Volume 271 — Pennsylvania State Reports

<p>Will — Gift to wife — Residue—Power to consume — Power to convey in fee.</p> <p>Where a testator gives to his wife all of his estate real and personal, and directs that, upon her death, “the residue thereof shall be divided equally between” his two children, the wife has the power to consume all of the estate, and such power includes the right tó convey the real estate in fee.</p> <p>Hege v. Ickes, 267 Pa. 57, explained.</p>

<p>Appeal, No. 240, Jan. T., 1920, by plaintiff, from judgment of C. P. Lackawanna Co., Jan. T., 1919, No. 829, on pleadings, for defendant, in case of Scranton Axle & Spring Co. to use of S. S. Spruks et al. v. Scranton Board of Trade.</p> <p>Assumpsit on agreement of defendant to purchase stock from plaintiff.</p> <p>Defendant filed an affidavit of defense raising questions of law.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Judgment for defendant. Plaintiff appealed.</p> <p>Error assigned¡, inter alia, was judgment, quoting it.</p>

<p>Liquor laws — Constitution of United States — Eighteenth amendment — Volstead Act of Congress of Oct. 28,1919, and Penna. Statute of Mag 18, 1887, P. L. 108 — Statutes—Amendment of state laws — Police power.</p> <p>1. The 18th Amendment to the Constitution of the United States and the Act of Congress of Oct. 28, 1919, do not annul the Pennsylvania Act of May 13, 1887, P. L. 108, popularly known as the Brooks Law, entitled “An act to restrain and regulate the sale of vinous and spirituous, malt or brewed liquors, or any admixtures thereof.”</p> <p>2. The Brooks Law of 1887, survives as Pennsylvania’s own police power method of officially listing and adequately controlling the customary sources of general supply and distribution, to the peoples within her borders, of those kinds of liquors among which intoxicating beverages are usually found, and she may thus assist in prohibiting their illegal use as such.</p> <p>3. The Statute, although not intended for that specific purpose, is adapted to serve as an instrument with which to perform, at least in part, Pennsylvania’s right and obligation to enforce, “by appropriate legislation,” the 18th Amendment.</p>

<p>Insurance — Life insurance — Release—Evidence — Setting aside release.</p> <p>1. Where, in an action on a life insurance policy, plaintiff endeavors to set aside a written release, she can do so only by evidence which is clear, precise and indubitable, and by witnesses who are credible, who distinctly remember the facts to which they testify, and narrate the details exactly.</p> <p>Ralston v. Philadelphia R. T. Co., 267 Pa. 257, followed.</p>

<p>Appeal, No. 453, Jan. T., 1921, by plaintiff, from judgment of Superior Court, Oct. T., 1920, No. 130, affirming order of Public Service Commission, in case of New Street Bridge Company v. Public Service Commission of the Commonwealth of Pennsylvania and Lehigh Yalley Transit Co.</p> <p>Appeal from judgment of Superior Court. See 76 Pa. Superior Ct. 6.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The Superior Court affirmed the order of the Public Service Commission. Complainant appealed.</p> <p>Error assigned, inter alia, was judgment, quoting it.</p>

<p>Appeal, No. 315, Jan. T., 1921, by the City of Philadelphia, from judgment of Superior Court, Oct. T., 1920, No. 273, reversing order of Public Service Commission, Complaint Docket No. 3026, in case of Citizens Passenger Railway Co. et al. v. Public Service Commission et al., and the City of Philadelphia intervening.</p> <p>Appeal from the Superior Court. See 75 Pa. Superior Ct. 238.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The Superior Court reversed the order of the Public Service Commission. The City of Philadelphia appealed.</p> <p>Error assigned, among others, was the judgment of the Superior Court, quoting it.</p>

<p>Appeal, No. 465, Jan. T., 1921, by Pennsylvania Power & Light Co., from judgment of Superior Court, Oct. T., 1921, No. 16, reversing order of Public Service Commission, dismissing petition for an order to compel continuance of rates, in case of Coplay Cement Mfg. Co. v. Public Service Commission and Pennsylvania Power & Light Co.</p> <p>Appeal from Superior Court: 76 Pa. Superior Ct. 354.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The Superior Court reversed the order of the commission. Pennsylvania Power and Light Co. appealed.</p> <p>Error assigned^, among others, was judgment, quoting it.</p>

<p>Telegraph companies — Negligence — Nonliability when under government control.</p> <p>A telegraph company is not liable to a person injured by reason of the negligence of one of its employees, where the negligent act was committed after the company’s system had been taken over by the federal government under the joint resolution of Congress of July 16, 1918, c. 154, 40 Stat. 904.</p>

Appeal, No. 156, Jan. T., 1921, by Marguerite Eight, from decree of O. C. Northampton Co., refusing issue devisavit vel non, in estate of William E. Doster, deceased. Appeal from register of wills. From the record it appeared that the contestant claimed that decedent, at the time he made his will, was under the insane delusion that contestant was not his daughter. The opinion of the Supreme Court states the facts. The court dismissed the appeal. 17 Northampton Co.. Rep. 255.

<p>Appeal, No. 403, Jan. T., 1921, by plaintiff, from order of O. P. No. 3, Phila. Co., Sept. T., 1919, No. 5737, refusing to take off nonsuit, in ease of Elizabeth Gavin v. Philadelphia Rapid Transit Co.</p> <p>Trespass for death of plaintiff’s husband.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>At the trial the court entered a compulsory nonsuit which it subsequently refused to take off. Plaintiff appealed.</p> <p>Error assigned was refusal to take off nonsuit.</p>

<p>Appeal, No. 59, Oct. T., 1921, by defendant, from judgment of C. P. Beaver Co., June T., 1913, No. 392, on verdict for plaintiff, in case of R. S. Holt, receiver of North Shore Railroad Co. v. Pennsylvania Co., operating the Pittsburgh, Ft. Wayne & Chicago Ry.</p> <p>Appeal from award of viewers.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict and judgment for plaintiff for $9,000. Defendant appealed.</p> <p>Errors assigned were, inter alia, various rulings and instructions, appearing by the opinion of the Supreme Court.</p>

<p>Appeal, No. 166, Jan. T., 1921, by plaintiffs, from decree of C. P. Perry Co., Nov. T., 1919, No. 3, dismissing bill in equity, in case of Jennie R. Barnard et al., heirs of Emma E. Boden, deceased, v. William S. Kell and Minnie D. Kell, his wife.</p> <p>Bill in equity to revoke deed.</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 decree, dismissing exceptions by plaintiff, quoting it.</p>

Appeal, No. 443, Jan. T., 1921, by defendant, from judgment of C. P. Mifflin Co., May T., 1920, No. 61, on verdict for plaintiff, in case of Miles C. Clinger, for himself and for use of Atlantic Refining Co., v. John Barton Payne, Director General of Railroads, agent United States Railroad Administration. Trespass for personal injuries. The opinion of the Supreme Court states the facts. Verdict and judgment for plaintiff for $5,924.56. Defendant appealed.

<p>Mortgage — Payment—Possession of bond and mortgage — Presumption as to payment — Rebuttal—Evidence.</p> <p>On scire facias sur mortgage, where defendant show's he is in possession of and produces the original bond and mortgage, there is a presumption of payment; hut such presumption is one of fact only and not of law, and may be rebutted by evidence showing that the alleged payment was not intended as a discharge of the mortgage debt.</p>

<p>Appeals — Criminal law — Discharge of prisoner by Superior Court.</p> <p>1. An order of the Superior Oourt, discharging, without day, a defendant sentenced by a criminal court, will not prevent the Supreme Oourt from reviewing the order, reversing the discharge and affirming the sentence.</p> <p>Pleading — Demurrer—Criminal lam.</p> <p>2. A demurrer only admits facts properly pleaded, and this necessarily excludes such as are not susceptible of proof, if issue be joined on the plea.</p> <p>Jury — Examination of jurors — Reason for verdict — Public policy.</p> <p>3. Public policy forbids the examination of jurors as to the reasons for their verdict.</p> <p>Criminal law — Former acquittal — Record—Murder—Intention.</p> <p>4. The question of whether a former acquittal was for the same offense depends solely upon the record pleaded, and not on arguments or inferences deduced therefrom.</p> <p>5. An acquittal of a charge of murder is not a defense to another indictment for involuntary manslaughter, even though the evidence is exactly the same in the two cases.</p> <p>6. An acquittal on an indictment for murder does not establish the fact that there was no unlawful killing; it only determines that there was no intent to wound or kill, but not that death did not result from a reckless or careless act of the defendant.</p> <p>Criminal law — Murder—Res adjudicata — Defenses.</p> <p>I. In later suits between the same parties, every fact necessarily found in reaching a prior verdict and judgment, is as conclusively established as the ultimate fact itself; but defenses made in the earlier suit, which were not necessarily found to be true in order to render the verdict and judgment therein, are not established thereby.</p> <p>Criminal law — Murder — Involuntary manslaughter — Record— Former acquittal.</p> <p>8. It is not necessary in order to sustain an indictment for involuntary manslaughter, after an acquittal of a charge of murder, that the record in the murder trial should show defendant was acquitted upon grounds which would render him liable to prosecution for involuntary manslaughter.</p> <p>9. Where a plea of former acquittal has been heard and determined upon the merits, a defendant cannot require it to be again considered by again interposing it in a different form.</p> <p>Appeals — Assignments of error — Excerpts from opinion disposing of motion.</p> <p>10. Excerpts from an opinion disposing of a motion, cannot properly be assigned for error; the judgment upon the motion is the only thing which can be reviewed.</p> <p>Criminal law — Former acquittal — Pleading—Burden of proof — •. Record — Evidence—Failure to ash instructions — Appeals.</p> <p>11. A defendant who pleads former acquittal has the burden of proof of establishing the truth of his plea.</p> <p>12. Where, after a plea of former acquittal has been disposed of on the merits, the defendant pleads it a second time in the same case, but does not require a traverse thereof, does not offer in evidence the record of the previous trial which it is alleged sustains the plea, does not refer to the plea during the present trial, and when asked at the close of the charge if he desires any further instructions, fails to call attention to the fact that nothing has been said or done on this point, the judgment below will not be reversed because the plea was not formally disposed of.</p> <p>Appeals — Assignments of error — Criminal law — Sentence.</p> <p>13. A specification of error to a sentence imposed, will be dismissed if the case was one then ripe for judgment and the sentence itself is in conformity with the law.</p>

Appeal, No. 433, Jan. T., 1921, by defendant, from judgment of C. P. No. 1, Phila.. Co., March T., 1918, No. 2854, on verdict for plaintiff, in case of Union National Bank v. Farmers & Mechanics National Bank. Assumpsit against a collecting bank to recover the amount of twelve checks aggregating $1,595.62. The opinion of the Supreme Court states the facts. Verdict and judgment for plaintiff for $1,872.45. Defendant appealed.

Appeal, No. 389, Jan. T., 1921, by defendant, from judgment of C. P. Centre Co., Sept. T., 1918, No. 19, on verdict for plaintiff, in case of S. B. Stone v. Pennsylvania Railroad Co. Trespass for destruction of property. The opinion of the Supreme Court states the facts. Verdict and judgment for plaintiff for $116,038.23. Defendant appealed. Error assigned is stated in the opinion of the Supreme Court.

<p>Trusts and trustees — Land held to secure debt — Resulting trust— Fraaid — Evidence—Defeasance—Option to purchase — Time essence of option — Laches—Acts of April 22, 1856, and June 8, 1881.</p> <p>1. Where a creditor takes title to the land of his debtor, pays all the debts of the latter, and agrees, in a writing executed in 1908, but not acknowledged or recorded, to reeonvey the land upon payment of his advances, debts, costs and interest, and the debtor dies without having redeemed the land, the widow of the latter, with full knowledge of the facts, cannot, ten years after her husband’s death, compel a reconveyance. She is barred by her own laches and by the Act of April 22, 1856, P. L. 533.</p> <p>2. If the agreement be treated as a defeasance to the deed, it was void under the Act of June 8,1881, P. L. 84, and is not affected by the Act of April 23, 1909, P. L. 137.</p> <p>3. If the agreement should be treated ás an option to repurchase, it expired by its own limitations, and, besides, was not accepted; time is the essence of an option.</p> <p>4. In such ease, if the grantee, on a bill against him for reconveyance, offers in his answer a recovery on reimbursement, but denies all the averments of the bill, and his own liability, and the offer is not accepted and the chancellor finds the facts in his favor, a decree, dismissing the bill, will be sustained.</p>

<p>Appeal, No. 47, Jan. T., 1921, by defendant, from judgment of C. P. Crawford Co., Sept. T., 1918, No. 37, on verdict for plaintiff, in case of Alfred J. Carmont v. Erie Railroad Co.</p> <p>Trespass for personal injuries.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict and judgment for plaintiff for $8,500. Defendant appealed.</p> <p>Error assigned, among others, was refusal of judgment n. o. v. for defendant, quoting record.</p>

<p>Landlord and tenant — Duty to. repair — Negligence—Fall of porch —Evidence insufficient to show negligence — Nonsuit.</p> <p>1. A landlord is not liable to make repairs in the absence of express agreement to do so.</p> <p>2. In an action by a tenant against a landlord to recover damages for personal injuries sustained by the fall of a porch, a non-suit is properly entered where plaintiff claims the injuries were caused by the negligence of defendant in making certain changes in the building, but the proof fails to show the changes were in any way connected with either the weakening of the floor, or in hastening the process of decay during a tenancy of thirteen years.</p>

<p>Wills — Election by husband to talce against will — Wilful and malicious desertion — Presumption from court record — Nonsupport —Husband and wife — Act of June 7,1917, P. L. J¡-29.</p> <p>1. Mere separation by mutual agreement or consent is not desertion.</p> <p>2. The record of the quarter sessions in a proceeding for nongupport and desertion, although persuasive evidence in a collateral proceeding to show desertion, is not conclusive thereof.</p> <p>3. While the fact of desertion without cause or consent will be presumed to be wilful and malicious, within the meaning of the Act of June 7, 1917, P. L. 429, excluding husbands from participation in their wives’ estates for nonsupport and desertion, such is not the case where there is sufficient evidence to justify a finding that the separation was with the consent of the wife and practically at her instance.</p> <p>Evidence — Witness — Party dead.— Husband and wife — Acts of May 28,1887, P. L. 158, and June 11,1891, P. L. 287.</p> <p>4. Where a husband claims an interest in his wife’s estate, and a daughter opposes the claim, alleging desertion by the husband, it is error, under the Acts of May 23, 1887, P. L. 158, and June 11, 1891, P. L. 287, to permit the husband to testify to matters occurring between him and his wife and not in the presence of the daughter, nor within the scope of her testimony.</p>

<p>Taxation — Insurance companies — Life insurance — Loans to policyholders — Collateral notes — Acts of June 17, 191$, and June 1,1911.</p> <p>1. Where money is paid over by a life insurance company to policyholders, and the company receives in each case a promissory note of the policyholder, payable on demand, together with an assignment of the policy as collateral, hut without any stipulation against personal liability on the part of the borrower, the transactions will be considered a loan, and taxable under the Act of June 17, 1913, P. L. 507.</p> <p>2. In such case, the fact that the company’s uniform practice is to deduct the loans, when not paid, from the policies, does not deprive it of the right to bring suit upon the note; nor is the opinion of the officers of the company that, as matter of law, the borrowers incurred no personal liability, important.'</p> <p>3. In such ease, the Act of June 1, 1911, P. L. 581, 593, cl. 8, pec. 25, providing, under certain conditions, for advancement of money to policyholders on the sole security of the policies, does not apply.</p>

<p>Vendor and vendee — Contract—Time as essence of contract — Improper rescission — Vendor holding subsequently acquired title for vendee.</p> <p>1. Where a vendee of land under a contract of which time is the essence, presents himself at the appointed time and place of settlement, waits for an hour and a half for the vendor to appear, and then departs, leaving his telephone number for the vendor to call him, and the vendor appears three hours after the appointed time, the latter cannot, without further communication with the vendee, elect to cancel the contract.</p> <p>2. In such case where the vendor, who was acting as agent for his sister, the real owner of the property, but without written authority from her, takes title from her six months after the appointed time of settlement, specific performance will be decreed against him (although the contract was not enforceable against his sister under the statute of frauds), in analogy to the rule that a vendor who undertakes to sell for a valuable consideration, but cannot make title, will in equity be considered as holding for the benefit of his vendee any subsequent title purchased by him.</p>

<p>Appeal, No. 126, Jan. T., 1921, by defendant, from judgment of C. P. No. 3, Phila. Co., June T., 1917, No. 2576, on verdict for plaintiff, in case of John W. Harper v. William E. Lukens.</p> <p>Assumpsit on promissory note.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict and judgment for plaintiff for $11,688.93. Defendant appealed.</p> <p>Error assigned, among others, was refusal of defendant’s motion for judgment n. o. v., quoting record.</p>

<p>'Deed — Reservation of timber and. baric — Reservation of coal and minerals — Right to enter and remove — Expiration of time.</p> <p>1. Where the grantor of land reserves the merchantable timber and bark, and coal and other minerals upon or in the land, with the right to enter upon the land within a specified period and remove the timber, bark, coal and other minerals, and he does not enter and remove the timber and bark within the term, they pass to the owner of the soil.</p> <p>2. So far as the minerals are concerned a different rule applies, as they are an absolute excepted estate and do not pass by the grant.</p> <p>3. The grantor remained owner of the coal and minerals after the specific period terminated, and could remove them thereafter by any means or system which did not require passage over the surface.</p> <p>Greek v. Wylie, 266 Pa. 18, distinguished.</p>

<p>Trusts and trustees — Resulting trust — Purchase of land — Payment of purchase money — Parol agreement — Evidence—Fraud— Equity — Pleadings.</p> <p>1. Where legal title is made to the parties who paid the consideration, no trust from such payment results to a corporation subsequently organized by them, and to which possession is given for business purposes.</p> <p>2. A trust may arise where the one taking title temporarily advances money for the beneficiary to make the purchase, but such an advance must be made under an agreement for repayment.</p> <p>3. Where two persons purchase real estate, and pay the purchase price, and take the legal title in themselves, no constructive trust, or one ex maleficio, arises in favor of a corporation thereafter organized by such persons, where everything is done openly and without fraud.</p> <p>4. In Such case, no trust can be established on the theory that the corporation made a parol purchase of the property, took possession, and paid for the same.</p> <p>5. A breach of such subsequent parol agreement to convey to the corporation will not warrant a conclusion of fraud.</p> <p>6. The evidence to establish' a trust in land by fraud, must be clear, explicit and unequivocal.</p> <p>7. In equity relief must be based upon the pleadings as well as upon the proof.</p>

<p>Wills — Power of appointment — After-born child — Implied revocation — Intestacy—Presumption—Act of June 4, 1879, P. L. 88.</p> <p>1. The birth of a child after the date of a will, which would otherwise operate as the exercise of a power of appointment, annuls such operation as far as the interest of the child is concerned.</p> <p>2. Where a parent, who has a power of appointment, makes a will in which he exercises the power, and a child is thereafter born to him, the courts must look to the instrument, creating the power of appointment, in order to ascertain the interest of such child.</p> <p>3. Where a father gives a power of appointment by will to his son, and directs that if the son dies intestate, the fund from which he derives income shall go to the latter’s children, and the son makes a will exercising the power of appointment, and thereafter a son is born to him who is his only child, such child upon his father’s death takes the entire fund under his grandfather’s will. Huddy’s Est., 236 Pa. 276, distinguished.</p> <p>4. The Act of June 4, 1879, P. L. 88, which creates a presumption of intention to exercise a power of testamentary appointment, does not change the statutory doctrine of implied revocation, arising from an after-born and unprovided-for child.</p>

<p>Wills — Power of appointment — Per. stirpes — W'ords and phrases.</p> <p>1. When issue are said to take “per stirpes,” it is meant that the descendants of a deceased person take the property to which he was entitled or would have been entitled if living.</p> <p>2. Where a testator gives to his three children a power of appointment by will over the portion of his estate from which each child received income and directs that, in default of appointment, such portion should go to “such of my grandchildren who shall then [at the death of the child] be alive, absolutely and per stirpes,” the grandchildren do not take generally on the death of one of the three children, but the children of the deceased child take the portion of testator’s estate from which their parent derived income.</p> <p>3. The fact that one of the children of testator was a daughter and single, and that she might die without issue and without exercising the power, thus producing an intestacy,, does not affect the construction of the will as stated..</p>

Appeal, No. 439, March T., 1921, by plaintiff, from decree of C. P. No. 3, Phila. Co., March T., 1920, No. 2968, dismissing bill in equity, in case of David Medoff v. Mary J. S. Vandersaal. Bill in equity for specific performance. The opinion of the Supreme Court states the facts. The court dismissed the bill. Plaintiff appealed. Error assigned, among others, was decree, quoting it.

<p>Negligence — Joint actio.n — Parties—Objection to joinder — Statutory demurrer — Practice, O. P. — Appeals.</p> <p>1. Where there has been an alleged improper joinder of action, objection must be made in the court below by statutory demurrer. If this is not done, objection to the defect cannot be considered on appeal.</p> <p>2. It seems that where two children are killed in a common accident, their parents may bring a joint action for their deaths.</p> <p>Negligence — Railroads — Automobile — Grade crossing —• "Stop, loolc and listen” — Presumption—Death—Case for jury.</p> <p>3. Though it is incumbent upon the driver to stop at a proper place, and, even when he has done so, to continue to be careful as he proceeds, yet where he has made due observation at the usual point, from which a view of the tracks may be had, it is usually for the jury to say whether he was under the duty to again halt before entering upon the crossing.</p> <p>4. Where an experienced driver of an automobile stops, looks and listens at a point twenty feet from railroad tracks, which is the usual point for vehicles to stop, and from which he has a view of the tracks for 500 feet and proceeds, and is killed by a passing train, he cannot be charged with contributory negligence as a matter of law.</p> <p>5. In such case, on a motion for judgment for defendant n. o. v., the court cannot assume from conflicting testimony that there was an obstruction which interfered with the deceased’s vision, when he looked.</p> <p>6. Nor is it necessary in such case to rest the decision on the presumption that the driver who was killed stopped at the right place, and continued to perform his duty as to observance of approaching trains.</p> <p>Negligence — Joinder of action — Killing of two children — Appeals —Setting aside verdict — New trial — Nominal damages at least.</p> <p>7. Where a joint action is brought by parents for the killing of a son and daughter, and a verdict for plaintiffs is limited to the loss of the son, and not for the loss of the girl, because of no proof of pecuniary injury as to her, and subsequently judgment is entered for defendant n. o. v. on the ground of the contributory negligence of the son, the Supreme Court in reversing, will not reverse the judgment on the verdict for the son and direct judgment for plaintiff for tbe amount of -tbe verdict, and reverse with a new venire as to tbe claim for tbe death of tbe girl, but will set aside tbe judgments generally and award a new trial.</p> <p>8. In such case plaintiffs are entitled to nominal damages at least for tbe death of their children.</p>

<p>Trade-marks — Unfair competition — Deceptive imitation of articles — Fraud—Presumption—Advertisement—Equity—Decree.</p> <p>1. The mere copying of an unpatented article of trade, is a permissible act, in the absence of any representation that the product offered was that of another, unless there is a breach of trust or contract.</p> <p>2. But where |ueh goods are cast into a distinctive form, unnecessary and deceptive imitation of size, shape and structure of the article itself, will be enjoined as unfair competition.</p> <p>3. The goodwill of a manufacturer is not to be destroyed through needless simulation by others, if the exercise of a reasonable precaution to protect it will impose no substantial restriction on the right of another to make and sell.</p> <p>4. If the effect of copying or imitating the size, shape and structure of an article, is to mislead, a fraudulent intent is inferred, and proof of actual deception is not necessary to the granting of relief.</p> <p>5. A demand for goods created by advertising belongs to the advertiser.</p> <p>6. A decree restraining the sale of articles imitating the product of the plaintiff and directing an accounting of profits, should be limited to plaintiff’s designs and the profits derived therefrom.</p> <p>1. A decree permanently enjoining the sale of such articles and requiring delivery of impressions or reproductions of them and the delivery of lists of names and addresses of plaintiffs customers, and others to whom catalogues were sent, should be limited to imitations and reproductions of plaintiffs’ designs only, and to the names and addresses of which a record was kept or which could be recalled.</p>

<p>Appeals, Nos. 184 and 187, J an. T., 1921, by defendants, from order of C. P. Northumberland Co., May T., 1920, No. 333, awarding writ of per- . emptory mandamus, in case of Clarence A. Summers v. Oswald Kramer, Controller, and David Hughes et ah, Commissioners of Northumberland County.</p> <p>Petition for writ of mandamus.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court sustained a demurrer to the return, and awarded the writ. Defendants appealed.</p> <p>Error assigned, among others, was order, quoting it.</p>

Appeal, No. 259, Jan. T., 1921, by defendant, from judgment of C. P. Northumberland Co., Dec. T., 1919, No. 112, on verdict' for plaintiff, in case of Marietta Feudale v. Walker D. Hines, Director General of Railroads, operating the Pennsylvania R. R. Trespass for death of plaintiff’s husband. The opinion of the Supreme Court states the facts. Yerdict and judgment for plaintiff for $25,500. Defendant appealed.

<p>Appeals, Nos. 434 and 435, Jan. T., 1921, by defendant, from judgment of C. P. No. 2, Phila. Co., Dec. T., 1920, No. 1297, by default for failure to serve copy of affidavit of defense, in case of Carmine Spinelli and Maria Anna Spinelli, his wife, v. Unity A. Costello, Administratrix c. t. a. of Thomas J. Costello, deceased, and Unity A. Costello, surviving spouse and-sole devisee under will of Thomas J. Costello, deceased.</p> <p>Assumpsit for money had and received.</p> <p>The opinion of the Supreme Court states the case.</p> <p>The court entered judgment for plaintiff by default for failure to serve copy of affidavit of defense. Defendant appealed.</p> <p>Error assigned, among others, was judgment, quoting it.</p>

<p>Appeal, No. 413, Jan. T., 1921, by plaintiff, from judgment of C. P. No. 3, Phila. Co., June T., 1918, No. 5564, on verdict for defendant, in case of Turner Concrete Steel Co. v. Chester Construction & Contracting Co.</p> <p>Assumpsit to recover a balance alleged to be due on a construction contract.</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, and (40)' entry of judgment on verdict.</p>

<p>Ejectment — Evidence—Common source of title — Sheriff’s sale— Relationship — Ouster—Adverse possession — Notice — Presumption —Assessment boohs — Tax receipts — Affidavit of defense — Sci. fa. sur mortgage.</p> <p>1. In ejectment it is not necessary to show title back of the common source.</p> <p>2. When the sheriff sells land of a defendant in a judgment, who is in possession, defendant cannot make a defense against the purchaser, as the latter acquires a right to defendant’s possession at least, which will support ejectment against him.</p> <p>3. A judicial sale of real estate made by the sheriff may be considered a sale. by operation of law, and at least as binding and conclusive upon defendant in the execution, as if he had made it himself in person or by his attorney, duly authorized.</p> <p>4. Where defendant in the execution continues in possession after the sheriff’s sale in subordination to the title of the sheriff’s vendee, the presumption is that the possession so continues, and proof sufficient to overcome the presumption must show that the holder of the record title had express notice that the party in possession was claiming adversely.</p> <p>5. If, in such ease, acts or declarations are relied upon to show adverse possession, they must be equivalent to an actual ouster.</p> <p>6. Where, on a scire facias to foreclose a mortgage, an affidavit of defense is filed, such affidavit cannot be set up as the inception of an adverse possession by the defendant in the execution as against the purchaser at the sheriff’s sale following a judgment in the proceeding ; and this is especially the case, where the affidavit set up nothing by way of title, and the purchaser is a brother-in-law óf the defendant, and the former never made any objection to the defendant remaining in possession, although the record title was in himself.</p> <p>7. Under such circumstances, it would take strong proof of a hostile holding to start the inception of a title by adverse possession.</p> <p>8. While assessment books and tax receipts are not proof of title, yet they are evidence of claim of title, and the extent thereof, and may be the basis of inference that the property was owned by the person in whose name it was assessed.</p> <p>Appeals — Assignments of error — Rules of court.</p> <p>9. Assignments of error which do not comply with the rules of court will not be considered.</p>

<p>Appeal, No. 464, Jan. T., 1921, by defendant, from decree of C. P. Fayette Co., No. 963, in equity, for injunction, in case of Walker D. Hines, Director General of Railroads, operating the Connellsville & Monongahela Railway Co., and the Monongahela Railway Co., v. Union Connellsville Coke Co.</p> <p>Bill in equity for injunction.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court awarded an injunction. Defendant appealed.</p> <p>Error assigned, among others, was decree, quoting it.</p>

<p>Contract — Written contract — Parol evidence — Fraud, etc.-— ■ Promise inducing signature — Pleadings — Single witness — Mortgage — Agreement as to no personal liability.</p> <p>Where a mortgage is given in part payment of corporate stock under a written agreement which provided that “recourse on the bond with mortgage was to be had against the mortgaged premises only,” personal liability cannot be enforced against the purchaser, by the evidence of one witness only, that the purchaser had promised, in direct contradiction of the writing, to pay the mortgage, and that on the faith of the promise the mortgagor was induced to sign the mortgage, in the absence of an allegation in the pleadings or proof that the oral promise was omitted from the mortgage by fraud, accident or mistake, or that the promise was made to induce its execution.</p>

Appeals, Nos. 286-291, Jan. T., 1921, by Albert Thompson, from orders of C. P. Schuylkill Co., May T., 1919, Nos. 388, 390-394, sustaining exceptions to findings of fact of reviewing judge, in re Petition of Albert Thompson for appeal from Triennial Assessment of Taxes for the year 1919. Appeals from triennial tax assessments of lands. The opinion of the Supreme Court states the facts.

<p>Appeal, No. 103, Jan. T., 1921, by defendant, from judgment of C. P. No. 4, Phila. Co., June T., 1919, No. 456, on verdict for plaintiff, in case of John A. Hill v. Philadelphia Rapid Transit Co.</p> <p>Trespass for personal injuries.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict and judgment for plaintiff for $4,033. Defendant appealed.</p> <p>Error assigned was, inter alia, refusal of defendant’s motion for judgment n. o. v., quoting the record.</p>

Appeal, No. 283, Jan. T., 1921, by defendant, from decree of C. P. Lehigh Co., April T., 1918, No. 2, on bill in equity, in case of Fogelsville & Trexlertown Electric Co. v. Pennsylvania Power & Light Co. Bill in equity for injunction. The opinion of the Supreme Court states the facts. The court entered a decree for complainant. Defendant appealed. Error assigned, inter alia, was decree, quoting it.

Appeal, No. 298, Jan. T., 1921, by defendant, from judgment of C. P. No. 3, Phila. Co., June T., 1919, No. 306, on verdict for plaintiff, in case of George H. Taber v. Porter-Gildersleeve Go., Inc. Assumpsit for breach of contract. The opinion of the Supreme Court states the case. At the trial it appeared the contract was dated November 30, 1915, and was to be completed by May 30, 1918.

Appeal, No. 106, Jan. T., 1921, by defendant, from order of C. P. Blair Co., Oct. T., 1915, No. 216, discharging rule to open judgment, in case of John O’Connor to use of Mary O’Connor et al. v. E. H. Flick. Buie to open judgment. The opinion of the Supreme Court states the facts. The court discharged the rule. Defendant appealed. Error assigned was order, quoting it.

Appeal, No. 179, Jan. T., 1921, by defendants, from order of C. P. Centre Co., May T., 1915, No. 187, entering judgment for plaintiffs n. o. y., in case of George Lewis et al. v. Mollie Merry-man, devisee, and J. T. Merryman, Executor of Benjamin Crain, deceased. Ejectment. Tfie opinion of the Supreme Court states the facts. Verdict for defendants. Subsequently the court entered judgment for plaintiffs n. o. v. Defendants appealed.

Appeal, No. 405, Jan. T., 1921, by plaintiffs, from judgment of C. P. Blair Co., March T., 1920, No. 220, on verdict for defendants on pleadings, in case of Alfred Shaw et al., executors of Edmund Shaw, deceased, v. Wm. E: Cornman et ux. Ejectment. The opinion of the Supreme Court states the facts. The plaintiff moved for judgment on the pleadings. The court entered judgment for defendants. Plaintiffs appealed. Error assigned, among others, was judgment, quoting it.

Appeal, No. 425, J an. T., 1921, by the United States Fidelity & Guaranty Co., insurance carrier, from order of C. P. Clearfield Co., Sept. T., 1920, No. 212, sustaining appeal from decision of Workmen’s Compensation Board, which sustained appeal from award of referee, in case of J. W. Chase v. Emery Manufacturing Co. and the United States Fidelity & Guaranty Co. Appeal by claimant from decision of Workmen’s Compensation Board. Exceptions to decision.

Appeal, No. 24, Jan. T., 1921, by defendant, from judgment of C. P. Luzerne Co., Nov. T., 1915, No. 759, on verdict for plaintiff, in case of Fur-man Marshall v. Frank L. Carr. Ejectment. The opinion of the Supreme Court states the facts. Verdict and judgment for plaintiff. Defendant appealed. Errors assigned were various rulings and instructions, as stated in the opinion of the Supreme Court, quoting the bills of exceptions.

Appeal, No. 79, Jan. T., 1921, by defendant, from decree of C. P. York Co., April T., 1916, No. 1, on bill in equity, in case of Daniel F. Lafean and Stuart B. Lafean v. American Caramel Co., and C. R. Weedan et al. Bill in equity for injunction, specific performance, account, discovery, etc. ■ Tbe opinion of tbe Supreme Court states the facts. The court entered a decree for complainants. The American Caramel Co., defendant, appealed.

Appeal, No. 396, Jan. T., 1921, by defendant, from judgment of C. P. Lackawanna Co., Aug. T., 1920, No. 46, for plaintiffs, on case tried by the court without a jury in case of George W. Hoover et al., executors of Joseph Hoover, deceased, v. Fred D. Pontz.' Assumpsit for purchase money of real estate. The case was tried by agreement of counsel without a jury under the Act of April 22,1874, P. L. 109. The opinion of the Supreme Court states the facts.

Appeal, No. 128, Jan. T., 1921, by defendant, from judgment of C. P. No. 2, Phila. Co., Dec. T., 1918, No. 2882, on verdict for plaintiff in case of Bernard J. Murtagh v. Walker D. Hines, Director General of Railroads. Trespass to recover damages for personal injuries. The opinion of the Supreme Court states the facts. Verdict and judgment for plaintiff for $5,000. Defendant appealed. Error assigned, inter alia, was refusal of judgment n. o. v., quoting record.

Appeal, No. 34, Jan. T., 1921, by defendant, from judgment of C. P. Luzerne Co., June T., 1915, No. 691, on verdict for plaintiff, in case of Martin J. Healey v. C. C. Bowman. Assumpsit for coal sold and delivered. The opinion of the Supreme Court states the facts. .Verdict for plaintiff for $13,019.54. Defendant moved for judgment for defendant n. o. v. Judgment for plaintiff. Defendant appealed.

<p>Deeds — Covenants—Building restrictions — Strict construction— Not extended by implication — Porches—Findings of chancellor— Review.</p> <p>1. While the findings of a chancellor as to whether a building restriction in a deed has been violated, is entitled to great weight, it is still the duty of the appellate court to determine whether the result reached was based on a proper understanding of the facts proven, and a correct application of the legal principles.</p> <p>2. Restraining covenants in a deed are strictly construed against the person seeking to enforce them, and all doubts resolved in favor of natural rights and the privilege of the owner to exercise untrammelled control of his own land.</p> <p>3. Such covenants are not to be extended by implication, where the provisions are clear and unambiguous.</p> <p>4. Where a deed for one of a row of houses 'of similar construction, provides that no building nor porch in front of the lot conveyed shall extend beyond a line specified, and at the time of the conveyance there was a one-story porch in front of the building within the line specified and open in front and on each side, the owner may erect a new porch of similar character, and extending to the roof, and he cannot be enjoined from doing so because the new porch might affect the light, air and prospect of adjoining houses, and affect the uniformity of the row, if the deed does not provide to the contrary.</p> <p>5. If at any time an effort should be made, by enclosure, to convert the proposed porches into rooms, or to make other alterations to justify the conclusion that the building line has been, in effect, moved to a point within the prohibited distance, relief can be obtained by appropriate proceedings.</p>

Appeal, No. 158, Jan. T., 1921, by plaintiffs, from order of C. P. York Co., Aug. T., 1919, No. 186, refusing to take off nonsuit, in case of Jeremiah King and Elwood J. King, a minor, by his father and next friend, Jeremiah King, v. Robert N. Brillhart. Trespass for personal injuries. 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.

<p>Appeal, No. 23, Jan. T., 1922, by defendant, from judgment of Superior Court, Oct. T., 1920, No. 276, reversing judgment of C. P. Schuylkill Co., May T., 1921, No. 121, discharging rule for alternative writ of mandamus, in case of Edward J. Maginnis v. John E. Schlottman, County Controller.</p> <p>Appeal from Superior Court. See 76 Pa. Superior Ct. 124.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The Superior Court reversed the common pleas (the decision of the latter being found in 49 Pa. C. C. R. 355; 16 Schuylkill L. Rec. 340, and 36 Montgomery Co. L. R. 305). Defendant appealed.</p> <p>Error assigned, inter alia, was judgment, quoting it.</p>

<p>Bond — Suit on — Defenses—Distribution—Practice, C. P. — Principal and surety — Payment into court.</p> <p>1. In a suit upon a bond, defendant cannot defeat the obligee’s right to judgment for the full amount thereof, by alleging that, even if the whole sum is due, other parties may be interested in its distribution.</p> <p>2. In such cases, the obligor’s remedy is by petition for leave to pay the amount into court, for distribution among those entitled thereto.</p> <p>Affidavit of defense — Practice, G. P. — General allegations.</p> <p>3. General allegations in an affidavit of defense will not avail to defeat a summary judgment.</p> <p>Contract — Performance — Unforeseen contingencies — Impossibility of performance — Affidavit of defense — Averments.</p> <p>4. Contingencies not provided against in a written contract usually will not excuse performance thereof.</p> <p>5. The fact that a contract has become more difficult and expensive of performance than was anticipated at the time it was executed, is no defense to a suit for the breach thereof.</p> <p>6. If it is intended to assert the contract subsequently became impossible of performance, this should be distinctly set forth, with reference to the particular facts relied upon to show it; an assertion thereof, without a clear and detailed averment of such facts, will be ineffective.</p>

<p>Bond — Suit on — Defenses—Distribution—Payment into court— Practice, C. P. — Principal and surety.</p> <p>1. In a suit upon a bond, defendant cannot defeat the obligee’s right to judgment for the full amount thereof, by alleging that, even if the whole sum is due, other parties may be interested in its distribution.</p> <p>2. In such cases, the obligor’s remedy is by petition for leave to pay the amount into court, for distribution among those entitled thereto.</p> <p>Affidavit of defense — Practice, O. P. — General allegations.</p> <p>3. General allegations in an affidavit of defense will not avail to defeat a summary judgment.</p> <p>Contract — Performance— Unforeseen contingencies — Impossibility of performance — Boad-maJcing—Affidavit of defense — Averments.</p> <p>4. Contingencies not provided against in a written contract, usually will not excuse performance thereof.</p> <p>5. The fact that a contract has become more difficult and expensive of performance than was anticipated at the time it was executed, is no defense to a suit for the breach thereof.</p> <p>6. If it is intended to assert the contract subsequently became impossible of performance, this should be distinctly set forth, with reference to the particular facts relied upon to show it; an asser- ■ tion thereof, without a clear and detailed averment of such facts, will be ineffective.</p>

Appeal, No. 189, Jan. T., 1921, by plaintiff, from decree of C. P. York Co., April T., 1918, No. 2, dismissing bill in equity, in case of Anson T. Beaver v. Oscar W. Slane. Bill in equity for specific performance. The opinion of the Supreme Court states the facts. The court dismissed the bill. Plaintiff appealed. Errors assigned, among others, were (27) refusal of plaintiff’s request to withdraw, quoting the record, and (28) decree dismissing bill, quoting it.

<p>Appeal, No. 445, Jan. T., 1921, by defendant, owner, from judgment of C. P. Luzerne Co., Jan. T., 1918, No. 218, M. L. D., Jan. T., 1918, No. 171, on verdict for plaintiff, in case of John H. Ott, trading as John H. Ott & Co. v. DuPlan Silk Corporation, owner, and F. W. Mark Construction Co., contractor.</p> <p>Scire facias sur mechanic’s lien.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict and judgment for plaintiff for $11,508.58,. DuPlan Silk Corporation, owner, appealed.</p> <p>Error assigned, among others, was refusal of defend' ant’s motion for judgment n. o. v., quoting record.</p>

Appeal, No. 67, Oct. T., 1921, by defendant, from judgment of Q. S. Allegheny Co., Jan. T., 1919, No. 35, on verdict of guilty of murder of the first degree, in case of Commonwealth v. Anton Weber. Indictment for murder. The opinion of the Supreme Court states the case. Verdict of guilty of murder of first degree upon which judgment of sentence was passed. Defendant appealed. Error assigned was charge, quoting it.

<p>Contract — Parol agreement — Inducement to sign contract — Evidence — Sale—Express warranty — Affidavit of defense.</p> <p>1. All negotiations between parties to a contract are merged in the agreement subsequently entered into in writing, unless there was fraud, accident or mistake, or a contemporaneous parol agreement, which caused the consummation of the bargain.</p> <p>2. In an action for the purchase price of coke, an affidavit of defense is sufficient which sets up a warranty of quality made before completion of the contract, and follows with the declaration, “whereupon, in order to induce defendant to enter into said agreement, plaintiff then and there orally represented and warranted.”</p> <p>3. In a case such as this, where summary judgment has been entered, defendant may be given the benefit of the doubt as to whether the words of reference used related to the prior negotiations or the subsequent agreement.</p> <p>Contract — Sale—Warranty — Expressed or implied warranty — Inspection — Notice—Laches — Acceptance of goods — Affidavit of defense — Act of May 19, 1915.</p> <p>4. Under the Sales Act of May 19, 1915, section 13, paragraph 6, P. L. 543, an allegation of an express warranty does not negative the existence of an implied one, if not inconsistent therewith.</p> <p>5. Where a buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies on the seller’s skill and judgment, whether he be the grower, or manufacturer, or not, there is an implied warranty that the goods shall be reasonably fit for such purpose.</p> <p>6. The right under a warranty, express or implied, survives the actual acceptance of the goods sold, in the absence of other considerations, which, under the Sales Act of May 19, 1915, P, L. 543, may be controlling.</p> <p>7. An inspection, trial of test, to determine whether goods are of the quality warranted, must be made within a reasonable time, and the buyer is guilty of laches, precluding rescission, if he delays making such inspection for an unreasonable time.</p> <p>8. Under the Sales Act the seller must be advised of the defect after the buyer “ought to have known.”</p> <p>9. Where the articles purchased were to be paid for the following month it would seem that inspection should be made by then, and notice given, if unsatisfactory; so also it seems that notice that much of the coke delivered was dirt should be given soon after the unloading; and, query, as to the effect of not giving notice promptly of breach of warranty as to charges for freight when the coke was shipped f. o. b. the mines.</p> <p>10. An affidavit of defense Betting up a breach of warranty of quality should be clear and unambiguous, and designate not only the time when the discovery of the defect in quality was made, but when, and how, notice of the fact was given to the seller.</p> <p>11. An omission from the affidavit of defense cannot be supplied by possible inference from stated facts.</p> <p>12. Whether the duty of notifying the vendor that the goods were unsatisfactory, has been properly performed, is ordinarily a question for the jury, but when the facts are admitted in an affidavit of defense, which must be taken as true, and must be considered as asserting as strongly as possible anything that defendant can say in its favor, the question becomes one of law for the court.</p> <p>Practice,- G. P. — Pleading — Defect in statement — Motion to strike off.</p> <p>13. Where a statement of claim fails to set forth whether one of the contracts, referred to therein, was oral or written, the defect must be taken advantage of on motion to strike off the pleading complained of.</p>

<p>Municipalities — Water rates — Classification of customers — Contract — Statutes—Repeal—Implied repeal — Cities of the third class —Acts of May 28,1889, and June 27,1918.</p> <p>1. Tbe Act of June 27, 1913, P. L. 568, by which a general plan was adopted for the government of cities of the third class, revised the whole subject-matter of the Act of May 23, 1889, P. L. 277, regulating municipal water works, and was intended as a substitute therefor, and repealed the former statute. Even if there had been no express repealing clause, there would have-been an implied repeal of the former statute.</p> <p>2. The provision in the earlier act for an annual adjustment of water rates in March by the board of water commissioners, which, after approval by councils, could not be changed during the water year, was repealed by the later act, by which the board of water commissioners was abolished, and the control of water rates vested in the council.</p> <p>3. Where a city of the third class undertakes of itself to furnish water to its inhabitants, it acts in the same capacity as a private corporation, and its contract relations are to be determined as are those of any water company.</p> <p>4. In such case, it is for the council to designate the rates to be charged, subject to the requirement of reasonableness, unless there is some contract, express or implied, by which the term of service at a fixed sum was determined.</p> <p>5. If the city stipulates to supply a customer under a special agreement for a special term at a fixed price, it will be held to its agreement; but the customer must establish the fact that there was such a contract, express or implied.</p> <p>6. The mere fact that water was furnished under an ordinance and was accepted and paid for monthly at the rate fixed by councils is not sufficient from which to imply an agreement to so furnish from year to year; besides there must be mutuality.</p> <p>7. A city may by ordinance provide that metered customers may pay monthly for the amount which they consume, and that annual customers may pay a fixed sum or a ready-to-serve charge in advance whether they use water or not. This is not improper classification.</p> <p>8. In such case, a metered customer cannot claim that he is entitled to have his water rate continued without increase during the water year specified for the annual customers.</p>

<p>Public service companies — Bates—Confiscation—Due process of law — Constitutional law.</p> <p>1. Due process of law requires that some judicial tribunal, upon its own independent judgment as to both law and facts, shall determine whether or not rates, which the public service commission allows a utility company to charge, are confiscatory.</p> <p>2. Confiscation necessarily results if- a utility company is prevented from receiving a proper return upon its assets devoted to and used for public purposes.</p> <p>Appeals — Superior Court — Public service companies — Bates Act —Principle of appeals in equity.</p> <p>3. On an appeal from an order of the Public Service Commission, the Superior Court is the judicial tribunal, charged by the Public Service Company Law with determining, in the first instance, the reasonableness of the rates allowed.</p> <p>4. From the determination of tbe Superior Court in such eases, the Supreme Court, on appeal thereto, acts solely as an appellate court, and considers only alleged errors of law appearing of record and assigned as error, exactly as in other cases of appeal thereto.</p> <p>5. Such appeals are to be considered and determined on the same principle as appeals in equity.</p> <p>6. In all appealed cases, unless it is provided otherwise by statute, only alleged errors of law are considered by the Supreme Court.</p> <p>7. If there is substantial evidence to sustain a fact alleged to have been erroneously found, the finding must be sustained; but if there is not such evidence it must be reversed, for, in that event, it was an error of law to have found it.</p> <p>8. This is so even where the finding depends on the testimony of witnesses whom the court did not see.</p> <p>Public service companies — Bates—Value of property — Q-oingconcern — Brokerage — Appeals to Superior Court — Discretion — Abuse.</p> <p>9. In determining the value of the property of a utility company, for the purpose of fixing its rates, a reasonable allowance should be made for interest on the sums paid by it in the building of its plant, from the date of their payment to the time the plant becomes operative.</p> <p>10. So also the plant should be valued as a going-concern, and not merely as a constructed but idle plant.</p> <p>11. So also property which is used and useful should be valued and allowed in full, if it is a reasonable improvement, considering the use to which it is now and in the near future will be put; the fact that it is not presently used to its full capacity does not alter this requirement.</p> <p>12. A reasonable brokerage, paid in marketing the bonds of a utility company, for the purpose of obtaining money to construct its plant, should be allowed as a principal item, in determining the value of its property.</p> <p>13. On this last point, the opinion in Ben Avon Borough et al. v. Ohio Valley Water Company, 260 Pa. 289, is overruled.'</p> <p>14. Unless it has been abused, the Supreme Court will not reverse the exercise of discretion given by the Public Service Company Law to the Superior'Court, in determining appeals from the commission, to either reverse the commission or to remit the record to it for further proceedings.</p> <p>15. If upon the findings of the Superior Court, the rates under consideration are reasonable, it is not an abuse of discretion to reverse the commission and dismiss the complaints.</p>

<p>Public service companies — Bates—Confiscation—Due process of law — Constitutional law.</p> <p>1. Due process of law requires that some judicial tribunal, upon its own independent judgment as to both law and facts, shall determine whether or not rates, which the Public Service Commission allows a utility company to charge, are confiscatory.</p> <p>2. Confiscation necessarily results if a utility company is prevented from receiving a proper return upon its assets devoted to and used for public purposes.</p> <p>Appeals — Superior Gourt — Public service companies — Principles of appeals in equity.</p> <p>3. On an appeal from an order of the Public Service Commission, the Superior Court is the judicial tribunal, charged by the Public Service Company Law with determining, in the first instance, the reasonableness of the rates allowed.</p> <p>4. From the determination of the Superior Court in such cases, the Supreme Court, on appeal thereto, acts solely as an appellate court, and considers only alleged errors- of law appearing of record and assigned as error, exactly as in other eases of appeal thereto.</p> <p>5. Such appeals are to be considered and determined on the same principle as appeals in equity.</p> <p>6. In all appealed eases, unless it is provided otherwise by statute, only alleged errors of law are considered by the Supreme Court.</p> <p>7. If there is substantial evidence to sustain a fact alleged to have been erroneously found, the finding must be sustained; but if there is not such evidence it must be reversed, for, in that event, it was an error of law to have found it.</p> <p>8. This is so even where the finding depends on the testimony of witnesses whom the court below did not see.</p> <p>9. The plant should be valued as a going-concern, and not merely as a constructed but idle plant.</p> <p>10. A reasonable brokerage, paid in marketing the bonds of a utility company, for the purpose of obtaining money to construct its plant, should be allowed as a principal item, in determining the value of its property.</p> <p>11. Unless it has been abused, the Supreme Court will not reverse the exercise of discretion given by the Public Service Company Law to the Superior Court, in determining appeals from the commission, to either reverse the commission or to remit the record to it for further proceedings.</p> <p>12. If, on the findings of the Superior Court, the rates under consideration are reasonable, it is not an abuse of discretion to reverse the commission and dismiss the complaints.</p>

<p>Appeal, No. 424, Jan. T., 1921, by defendant, from order of C. P. No. 2, Phila. Co., Sept. T., 1920, No. 8177, discharging rule to open judgment, in case of William Curry v. Bacharach Quality Shops, Inc.</p> <p>Rule to open judgment entered on warrant to confess in lease.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Rule discharged. Defendant appealed.</p> <p>Error assigned was order, quoting it.</p>

<p>Taxation — Corporations — Tax on capital stock — Valuation— Nontaxable secmities — Act of June 18, 1907.</p> <p>1. Under the Act of June 13, 1907, P. L. 640, which declares that the value of the capital stock of a corporation shall be ascertained for tax purposes “by adding together so much of the capital stock paid in, the surplus and undivided profits, as is not invested in shares of stock of corporations^! liable to pay a capital stock tax, and dividing this amount by the number of shares, that which is to be deducted is not all the nontaxable assets held by the company, but only so much thereof as was purchased out of the capital stock paid in, the surplus and undivided profits.</p> <p>2. Although a company may purchase its nontaxable securities from any fund it chooses, yet if it fails to prove purchase of such securities out of capital stock account, the Commonwealth may apportion the value of the securities between “the capital stock paid in, the surplus and undivided profits” and the other assets of the company, it appearing as far as shown that the price of the securities came from both funds.</p>

<p>Jury — Qualifications—Constitutional law — “Trial by jury shall be as heretofore” — W'omen as jurors — Nineteenth Amendment to Constitution of United States — “Elector”—Words cmd phrases— Act of April 10,1867.</p> <p>1. The provision of the Constitutions of Pennsylvania of 1790, 1838 and 1873 “that trial by jury shall be as heretofore,” refers to the kinds of causes triable before juries, and the trial, not the qualifications of the jurors.</p> <p>2. The qualifications of jurors is now, and has alwayg been, even at common law, the subject of legislative control.</p> <p>3. The term “elector” is a technical, generic term, descriptive of a citizen having constitutional and statutory qualifications that enable him to vote.</p> <p>4. The designation “qualified elector” in the Act of April 10, 1867, P. L. 62, requiring jury commissioners to select a jury “from the whole qualified electors” of the county, embraces all electors at the time jurors are selected from the body of the electors, and also all those who may be added to the electorate from time to time.</p> <p>5. Under the Act of April 10, 1867, and the Nineteenth Amendment to the Constitution of the United States, women are eligible to serve as jurors in all the courts of the Commonwealth of Pennsylvania.</p> <p>Statutes — Construction—Application of new cases and new subjects.</p> <p>6. Legislative enactments in general and comprehensive terms apply to new eases, and to new subjects that are created from time to time, and which come within their general scope and policy.</p> <p>In re Opinion of the Justices (Mass.), 130 N. E. 685, distinguished.</p>

<p>Workmen’s compensation — Railroads — Master and servant — ■ Death — Interstate commerce — Presumption — Burden of proof — < Evidence.</p> <p>Where a train inspector, while returning from work after inspecting four trains, three of which were interstate, was killed before he reached his home, the burden is upon the person who claims compensation for his death, under the Pennsylvania Workmen’s Compensation Act, to prove that the last train which deceased inspected was an intrastate train.</p>

<p>Contract — Ambiguity—Construction by parties — Coal brolcer— Principal or agent — Pm-ol evidence — Evidence.</p> <p>1. Parties to a contract in which there exists an ambiguity have always a right to put their own construction upon it, and if it appears that such construction was mutual, it may be accepted by court and jury, although it might not be the construction the court would put upon it by an inspection of the instrument alone.</p> <p>2. Where the contract is ambiguous, parol evidence is admissible to show the circumstances attending its execution, and the subsequent acts of the parties showing the construction which they placed upon it.</p> <p>3. Where a contract between a coal mining company and a coal broker provided for delivery of coal by the mining company to a third party, and writings constituting the contract were as consistent with agency of the coal broker, as with the theory that he was acting on his own account as principal, as he claimed, parol evidence is admissible to show that the parties construed the contract as treating the broker as an agent, and not as a principal who purchased the coal on his own account.</p>

<p>Appeal, No. 21, May T., 1921, by defendant, from judgment of C. P. Dauphin Co., March T., 1921, No. 241, for plaintiffs on case-stated, im suit of C. W. Myers and Clara Myers v. A. B. Crick.</p> <p>Case-stated in assumpsit to recover purchase price of land.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Judgment for plaintiffs for $1,550. Defendant appealed.</p> <p>Error assigned was judgment, quoting it.</p>

<p>Taxation — Corporations—Capital stoch — Valuation — Property without the State.</p> <p>1. A tax on the capital of a corporation is a tax on the property in which that capital is invested.</p> <p>2. A tax based on a valuation including property situated outside the State is improper.</p> <p>3. An assessment of tbe capital stock of a corporation, which owns property both within and without the State, is proper, where it is based on such proportion of the valuation of the capital stock as the whole taxable assets in the State bears to the whole assets of the corporation.</p>

Appeal, No. 19, May T., 1921, by defendant, from judgment of C. P. Dauphin Co., Commonwealth Docket, 1917, No. 78, for Commonwealth, tried by the court without a jury, in case of Commonwealth v. National Cash Register Co. Appeal from tax settlement. The case was tried by the court without a jury. The opinion of the Supreme Court states the facts. Judgment for Commonwealth. Defendant appealed. Error assigned, among others, was judgment, quoting it.

<p>Appeal, No. 22, May T., 1921, by plaintiff, from judgment of Superior Court, March T., 1921, No. 9, affirming order of Public Service Commission, Complaint Docket, 2642, in case of Erie Railroad Co. v. Public Service Commission.</p> <p>Appeal from order of Public Service Commission. See 76 Pa. Superior Ct. 170.</p> <p>Prom the record it appeared that the Motor Club of Lackawanna County presented a petition to the Public Service Commission for an order directing the abolition of a grade crossing at a point where State Highway No. 168 crosses at grade the tracks of the Erie Railroad in the Borough of Elmhurst. Hearings were had at which the railroad company appeared by counsel, participated in the examination of witnesses, offered evidence and took part in the discussion' of the various questions which arose, and, at the last hearing before the commission, consented and agreed to the relocation, as appears by the opinion of the Superior Court, page 180. The report and order of the Public Service Commission is quoted in full in the report of the case in 76 Pa. Superior Ct. 170.</p> <p>The Superior Court sustained the order of the Public Service Commission. The Erie Railroad Co. appealed.</p> <p>Error assigned, among others, was judgment, quoting it.</p>

Appeal, No. 53, Jan. T., 1921, by Ida E. Caldwell, from decree of O. C. Lancaster Co., Sept. T., 1914, No. 97, discharging rule to terminate trust, in estate of Benjamin F. Henry, deceased. Rule to terminate trust. The opinion of the Supreme Court states the facts. Rule discharged. Ida E. Caldwell, appealed. Error assigned was order, quoting it.

<p>Appeal, No. 219, Jan. T., 1921, by plaintiff, from judgment of C. P. Lancaster Co., Feb. T., 1920, No. 51, for defendant, on affidavit of defense in nature of demurrer, in case of Annie Katherine Oster v. The Brotherhood of Locomotive Firemen and Engine-men, W. J. Carter, President, and A. H. Hawley, Secretary and Treasurer.</p> <p>Assumpsit for death benefits.</p> <p>Affidavit of defense in nature of demurrer.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Judgment for defendants. Plaintiff appealed.</p> <p>Error assigned, among others, was judgment, quoting it.</p>

Appeal, No. 196, Jan. T., 1921, by defendants, from decree of C. P. Lancaster Co., for plaintiff, on bail in equity, in case of Octoraro Water Co. v. P. Lynwood Garrison et al. Bill in equity to cancel deeds alleged to be a cloud on title. The opinion of the Supreme Court states the facts. Decree entered as prayed for. Defendants appealed. Error assigned, among others, was decree, quoting it.

Appeals, Nos. 13-17, May T., 1921, by plaintiff, from decree of C. P. Dauphin Co., Nos. 649-653, Equity Docket, 1920, on bills in equity, in case of Willis Collins v. Harmon M. Kephart, State Treasurer, and the Institution of Protestant Deaconess et al. Bills in equity for injunction. The opinion of the Supreme Court states the facts. Bills dismissed. Plaintiff appealed. Error assigned, among others, was decree, quoting it.

<p>Petition for writ of habeas corpus submitted: Miscellaneous Docket of Supreme Court No. 4, No. 24.</p>

<p>Appeal, No. 39, Oct. T., 1921, by defendants, from decree of C. P. Butler Co., March T., 1920, No. 3, on bill in equity, in case of Michael Chrapko et al. v. Gregory Kobasa et al.</p> <p>Bill in equity for injunction.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Decree for injunction. Defendants appealed.</p> <p>Error assigned, among others, was decree, quoting it.</p>

<p>Appeal, No. 120, Oct. T., 1920, by defendant, from judgment of O. P. Allegheny Co., April T., 1916, No. 1495, on verdict for plaintiff, in case of Joseph H. Wilhelm v. Frank TJttemveiler.</p> <p>Trespass for conversion of goods alleged to have been stolen.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict and judgment for plaintiff. Defendant appealed.</p> <p>Errors assigned were various rulings and instructions, appearing in the opinion of the Supreme Court.</p>

Appeal, No. 1, May T., 1921, by plaintiff, from judgment of C. P. Dauphin Co., Commonwealth Docket, 1917, No. 80, for defendant, on case tried by the court without a jury, in suit of Commonwealth v. Pennsylvania Water & Power Co. Appeal from tax settlement. The case was tried by the court without a jury under the Act of April 22,1874, P. L. 73. The opinion of the Supreme Court states the facts. Judgment for defendant, 29 Pa. D. R. 163; 48 Pa. C. C. R. 437.

<p>Appeal, No. 230, Jan. T., 1921, by S. O. Putnam et al., from order of C. P. Tioga Co., Sept. T., 1920, No. 1, on annual auditor’s settlement of Tioga County, in the matter of Appeal of H. Tucker et al.</p> <p>Appeal from county auditor’s settlement.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court sustained the appeal. S. O. Putnam et al., county commissioners, appealed.</p> <p>Error assigned, inter alia, above order, quoting it.</p>

<p>Corporations — Treasurer—Unauthorized act of officer — 'Acceptance of benefits — Promissory notes.</p> <p>1. A corporation cannot avail itself, as a defense, of an unauthorized act of its officers, where a contract has been entered into and executed in good faith, and the corporation has received the benefit of the performance. r</p> <p>2. Where the treasurer of a corporation issues notes of the company, unauthorized by it, to his father who is also his bondsman, to make good his own shortage, and the notes are discounted, and the proceeds thereof placed to the credit of the company, the latter receives such benefit as will make it liable, unless the person who furnishes the money knew of the circumstances under which the loan was procured, and intended the transaction to be a loan for the defaulting officer rather than one for the company.</p> <p>3. In an action by the executor of the father of the treasurer, on the notes so given, evidence that in a former suit by the corporation against the bondsman to recover the treasurer’s shortage, such notes were offered in evidence as a counterclaim, but were rejected as not competent, is some evidence that the bondsman did not intend to cancel the liability of the corporation on the notes.</p>

<p>Appeal, No. 4, May T., 1921, by plaintiffs, from judgment of O. P. Dauphin Co., June T., 1916, No. 410, for defendant n. o. v., in case of John L. Koons et ux. v. Philadelphia & Reading Railway Co.</p> <p>Trespass for death of plaintiff’s son.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>At the trial before McCarrell, J., the jury returned a verdict for plaintiffs for $1,690. Subsequently, the court, in an opinion by Hargest, P. J., entered judgment for defendant n. o. v. Plaintiff appealed.</p> <p>Error assigned, among others, was judgment, quoting record.</p>

<p>Land law — Public lands — Board of Proyerty — Jurisdiction—Discretion — Records.</p> <p>1. The Board of Property is not a judicial tribunal, and its findings are not binding upon the courts.</p> <p>2. Its duties involve some discretion. It may assist incomplete titles by correcting errors, and the like, and its records are belpful in showing a vigilant pursuit of a claim in prosecution of a right.</p> <p>3. Its jurisdiction is primarily restricted to imperfect titles from the Commonwealth, but, once a patent issues, disputes over the patent must find settlement in the courts.</p> <p>Ejectment — Public lands — Application for patent — Delay —^ Abandonment — Right of entry — Act of January 27,1806.</p> <p>4. The mere filing of an application in the land office of the Commonwealth for a warrant to survey an alleged vacant and unappropriated island, under the Act of January 27, 1806, section 1, 4 Sm. L. 268, and the securing of a report from the secretary of internal affairs declaring the land vacant and ordering a warrant and survey to issue, does not give the applicant for the patent a right of entry sufficient to predicate an action of ejectment against one in possession of the land.</p> <p>5. Even if the application for a warrant, report thereon and order for survey gave the applicant a right of entry and incipient title necessary for a common l'aw action, the state would have the right to consider the application abandoned, where the order to survey, with the report, was not procured until eight years'after the application was filed.</p> <p>Ejectment — Plaintiff’s title — .Neglect of public officers to issue patent.</p> <p>6. In an action of ejectment the plaintiff is not in a position to strengthen his title by showing neglect of duty or violation of law by the officers of the land office in denying him a warrant for the land in question. He must depend on the strength of his own title not on the weakness of his adversary’s.</p> <p>Ejectment — Appeal from decision of Board of Property — Act of April 8, 1792.</p> <p>7. The purpose of the Act of April 3, 1792, section 11, 3 Sm. L. 70, authorizing a suit at common law by a party aggrieved by a decision of the Board of Property is to try disputed rights between the parties arising from settlements, locations, conflicting warrants, surveys and the like.</p>

<p>Appeals — Assignments of error — Charge — Points — Bequest to transcribe and file of record.</p> <p>1. Error cannot be assigned to portions of a charge or to answers to points, unless there has been a request that the charge with the points and answers be transcribed and filed of record.</p> <p>Appeals — Assignments of error — Judgment n. o. v. — Bequest to transcribe — Act of April 22, 1905, P. L. 286.</p> <p>2. Under the Act of April 22, 1905, P. L. 286, error can be assigned to a refusal to enter a judgment non obstante veredicto, even though there was no request to transcribe and file the charge of record, and though no exception was taken to the reseryation or decimation of the point for binding instructions.</p> <p>Appeals — Assignments of error — Nonsuit—Befusal of nonsuit.</p> <p>3. A refusal to enter a compulsory nonsuit is not reviewable on appeal.</p> <p>Appeals — Statement of questions involved.</p> <p>4. Assignments of. error which are neither expressly covered by nor suggested in the statement of the questions involved, are not considered.</p> <p>Appeals — Binding instructions — Evidence and inferences.</p> <p>5. In determining whether or not binding instructions should have been given, all the evidence and inferences therefrom, favorable to appellee, must be taken as true, and all unfavorable to him, if depending solely on testimony, must be rejected.</p> <p>Negligence — Railways—Grossings—Disrepair.</p> <p>6. Recovery may be had against a railway company, if an accident happens at a public crossing solely by reason of the fact that, in violation of its duty, it allowed the crossing to fall into a state of disrepair.</p> <p>Negligence — Railways—Interurban—Stop, hole and listen.</p> <p>7. The driver of an automobile is not guilty of contributory negligence, as a matter of law, if he does not stop before crossing the tracks of an interurban railway; if he looks and listens and continues to do so before and during the crossing, the question is one for the jury and not for the court. Rule of Oarroll v. R. R., 12 W. N. C. 348, distinguished.</p>

<p>Appeal, No. 136, Oct. T., 1921, by defendant, from judgment of O. P. Allegheny Co., July T., 1919, No. 329, on verdict for plaintiff, in case of Clara H. Mooney v. Joseph Kinder.</p> <p>Trespass for personal injuries.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict and judgment for plaintiff for $5,125. Defendant appealed.</p> <p>Errors assigned were (2) refusal of defendant’s motion for judgment n. o. v., quoting record, and (1, 3, 4) answers to points, quoting points and answers.</p>

Appeal, No. 27, Oct. T., 1921, by defendant, from judgment of C. P. Allegheny Co., Oct. T., 1919, No. 1010, on verdict for plaintiff, in case of Josephine Maculuso v. The Humboldt Fire Insurance Company of Pittsburgh. Assumpsit on a policy of fire insurance. The opinion of the Supreme Court states the facts. Verdict and judgment for plaintiff for $2,090. Defendant appealed.

<p>Appeal, No. 112, Jan. T., 1922, by plaintiff, from order of O. P. Erie Co., Sept. T., 1920, No. 357, refusing to take off nonsuit, in case of Lillian Mebler v. John Doyle et al., doing business as J. & M. Doyle.</p> <p>Trespass for personal injuries.</p> <p>Tbe opinion of tbe Supreme Court states tbe facts.</p> <p>At tbe trial tbe court entered a compulsory nonsuit wbicb it subsequently refused to take off. Plaintiff appealed.</p> <p>Error assigned was refusal to take off nonsuit, quoting order.</p>

<p>Insurance — Life insurance — Assignment of policy — Equitable assignment — Partners—Declarations as to ownership — Will as evidence — Waiver of defense by payment into court.</p> <p>1. Where policies of life insurance are taken out on the lives of two partners, who are cousins, each payable to the other, designated as “partner of insured,” and the premiums are paid by the .partnership until it is dissolved, when each continues to pay the premiums on his respective policy, and it appears that there had been a parol delivery of the policies, after the dissolution, to the respective persons insured, under circumstances which indicated an intention to vest the ownership of each policy in the person insured under it, the executors of one of the late partners is entitled to the proceeds of the policy under which the deceased was insured, as against the other partner.</p> <p>2. The delivery of the policy constituted an equitable assignment, and was just as effective as if a formal assignment had been made.</p> <p>S. The neglect of the deceased to substitute another beneficiary in place of his late partner was immaterial.</p> <p>4. So also it was immaterial that the deceased substituted the name of his wife in place of his partner in another policy on his own life in a different company.</p> <p>5. A will of the deceased showing that he had given legacies to other relatives further removed by blood than his cousin and partner, is inadmissible for the purpose of indicating that the cousin had been Aft out because the testator intended that the policy should be paid to him, inasmuch as no one could know what wa3 in testator’s mind at the time the will was executed, save as it affirmatively speaks his purpose.</p> <p>6. In such case, a list, prepared by deceased, of his insurance policies, with the policy in question among them, was properly received in evidence as a declaration by him of ownership.</p> <p>7. Declarations as to ownership by a person in possession of personal property are admissible to show title to the property in the declarant.</p> <p>8. Cases where insurance companies havp set up as a defense the failure to properly assign the policy according to its terms, are not apposite to that under consideration, as the company here waived that stipulation by paying the money into court.</p>

Appeal, No. 454, Jau. T., 1921, by defendant, from judgment of O. & T. Luzerne Co., Sept. T., 1920, No. 257, on verdict of guilty of murder of the first degree, in case of Commonwealth v. Antonio Puntario. Indictment for murder. The opinion of the Supreme Court states the facts. Verdict of guilty of murder of the first degree upon which sentence was passed. Defendant appealed.

Appeal, No. 455, Jan. T., 1921, by defendant, from judgment of O. & T. Luzerne Co., Sept. T., 1920, No. 257%, on verdict of guilty of murder of the first degree, in case of Commonwealth v. Peter Erico. Indictment for murder. The opinion of the Supreme Court states the facts. Verdict of guilty of murder of the first degree, upon which sentence was passed. Defendant appealed.

<p>Wills — Probate—Undue influence — Evidence—No case for fury.</p> <p>In a will contest, tbe case should not be submitted to the jury, where the evidence shows that testator had the benefit of advice of counsel, that his will was executed, at a time when none of the beneficiaries were present, pursuant to an oft-repeated, openly expressed intention to disinherit a son who had so far repudiated his father as to refuse his name; which fixed purpose was deliberately persisted in over a period of sixteen years, as evidenced by the republication of the will on two occasions; and this is particularly so, where the contestant offers nothing but a mass of oddly assorted circumstances and inconclusive statements to establish his claim that undue influence was exerted.</p>

<p>Appeal, No. 101, Oct. T., 1921, by George B. Ferguson, from judgment of O. P. Westmoreland Co., May T., 1920, No. 147, dismissing appeal from annual report of auditors of Franklin Township, Westmoreland County, for years 1919.</p> <p>Appeal from annual report of auditors.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Appeal dismissed. George B. Ferguson appealed.</p> <p>Error assigned, inter alia, was judgment, quoting it.</p>

<p>Appeal, No. 15, Oct. T., 1921, by plaintiff, from order of C. P. Somerset Co., Dec. T., 1919, No. 159, discharging rule to pay over money to Commonwealth in case of .Commonwealth v. J. H. Gardner.</p> <p>Rule to pay over money to Commonwealth for main-</p> <p>tenance of defendant’s son in hospital for insane.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court discharged the rule. Plaintiff appealed.</p> <p>Error assigned was order, quoting it.</p>

<p>School law — Health law — Constitutional law — Vaccination— Township — Mandamus—Jurisdiction—Parties—Commonwealth as party — Dauphin County Common Pleas — Public officers — Acts of April 7, 1870, P. L. 67; June 18, 1895; April n, 1908, P. L. m, and, June 5, 1919.</p> <p>1. The Acts of June 18, 1895, P. L. 203, April 22, 1903, P. L. 244, and June 5, 1919 P. L. 399 relating to the vaccination of school children are constitutional.</p> <p>2. A township is a municipality within the meaning of those acts.</p> <p>3. Under the Act of April 7, 1870, P. L. 57, the Oourt of Common Pleas of Dauphin County has Jurisdiction of all cases in which the Commonwealth sues in Her own right, even though, at her option, she may also sue in the courts of common pleas of other counties.</p> <p>4. The Commonwealth at the relation of the attorney general, is the proper plaintiff in a writ of mandamus seeking to procure the enforcement of a public duty.</p> <p>5. A mandamus may issue to compel a public official, charged with the enforcement of a statute, to perform his duty, even though he is thereby subjected also to a penalty for failing so to do; and this is true of the Acts of 1895, 1903 and 1919 above specified.</p> <p>6. Unless it is expressly provided otherwise, the courts will presume the Commonwealth reserves to herself the right to mandamus her officials to perform their duty.</p> <p>7. An indictment is merely punitive and not remedial; hence it cannot take the place or usurp the functions of a madamus, which seeks specific relief by commanding the performance of a public duty.</p>

Appeal, No. 109, Oct. T., 1921, by defendants, from decree of C. P. Somerset Co., Equity Docket 1919, No. 3, on bill in equity, in case of William Friedline v. Samuel S. Hoffman and W. D. Slagle. Bill in equity for an injunction.' The opinion of tbe Supreme Court states the facts. Injunction awarded. Defendants appealed. Error assigned, among others, was decree, quoting it.

<p>Appeal, No. 114, Oct. T., 1921, by plaintiff, from order of O. P. Somerset Co., Sept. T., 1919, No. 217, refusing to take off nonsuit, in case of Frick & Lindsay Co. v. Johnstown & Somerset Ry. Co.</p> <p>Assumpsit on alleged contract.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court entered a nonsuit and subsequently refused a motion to take it off.</p> <p>Error assigned, inter alia, was order refusing motion, quoting record.</p>

Appeal, No. 157, Oct. T., 1921, by defendant, from judgment of C. P. Somerset Co., Feb. T., 1919, No. 98, on verdict for plaintiff, in case of Mary J. Bowser v. Citizens Light, Heat & Power Co. of Salisbury. Trespass for death of plaintiff’s husband. The opinion of the Supreme Court states the facts. Verdict and judgment for plaintiff for $1,659.75. Defendant appealed. Error assigned, inter-alia, was refusal of defendant’s motion for judgment n. o. v., quoting record.

<p>Contract— Construction— Continuing agreement — Ineffective provision — Equity.</p> <p>1. Where by tbe action of one of tbe parties a provision in a continuing agreement, which has been partly executed, becomes ineffective, every other clause relating thereto and depending thereon, necessarily falls with it.</p> <p>2. Where, by tbe action of one of the parties, a subordinate provision in a contract becomes ineffective, a court of equity will enforce the paramount purposes thereof, so far as this can be done.</p> <p>Mines and mining — Coal lease — Minimum royalty — Arbitration ■ — Engineers—Injunction—Equity Bule 71 — Assessors in equity.</p> <p>3. Where a coal lease provides that a payment of a minimum royalty shall continue until engineers selected by the parties have determined tbat all the coal under the tract has been thus paid for, and one of the parties revokes the arbitration clause, he cannot, under penalty of a forfeiture of the lease, compel the lessee to pay the minimum royalty until a court of equity determines whether or not all the underlying coal has been thus paid for.</p> <p>4. Under such circumstances, if a prima facie case is made out, an injunction, preventing forfeiture of the lease, will be granted upon such terms as will protect both parties.</p> <p>5. The words used in a written contract will be given their ordinary meaning, unless upon a consideration of the whole writing it becomes necessary to give an unusual significance to them.</p> <p>6. Under Equity Eule 71, engineers may be appointed for the purpose of aiding the court in determining difficult technical questions arising in a proceeding in equity.</p>

<p>Appeal, No. 7, Oct. T., 1921, by defendant, from judgment of C. P. Westmoreland Co., Noy. T., 1915, No. 603, on verdict for plaintiff, in case of Erskine Hewitt, Receiver of the International Typesetting Machine Co., v. Democratic Publishing Co.</p> <p>Replevin for typecasting machine.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Yerdict and judgment for plaintiff. Defendant appealed.</p> <p>Error assigned, among others, was refusal of judgment for defendant n. o. v., quoting record.</p>

Appeals, Nos. 40 and 41, Oct. T., 1921, by William Schuette & Co., a corporation, from order of .0. P. Westmoreland Co., May T., 1918, No. 61, making absolute rule for interpleader, in case of William Schuette & Co. v. InlandCoal Co., and from judgment on verdict for plaintiff in the interpleader between Geo. W. SwanÉ,'“Receiver of Hess Bros., v. Wil-N liam Schuette & Co. Rule for interpleader between Geo.

<p>Decedents’ estates — Claims for repayment of moneys paid to decedent — Parent and child — Mother and son — Declarations — Evidence — Trust and trustees.</p> <p>1. Where a son makes regular payments to his mother, which appears from his own statements to be a “free gift,” the mother may repay them if she so desires, but mere loose declarations made to third parties in her lifetime that the money was to be returned at her death, do not constitute a contract to that effect.</p> <p>2. In such case the mother cannot be treated as a trustee of such moneys in the absence of an agreement or declaration of trust.</p> <p>Promissory notes — Signature—Signature in body of note — Admission of maker — Letter—Ambiguity—Parol evidence to explain.</p> <p>3. Where the maker of a promissory note writes her signature at the beginning or in the body of the note, it is immaterial that she did not sign her name at the end thereof, so long as she intended thereby to obligate herself for its payment.</p> <p>4. The fact that the maker of the note for greater solemnity calls in a notary public, who is a stranger to the instrument, and the notary writes his name in the wrong place, and where the maker’s signature should be, is immaterial.</p> <p>5. It is competent to establish the execution o£ a note by proof of the admission of the maker, or by proof of handwriting.</p> <p>6. A son wrote to the attorney of other legatees of his mother’s e.state that he had made payments to his mother as a “free gift, not expecting any return,” and that his mother had written him that of course he was to receive back with interest all he had given her: Held, that the mother’s letter referred only to funds theretofore received, and, as there was no ambiguity in the son’s letter, he could not testify as to what he meant thereby.</p>

Appeal, No. 130, Oct. T., 1921, by defendant, from judgment of C. P. Cambria Co., Sept. T., 1917, No. 270, on verdict for plaintiff, in case of George Rock, Executor of David J. Wagner, deceased, v. Joseph Cauffiel. Trespass for loss occasioned by alleged false and fraudulent representations. The opinion of the Supreme Court states the facts. Verdict and judgment for plaintiff for |2,530.97. Defendant appealed.

<p>Evidence — Witnesses — Land damages — Experts — Opinions — Cross-examination — Surface support — Hypothetical question.</p> <p>1. Where witnesses as to land damages, in a surface support case, testify that they are residents of the neighborhood, have known the property for many years," are familiar with its location and extent, together with the nature and condition of the improvements thereto, and with the market value of land in the vicinity and the prices at which similar properties were sold or held for sale, they may express an opinion as to the value of the property, although they are not real estate dealers, and make no pretense to be experts.</p> <p>2. Where a witness has given an estimate as to the value of the land involved in the suit, based upon improvements, and on the uses to which it might be put “as well as other land in the vicinity” but without particularly specifying any particular land, he cannot on cross-examination be questioned as to his knowledge of a sale of a particular farm in the neighborhood not mentioned in the examination in chief.</p> <p>3. Where facts are admitted or proven by evidence which is not conflicting, an expert may give his opinion founded on that testimony; but where there is a conflict he must base his opinion on facts within his knowledge, or on an assumed state of facts or on the testimony given on behalf of one of the parties and made known to him, and which, for the purpose of his opinion, he assumes to be true.</p> <p>4. To permit an expert to base Ms opinion on contradictory evidence, or on the whole case as adduced by both plaintiff and defendant, would permit him to usurp the functions of the jury, and determine the case on its facts.</p>

Appeal, No. 153, Oct. T., 1921, by defendant, from judgment of C. P. Cambria Co., March T., 1917, No. 472, on verdict for plaintiff, in case of Andrew Alwine v. Valley Smokeless Coal Co. Trespass for destruction of spring. The opinion of the Supreme Court states the facts. Verdict and judgment for plaintiff for $9,833. Defendant appealed. Errors assigned were various rulings sufficiently appearing by the opinion of the Supreme Court, quoting record.

<p>Appeals, Nos. 25 and 26, Oct. T., 1921, by defendants, from decrees of C. P. Clarion Co., May T., 1920, Nos. 5 and 6, on bills in equity, in cases of Lena Hartzell v. A. H. WMtmore and John H. Hartzell v. A. H. WMtmore and J. H. Hable.</p> <p>Bills in equity to declare a trust and to compel a re-conveyance, and an accounting.</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 bills. Defendants appealed.</p> <p>Errors assigned, among others, were decrees, quoting them.</p>

Appeal, No. 107, Oct. T., 1921, by defendant, from judgment of C. P. Somerset Co., May T., 1921, No. 222, on verdict for plaintiff, in case of Madison Bittner v. Quemahoning Coal Co. Trespass for alleged wrongful mining of coal. The opinion of the Supreme Court states the facts. Verdict and judgment for plaintiff for f1,705. Defendant appealed. Error assigned, inter alia, was refusal of defendant’s motion for judgment n. o. v., quoting record.

<p>Appeal, No 122, Oct. T., 1921, by defendant, from judgment of O. & T. Lawrence Co., March T., 1921, No. 1, on verdict of guilty of murder of the first degree, in case of Commonwealth v. Albert White, alias A. T. White.</p> <p>Indictment for wife murder.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict of guilty of murder of the first degree, on which sentence was passed. Defendant appealed.</p> <p>Errors assigned were various rulings sufficiently appearing by the opinion of the Supreme Court, quoting record.</p>