> <p>Bill in equity in common pleas for reinstatement in membership of beneficial association.</p> <p>Appeal from Superior Court: See 74 Pa. Superior Ct. 139.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The Superior Court reversed the decree of the common pleas dismissing the bill. Defendants appealed.</p> <p>Error assigned was decree of Superior Court, quoting it.</p>

<p> Church law—Title to real estate—Lay members—Acts of April '£6, 1855, P. L. 8£8, and May £0, 1918, P. L. £!/.£. </p> <p>1. TJnder section 7 of the Act of April 26, 1855, P. L. 323, 330, and its amendments, the trustees, of a church property hold but the legal title thereto the entire beneficial interest being in the congregation.</p> <p>2. All the lay members of a church are entitled to vote upon questions relating to the control and disposition of the church property.</p> <p>3. Nonpayment of dues will not deprive lay members of this right; so long as membership continues, the right likewise continues.</p> <p>4. Not decided, whether, since the church property was purchased before the passage of the Act of May 20, 1913, P. L. 242, the “control and disposition of the lay members” must be “exercised in accordance, with and subject to the rules, regulations, usages, canons, discipline and requirements” of the religious denomination with which the church is connected.</p> <p> Appeals—Objections not made in the court below—Amendments. </p> <p>5. This court will not consider defects which might have been amended in the court below, had they been called to its attention.</p>

<p>Appeal, No. 68, Jan. T., 1921, by defendant, from judgment of C. P. Lackawanna Co., March T., 1917, No. 583, on verdict for plaintiff in case of Dora Kelly v. Scranton Railway Co.</p> <p>Trespass for personal injuries. Before Barber, P. J, specially presiding.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Yerdict and judgment for plaintiff for $1,750. Defendant appealed-.</p> <p>Error assigned, among others, was (4) refusal to withdraw a juror, quoting the record.</p>

<p> Deed—Resulting trust—Father and- daughter—Purchase money —Evidence—Presumption—Burden of proof. </p> <p>1. The presumption that the title is in conformity with a deed, is a strong one, and cannot he overcome, except by satisfactory and clear evidence to the contrary,</p> <p>2. He who alleges a trust contrary to the wording of a deed, takes the burden of establishing it, and all the essential requisites of such trust must be shown by clear, explicit and unequivocal proof.</p> <p>3. A child may accept a voluntary deed from a parent without being subjected to an obligation to make affirmative proof that the grantor was fully acquainted with the character of the act in which he was engaged and the conveyance was fair and conscionable.</p> <p>4. Where a wife buys real estate and directs that title should be placed in the name of her daughter, the father cannot, twenty years thereafter, compel conveyance of the property to himself on the ground that he had contributed the purchase money, without clear, explicit and unequivocal proof of that fact.</p> <p>5. Even if it were the fact that his money and his alone had purchased the property, that would not be sufficient to raise a trust in his favor, without some proof that he had directed the title to be placed in his name, and his confidence, that this would be done, had been abused.</p> <p>6. In such case, a finding of the chancellor, supported by sufficient evidence, that the wife did not have the name of the daughter inserted in the deed in fraud of the right of the father, will not be reversed on appeal.</p>

<p>Negligence—Railroads—Unguarded, wall along bank of stream,— Attractive nuisance—Trespasser—Contributory negligence—Case for 'court.</p> <p>1. Where a person is injured in a place where he has no right to he, and the owner is using his property in a lawful manner for a lawful purpose, the owner is not liable unless wantonness or wilfulness is shown. He is not hound to keep his premises in a suitable condition, and, as against trespassers, he need not take any of the ordinary precautions to safeguard places on his property.</p> <p>2. Where a railroad company constructs a retaining wall on its own property along the hank of a stream, without constructing a barrier to safeguard persons from falling over the wall into the stream, it is not liable for injuries to a pedestrian, familiar with the locality, who on a dark night wandered from a cement sidewalk, onto the company’s property, which was covered with cinders, and, after walking fifteen feet, fell over the wall into the stream.</p> <p>3. Where there are natural conditions on a landowner’s land containing elements of danger, eight feet from the footwalk of a public highway, the owner is not negligent in not erecting guards. If they immediately joined the highway it would be different.</p> <p>4. The attractive nuisance cases have no application to the facts of this case.</p>

<p>Appeal, No. 240, Jau. T., 1921, by plaintiffs, from decree of C. P. Berks Co., No. 1269, Equity Docket, 1920, dismissing bill in equity, in case of John E. Clouser et al. v. Reading City and George M. Madeira, Jr.</p> <p>Bill in equity for injunction to restrain enforcement of ordinance imposing license tax for general revenue purposes upon merchants, and specially “grocers” in the city of Beading. Before Endlich, P. 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, inter alia, was decree, quoting it.</p>

<p> Negligence—Automobiles—Side collision between motor truck and automobile—Passenger—Contributory negligence—Case for fury—Appeals—Act of July 7,1918, P. L. 672. </p> <p>1. On an appeal from a judgment on a directed verdict for defendant, the appellate court, in considering the correctness of the action of the court helow, must examine the evidence in the light most favorable to plaintiff.</p> <p>2. The driver of an automobile is not necessarily without responsibility because he drives his car on the right side of a traveled road within the speed limit fixed by the act of assembly.</p> <p>3. He must not, under the Act of July 7, 1913, section 14, P. L. 672, operate his vehicle recklessly, or at a rate of speed greater than is reasonable and proper, having regard to the width, traffic and use of a highway, or so as to endanger property or the life or limb of any person.</p> <p>4. The contributory negligence of the driver of an autobus cannot be imputed to a passenger, injured by the act of the driver of a motor truck, who in passing the bus at a narrow point in the highway negligently swerved his car and ran into the bus.</p> <p>5. In such case, the negligence of the driver of the motor truck is, under all the circumstances and the conflicting testimony, a question for the jury.</p>

<p> Wills—Charity—Alternative gift to chaA-ity—Promise of distributee—Act of April 28,1855, P. L. 882—Stm-e decisis. </p> <p>1. An alternative gift to charity, made by a testator for the purpose of evading the provisions of section 11 of the Act of April 26, 1855, P. L. 382; will not be held void, if he dies within one calendar month after the execution of his will, if the distributee has made no promise, express or implied, to give the fund to charity, even though he actually does so give it.</p> <p>2. This conclusion is reached solely upon the ground of stare decisis; the legislature, owing to the lapse of time since the rule was first amended, being now the only body which can properly grant relief therefrom.</p>

<p>Appeal, No. 48, Jan. T., 1921, by plaintiff, from judgment of C. P. No. 2, Pbila. Co., Sept. T., 1919, No. 5538, on verdict for plaintiff in case of Mary Mackin v. Harry T. Patterson.</p> <p>Trespass for personal injuries. Before Rogers, J.</p> <p>The opinion of the Supreme Court states the facts. Verdict and judgment for plaintiff for $12,000. Defendant appealed.</p> <p>Errors assigned, inter alia, were (2) refusal of defendant’s motion for judgment n. o. v., quoting record, and (5) remark of trial judge, quoted in the opinion of the Supreme Court.</p>

<p>Appeal, No. 80, Jan. T., 1921, by defendant, from judgment of C. P. Montgomery Co., Feb. T., 1919, No. 28, on verdict for plaintiff, in case of Elizabeth Di Iordio v. Walker D. Hines, Director General of Railroads, operating the Phila. & Reading R. R.</p> <p>Trespass for death of plaintiff’s husband. Before Miller, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff for $10,000 on which judgment was entered for $7,000, all above that amount having been remitted. Defendant appealed.</p> <p>Error assigned was refusal of defendant’s motion for judgment n. o. v., quoting record.</p>

<p>Appeals Nos. 205 and 206, Jan. T., 1921, by defendant,, from judgment of C. P. Delaware Co., June T., 1917, No. 301, on verdict for plaintiff, in case of James Hope et ux. v. Southern Penna. Traction Co.</p> <p>Trespass for personal injuries to plaintiff’s wife, and for injuries to horse and wagon. Before Johnson, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict and judgment for James Hope for $1,607.08, and for Martha Hope for $3,392.92. Defendant appealed.</p> <p>Error assigned, among others, was refusal of judg- ■ ment for defendant n. o. v., quoting record.</p>

<p> Workmen’s compensation—Death—Gowt'se of employment—Internal strain—Hemorrhages. </p> <p>An award of the workmen’s compensation hoard for the death of claimant’s husband will he sustained, where there is sufficient and competent evidence to sustain' a finding that deceased suffered an internal strain while working in the course of his employment, resulting in hemorrhages of the stomach and bowels, from which he died.</p>

<p> Wills—Construction—Bwrvivorslwp—Children living at death of testator. </p> <p>1. Words of survivorship in a -will refer to the death of the testator, unless a contrary intent is clear from the will itself.</p> <p>2. A gift of real estate to a wife with direction that after her death it should he “equally divided between testator’s surviving Children each to share and share alike,” shows an intent to give the property to the sons 'and daughter who survived at testator’s death, and not to those merely who might he living at the time of the widow’s death.</p> <p>3. In such case the children of testator’s children who survived him, are entitled to share in the distribution - on the death of the widow.</p> <p>4. A direction in such a will that the property should not be mortgaged, “but still remained clear of any incumbrance, as it now stands,” applies to the period between the death of testator and that of his widow, and is intended to preserve the property for the bene-* fit of the widow for her life, and at her death to secure it to the sons and daughters living at the time of testator’s death “as it now stands.”</p>

<p>Appeal, No. 310, Jan. T,, 1921, by plaintiff, from judgment of C. P. Lackawanna Co., Oct. T., 1917, No. 1094, on verdict for defendant, in case of Bernard Killeen v. Delaware, Lackawanna & Western Railroad Co.</p> <p>Trespass for personal injuries. Before Newcomb, 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 instructions, quoting them.</p>

Appeal, No. 120, Jan. T., 1921, by defendant, from judgment of C. P. Delaware Co., June T., 1918, No. 539, on verdict for plaintiffs, in case of Samuel J. Cocbran and Archibald A. Cochran v. S. Price Stevenson. Assumpsit for services. Before Hause, J., specially presiding. The opinion of the Supreme Court states the facts. Verdict and judgment for plaintiffs for $1,811.88. Defendant appealed.

<p> Workmen’s compensation—Review of evidence—Acts of June 2, 1915, P. L. 786, and June 26,1919, P. L. 642. </p> <p>1. Since the passage of the Act of June 26, 1919, P. L. 642, the courts are required, on appeals thereafter taken from the decisions of the Workmen’s Compensation Board to consider whether there is evidence to support the findings of the board, and, if there is, whether the law has been properly applied thereto.</p> <p> Workmen’s compensation—Master and servant—Railroads—Passenger riding on pass. </p> <p>2. The relation of employer and employee may exist notwithstanding the labor to be performed and the compensation to be paid are comparatively insignificant.</p> <p>3. An employee may have concurrent contracts of employment with two or more employers.</p> <p>4. One who has given to a common carrier a valuable consideration for a pass issued by it, occupies the position of a passenger while being carried, and is entitled to damages for an injury negligently inflicted, exactly as any other passenger would be; and this is so even though the consideration for the pass was his general services to the carrier.</p> <p>5. One riding on a pass under such circumstances is not entitled to recover under the Workmen’s Oompensation Act of June 2,1915, P. L. 736.</p> <p>6. Knorr v. Central Railroad Company of New Jersey, 268 Pa. 172, considered and distinguished.</p>

<p>Corporations—Surrender of power—Parties—Appeals—Act of April 9,1866, P. L. %98.</p> <p>1. By proper proceedings the State may always release a cor~. poration chartered by it from the performance of any public duties required by the charter.</p> <p>2. Under the Act of April 9, 1856, P. L. 293, the only question to be determined-on the hearing of a petition by a corporation for leave to surrender any power contained in its charter, is whether or not such surrender may be granted without prejudice to the public welfare or the interests of the corporators.</p> <p>3. If the petition is granted, the only persons who can appeal from the decree of the court below, are those who are entitled to represent the public, those who are corporators or those having some personal right necessary to be specially protected.</p> <p>4. Individual citizens whose interests are different in degree but not in kind from those of other citizens, are not entitled to appeal therefrom.</p>

Appeal, No. 282, Jan. T., 1921, by defendant, from judgment of C. P. Northampton Co., Feb. T., 1919, No. 38, on verdict for plaintiffs, in case of Leonard Pickering et ux. v. Jacob L. Snyder. Trespass for personal injuries. Before Stewart, P. J. The opinion of the Supreme Court states the facts. Verdict and judgment for Leonard Pickering for $607, and for Carrie Pickering, for $5,000. Defendant appealed.

<p>Appeal, No. 121, Jan. T., 1921, by defendant, from judgment of G. P. Northampton Co., April T., 1920, No. 19, affirming decision of Workmen’s Compensation Hoard which reversed ruling of referee disallowing claim, in case of Mary Matis et al. v. J. E. Schaeffer.</p> <p>Appeal from decision of Workmen’s Compensation Board allowing compensation. Before McKeen, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court affirmed the decision of the Workmen’s Compensation Board: See 29 Pa. Dist. R. 992; 17 Northampton Co. R. 224. Defendant appealed.</p> <p>Error assigned, inter alia, was decree, quoting it.</p>

<p>Appeal, No. 223, Jan. T., 1921, by plaintiff, from decree of C. P. Berks Co., No. 1242, Equity Docket, 1919, dismissing bill in equity, in case of Harold D. Guenther v. Wilmer L. Kutz.</p> <p>Bill in equity for cancellation of agreement of dissolution of partnership. Before Endlich, 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 was, inter alia, above decree, quoting it.</p>

Appeal, No. 107, Jan. T., 1921, by plaintiffs, from order of C. P. Delaware Co., March T., 1916, No. 485, refusing to take off nonsuit, in case of Frank Thomas et ux. v. Southern Pennsylvania Traction Co. Trespass for death of plaintiff’s son, a boy eight years of age. Before Hause, J., specially presiding. The opinion of the Supreme Court states the facts. At the trial the court entered a compulsory nonsuit which it subsequently refused to take off. Plaintiffs appealed.

<p>Negligence—Railroads— Passenger — Presumption — Proximate cause—Prior or remote cause.</p> <p>1. Where a passenger’s injury does hot result from any defect in the instrumentalities of transportation, the burden is on him to prove negligence on part of the railroad company.</p> <p>2. A proximate cause is one which, in actual sequence, undisturbed by any independent cause, produces the result complained of.</p> <p>3. Where a warehouse is so constructed on the side of the main track of a railroad by its owner, that its doors when opened at right angles with the building extend over the tracks, and railroad workmen remove a post which some one not ascertained had placed in the right-of-way to keep the doors when opened from extending over the tracks, and a collision by a passing train with the doors opened by the owner, results, a passenger on the train injured in the collision cannot recover from the railroad company.</p> <p>4. The opening of the doors and not the removal of the post was the proximate cause of the accident.</p> <p>Mr. Justice Frazer dissented.</p>

Appeal, No. 221, Jan. T., 1920, by plaintiffs, from decree of C. P. Lackawanna Co., June T., 1916, No. 8, dismissing bill in equity, in case of Ruth G. Earle et al. v. Delaware, Lackawanna & Western Railroad Co. Bill in equity for accounting. Before Searle, P. J., specially presiding. Tbe opinion of tbe Supreme Court states tbe, facts. Tbe court dismissed the bill. Plaintiffs appealed. Error assigned, among others, was decree, quoting it.

Appeal, No. 387, Jan. T., 1921, by plaintiff, from decree of C. P. No. 3, Pbila. Co., June T., 1919, No. 328, dismissing bill in equity, in case of Lewis Kirk v. William O. Kirker, Bessie Kirker, bis wife, and Harry S. Ransley, sheriff of Pbila. Co. Bill in equity to declare trust ex maleficio in real estate. Before Ferguson, J. Tbe opinion of tbe Supreme Court states tbe facts. Tbe court dismissed tbe bill. Plaintiff appealed.

<p>Lease—Slate quarry lease — Relief from, minimum, royalties—■ Covenant as to business depression—Nonessential business—Contract—Construction—Written instrument. -</p> <p>1. In construing a contract the primary rule is to ascertain and give effect to the intention of the parties and in arriving at such intention, where the language is doubtful or susceptible of more than one construction, the court may consider the nature and situation of the subject-matter and the apparent purpose or object in making the contract, in the form in which it was made, or of using a particular expression or sentence.</p> <p>2. Where a slate quarry lease provides that the lessee shall be relieved from the performance of his covenants, including payment of minimum royalties, if “there should be a widfe-spread business depression affecting not only the slate trade in Northampton County, but the business of the United States generally, to such a degree that trade conditions will not properly permit compliance with the terms and provisions of this lease,” the court should construe the lease as relieving the lessee, if the general trade conditions in the slate industry were such as to prevent the production and sale of slate products at a profit.</p> <p>3. The facts that the carrying on of a nonessential business at a profit during the great war, was practically impossible, though other trades of the country generally were prosperous, was std> ficient to excuse payment of royalties under the lease.</p>

<p> Vendor and vendee—Purchase money—Payment of notes—Contract—Evidence—Agency. </p> <p>1. ' In an action for a balance of purchase money for real .estate, a judgment on a verdict for plaintiff will be sustained, where it, appears defendant agreed by articles to pay off a mortgage, “to pay and satisfy two certain notes,” and to pay the balance of the purchase money to plaintiff, the vendor, and that plaintiff testified defendant acted as her agent in paying the notes, and settled for a sum less than their face value, and that- he was not to have the benefit of this difference, as he claimed.</p> <p>2. In such case, apart from the alleged oral agreement, defendant could not charge plaintiff under the written agreement, any greater sum for liquidating the notes than he actually expended for the purpose.</p>

<p>Appeal, No. 113, Jan. T., 1921, by defendants, from judgment of C. P. No. 2, Phila. Co., Sept. T., 1919, No. 3320, on verdict for plaintiff, in case of Fourth Bleucher Building Assn. v. Sarah L. Halpern, executrix of Harry Halpern, deceased, mortgagor, and Muharem Allicakis, real owner.</p> <p>Scire facias sur mortgage. Before Rogers, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>At the trial the court gave binding instructions for plaintiff.</p> <p>Verdict and judgment for plaintiff for $4,810.46. Defendant, Muharem Allicakis, terre tenant, appealed.</p> <p>Error assigned, inter alia, was (2) binding instructions for plaintiff, quoting them.</p>

<p>Accord and satisfaction — Executory agreement — Judgment— Payment—Contract.</p> <p>1. While an executory agreement may constitute a complete accord and satisfaction if the parties so intend, such intent must he clearly manifest before a court will strike down the record evidence of a debt.</p> <p>2. Where a plaintiff in an ejectment recovers a judgment for mesne profits, and immediately enters into a written agreement with defendant that the latter, in consideration of the satisfaction of the judgment, “the same to be satisfied when a deed is executed,” would convey all his title in the land in controversy to such plaintiff, and the deed is never executed, the executory agreement to make the conveyance, is not an accord and satisfaction of the judgment, and is not made so by the fact that plaintiff subsequently took title to the property by sheriff’s sale, sold it at a profit, and never made any demand for the payment of the judgment during the defendant’s lifetime.</p>

Appeal, No. 181, Jan. T., 1921, by defendant, from judgment of C. P. Bradford Co., Dec. T., 1915, No. 232, on verdict for plaintiff, in case of James W. Walbridge v. William Little, Admr. c. t. a. of estate of Daniel G. Bailey, deceased. Assumpsit for services.

<p> Partition—Possession after partition—Tenant for years in possession—Acts of March 16, 1905, P. L. l¡-2, and April 20, 1905, P. L. 289. </p> <p>1. Under the Act of April 20, 1905, P. L. 239, the possession of a tenant for years is paramount to that of an owner claiming, possession by purchase under a decree in partition “if the letting to him shall precede in point of date the entry of the......order or decree on which such sale, was had, and also shall precede the recording......of the......deed......through which by legal proceedings the purchaser derives title.” ■</p> <p>2. Where two tenants in common execute a lease for years, and subsequently one secures by a decree in partition and deed growing out of the same, the one-half interest belonging to his eotenant, he cannot thereafter dispossess the tenant for years during the term of the lease, by proceedings under the Act. of March 16, 1905, P. L. 42.</p>

<p>Equity—Practice, equity—Parties—Municipality.</p> <p>1. Where a bill in equity is filed against a municipality and certain of its officers, and subsequently the former joins with plaintiff in prosecuting the action, the municipality becomes in legal effect a coplaintiff, and objections, founded only upon the fact that it is nominally a defendant, cease to have any validity.</p> <p>Equity—■Jurisdiction — Bemedy-at-law — Act of June 7, 1907, P. L. IflfO—Constitutional law—Taxpayers’ bill—Municipal contract—Performance.</p> <p>2. Under the Act of June 7, 1907, P. L. 440, if the court below would have had jurisdiction over the subject-matter of a bill had the action been begun at law, an objection to the jurisdiction in equity will not be considered unless it is raised by demurrer or answer explicitly so stating; and if so raised will be treated as waived unless the parties require it to be decided in limine before a hearing, of the cause on the merits.</p> <p>3. The act is a remedial one and is to be liberally construed.</p> <p>4. The act is not invalid because of the constitutional provision as to jury trials, for it is only the right of trial by jury which is to remain inviolate, and this may be waived, expressly or impliedly, by a failure to follow the method prescribed for determining whether or not the parties desire it.</p> <p>5. Equity has jurisdiction of a bill filed by taxpayers to enjoin the improper payment of municipal funds.</p> <p>6. Where work done under a municipal contract is defective, inferior and of a much cheaper grade and standard ■ than that required by the specifications, and by reason thereof will disintegrate and wear out many years before it would have, had the specifications been complied with, the contract has not been substantially performed.</p> <p>7. There can be no recovery on a contract which has not been substantially performed.</p> <p> Appeals—Findings of fact—Assignments of error—Abandoned. </p> <p>8. Where certain findings of fact dispose of the whole ease, it is not necessary to consider other questions raised by the assignments of error, for the decree appealed from must be affirmed irrespective of any conclusion which might be reached regarding these assignments.</p> <p>9. Assignments of error not argued in appellant’s paper-book may be considered as abandoned.</p>

<p>Appeal, No. 30, Jan. T., 1921, by plaintiffs, from judgment of C. P. No. 4, Phila. Co., March T., 1918, No. 3862, on verdict for defendant, in case of Harry Geiger, by his next friend and father, Joseph J. Geiger, and Joseph Geiger in his own right, v. A. H. Garrett.</p> <p>Trespass for personal injuries. Before McCullen, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>At the trial the court gave binding instructions for defendant. Verdict and judgment for defendant. Plaintiffs appealed.</p> <p>Error assigned, inter alia, was instruction, quoting it.</p>

<p>Appeal, No. 162, Jan. T., 1921. See 268 Pa. 456.</p>

<p>Trusts and trustees—Trustee under different mortgages covering same property—Foreclosure proceedings—Inconsistent interests— Trustee in different capacities—Duty to resign trust as to junior mortgages—Corporations.</p> <p>1. A trustee, under different mortgages covering the same security, may not faithfully and impartially discharge the duties of the trust, as between two or more independent sets of creditors, when it has instituted foreclosure proceedings under the first mortgage.</p> <p>2. The trustee, in such ease, should resign the trust as to the junior mortgages, and request the court to appoint successor trustees for such mortgages, and, in default of such appointment, should permit the holders of bonds secured by the junior mortgages to intervene and defend against a foreclosure.</p> <p> Mortgages—Foreclosure—Defense by junior mortgages—Decree refusing intervention—Final judgment—Appeals. </p> <p>3. Holders of bonds secured by junior mortgages should be permitted to intervene, in proceedings to foreclose the first mortgage, and to set up as a defense such circumstances as would preclude final judgment where such judgment would cause a positive injury to them.</p> <p>4. A decree refusing to permit holders of bonds secured by junior mortgages to defend against a foreclosure of the first mortgage is a denial of a substantive right and is so far final to that right as to warrant an appeal to be taken therefrom.</p> <p>Mortgages—Corporate mortgage—Foreclosure—Default — Failure to pay interest — Powers of trustee — Bights of bondholders under junior mortgages.</p> <p>5. On default of payment of interest and taxes, the trustee under a corporate mortgage is entitled to a decree of foreclosure to recover the whole of the principal debt remaining due and all interest thereon under a provision in the mortgage providing that it shall be lawful for the trustee, in ease of default in payment of interest for the space of sixty days, “forthwith to sue out a writ of scire facias or take any other proceeding at law or in equity thereon, and to proceed to judgment and execution for the recovery of the whole debt remaining due upon the bonds aforesaid, and all interest due thereon.”</p> <p>6. The trustee is not limited to foreclosure merely for interest, unless all the bondholders agree to such sale for unpaid interest, by reason of another provision in the mortgage that, upon default in payment of interest, the principal sum shall become due and payable at once at the option of the bondholders.</p> <p>7. The latter provision is an independent remedy given to the bondholders while the former provision empowers the trustee to act on a default without request from any of the bondholders.</p> <p>8. In such case, bondholders under junior mortgages have no standing to have the foreclosure stopped on payment of the overdue interest and costs on the theory that the principal of the bonds is not yet due and payable.</p>

<p>Appeal, No. 25, Oct. T., 1920, by Henry H. Hodgson and Martha L. Hodgson, from decree of O. C. Allegheny Co., March T., 1919, No. 452, dismissing petition for probate of lost will, in estate of Henry Hodgson, deceased.</p> <p>Petition for probate of lost will. Before Miller, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court dismissed the petition. Henry H. Hodgson and Martha L. Hodgson, petitioners, appealed.</p> <p>Error assigned, inter alia, was above decree, quoting it. .</p> <p>Emerson Q-. Hess, with him Leighton H. Campbell, for appellant.—The will was not revoked by testator: Glockner v. Glockner, 263 Pa. 393.</p> <p>The contents of the will were correctly proven: Mitchell v. Low, 213 Pa. 526; Deaves’s Est., 140 Pa. 242; Ginder v. Farnum, 10 Pa. 98; Taylor v. Meekly, 4 Yeates 79; Rohrer v. Stehman, 1 Watts 442.</p> <p>Circumstances may supply the want of one witness, where they directly go to the immediate act of disposition: Eyster v. Young, 3 Yeates 511; Mullen v. McKelvey, 5 Watts 399; Lewis v. Lewis, 6 S. & R. 489; Comb’s App., 105 Pa. 155.</p>

<p>Appeal, No. 138, Jan. T., 1921.</p>

<p>Wills—Trusts a,nd trustees — Spendthrift trust — Remainder— Merger—Intention.</p> <p>1. Where two estates meet, merger will not be permitted if the purposes of the creation of one of them require that they should remain distinct. .</p> <p>2. A gift by will of a fund in trust “to safely invest the same and pay the net income thereof” to a married sister of testatrix “during the term of her natural life, without liability for any of her debts, engagements or contracts,” and upon her death then over, creates a spendthrift trust in the sister, which cannot be terminated during her lifetime.</p>

Appeal, No. 276, Jan. T., 1921, by plaintiff, from order of C. P. No. 3, Phila. Co., Sept. T., 1913, No. 396, refusing to take off nonsuit, in case of Ernest E. Holland v. Philadelphia Rapid Transit Co. Trespass for personal injuries. Before Ferguson, J. The opinion of the Supreme Court states the facts. At the trial the court entered a compulsory nonsuit, which it subsequently refused to take off, McMichael, P. J., dissenting. Plaintiff appealed.

<p> Constitutional law—Sales Act of May 19,1915, P. L. 543. </p> <p>1. Section 4 of the Sales Act of May 19, 1915, P. L. 543, is constitutional.</p> <p> Sales—Contract—Statement of claim—Act of May 19, 1915, P. L. 543—Memorandum—Statutory requirements—Statute of limitations. </p> <p>2. The statement of claim in a suit upon a verbal contract for a sale in excess of $500, must set forth the facts showing a right to recover under section 4 of the Sales Act.</p> <p>3. There is a vital distinction between eases where a claim was originally enforceable by suit, but recovery may have been lost by reason of the statute of limitations, and those where the claim never was enforceable unless statutory requirements were observed. Under the former the facts necessary to take the case out of the statute need not be set forth; under the latter they must be.</p> <p>4. A written agreement with a third party which does not set forth or express an intent on the part of defendant to sell coal to 'plaintiff, or an admission that such a contract has been made, cannot be a note or memorandum in writing within the provision of section 4 of the Sales Act.'</p>

<p> Appeals—Practice, G. P.—Affidavit of defense—Refusal of judgment. </p> <p>Where on an appeal from the refusal to enter judgment for want of a sufficient affidavit of defense, the appellate court is not convinced of error, it will affirm the order of the lower court without expressing any view on the issues involved. .</p>

Appeal, No. 416, Jan. T., 1921, by plaintiff, from decree of O. P. No. 1, Phila. Co., Dec. T., 1919, No. 1759, dismissing bill in equity, in case of A. Salot v. Joseph A. Hechtmann et ux. Bill in equity for specific performance. Before Shoemaker, 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. 257, Jan. T., 1921, by plaintiff, from decree of C. P. No. 1, Phila. Co., March T., 1920, No. 4290, dismissing bill in equity, in case of Clara H. Underdown, executrix of Howard Underdown, deceased, v. Americus R. Underdown, Jr. Bill in equity for an account. Before Shoemaker, J. The opinion of the Supreme Court states the facts. The court entered a decree dismissing the bill. Plaintiff appealed. Error assigned, among others, was decree, quoting it.

<p>Appeal, No. 149, Jan. T., 1921, by plaintiffs, from decree of C. P. Berks Co., Equity Docket 1917, No. 1197, dismissing bill in equity, in case of Lewis W. Gring et al. v. Sinking Spring Water Co.</p> <p>Bill in equity under Act of June 19, 1871, P. L. 1360, to enjoin condemnation proceedings. Before Endlich, P. J.</p> <p>.The opinion of the Supreme Court states the case.</p> <p>The court dismissed the bill. See 12 Berks Co. L. J. 47, 191. Plaintiffs appealed.</p> <p>Error assigned, among others, was decree, quoting it.</p>

Appeal, No. 215, Jan. T., 1921, by defendant, from judgment of O. & T. Northampton Co., April T., 1918, No. 76, on verdict of guilty of murder of the second degree, in case of Commonwealth v. Robert M. Loomis. Indictment for mnrder. Before Stewart, P. J. The opinion of the Supreme Court states the facts. Verdict of guilty of murder of the first degree, on which sentence was passed. Defendant appealed.

<p>Insurance — Life insurance — Insurable interest—Uncle and nephew—Wagering contract—Speculative purpose — Presumption —Burden of proof—Consideration indivisible.</p> <p>1. Where a life insurance company pays the amount of the insurance at the time the policy is issued and takes a bond and mortgage to secure the premiums, the contract is valid, if an insurable interest appears.</p> <p>2. If, in such case, an uncle takes out the policy on the life of a nephew, the contract is invalid, because an uncle has no insurable interest in the life of a nephew by reason of his relationship.</p> <p>3. The speculative purpose is presumed, irrespective of the motive or intention of the parties.</p> <p>4. In foreclosure proceedings following a default in the payment of the premiums, where the mortgage and bond, introduced in evidence, refer in terms to the insurance contract of even date, and disclose the lack of insurable interest, there is no burden on defendant to show the parties intended an illegal transaction. The burden is on plaintiff to show the contract was legal.</p> <p>5. Plaintiff cannot contend recovery might be had on the mortgage irrespective of the wagering contract, on the ground that the default in paying a premium worked a termination of the insurance feature, leaving unaffected the loan transaction, evidenced by the mortgage. As the consideration was indivisible, and a part illegal, the whole fell.</p> <p>6. Nor can plaintiff claim it could recover back the money as if it were in the hands of a stakeholder in a gambling transaction from whom the fund can be reclaimed so long as it remains in his possession. In such case the money is not in the hands of a stakeholder, inasmuch as it had been paid to the beneficiary; and, even if it were, the suit on the mortgage was an affirmance of the wagering contract.</p> <p>7. Wagering contracts will not be enforced at the instance of-either party to the contract.</p>

<p>Appeal, No. 3, Jan. T., 1921, by plaintiff, from judgment of C. P. Lackawanna Co., March T., 1917, No. 745, on verdict for defendant, in case of United Security Life Insurance & Trust Co. of Penna. v. George W. Brown.</p> <p>Scire facias sur mortgage. Before Maxwell, P. J., specially presiding.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court gave binding instructions for defendant. Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Error assigned, among others, was above instruction, quoting it,</p>

<p>Insurance—Life inswance — Insurable interest — Stepson — Illegal contract—Presumption—Common intent—Estoppel—Talcing advantage of own wrong.</p> <p>1. A person has no insurable interest in the life of his stepson, unless he is a creditor, or dependent upon or responsible for his support.</p> <p>2. If a person takes out a policy of insurance on the life of his stepson, representing the latter as his son, the policy is enforceable against the beneficiary.</p> <p>3. In such case, the beneficiary is estopped from asserting the existence of a different state of facts for the purpose of transmuting what was legal into something unlawful.</p> <p>4. Presumptively, the contract was lawful, and it will not be assumed that the company intended to undertake to do something illegal.</p> <p>5. The illegal intent that defeat! a contract must be the common intent of both parties.</p>

<p> Negligence—Sidewalhs—Borough—Liability of owner to borough for judgment against borough—Remote and proximate cause. </p> <p>1. Where the owners o£ a sidewalk, who had erected barriers about it to keep off the public during a building operation, remove the barriers and put down a plank sidewalk at the request of the burgess to “fix up’* the sidewalk temporarily for a celebration, and a person is injured by breaking through a defective plank, the owners will be liable to the borough for the amount of a judgment paid by it to the person injured.</p> <p>2. The owners’ use o£ a defective plank was the proximate cause of the injury. The removal of the barriers was the remote cause.</p> <p>3. The request of the burgess to remove the barriers, did not give the owners license to construct the sidewalk improperly.</p> <p>A Nor did the fact that a commissioner of the borough happened to have the carelessness of the owners called to his unofficial attention, release them from the obligation to repay the borough the amount which their negligence cost it.</p>

<p>Wills—Construction—Remainder—Gift to husband — Power of appointment—Intestacy—“Heirs” —■ Alternative gift — Parties — Objection to claim against estate.</p> <p>1. Where the word “heirs” is used in a bequest of personalty, it means heirs as ascertained by the statutes of distribution, unless a contrary intent is indicated by the will.</p> <p>2. Where a wife gives the residue' of her estate to a trustee to pay a specified amount per week to her husband for life out of the income, or out of principal if necessary, and on the death of the husband to pay the remaining balance of the estate to such persons as her husband may appoint by will, or in case of his dying intestate, to the heirs-at-law of her husband, the gilt to the heir§ of the husband is in the alternative, and, if he dies intestate, his heirs take by substitution, to the exclusion of the next of kin of the testatrix.</p> <p>3. In such ease where a claim by a third party against the estate is admitted by the heirs of the husband, but objected to by the heirs of the testatrix, it will be allowed, inasmuch as the latter, not being entitled to share in the distribution, have no standing to object to the claim.</p>

Appeal, No. 388, Jan. T., 1921, by defendants, from order of C. P. No. 3, Phila. Co., June T., 1919, No. 4128, making absolute rule on the Banking Commissioner to pay over moneys, in case of M. H. McCloskey, Jr., Inc., W. Lewis McGee, Receiver, v. North Penn Bank, John S. Fisher in possession thereof, to use Phoenix Trust Co. Rule on banking commissioner to pay over moneys.

<p>Appeal, No. 171, Jan. T., 1921, by Margaret Lyons, claimant, from decree of O. C. Phila. Co., July T., 1919, No. 687, dismissing exceptions to adjudication, in estate of Jane Gilbraith, deceased.</p> <p>Exceptions to adjudication of Thompson, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court dismissed the exceptions in an opinion by Lamorelle, P. J., 29 Pa. Dist. R. 337. Margaret Lyons, claimant, appealed.</p>

<p>Appeal, No. 159, Jan. T., 1921, by defendant, from judgment of C. P. Delaware Co., March T., 1917, No. 483, on verdict for plaintiff, in case of Addison T. Bullock v. Chester & Darby Telford Road Co.</p> <p>Trespass for personal injuries. Before Hause, J., specially presiding.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict and judgment for plaintiff for $5,232.10. Defendant appealed.</p> <p>Errors assigned, among others, were (2) .refusal of defendant’s motion for judgment n. o. v.; (3)„refusal to withdraw a juror for improper remarks of plaintiff’s counsel, quoting record.</p>

<p>Negligence —■ Street railways —■ Automobile — Collision — Contributory negligence—Case for court—Evidence—Judicial notice— Presumption—Lootcing at edge of tracto.</p> <p>1. A court cannot accept as true that which the indisputable evidence demonstrates is false.</p> <p>2. Where in a negligence case plaintiff’s own testimony stands not only opposed to that of several disinterested witnesses, but is shown to be untrue by incontrovertible physical facts, it is error to submit the case to the jury.</p> <p>3. It is vain for a man to say that his auto was struck in the back by a street car, where the only injury thereto was at the side near the front wheel; or to insist that a collision with a street car was at one place, when broken glass and other unmistakable evidence thereof, were at another place.</p> <p>4. The appellate court should take judicial notice of the law of nature or mathematics or quality of matter, or whatever it may be that rules the case, and apply it as the trial court should have done.</p> <p>5. Where disinterested testimony and physical facts show that an automobile was struck by a trolley car, immediately as it entered upon the tracks of a street railway, the driver is guilty of contributory negligence as a matter of law and cannot recover.</p> <p>6. A theory cannot be accepted as to how a collision might have happened in the face of convincing evidence as to how it actually did happen.</p> <p>7. There can be no presumption as against facts which are proven.</p> <p>8. The rule requiring a traveler to look when at the edge of a ¡street railroad track is inflexible, and the fact that he is in a closed auto is no excuse for its nonperformance.</p> <p>9. In such case, it is the driver’s duty to lean forward or otherwise to put himself in a position to obtain a clear view of the track, and if he fails to do so, he takes the risk.</p>

<p>Negligence—Railroads—Automobiles—Darhmss —■ H'eac&igKt — Absence of warning sign—Stop, loolc and listen—Grade crossing— Railroad siding.</p> <p>1. Darkness is no excuse for failure to stop, look and listen, before driving upon the tracks of a railroad at a grade crossing,</p> <p>2. It is the duty of a chauffeur traveling by night to have such a headlight as will enable him to see in advance the face of the highway and to discover grade crossings, or other obstacles in his path, in time for his own safety, and keep such control of his car as will enable him to stop and avoid obstructions that fall within his vision.</p> <p>3. So far as relates to the duty to stop, look and listen, there is no distinction between a siding and the main track of a railroad.</p> <p>4. The fact that the driver of an automobile stopped upon the track at a grade crossing is not a compliance with the rule to stop, look and listen, as the required stop must be made before the track is reached.</p> <p>5. The misplacement or even absence of a warning sign will not excuse a traveler’s failure to stop, look and listen.</p>

<p> Wills—0onstruction—Gontext—General language. </p> <p>1. In a will, as in other written instruments, each clause must be construed in connection with its context, and ordinarily cannot be given a more extended meaning than that connection requires, merely because the language used is general.</p> <p> Practice, O. G.—Bill of review—Error in adjudication—Acts of October IS, 1840, P. L. 1841, V-1, a,nd June 7,1917, P. L. 447. </p> <p>2. Questions not raised in the pleadings on a petition of review; should not be considered.</p> <p>3. Section 48 of the Fiduciaries Act of June 7, 1917, P. L. 447, . 514, relating to petitions of review, is an advance on section 1 of the Act of October 13, 1840 (P. L. 1841, page 1), treating of the same subject, in that the former requires a review to be granted if error is made in the adjudication.</p> <p>4. Where an error appears in an adjudication, and the balance found due has not been actually paid and discharged, a rehearing is a matter of right, unless, at the audit, the question at issue was Taised, contested and decided adversely to petitioner.</p> <p>5. The orphans’ court has inherent power to and should grant a review, aside from the provisions of either act, where justice and equity require it and no one will suffer by reason thereof.</p>

Appeal, No. 360, Jan. T., 1921, by Josephine A. Stanton, legatee, from decree of O. C. Phila. Co., Jan. T., 1900, No. 616, dismissing exceptions to adjudication in estate of John A. Mullen, deceased. Exceptions to adjudication of G-ummey, J. The opinion of the Supreme Court states the facts. - The court, in an opinion by Lamorelle, P. J., dismissed the exceptions to the adjudication. See 29 Pa. Dist. It. 755. Josephine A. Stanton, a legatee, appealed.

<p>Appeal, No. 412, Jan. T., 1921, by defendant, from judgment of O. P. No. 2, Phila. Go., Dec.. T., 1919, No. I960, on verdict for plaintiff, in case of Henry J. Scott v. Emma 0. Bergdoll.</p> <p>Assumpsit for professional services. Before Bar»ratt, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict and judgment for plaintiff for $10,005. Defendant appealed.</p> <p>Errors assigned were (1) refusal of binding instructions for defendant, and (2) refusal of new trial.</p>

<p>Appeal, No. 414, Jan. T., 1921, by plaintiff, from judgment of C. P. No. 3, Phila. Co., March T., 1919, No. 3497, on verdict for defendant, in case of Mary R. Miller v. Director General of Railroads.</p> <p>Trespass for death of plaintiff’s husband. Before ■ Ferguson, J. '</p> <p>The opinion of the Supreme Court states the'C'asé.</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Error assigned was portion of charge recited in the opinion of the Supreme Court, quoting it.</p>

<p> Foreign attachment—Attachment of curtesy—Sale of real estate —Husband and wife—Creditors’ rights. </p> <p>1. Where a wife dies seized of an interest in real estate, leaving to survive her a husband and minor children, and the husband enters into an agreement with other parties in interest to sell the real estate and joins in a proceeding to secure the consent of the orphans’ court to the sale of the minor’s interest, foreign attaehment levied against the husband’s share will bind it, where it appears that no actual release of such interest was made, only a small part of the consideration had been paid, and that no deed had been delivered; and-this ig the case although the husband had agreed in the orphans’ court proceedings to convey his interest without consideration. x</p> <p>2. In such case the husband, by his agreement to convey without consideration, could not legally augment the shares of his children in the purchase money at the expense of his creditors.</p>

Appeal, No. 423, Jan. T., 1921, by defendant, from judgment of C. P. No. 1, Phila. Co., June T., 1918, No. 2048, on verdict for plaintiffs, in case of William T. Markee and William C. Watson, trading as Markee & Co. v. City of Philadelphia. Assumpsit for moneys alleged to be due on contract. Before Patterson, J. The opinion of the Supreme Court states the facts. Verdict and judgment for plaintiff for $3,912.61. Defendant appealed.

<p> Appeals—Statement of question involved. </p> <p>1. Matters not specified in or suggested by the statement of questions involved, will not be considered by this court.</p> <p> Road law—Alley—Prescriptive right. </p> <p>2. One who was neither the owner, tenant nor occupant of a property to which it is alleged the right to use an alley is appurtenant, cannot by using it give a prescriptive right to the owner of the property or his successor in title.</p> <p> Equity—Findings of fact—Review. </p> <p>3. If the credibility of witnesses or the weight to'be given their testimony is involved, findings of fact, by the trial judge who saw them, will not be disturbed on appeal, if there .was testimony to support the findings.</p>

Appeal, No. 402, Jan. T., 1921, by defendant, from judgment of C. P. No. 2, Phila. Co., March T., 1919, No. 1872, on verdict for plaintiff in case of Joseph A. Montgomery et ux. v. Philadelphia. Trespass to recover damages for personal injuries. Before Rogers, J. The opinion of the Supreme Court states the facts. Verdict and judgment for Elizabeth Montgomery for $3,500 and for Joseph A. Montgomery for $500. Defendant appealed.

Appeal, No. 415, Jan. T., 1921, by plaintiff, from order of C. P. No. 5, Phila. Co., June T., 1920, No. 5188, discharging rule for judgment for want of sufficient affidavit of defense, in case of Philip Haibach Contracting Co. v. Jacob Hornung. Rule for judgment for want of sufficient affidavit of defense. The court discharged the rule, in an opinion by Martin, P. J. Plaintiff appealed. Error assigned was above order, quoting it.

<p>Appeal, No. 411, Jan. T., 1921, by defendant, from judgment of C. P. Berks Co., Dec. T., 1920, No. 105, for plaintiff on case-stated, in suit of Harry T. McCall, executor of Josephine L. Kmauer, deceased, v. Le Boy P. Umbenhauer.</p> <p>Case-stated to determine marketability of real estate. Before Endlich, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court entered judgment for plaintiff on the case-,stated- Defendant appealed.</p> <p>Error assigned, was the judgment of the court.</p>

<p>Appeal, No. 165, Jan. T., 1921, by plaintiff, from judgment of C. P. No. 5, Phila. Co., Dee. T., 1917, No. 2343, for defendant on case tried by the court without jury, in suit of Phila. Co. y. Commonwealth of Pennsylvania.</p> <p>Assumpsit to recover expenses paid out for primary elections. Before Staake, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court, on a trial without a. jury, entered judgment for defendant. Plaintiff appealed.</p> <p>Error assigned was judgment, quoting it.</p>

<p>Appeal, No. 155, Jan. T., 1921, by defendants, from judgment of C. P. Berks Co., June T., 1920, No. 138, for plaintiff on pleadings in case of Edward Schuldt v. Beading Trust Co. and George Heckman.</p> <p>Ejectment for real estate in City of Reading. Before .Wagner, J. ' '</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Judgment for plaintiff on pleadings. Defendants appealed.</p> <p>Error assigned, inter alia, was judgment, quoting it.</p>

<p>Appeal, No. 72, Jan. T.., 1921, by the First Presbyterian Church of Carbondale,, Wm. J. Male, Adeline Schleizer, and John A. Gillis, administrator of estate of Sarah M. Gillis, deceased, legatees, from decree of O. C. Lackawanna Co., No. 47, of' 1908, dismissing exceptions to adjudication and awarding distribution, in estate of Barbara Monnia, deceased.</p> <p>Exceptions to adjudication. Before Sanbo, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court dismissed the exceptions and awarded distribution. First Presbyterian Church et al., legatees, appealed.</p> <p>Error assigned, among others, was decree, quoting it.</p>

<p>Appeal, No. 392, Jan. T., 1921, by defendant, from judgment of C. P. No. 2, Phila. Co., Dec. T., 1918, No. 4386, on verdict for plaintiffs, in case of Edward N. Ward, Sr., and Edward N. Ward, Jr., by Edward N. Ward, Sr., his nest friend, v. B. T. Babbitt, Inc.</p> <p>Motion by appellees to quash all assignments of error and to quash appeal.</p> <p>The opinion of the Supreme Court states in substance the assignments of error.</p>

<p>Appeal, No. 362, Jan. T., 1921, by John ¡McGlinn, Jr., et al., from decree of O. C. Phil a. Co., Oct. T., 1918, No. 794, dismissing exceptions to adjudication, in estate of John McGlinn, deceased.</p> <p>Exceptions to adjudication of Henderson, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court in an opinion by Gummey, J., dismissed the exceptions. John McGlinn, Jr., et ah, appealed.</p> <p>Error assigned, among others, was decree, quoting it.</p>

<p>Appeal, No. 397, Jan. T., 1921", by plaintiff, from judgment of C. P. No. 4, Phila. Co., June T., 1920, No. 4981, for defendant on statutory demurrer, in case of Hutchinson Baking Co. y. P. A. Marvel.</p> <p>Assumpsit for breach of contract.</p> <p>Buie for judgment for want of a sufficient affidavit of defense.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Finletter, J., filed the following judgment:</p> <p>“October 20, 1920, being of opinion that the defendant’s affidavit of defense presents a good defense on the law to the whole of plaintiff’s claim, judgment is entered for defendant.”</p> <p>Plaintiff appealed.</p> <p>Error assigned was judgment, quoting it.</p>

<p>Negligence — Automobiles — Right-angled collision between ■— Duties of chauffeur at crossing—Rule of the road—Act of June SO, 1919, P. L. 678.</p> <p>1. The provision in the Act of June 30, 1919, P. L. 678, that “when two vehicles approach the intersection of two public highways at the same time, the vehicle approaching from the right shall have the right of way,” means that where the paths of two approaching vehicles cross at the intersection of public streets, the driver at the left must give way, unless so far in advance of the other as to afford reasonable time to clear the crossing, and thus, in all probability, avoid a collision.</p> <p>2. Where the driver of an automobile when some five feet from a crossing, sees another machine 133 to 150 feet away, approaching from the right, and he starts across at the rate of four miles an hour, and his machine is struck well towards its rear before the crossing is cleared, the case is for the jury, and a verdict and judgment in his favor will be sustained.</p>

<p> Appeals—Negligence—Joint appeals—Parent and child—Act of May 12,1897, P. L. 62. </p> <p>Where a joint action is brought under the Act of Hay 12, 1897, P. L. 62, by a parent and child for personal injuries to the child, and separate verdicts and judgments are rendered in favor of the plaintiffs, a joint appeal by the defendant is improper. Separate appeals must be taken from each judgment.</p>

<p> Criminal law—Murder—Dying declarations—Evidence—Appeal —Charge—Failure to request instruction—General exceptions. </p> <p>1. In a homicide case, dying declarations of the deceased are properly admitted when it appears that they were made in a hospital, two hours before he died, while he was suffering from four bullet wounds in vital parts, and after he had been warned of approaching death by the attending physician.</p> <p>2. In such case, the fact that deceased at the time expressed a desire to see another doctor, is not sufficient to exclude his declarations.</p> <p>3. If it appears that defendant’s statement on the stand substantially coincided with the dying declarations of decedent, a verdict of guilty will not be set aside on appeal because tbe trial judge omitted mention of the dying declarations.</p> <p>4. - Such an omission is not a basic or fundamental error under the circumstances, and if counsel made no request for instructions on the subject, and took only a general exception to the charge, defendant is not in a position to complain.</p> <p>Criminal■ laiu — Murder—Evidence—Cross-examination—Physical demonstration—Discretion of court.</p> <p>5. The regulation of cross-examination is always a matter of discretion for the trial judge, particularly how far actual physical demonstrations may be allowed.</p> <p>Criminal law—Murder—Improper remarh of district attorney— Objection by defendant—Withdrawal of juror—Twice in jeopardy rule—Appeal.</p> <p>6. Where in a murder trial a juror is withdrawn for the benefit and on the voluntary motion of the accused, he cannot subsequently invoke the twice-in-jeopardy rule.</p> <p>7. While, at the request of defendant, a juror may validly be withdrawn in a capital case, his consent for such procedure must not be asked and will not bind him, if asked.</p> <p>8. Where a plain breach of an established rule of law is committed by the prosecuting officer in a capital case it will, when properly excepted to, and assigned as error, be considered on appeal,'even in the absence of a request to withdraw a juror and continue the case.</p>

<p> Wills—Construction—Life estate—Estate in fee—Rule in Shelley’s Case—Devise to ¿laughter. </p> <p>1. When “heirs” is employed in connection with remaindermen, the rule in Shelley’s Case applies, unless other language in the will clearly demonstrates that the word was not intended in its technical sense as a term of limitation.</p> <p>2. A devise to testator’s widow for life and after her death to his “daughter-and to her heirs, and, in and ease of the death of [his] daughter without any heirs,” then over, vests in the daughter, Surviving her father and mother, an absolute estate in fee simple.</p> <p>3. The provision for a devise over is given effect by making it apply to the daughter’s death before the testator or his widow.</p>

Appeal, No. 15, Jan. T., 1921, by plaintiffs, from order of C. P. Lackawanna Co., March T., 1917, No. 854, refusing to strike off nonsuit, in case of R. E. Whitman et ux. v. Mathias Stipp. Trespass for personal injuries. Before Smith, P. J., specially presiding. The opinion of the Supreme Court states the facts. At the trial the court entered a compulsory nonsuit which it subsequently refused to take off. Plaintiff appealed.

Appeal, No. 299, Jan. T., 1921, by plaintiff, from decree of C. P. No. 1, Phila. Co., Dec. T., 1919, No. 3817, dismissing bill in equity, in case of Robert J. Bell v. Police Beneficiary Assn., a corporation, and John Bell, Minnie Hannis, Jennie Menagh and Lydia Foultrod. Bill in equity for mandatory injunction. Before Shoemaker, J. The opinion of the Supreme Court states the facts. The court dismissed the bill. Plaintiff appealed.

<p>Appeal, No. 272, Jan. T., 1921, by defendant, from decree of C. P. Bradford Co., in favor of plaintiff, on bill in equity, in case of Sayre Borough v. Waverly, Sayre & Athens Traction Co.</p> <p>Bill in equity for mandatory injunction, and for payment of money due. Before Maxwell, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court entered a decree in accordance with the prayers of the bill. Defendant appealed.</p> <p>Error assigned, among others, was decree, quoting it.</p>

Appeal, No. 284, Jan. T., 1921, by defendant, from judgment of C. P. No. 1, Phila. Co., June T., 1919, No. 2999, on verdict for plaintiff, in case of Atlantic Refining Co. v. Pennsylvania Railroad Co. Assumpsit for loss of goods. Before Shoemaker, J. The opinion of the Supreme Court states the facts. Verdict and judgment for plaintiff for $2,142.09. De- . fendant appealed.

Appeal, No. 419, Jan. T., 1921, by defendant, from order of C. P. No. 5, Phila. Co., Sept. T., 1917, No. 3341, making absolute rule for judgment for want of a sufficient affidavit of defense, in case of F. H. Wigton, receiver of the Morrisdale Coal Co. to use of Morrisdale Coal Co. v. Climax Coal Co. Assumpsit for breach of contract to sell and deliver coal. Before Martin, P. J. The opinion of the Supreine Court states the facts.

<p>Workmen's compensation—Master and servant —Independent contractor—Reserving control over means—Mines and mining— “Rock contractor”—Act <of June 1, 1915, P. L. 712—Mine foreman —Appeal—Review of contract.</p> <p>1. The construction of a written contract of employment is a matter of law, and reviewable by the Supreme Court.</p> <p>2. Where, in a contract of employment, control is not reserved over the means, the relationship is that of independent contractor, and, conversely, where such control is reserved, the relationship is that of servant or employee.</p> <p>3'. Where a contract, made subsequent to the Act of June 1, 1915, P. L. 712, between the operator of an anthracite coal mine and a so-called “rock contractor,” provides that the contractor and all of his employees shall be subject to the orders and directions of the mine foreman, as to the means and manner of performance, including the right to remove workmen, the' relation between the operator and the “rock contractor,” is that of master and servant, and the latter is an employee within the meaning of the Workmen’s Compensation Act.</p>

<p> Mines and mining—Lease—Royalties—Construction of lease. </p> <p>1. Where a mining lease constituting a sale of coal in place provides payment of an annual minimum royalty by the lessees, and the royalty rate varies according to the sale price of the coal, and the lessees are given the right, if they have paid for more coal in any one year than they have mined, to mine “a quantity equal to such excess of payment in any year thereafter without payment therefor,” the purpose being “to allow the lessees to mine all the coal they have paid for under the lease,” the contract will be construed to mean that when the lessees have paid for the minimum tonnage of coal, at the then royalty rate, it becomes their property, 'and if it was not all mined in the year, they have the right to mine a quantity equal to the amount purchased by them without any further payment.</p> <p> Contract—Construction—Conduct of parties—■External construction. </p> <p>2. It is only when a writing is equivocal or obscure that the court may interpref it in accordance with the conduct of the parties.</p> <p>3. The court will not apply to the construction of a mining-lease, alleged conduct of the parties, where such conduct does not amount to external construction, but is in fact no more than the unauthorized obiter dictum of the lessee’s bookkeeper, disclosed by pure surplusage in statements otherwise contractually complete and not made practical at any time by incorporation in any settlement.</p>

Appeal, No. 422, Jan. T., 1921, by plaintiffs, from decree of C. P. Columbia Co., May T., 1918, No. 1, dismissing bill in equity, in case of Milton K. Yorks and Elsie A. Yorks (now Elsie Yorks Jones), executors of Frederick G. Yorks, deceased, and Deborah T. Little v. Charles F. Altmiller, Receiver, John L. Richardson, Frederick J. Richard, Edmund M. Savidge, the Richard Manufacturing Co., and Richard Manufacturing Co. Bill in equity to set aside receivership proceedings and…

<p>Appeal, No. 42, Jan. T., 1921, by defendant, from judgment of C. P. Crawford Co., Sept. T., 1918, No. 112, on verdict for plaintiff, in case of E. S. Powers v. Walker D. Hines, Director General of Railroads.</p> <p>Trespass for personal injuries. Before Prather, P. J.</p> <p>For the facts see Doud v. Hines, 269 Pa. 182.</p> <p>Verdict and judgment for plaintiff for $11,812.50. Defendant appealed.</p> <p>Error assigned, among others, was refusal of defendant’s motion for judgment n. o. v., quoting record.</p>

<p>Appeal, No. 264, Jan. T., 1921, by defendant, from judgment of C. P. No. 4, Phila. Co., March T., 1919, No. 530, on verdict for plaintiff, in case of Irwin Gas Coal Co. v. Logan Coal Co.</p> <p>Assumpsit for breach of contract. Before McCullbn, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict and judgment for plaintiff for $4,733.86. Defendant appealed.</p> <p>Errors assigned were rulings and instructions, recited in the opinion of the Supreme Court, quoting record.</p>

<p>Appeal, No. 270, Jan. T., 1921, by plaintiffs, from decree of'C. P. No. 1, Phila. Co., June T., 1919, No. 6483, sustaining demurrer to bill in equity, in case of E. I. C. Davis et al., individually and as executors of F. A. Davis, deceased, v. Republic Trust Co., and F. A. Davis Co.</p> <p>Bill in equity to compel surrender of certificate of stock. Before Patterson, J.</p> <p>The opinion of the Supreme Court states the facts. The defendant filed a demurrer to the bill. The court sustained the demurrer. Plaintiffs appeáled.</p> <p>Error Assigned, among others, was decree, quoting it.</p>

<p> Executions—Deposit box in trust company—Fi. fa.—Seizure of contents—Practice, 0. P. </p> <p>1. Where a levy has been made by the sheriff under a fi. fa, on the contents of a Safe deposit box rented, by defendant in the execution, from a trust company, and the company and defendant refuse to open the box, the court has no power to order defendant, under penalty of contempt, to open the box, and- permit the sheriff to take into his possession the contents of the box belonging to defendant.</p> <p>2. In such case, defendant, may, by appropriate proceedings, be compelled to disclose the contents of the box, and the trust company may be compelled to open it.</p>

<p> Contract—Sales—Warranty—Act of May 19, 1915, P. L. 5k&. </p> <p>1. Under section 69 of the Sales Act of May 19, 1915, P. L. 543, 563, one who purchases and receives goods, the quality of which has been warranted by the seller, may retain them and sue for damages for breach of the warranty, if they do not comply therewith.</p> <p> Foreign, attachment—Amendment—Affidavit of come of action —Appeals—Dissolution—Appearance—Appeal—Review. </p> <p>2. Upon plaintiff’s appeal, alleging error in dissolving a foreign attachment, defendant cannot be heard to object to the earlier action of the court below in allowing an amendment to the affidavit of cause of action.</p> <p>3. Where an attachment is good for any amount, the court should not order it to be dissolved in whole or in part.</p> <p>4. A garnishee who has more money in his hands than is necessary to meet plaintiff’s claim, is not legally required to retain the whole thereof until the suit is ended.</p> <p>5. A defendant in foreign attachment may appear to the action and dissolve it by entering security in such sum or by making deposit in such amount as the court below shall decide is sufficient to protect plaintiff’s claim, or may appear and defend without dissolving the attachment.</p>

<p> Mines cmd mining—Surface support—Separate titles—-Ooal-~ Surface—Support. </p> <p>1. In a coal mining region there may be three estates in land, namely, coal, surface and right of support, so that one person may own the coal, another the surface, and the third the right of support.</p> <p>2. In absence of express waiver or the use of words from which the intention to waive impliedly appears, the grantee of minerals takes the estate subject to the burden of surface support.</p> <p>3. If in such case, the owner of the surface or his successor in title conveys the title without the right of such support, and also as owner of the minerals by conveyance from previous owners, conveys to another the minerals with the duty to support, the subsequent owner of the surface cannot recover damages from the subsequent owner of the minerals for injuries resulting from failure to support.</p>

<p>Appeal, No. 101, Jan. T., 1921, by United States Fidelity & Guaranty Co., surety, from decree of O. C. Lackawanna Co., No. 3, 1916, discharging administrator from custody on attachment, in estate of Moses L. Seidman, deceased.</p> <p>Petition to discharge Wolf Seidman, administrator of M. L. Seidman from custody for contempt of court. Before Sando, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court entered a decree discharging the administrator from custody. See 49 Pa. C. C. R. 104; 21 Lackawanna Jurist 117. The United States Fidelity & Guaranty Co., surety, appealed.</p> <p>Error assigned, inter alia, was decree, quoting it.</p>

<p>Appeal, No. 243, Jan. T., 1921, by plaintiffs, from judgment of C. P. Lackawanna Co., Jan. T., 1919, No. 283, for defendant on affidavit of de< fense raising question of law, in case of Lepbe Hall and Jesse Hall v. Delaware, Lackawanna & Western Railroad Co.</p> <p>Assumpsit to recover value of earth and gravel removed from plaintiffs’ land.</p> <p>Defendant filed an affidavit of defense raising questions of law. Before Maxey, J.</p> <p>Tlie opinion of the Supreme Court states the facts..</p> <p>The court entered judgment for defendant. See 49 Pa. C. C. R. 303; 21 Lackawanna Jurist 163. Plaintiffs appealed.</p> <p>Error assigned was judgment, quoting it.</p>

<p>Appeal, No. 304, Jan. T., 1921, by defendant, from judgment of C. P. Blair Co., March T., 1920, No. 235, affirming decision of Workmen’s Compensation Board which sustained an award by the referee in favor of claimant, in case of Cora A. Kuhn v. Pennsylvania Railroad Co.</p> <p>Appeal from decision of Workmen’s Compensation Board sustaining award of referee in favor of claimant.</p> <p>Before Baldrige, 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 judgment, quoting it.</p>

<p>Workmen’s compensation—Injury in course of employment— Connection between injury and disease—Paralysis — Evidence — Experts.</p> <p>1. When, in cases under the Workmen’s Compensation Act, expert testimony is relied on to show the connection between an alleged cause and a certain result, it is not enough for the doctors to say simply that the ailment in question might have resulted from the assigned cause, or that one could have brought about the other; they must go further and testify at least that, taking into consideration all the attending data, if'is their professional opinion the result in question probably came from the assigned cause.</p> <p>2. Where it is claimed that paralysis from which a workman suffered was due to a blow on the head received in the course of his employment, and the strongest expert testimony was that it could have been due to such a blow, the evidence is not sufficient to support a finding that the blow caused the paralysis.</p>

<p> Wills—Construction—Trusts and trustees—Income—Principal '—Vesting of principal—Words and phrases. </p> <p>1. A direction in a will making division of the income of a trust estate therein created, among the beneficiaries, during the period of the trust, is in itself strong evidence of the vesting of the principal in such beneficiaries.</p> <p>2. Where testator has used words sufficient to vest an absolute interest in the principal, he must indicate a fairly clear intention to take away the estate previously given, before a divestiture will be held by the courts.</p> <p>3. Where a testator directs that a trust company shall have charge of all his shares in a corporation for twenty years, and make division of the income therefrom among seven persons named, “or to the survivors of them, and the issue of any deceased, who shall represent and take the respective shares both of principal and income falling to any of them who may be deceased,” and at the expiration of the twenty years shall assign all such shares to the seven persons named, “or to the survivors of them and the issue of any deceased,” the principal and income vest absolutely in the seven persons named, subject to the control of the trustee.</p> <p>4. Such construction is strengthened where it appears testator physically struck out, after the word “shares,” the words “of income,” and inserted in place thereof the phrase “both of principal and income.”</p> <p>5. The expression “falling to,” with its context, means the same as “given to.”</p> <p>6. After naming so many persons as legatees it is fair to assume testator contemplated some of them might die during his lifetime, and that this accounts for the substitutionary provision, as to survivorship, issue, etc.</p> <p>7. When the actual intent of a testator can be fairly gathered from the words, the fact that another testator has used the same words with a different meaning is of no avail. Neither precedents nor rules of construction can override the testator’s expressed intention.</p> <p> Appeals—Joint appeals—Orphans’ court. </p> <p>8. Where a decree of the orphans’ court affects several parties, they should take separate appeals, and not a joint appeal.</p>

<p> Trade-marks—Trade name—Equity—Geographical hounds—Act of June 20,1901, P. L. 582. </p> <p>1. The property in a trade-mark is not limited by fixed territorial bounds, but frequently extends over a large area, depending upon the extent and character of the business, and through sources tending to attract customers from a large area.</p> <p>2. The trade name “The Hub” with a design of a hub between the two words, in use for many years by plaintiffs, will be protected from infringement in a city nine miles distant from that in which plaintiffs do business, where it appears that plaintiffs’ customers extended to the surrounding country and towns, and included the city in question from which plaintiffs derived between one-fifth and one-sixth of its gross business.</p> <p>3. In such case, the fact that one small dealer was using the design, and that a number of others had used it, but given it up, will not defeat plaintiffs’ right to protect their trade-mark.</p> <p>4. The fact that plaintiffs failed to register their trade-mark, and that defendants had taken out a certificate of registration under the Act of June 20, 1901, P. L. 582, does not prevent plaintiffs from enforcing their rights by proper legal proceedings.</p>

Appeals, Nos. 294 and 295, Jan. T., 1921, by defendant, from judgment of C. P. No. 1, Phila. Co., June T., 1919, No. 755, on verdict for plaintiffs, in case of Martin Casey, Jr., by his father Martin Casey, and Martin Casey, v. Eobert Boyer. Trespass for personal injuries. Before Shoemaker, J. The opinion of the Supreme Court states the facts. Verdict for Martin Casey, Jr., for $7,000, and for Martin Casey for $2,000.

<p>Appeal, No. 395. Jan. T., 1921, by defendant, from judgment of C. P. Blair Co., Oct. T., 1920, No. 250, on verdict for plaintiff, in case of Moxham & Ferndale Bridge Co. v. Cambria County.</p> <p>Appeal from award of jury of view. Before BaldRIGE, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict and judgment for plaintiff for $7,453.91. Defendant appealed.</p> <p>Error assigned, inter alia, was refusal of judgment for defendant n. o. v., quoting record!</p>

Appeal, No. 297, Jan. T., 1921, by Commonwealth Title Insurance & Trust Co. et al., Trustees, under will of Samuel Sternberger, deceased, from decree of C. P. No. 3, Phila. Co., Dec. T., 1917, No. 3329, dismissing exceptions to auditor’s report, in case'of Joseph J. Lifter, trading as Lifter lee Cream Co. t. The Earle Co. Exceptions to report of William Findlay Brown, Esq., auditor. The opinion of the Supreme Court states the facts.

<p>Negligence—Damages—Pleading — Personal examination—Motion for new trial—Discretion of court — Evidence — Burden of proof.</p> <p>1. Where a statement in a negligence case avers injuries to plaintiff’s arms, legs, head and body, and that he suffered a severe shock to his nervous system, it is competent for plaintiff to submit expert evidence tending to show a broken nose and cerebrospinal meningitis as results of the accident.</p> <p>2. The burden is on plaintiff, in such case, to show that he was afflicted with cerebro-spinal meningitis, and that,it resulted from the accident.</p> <p>3. The refusal of the trial court to order plaintiff to submit to a further examination, after verdict, for use on defendant’s rule for a new trial, is a matter within its discretion and affords no ground for setting aside a judgment in plaintiff’s favor.</p> <p>Negligence—Automobiles—Grossings—Pedestrians — Vehicles— Proximate cause—Charge—Ridiculing party.</p> <p>4. The rights of pedestrians and- vehicles at public crossings are equal; but where a pedestrian without negligence on his part has committed himself to the crossing, he has the superior right of way as against a vehicle thereafter approaching.</p> <p>5. While a chauffeur at a public crossing must have his car under such control as to be able to stop on the shortest possible notice, he is not required to drive so as to 'stop instantly.</p> <p>6. If the jury finds that the proximate cause of the accident was the negligence of the driver of another car which caused plaintiff to jump suddenly in defendant’s path, the latter will not be liable.</p> <p>7. A judgment on a verdict for plaintiff will be reversed where the inevitable effect of comment by the trial judge on defendant’s testimony was to expose defendant to ridicule, and discredit his testimony.</p>

Appeal, No. 46, Oct. T., 1921, by David A. Miller, guardian ad litem, from decree of O. C. Westmoreland Co., May T., 1920, No. 323, awarding distribution, in estate of James K. Boyd, deceased. Exceptions to adjudication. Before Beacom, P. J. The opinion of the Supreme Court states tbe facts. The court dismissed exceptions to adjudication, David. A. Miller, guardian ad litem, appealed. Error assigned was decree, quoting it.

<p>Appeal, No. 447, Jan. T., 1921, by defendant, from judgment of C. P. Huntingdon Co., Sept. T., 1918, No. 28, on verdict for plaintiff, in ease of Rebecca H. Porter v. Commonwealtb Casualty Co.</p> <p>Assumpsit on contract of accident insurance. Before Bailey, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict and judgment for plaintiff for $2,317.33. Defendant appealed.</p> <p>Errors assigned were various rulings and instructions, and refusal of judgment for defendant n. o. v., quoting the record.</p>

<p>Appeal, No. 393, Jan. T., 1921, by D. A. Sawdey et al., from decree of O. C. Erie Co., Sept. T., 1919, No. 1, dismissing exceptions to decree of distribution, in estate of Conrad Brown, deceased.</p> <p>Exceptions to decree of distribution in partition proceedings. Before McCormick, P. J., specially presiding.</p> <p>Tbe opinion of tbe Supreme Court states tbe facts.</p> <p>Tbe court dismissed tbe exceptions. D. A. Sawdey et al., exceptants, appealed.</p> <p>Error assigned, among others, was decree, quoting it.</p>

Appeal, No. 191, Jan. T., 1921, by plaintiff, from order of C. P. No. 1, Phila.

<p>Waters—Navigable rivers—Susquehanna River—Grant—High- and low-water mark—Riparian owners — Remedy-at-law — Misuse of franchise—Act of June 19, 1871, P. L\ 1860.</p> <p>1. The Susquehanna River is a navigable stream and therefore a public highway, and a grant of land along such river extends to ordinary low-water mark.</p> <p>2. Between high- and low-water mark, the grantee takes the land subject to the rights of the public, and he may use it for Such purposes as do not interfere with the free flow and navigation of the waters.</p> <p>3. The Commonwealth may, by proper legislation, grant to others its right to use the bed of the stream, and may provide in such grant that the riparian rights incident to ownership of land along a navigable river shall be subjected to public uses.</p> <p>4. Such riparian rights do not rise any higher than similar ones along a nonnavigable river.</p> <p>5. Where a boom company acquired title by eminent domain to a riparian owner’s rights to land between low-water mark and “nine feet in perpendicular height above low-water mark” and has flooded such owner’s land through a long period of time, without protest or objection, it will be presumed that due compensation was made by the boom company for the exercise of such easement.</p> <p>6. The condemnor has the free and exclusive enjoyment and use of the land taken for a public purpose as though the surface and go much beneath as may be necessary for support was owned in fee (a base or conditional fee), terminable on the cesser of the use for condemnation purposes.</p> <p>7. In such case, while the boom company did not acquire title to the water, it did enjoy a certain use of it, and while it remained in the company’s dam, its use as to adjoining owners wag exclusive.</p> <p>8. If a riparian owner has suffered damage he has an adequate remedy at law.</p> <p>9. If the boom company is misusing its corporate franchise, the matter may be inquired into by the State, but not by a bill in equity under the Act of June 19, 1871, P. L. 1360, at the instance of a private person.</p> <p>10. An upper riparian owner has the right to the use of the water of the stream for any legal purpose, but he must return it to its channel without contamination or substantial diminution.</p>

Appeal, No. 185, Jan. T., 1921, by defendant, from judgment of C. P. Schuylkill Co., March T., 1919, No. 210, on verdict for plaintiff, in case of Chris Wenzel to use of W. B. Shugars v. Bridget Brennan, executrix of David J. Brennan, deceased. Assumpsit for money claimed to be due under the terms of a lease. Before Berger, J. The opinion of the Supreme Court states the facts. Verdict and judgment for plaintiff for $1,895.50. Defendant appealed.

<p>Appeal, No. 309, Jan. T., 1921, by defendants, from judgment of C. P. Lackawanna Co., Noy. T., 1920, No. 257, for plaintiff on case-stated, in suit of Cassie Benedict v. Ludlow Hawthorne et al.</p> <p>Case-stated to determine marketability of real estate. Before Maxey, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court entered judgment for -plaintiff on the case-stated. Defendants appealed.</p> <p>Error assigned was judgment, quoting it.</p>

Appeal, No. 48, Oct. T., 1921, by defendants, from judgment of C. P. Westmoreland Co., Aug. T., 1920, No. 329, on verdict for plaintiffs, in case of M. Brighenti and E. L. Hibbs, assignee of C. Ward Eicher, who was assignee of Barclay-Westmoreland Trust Co., which was assignee of C. Ward Eicher v. George H. Steiner, executor of estate of Prudence McMahan, deceased, and Olive A. Steiner, devisee of said Prudence McMahan. Scire facias sur mortgage.

<p>Appeal, No. 266, Jan. T., 1921, by Augusta G. Matthews, administratrix of estate of Josephine L. B. Gould, deceased, and of Augusta G. Matthews, individually, Josephine G. Gould and Ida Little, claimants, from decree of O. 0. Phila. Co., Oct. T., 1878, No. 20, dismissing exceptions to adjudication, in estate of John Edgar Gould, Sr., 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 Gest, J., dismissed the exceptions. Augusta G. Matthews et al., claimants, appealed.</p> <p>Error assigned, among others, was decree.</p>

<p>Appeal, No. 275, Jan. T., 1921, by defendant, from judgment of C. P. No. 4, Phila. Co., Dec. T., 1919, No. 3031, on verdict for plaintiff, in ease of Andrzej Bulakowski v. Philadelphia Savings Fund Society.</p> <p>Assumpsit to recover the amount of a deposit in a saving fund society. Before Finletter, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Facsimiles of various signatures, mentioned in the opinion of the Supreme Court, are as follows:</p> <p>Signature of plaintiff on opening account:</p> <p> </p> <p>Signatures on disputed receipt:</p> <p> </p> <p> </p> <p>Signature of plaintiff written four days, after disputed receipt:</p> <p> </p> <p>Signature of plaintiff to affidavit to statement of claim:</p> <p> </p> <p>Verdict and judgment for plaintiff for $2,017. Defendant appealed.</p> <p>Error assigned, among others, was refusal of judgment for defendant n. o. v., quoting record.</p>

<p>Appeal, No. 211, Jan. T., 1921, by defendant, from judgment of C. P. No. 2, Phila. Co., March T., 1919, No. 1422, on verdict for defendant, in case of Carl Wolf v. Excelsior Automatic Scale & Supply Co., Incorporated.</p> <p>Assumpsit to recover back moneys paid on stock subscription. Before Barratt, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict and judgment for plaintiff for $5,453. Defendant appealed.</p> <p>Error assigned, among others, was binding instructions for plaintiff, quoting them.</p>

<p>Appeal, No. 308, Jan. T., 1921, by defendant, from judgment of C. P. No. 1, Phila. Co., June T., 1918, No. 1942, on verdict for plaintiff, in case of John C. Hermann v. North Pennsylvania Railroad Co.</p> <p>Appeal by plaintiff from award of jury of view. Before Baldrige, P. J., specially presiding.</p> <p>From the record it appears the jury of view awarded plaintiff $2,300.</p> <p>At the trial defendant made the following offer: Mr. Hopldnson: I offer in evidence the city plan showing the plotting of Hunting Park Avenue, in the vicinity of Fifth and Hunting Park, and showing the property of John C. Hermann, the plaintiff. I also offer to show at the time of the taking, Hunting Park Avenue was plotted across the property.</p> <p>Mr. Frazier: I object to the offer because it is irrelevant and has no effect upon the market value of our property in this proceeding.</p> <p>Objection sustained. Exception (2).</p> <p>Plaintiff presented this point:</p> <p>5. In determining the value before and after, you are to consider the property for the best use to which it could be put unaffected by the plotting through it of any unopened street: South Twelfth Street, 217 Pa. 362.</p> <p>The Court: That point we affirm. The question is as I have said, what was the fair market value of the property before the appropriation and what was the fair market value of the property after the appropriation as affected by the taking? (3)</p> <p>Verdict and judgment for plaintiff for $3,500. Defendant appealed.</p> <p>Errors assigned, among others, were (2) ruling on evidence as above, quoting bill of exception, and (3) above instruction, quoting it.</p>

<p>Appeal, No. 73, Jan. T., 1921, by plaintiff, from order of C. P. Carbon Co., Oct. T., 1919, No. 47, discharging rule for judgment for want of sufficient affidavit of defense in case of William J. Parry v. First National Bank of Lansford.</p> <p>Assumpsit to recover cash, stocks and bonds deposited. Before Barber, P. J.</p> <p>Rule for judgment for want of sufficient affidavit of defense.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court discharged the rule. Plaintiff appealed.</p> <p>Error assigned, inter alia, above order, quoting it.</p>

Appeal, No. 74, Jan. T., 1921, by plaintiffs, from order of C. P. Carbon Co., Oct. T., 1919, No. 45, discharging rule for judgment for want of sufficient affidavit of defense, in case of Aaron Hoffman and Ida Matilda Hoffman v. First National Bank of Lansford.

<p> Husband and wife—Married women—Feme sole trader—Failure to support—Desertion by wife—Act of May 28, 1915, P. L. 689. </p> <p>1. To enable a married woman to be decreed a feme sole trader under the Act of May 28,1915, P. L. 639, the failure of the husband to furnish support must be such as to constitute a breach of duty on his part,</p> <p>2. A wife who deserts her husband and neither offers to return nor calls upon him for support, is not entitled to a decree básed upon an assumption of his default.</p>

<p> Trusts and trustees—Trustee ex maleficio—Assignment of mortgage—Agreement to reassign—Husband and wife—Fraud—Equity ■—Findings of fact—Appeal—Absence of manifest error. </p> <p>1. Where a father assigns a mortgage to his daughter under an express parol agreement to reassign the same to him at any tim® on demand, which she refuses to do, she may be compelled to do so on a bill in equity.</p> <p>2. In such ease, the court cannot refuse relief on the ground that the assignment was for the unlawful purpose of concealing the assignor’s assets from his wife or other creditors, where there is nothing to show that he was indebted to his wife or to any one else or sought to defraud prospective creditors.</p> <p>3. A husband during his life 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 wife.</p> <p>4. Moreover, a widow is entitled to share in trust property of which her husband was the beneficial owner; so the wife was not harmed by such trust.</p> <p>5. A chancellor’s findings of facts based upon sufficient evidence will not be reversed in tbe absence of manifest error.</p>

Appeal, No. 20, Oct. T., 1921, by defendants, from order of C. P. Somerset Co., Dec. T., 1920, No. 43, discharging rule to strike off judgment, in case of Girard Trust Co., substituted trustee under will of Frederick J. Anspach, deceased, v. A. K. Cos-grove et al., trading as Cosgrove & Company. Buie to strike off judgment. Before Berkey, P. J. The opinion of the Supreme Court states the facts. The court discharged the rule. Defendants appealed.

Appeal, No. 140, Jan. T., 1921, by defendant, from judgment of C. P. No. 1, Phila. Co., March T., 1918, No. 4664, on verdict for plaintiff, in case of Gieuseppina Fleccia v. Edward Atkins. 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 $10,000. Defendant appealed. Error assigned was refusal of defendant’s motion for judgment n. o. v., quoting record.

Appeal, No. 391, Jan. T., 1921, by G. Yon Phul Jones, garnishee, from judgment of C. P. No. 3, Phila. Co., Dec. T., 1919, No. 6379, on verdict for plaintiff, in case of George B. Smith et al. v. Harry O. Keener. Attachment sur judgment. Trial on issues raised by answers to interrogatories. Before Davis, J. The opinion of the Supreme Court states the facts. Yerdict and judgment for plaintiff and against garnishee for $6,050.21. Garnishee appealed.

<p>Appeal, No. 436, Jan. T., 1921, by defendant, from judgment of O. & T., Bradford Co., Sept. T., 1920, No. 1, on verdict of guilty of murder of tbe first degree, in case of Commonwealth v. Floyd Smith.</p> <p>Indictment for murder. Before Maxwell, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict of guilty of murder of the first degree upon which judgment of sentence was passed. Defendant appealed.</p> <p>Errors assigned were various rulings and instructions as set forth in the opinion of the Supreme Court.</p>

Appeal, No. 446, Jan. T., 1921, by defendants, from order of C. P. Payette Co., March T., 1921, No. 713, awarding writ of peremptory mandamus, in case of Commonwealth ex rel. William A. Miller, District Attorney, for use of the State Highway Department of Penna. v. D. Ferd Swaney et al., Supervisors of Georges Township. Petition for writ of peremptory mandamus. Before Reppert, J. The opinion of the Supreme Court states the facts.

<p> Appeals—Assignments of error—Evidence—Nonsuit. </p> <p>1. Where the only assignment of error is the refusal to take off a nonsuit, the appellate court will not review a ruling of the trial court rejecting an offer of evidence, such evidence being in no way shown.</p> <p> Evidence—Opinion of expert—Physicians of different schools. </p> <p>2. It seems that a trial judge cannot be convicted of error in refusing to permit a physician to express an opinion on the propriety of treatment given by a doctor of another school, which the witness confessed he was not qualified to do.</p>