Volume 273 — Pennsylvania State Reports

<p>Appeal, No. 52, Jan. T., 1922, by Lafayette .College, from decree of C. P. No. 4, Phila. Co., Sept. T., 1920, No. 6928, awarding balance of estate in re account of Philadelphia Trust Co., trustee, under deed of Charles O. Baird.</p> <p>Petition for distribution of trust estate held under deed. Before Finletter, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Decree entered awarding bonds to trustees of Lafayette College. Lafayette College appealed.</p> <p>Error assigned was decree, quoting it.</p>

<p>Appeal, No. 51, Jan. T., 1922, by plaintiff, from order of C. P. No. 3, Phila. Co., Sept. T., 1920, No. 6484, refusing to take off nonsuit, in case of Charles D. Markle v. Thomas L. Perot.</p> <p>Trespass for personal injuries. Before Ferguson, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court entered a nonsuit which it refused to take off. Plaintiff appealed.</p> <p>Error assigned was refusal to take off nonsuit.</p>

<p>Appeal, No. 140, Jan. T., 1922, by defendant, from order of C. P. No. 3, Phila. Co., June T., 1921, No. 1050, discharging rule to open judgment, in case of Fannie E. Jawer v. A. Carl Borner.</p> <p>Buie to open judgment entered on warrant in written lease, for one year, with renewal clause from year to year. Before Ferguson, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Rule discharged. Defendant appealed.</p> <p>Error assigned was above order.</p>

Appeal, No. 132, Jan. T., 1920, by defendant, from order of O. P. No. 1, Phila. Co., June T., 1918, No. 4515, discharging rule to open judgment, in ease of Francis S. Laws to use of Edward K. Tryon Co. v. William H. Maxwell, Eule to open judgment. The opinion of the Supreme Court states the facts. Eule discharged. Defendant appealed. Error assigned was, inter alia, above order.

Appeals, Nos. 208 and 209, Oct. T., 1921, by plaintiffs, from order of C. P. Allegheny Oo., Jan. T., 1920, No. 35, refusing to take off nonsuit, in case of Earl S. Renner, a minor, by his father William J. Renner, and William J. Renner, in his own right, v. S. L. Tone et al., Receivers of Pittsburgh Rys. Co. Trespass for personal injuries. Before Drew, J. The opinion of the Supreme Court states the facts.

<p>Mandamus — Jurisdiction—Necessity—Corporations—Corporate mortgage — Trustee—Contracts—Equity—Acts of June 16, 1886, section 18, P. L. 781, and March 28,1877, P. L. 82.</p> <p>1. A court of equity has exclusive supervision and control of trustees in the management or administration of their trust, under the Acts of June 16, 1836, section 13, P. L. 784, and March 23, 1877, P. L. 32.</p> <p>2. Duties imposed upon a corporation not by virtue of express law or the conditions of its charter, but arising out of contract relations will not be enforced by mandamus.</p> <p>3. Mandamus issues only in cases of necessity; where there is a doubt as to its necessity or propriety it will not go.</p> <p>4. Mandamus will not lie by a corporation, which has issued bonds under a mortgage, to compel another corporation which is the trustee named in the mortgage, to purchase certain bonds with moneys in the sinking fund.</p>

<p>Practice, G. P. — Trial—Evidence—Cross-examination—Harmless error.</p> <p>1. Where a defendant is permitted to ask plaintiff’s witness an improper question on- cross-examination, plaintiff should move to strike out the evidence, and the trial court’s refusal to strike it out, may he assigned for error.</p> <p>2. Such testimony, however, did plaintiff no harm, if his witness was later recalled, and gave an explanation of the same matter which nullified any possible adverse effect.</p> <p>Negligence — Electric light companies — Evidence—Underwriters rules — Charge—Question in rebuttal — Discretion of court.</p> <p>3. Where, in an action against an electric light company for the death of a man employed by a consumer of the company, a witness for defendant is permitted to testify that the underwriter’s rules required an equipment different from that used when the deceased was killed, the effect of such testimony, even if there was error in admitting it, is neutralized by an instruction that, as between plaintiff and defendant, the failure of the decedent’s employer to do his duty would avail nothing in favor of defendant, even if such instruction was erroneous, as such instruction withdrew from the jury the disputed evidence.</p> <p>4. The court committed no error in admitting the evidence under the case as it then stood.</p> <p>5. The court does not abuse its discretion in sustaining an objection to a question asked by plaintiff in rebuttal, where the question is not intelligible in itself, and, even if it had the meaning claimed for it, was not proper in rebuttal.</p>

<p>Negligence — Railroads—Crossings—"Stop, loolc and listen”— Neath — Evidence.</p> <p>1. In an action for death at a grade crossing where there were two tracks, judgment for plaintiff will be sustained where the jury was warranted in finding that plaintiff stopped, looked and listened at the second track, which was the one on which he was killed.</p> <p>Practice, C. P. — Trial—Charge—Request for instructions — Appeals — Assignments of 'error.</p> <p>2. Where, at defendant’s suggestion, the trial judge makes a change in his statement of facts to the jury, necessitating a different instruction as to the law, it is the duty of defendant’s counsel to call the court’s attention to the necessary change in instructions as to the law, and if he fails to do so, he cannot complain on appeal.</p> <p>3. If, in such ease, the instruction contained in the assignment is free from error, the appellate court cannot consider that part of the charge which is erroneous, if such part is not brought within an assignment of error.</p> <p>Practice, C. P. — Power of attorney — Suit by foreign widow— Negligence.</p> <p>4. An objection to the sufficiency of a warrant of attorney authorizing the institution of a suit on behalf of a foreign widow, should be raised before the trial.</p> <p>5. The proper practice is to require counsel to file the warrant of attorney before the trial.</p> <p>6. This practice prevails in any case where the authority of the plaintiff to prosecute the action is denied.</p>

Appeal, No. 437, Jan. T., 1921, by plaintiff, from decree of C. P. No. 3, Phila. Co., June T., 1896, No. 1081, dismissing bill in equity in case of Oliver H. Willard v. Integrity Trust Co. and Edwin A. Landell, Jr. Bill in equity for a reconveyance of real estate. Before McMichael, P. J. Tbe opinion of tbe Supreme Court states tbe facts. - Bill dismissed. Plaintiff appealed. Error assigned, inter alia, was decree, quoting it.

Appeal, No. 47, Jan. T., 1922, by defendant, from judgment of C. P. No. 1, Phila. Co., June T., 1919, No. 6319, on verdict for plaintiff, in case of Continental Fibre Co. v. B. F. Sturtevant Co. Assumpsit to recover back purchase price of machine. Before Bregy, P. J. The opinion of the Supreme Court states the facts. Verdict and judgment for plaintiff for $5,551.74. Defendant appealed.

<p>Appeal, No. 30, Jan. T., 1922, by defendant, from judgment of C. P. No. 2, Phila. Co., March T., 1920, No. 4672, on verdict for plaintiff, in case of Clarence Idell, a minor, by his next friend and father, Morris Idell, and Morris Idell, in his own right, v. Elbert O. Day.</p> <p>Trespass for personal injuries to a boy seventeen years of age. Before Stern, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Yerdict and judgment for Clarence Idell for $4,000, and for Morris Idell for $650. Defendant appealed.</p> <p>Errors assigned were (1) refusal of instructions for defendant, and (2) refusal of defendant’s motion for judgment n. o. y., quoting the record.</p>

Appeal, No. 109, Jan. T., 1922, by defendant, from judgment of C. P. No. 1, Dec. T., 1918, No. 4128, on verdict for plaintiff, in case of Stern Manufacturing Co. to use of Samuel Stern v. George W. Smith & Co., Inc. Assumpsit for labor and material. Before Patterson, J. The opinion of the Supreme Court states the facts. Verdict and judgment for plaintiff for $2,028.26. Defendant appealed.

<p>Bailment — Contract—Executory—Sale—Final agreement — Replevin — Evidence—Proposals of sale — Damages—Demand—Notice —Harmless error.</p> <p>1. The fact that the original intention of the parties to a contract, was to make a sale, and that such is the legal effect of their first agreement, does not prevent a change while it is still executory, into a bailment with an alternative of future conversion into a sale on the compliance with the stipulated conditions.</p> <p>2. Where the parties enter into a contract of bailment after there had been original sale proposals between them, and replevin is brought for the property covered by the bailment, that the original sale proposals were not admitted in evidence in such action, would at best be only a harmless error, as the legal effect of the transaction would not be altered.</p> <p>3. It is unnecessary for a bailment lease to stipulate for a return of the property. Replevin may be brought for the property although no such stipulation is in the contract.</p> <p>4. The fact that a bailor has indulged the bailee as to installment payments long overdue, does not deprive him of his right to reclaim the property in accordance with the terms of the contract.</p> <p>5. Where a bailment authorized the bailor upon demand to forthwith take possession of the property, and the bailor, twenty-eight days before he issues a writ of replevin, notifies the bailee in writing he would be obliged to retake the property unless past due installments are paid, the bailee cannot set up a lack of demand as a defense.</p> <p>6. In such case the notice whether oral or written need be in no set form of words.</p> <p>7. Where plaintiff in the replevin rightly repossessed himself of the property covered by the bailment, the question as to who would ultimately have been the owner, if no default had been made, is irrelevant, and parol testimony on the subject is inadmissible.</p> <p>8. Evidence of the damages sustained by defendant by loss of the property is inadmissible; for the extent of damages is immaterial where none are recoverable.</p>

<p>Appeal, No. 132, Jan. T., 1922, by plaintiff, from judgment of C. P. No. 3, Phila. Co., June T., 1919, No. 7764, on verdict for defendant, in case of Integrity Trust Co. v. Lehigh Avenue Business Men’s B. & L. Assn.</p> <p>Assumpsit on a cheek. Before Ferguson, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Yerdiet and judgment for defendant. Plaintiff appealed.</p> <p>Error assigned, inter alia, was binding instruction for defendant, quoting the record.</p>

<p>Appeal, No. 151, Jan. T., 1922, by Commonwealth Title Ins. & Trust Co. et al., executors of the will of Joshua R. Jones, deceased, from decree of C. P. No. 3, Phila. Co., June T., 1907, No. 2616, dismissing exceptions to auditor’s report, in estate of Rebecca L. Howell, deceased.</p> <p>Exceptions to report of Ulysses S. Koons, Esq., auditor. Before Febguson, J.</p> <p>Rebecca L. Howell died April 7,1920.</p> <p>Tbe opinion of tbe Supreme Court states the facts.</p> <p>Exceptions dismissed. Commonwealth Title Insurance & Trust Co., executors of Joshua R. Jones, deceased, appealed.</p> <p>Error assigned{, inter alia, was decree, quoting it.</p>

<p>Appeal, No. 202, Jan. T., 1922, by plaintiff, from judgment of C. P. No. 3, Phila. Co., March T., 1920, No. 3080, for defendant n. o. v., in case of Edith S. Post, widow of William H. Post, deceased, v. Maurice F. Richardson.</p> <p>Trespass for death of plaintiff’s husband. Before Ferguson, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff for $3,500.</p> <p>Judgment for defendant n. o. v. Plaintiff appealed.</p> <p>Error assigned, inter alia, was judgment, quoting it.</p>

<p>Negligence — Elevators—Contributory negligence — Baching into an elevator space without looking.</p> <p>Where a person knowing that the opening to an elevator on an upper floor is unguarded, and that if the elevator moved there would be no gates for protection, deliberately steps backwards for seven feet to the elevator shaft, without turning his head or looking backward, and falls down the shaft, he cannot recover damages for his injuries from the owner of the building.</p>

Appeal, No. 235, Jan. T., 1922, by plaintiff, from order of C. P. No. 4, Phila. Co., June T., 1921, No. 8423, discharging rule for judgment for want of a sufficient affidavit of defense, in case of A. Florence Yerger-Hagan v. Anthony J. Drexel-Biddle. Assumpsit for professional legal services. Buie for judgment for want of a sufficient affidavit of defense. The opinion of the Supreme Court states the facts. Buie discharged. Plaintiff appealed.

Appeal, No. 124, Jan. T., 1922, by defendant, from judgment of C. P. No. 2, Phila. Co., Sept. T., 1920, No. 8267, on verdict for plaintiff, in ease of Mary Ann Leonard v. Charles Coleman. Trespass for death of plaintiff’s husband. Before Barratt, P. J. The opinion of the Supreme Court states the facts. Verdict and judgment for plaintiff for $8,000. Defendant appealed. Error assigned, among others, was refusal of defendant’s motion for judgment n. o. v., quoting record.

<p>Taxation — Inheritance tax — Jurisdiction of orphans’ court — Trusts and trustees — Trust created by deed — Act of July 11, 1917, P. L. 832.</p> <p>Where a trust created by deed five years before the settlor’s death provided for payment of income to settlor and others until a time stated, with power in the settlor and trustee to revoke by joint action, and the settlor dies before the time specified, without revoking- the trust, the question whether an inheritance tax should or should not bo assessed, under the Act of July 11,1917, P. L. 832, against the settlor’s executor, who has never received the fund, cannot be passed upon on appeal to the Supreme Court until the trustee, who was not a party in the court below, has been afforded an opportunity to be heard, and the question of the jurisdiction of the orphans’ court has been presented to and determined by the tribunal, and the record will be remitted for that purpose.</p>

<p>Contract — Sale—Delivery—Failure to perform term of contract.</p> <p>Where a contract in writing for sale of merchandise provides for delivery of the goods f. o. b. at a city mentioned to either a railroad or other common carrier, the vendor, after a refusal of a notice of cancellation of the contract, cannot recover the purchase price of it, if it appears that he did not comply with the terms as to delivery, but merely set aside the goods at his own place of business, ready at all times for delivery.</p>

Appeal, No. 88, Jan. T., 1922, by plaintiff, from order of C. P. No. 1, Phila. Co., Dec. T., 1920, No. 5971, refusing to take off nonsuit, in case of Lucia R. Crawford v. Reading Transit & Light Co. Trespass for personal injuries. Before Shoemaker, J. The opinion of the Supreme Court states the facts. Nonsuit, which the court refused to take off. Plaintiff appealed. Error assigned was refusal to take off nonsuit.

<p>Deeds — Ancient deeds — Recitals—Evidence■—Building restrictions.</p> <p>1. While the general rule is that recitals in deeds are mere hearsay and inadmissible as against third persons who claim by a paramount title, there is an exception to the rule in the case of ancient deeds accompanied by possession, which are admissible as prima facie evidence, of the facts recited, even as against third persons.</p> <p>2. Where a deed dated in 1838 provided that “no building or part of a building or other obstruction shall ever at any time” be erected on the lot granted north of the present line of the building “then thereon erected,” and subsequent thereto, down to 1868, deeds in the line of title contained exactly the same provision, when a deed of 1871, and deeds thereafter to 1920 (when the building was torn down), changed the word “then” to “now,” the recital, as changed, was an admission that the restriction extended to the wall north of the building as it stood from 1871 to 1920, when tom down.</p> <p>3. In such ease, the restriction is violated by building on the lot a small frame building enclosing an engine, derrick and compression plant intended for use in the erection of an office building on tho lot in question and adjoining lots; and this is so although the frame building and its contents were but temporary in character and intended to be removed on the completion of the office building, it not appearing whether this would be months or years.</p>

Appeal, No. 106, Jan. T., 1922, by plaintiffs, from decree of C. P. Cumberland Co., March T., 1919, No. 1, dismissing bill in equity, in case of Edward C. Beetem et al., trading as E. C. Beetem & Son, v. Carlisle Light, Heat & Power Co. Bill in equity for injunction. Before Sadler, P. J. The opinion of the Supreme Court states the facts. An amended bill was filed and a demurrer thereto dismissed in an opinion by Sadler, P. J., reported in 9 Pa. Corp. B. 193.

<p>Workmen’s compensation — Injuries in course of employment— Assault by fellow workmen off the premises — "Actually”—Words and phrases — Act of June 2, 1915, P. L. 786.</p> <p>1. A workman will not be allowed compensation for accidental injuries occurring off the premises of his employer, unless they were sustained while he was actually engaged in the transaction of the latter’s business.</p> <p>2. The phrase employed in the Act of June 2, 1915, P. L. 736, “Actually engaged in......the business or affairs of his employer,” cannot be interpreted to mean “constructively” engaged; it must be read as it is written, “actually” engaged.</p> <p>3. The word “actually” means “as an actual or existing fact”; and the word “actual” is used as “opposed to constructive.”</p> <p>4. Compensation will not be allowed for the death of a workman, where it appears that he had a quarrel with two subordinates in the employer’s mill, in the course of his employment, and concerning a matter connected with his employer’s business; that, about two hours subsequent to the quarrel, after working hours, and when on his way home, he was met on the public street some distance from the mill by the two men with whom he had quarreled; and that these men who had armed themselves at the mill with iron pipes set upon and killed him.</p>

<p>Contract — Sale—Executory contract — Delivery—Resale — Damages — Repudiation of contract — Notice of intended "breach — "Withdrawal or acceptance.</p> <p>1. Where a purchaser of goods under a contract for future delivery of the same at his own town, repudiates the contract without cause before delivery, and the seller refuses to accept the cancellation, and thereafter ships the goods to the purchaser who refuses to accept them, and the goods are sold by the seller in the nearest available market, the purchaser is liable for the loss due to the fall in the market during the time the goods were in transit, the delay in delivery not being due to the seller.</p> <p>2. In such case the seller was not obliged to sell them in his own town where there was an available market, if the purchaser made no request that this should be done.</p> <p>3. It was the seller’s right to stand on the contract as made, and it was not for the purchaser, who breached the contract, to set up a variance of its terms in respect to delivery, to the other party’s disadvantage.</p> <p>4. A mere notice of an intended breach of a contract, is not of itself a breach of the contract. It may become so if accepted and acted on by the other party. If not accepted it may be withdrawn, at any time before performance is in fact due, and, if the market had been in the purchaser’s favor, any profit on a sale would have gone to the purchaser and not to the seller.</p>

<p>Appeal, No. 150, Jan. T., 1922, by defendant, from judgment of C. P. No. 3, Phila. Co., March T., 1915, No. 3069, on verdict for plaintiffs, in case of J. S. Jordan and Manmee Jordan v. Philip C. Eisele.</p> <p>Trespass for personal injuries. Before Davis, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for Maumee Jordan for $4,000, upon which judgment was entered for $2,500, and for J. S. Jordan for $1,500 upon which judgment was entered. Defendant took one appeal.</p> <p>Error assigned, among others, was refusal of judgment for defendant n. o. v., quoting the record.</p>

<p>Practice, C. P. — Affidavit of defense — Pleadings—Information and helief — Contract—Statements to deceive — Averment of reliance thereon necessary.</p> <p>1. A denial in an affidavit of defense is of no effect, if based solely upon the alleged ignorance of the defendant, without making inquiry regarding the facts averred.</p> <p>2. Averments of the statement of claim not denied by the affidavit of defense must be taken as true.</p> <p>3. A general averment in an affidavit of defense is unavailing to defeat a rule for judgment for want of a sufficient affidavit of defense.</p> <p>4. An averment in an affidavit of defense upon information and belief only, where the affidavit also sets forth that the transaction occurred with defendant personally, cannot avail to defeat a rule for judgment for want of a sufficient affidavit of defense.</p> <p>5. An affidavit of defense which avers certain statements were made for the express purpose of deceiving defendant and others, is unavailing unless it also avers defendant acted in reliance thereon.</p> <p>Contract — Sale of goods — Selection of grade — Option—Delivery ! — Measure of damages — Market price — Repudiation of contract.</p> <p>6. It is no defense to a contract, that it was entered into because of opinions or predictions regarding future events.</p> <p>7. A contract for delivery during a specified month, or as soon thereafter as is possible, is not broken merely because the delivery was not made during the specified month.</p> <p>8. A contract for the sale of a graded commodity, which requires delivery to be made of the goods selected by the buyer, is not broken by the seller if the buyer does not notify him of the grade desired.</p> <p>9. If such a contract also provides that the seller may furnish some other grade, if the buyer does not specify within a reasonable time, the seller cannot complain because the buyer fails to exercise the option thus given.</p> <p>10. In such case the damages are determined by the market price on the date when the contract was finally repudiated.</p>

<p>Evidence — Custom — Trade custom — Measurement of textile goods — N otice — Sale—Contract.</p> <p>1. General and universal customs applicable to the trade or business are binding upon buyer or seller unless there is notice of contractual stipulation that the transaction is without regard to the custom.</p> <p>2. Trade customs are recognized upon questions of measurement.</p> <p>S. Where textile goods are sold as of a width mentioned, it is proper, where the purchaser alleges a shortage of width, as an excuse for nonpayment, to admit evidence of a trade custom that such goods were marked as of the width of the original cloth, and not the width they assumed after being mercerized and finished, which process caused a shrinkage in width of from 1% to 2 inches.</p> <p>Contract — Sale—Quality—Delay in making complaint.</p> <p>4. Where a purchaser during a falling market delays from one to two months in making complaint as to goods received by him, the question of reasonableness of the delay is for the jury.</p>

<p>Landlord and tenant — Lease—Option to purchase — Oral notice of election to accept — Principal and agent — Statute of frauds— Lease at will.</p> <p>1. Where an owner of real estate does not give to an agent written authority to execute a lease with an option to purchase contained therein, a lease of the premises for four years and three months with such option, executed by the agent, but not ratified in writing by the owner, falls within the statute of frauds, and the estate created by the lease is one at will only, and the option is unenforceable.</p> <p>2. Under the provisions of the statute of frauds, a lease unauthorized in writing is not an absolute nullity, but is merely reduced to a lease at will.</p>

<p>Practice, C. P. — Trial—Statement of claim — Affidavit of defense.</p> <p>1. The proper method for placing upon the record, for the purposes of a trial, the averments of the statement of claim which are not denied by the affidavit of defense, is to offer them in evidence specifically.</p> <p>2. If this be done, the facts stated therein cannot be contradicted or qualified by the opposite party.</p> <p>Practice, C. P. — Continuance—Discretion of court — Abuse.</p> <p>3. The granting or refusing of an application for a continuance is a matter for the exercise of a sound discretion, and this will not be reviewed on appeal except in cases of clear abuse.</p> <p>4. It was not an abuse of discretion to refuse an application for a continuance for an indefinite time; the proper practice is to ask it for a definite time, with leave to renew the application.</p> <p>5. Nor was it where the continuance was asked on account of the absence of witnesses, and no attempt was made to comply with a rule of court requiring an affidavit in such case stating what the witness would say, if present.</p> <p>Appeals — Application for relief — Grounds for relief.</p> <p>6. If an applicant seeks the wrong character of relief the court will not be reversed for refusing it, even though cognate relief would have been proper and the court could have granted it in deciding the application actually made; the court is not obliged to mould the application but only to decide it.</p> <p>Contract — Sales—Drafts—Warehouse receipts.</p> <p>7. Where a single draft is drawn to cover two or more separate sales of goods, and is forwarded with one or more warehouse receipts or certificates in regard thereto, the purchaser or his assignee may pay either one and require the proper warehouse receipt to be delivered.</p> <p>8. Where a single draft covers two or more separate sales of goods, and the vendor or his assignee resells them, after the draft has been paid, he thereby makes himself liable to each assignee of the original vendee having an interest therein at the time of the resale.</p> <p>Judicial notice — Foreign government, change of — Paralysis of foreign court.</p> <p>9. A court cannot take judicial notice of the fact that a change of government in a foreign country results in paralyzing the judiciary of that country.</p> <p>10. Ordinarily judicial notice is taken only of such matters as are so certainly true and are so well known that everybody is supposed to take notice thereof.</p> <p>Contract — Sales—Principal and agent — Payment.</p> <p>11. Where a vendee of goods has paid to an accredited agent of the vendor, or his assignee, the purchase price of the goods, the former will be entitled to recover the goods or their value, although thereafter, owing to political disorders in the foreign country where the payment was made, the principal cannot prosecute a suit against his agent.</p> <p>Principal and agent — Two innocent persons — Payment—Maxim.</p> <p>12. Where one of two innocent persons must suffer a loss, following the payment of money to an agent, he who clothes the agent with authority to receive, must himself bear the loss.</p> <p>13. Under such circumstances the payor cannot be held liable for the loss, without averment and proof either that he knew or Lad reason to believe the principal would not be able to recover the money, if it was paid to the agent.</p>

<p>Appeal, No. 152, Jan. T., 1922, by plaintiff, from judgment of C. P. No. 5, Phila. Co., Dec. T., 1919, No. 5380, on verdict for garnishee in case of Thomas Ball v. William Weightman, formerly William Weightman, 3d, and Frank G. Rogers, William Rudolph Smith and Fidelity Trust Co., Trustees under will of Charles H. Rogers, deceased, garnishee.</p> <p>Attachment sur judgment. Before Staake, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict and judgment for garnishees. Plaintiff appealed.</p> <p>Error assigned, among others, was binding instructions for garnishee, quoting record.</p>

<p>Will — Devise—Life estate — Trusts and trustees — Interest—Compound interest — Direction to sell — Condemnation of property devised — Word "buy"</p> <p>1. Where a testatrix who died in 1904, having suggested in his will that certain real estate was on the city plan, and having recited that it had been condemned, although such was not the case, directs that “in case the city buys the property” after her death and before the death of her brother, the trustees of her will shall set aside $50,000 out of the proceeds and pay the income thereof to her brother by monthly installments, for life, and the city condemns the land in 1906, the brother dies in 1914, and the damages including allowance of six per cent for delay are paid in 1921, the brother’s estate is entitled to the $50,000 principal out of the damages and interest on the same at six per cent from 1906 to 1914, amounting to $21,500, and interest thereon from 1914.</p> <p>2. The testatrix in using the word “condemned” meant simply to state her knowledge that the real estate was marked on the city’s plan for future condemnation, and by the phrase “in case the city buys the property,” used after the word “condemned,” she meant in case the city actually appropriated and became liable to pay for the property.</p> <p>3. In such case the common law rule fixing a life tenant’s interest at one-third of the total purchase price of the premises involved, has no application.</p> <p>4. Nor is interest on the installments payable between 1906 and 1914 allowable.</p>

<p>Trespass for assault — Principal and agent — Assault of private detective — Department store.</p> <p>1. In an action against the proprietor of a department store for a physical assault committed on plaintiff while in the store under arrest for an alleged theft, a judgment on a verdict for plaintiff will be sustained where the evidence shows that the assault was committed by an operative of a private detective agency employed by defendant, that defendant’s manager was present at the time of the assault when plaintiff was being examined as to the theft, and that he stood by without lending her any protection.</p> <p>Appeals — Verdict—Review—View favorable to appellee.</p> <p>2. Where a verdict is sustained by the trial court, the record, on appeal, will be viewed, from every standpoint, in a light most favorable to appellee.</p> <p>Appeals — Statement of questions involved.</p> <p>3. The appellate court will not consider questions sought to be raised before it, where such questions are unsuggested in the statement of questions involved.</p>

<p>Workmen’s compensation — Loss of use of arm — Decrease in earning power — Evidence of injury — Review of evidence on appeal— Act of June 26, 1919, P. L. 61$.</p> <p>1. On appeal from order of the common pleas confirming an award of the Workmen’s Compensation Board, it is the duty of the appellate court, under the Act of June 26, 1919, P. L. 642, to consider whether there is evidence to support the findings of the board, and if so, whether the law has been properly applied.</p> <p>2. The evidence in this case was held sufficient to support the findings of the board, and of the court below, of increased disability resulting in the loss of the use of claimant’s arm.</p> <p>3. If an injury results in the permanent loss of the use of an arm, compensation for such loss cannot be avoided by showing the claimant’s ability to earn as much in another occupation not requiring the use of the injured member.</p> <p>4. While loss of earning power may be evidence tending to show the extent of injuries, yet the mere fact that earning power has not decreased, will not prevent recovery for* injuries actually sustained.</p>

<p>Appeal, No. 102, Jan. T., 1922, by defendant, from judgment of C. P. No. 2, Phila. Co., June T., 1920, No. 3663, on verdict for plaintiff, in case of James B. Black v. Adolph Mark.</p> <p>Trespass for personal injuries. Before Stern, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict and judgment for plaintiff for $2,500. Defendant appealed.</p> <p>Error assigned, inter alia, was refusal of defendant’s motion for judgment n. o. v., quoting record.</p>

<p>7. Under section 16 of the Practice Act of May 14, 1915, P. L. 483, 486, defenses which are not made in the affidavit of defense or in an amendment thereof, cannot be considered at the trial or on appeal.</p> <p>Mr. Justice Kephart dissents.</p> <p>Appeal, No. 50, Jan. T., 1922, by defendant, from judgment of C. P. No. 4, Phila. Co., March T., 1919, No. 1963, on verdict for plaintiff, in case of South Bend Woolen Co. v. Jacob Reed’s Sons, Inc.</p> <p>Assumpsit for breach of contract of sale. Before Fin-letter, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict and judgment for plaintiff for $12,264.22. Defendant appealed.</p> <p>Errors assigned were various rulings and instructions, sufficiently appearing by the opinion of the Supreme Court, quoting record.</p>

Appeal, No. 170, Jan. T., 1922, by Philip Green, from decree of O. C. Phila. Co., Jan. T., 1920, No. 22, dismissing petition for specific performance, in estate of Fannie Levy, deceased. Petition for specific performance. Exceptions to report of James G. Gordon, Jr., Esq., Master. Before Thompson, J. The opinion of the Supreme Court states the facts. Exceptions sustained and petition dismissed: See 30 Pa. Dist. R. 349. Philip Green appealed.

<p>Practice, O. P. — Judgment n. o. v. — Evidence—Oral evidence— Inference.</p> <p>1. In deciding whether judgment should be entered non obstante veredicto, all the evidence and inferences therefrom, favorable to the party having the verdict, must be accepted as true, and all which are unfavorable, if depending solely on oral evidence, must be rejected.</p> <p>2. A judgment will not be sustained if based upon a fact or a series of facts which cannot possibly be true.</p> <p>Negligence — Street railways — Grossings—Control of vehicle.</p> <p>3. On approaching the crossings on public streets, prepared for and used by pedestrians, all drivers must be highly vigilant and retain such control over their vehicles as to enable them to be stopped on the shortest possible notice.</p> <p>Evidence — Experts—Opinions.</p> <p>4. The court below cannot be reversed for overruling an offer to prove, by an expert, a matter of simple arithmetic, which could be answered just as well by one who is not an expert.</p> <p>5. A question which seeks to obtain an expert opinion regarding the length of time a particular vehicle would take in traveling a given distance, must set forth all the elements, human and otherwise, which may in any way affect the subject-matter of the question.</p> <p>Appeals — Assignments of error — Two exceptions.</p> <p>6. An assignment of error which contains two exceptions is bad under the rules of court.</p>

<p>Appeal, No. 34, Oct. T., 1922, by plaintiffs, from decree of C. P. Westmoreland Co., No. 1088, Equity Docket, dissolving preliminary injunction, in case of Clement V. Smith et al., and Merchants Trust Co. of Greensburg, Guardian of Mary Inez Keefer, v. William G. Blanchard and Blanchard Coal Co.</p> <p>Motion to dissolve preliminary injunction. Before Copeland, J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Injunction dissolved. Plaintiff appealed.</p> <p>Error assigned was decree, quoting record.</p>

Appeal, No. 160, Jan. T., 1922, by plaintiff, from judgment of C. P. No. 5, Phila. Co., March T., 1919, No. 4001, on verdict for defendant, in case of William McMullin v. Philadelphia Rapid Transit Co. Trespass for personal injuries. Before Henry, J., specially presiding. The opinion of the Supreme Court states the facts. Verdict and judgment for defendant. Plaintiff appealed.

<p>Appeals — Assignments of error — Rulings on evidenc —Failure to print evidence in assignment.</p> <p>1. An assignment of error to the action of the court in striking out evidence relied upon to sustain the appeal, is not in compliance with the rules, if the evidence is not incorporated in the assignment.</p> <p>Statute of frauds — Evidence—Nonsuit.</p> <p>2. The appellate court will not reverse a nonsuit, where it is not convinced, after an examination of the testimony, that the trial court erred in its view that the proofs were not sufficient to take appellant’s case out of the clause of the statute of frauds, which provides against the enforcement of a verbal promise to become responsible for the debt or default of another.</p>

<p>Equity — Injunction — Restraining erection of party wall — Church — Charier—A Hey.</p> <p>1. An owner of land abutting on land owned by a church, has no standing to maintain a bill in equity against the church to restrain it from erecting a party wall, for the reason that the charter of the church provided that neither congregation, or its trustees, should at any time cause the land “to be sold or give any mortgage or lien on their church or grounds.”</p> <p>2. Even if the plaintiffs had a standing, they are not entitled to relief on the ground the wall would lessen the -width of an alleyway owned by them, where it appears that when they purchased their land and laid out the alley, they knew or ought to have known that the adjoining owner had a right to construct the wall.</p>

<p>Appeals, Nos. 245 and 246, Jan. T., 1922, by plaintiffs, from orders of C. P. No. 3, Phila. Co., March T., 1921, Nos. 3994, 4005, making absolute rule to open judgment, in case of Abraham Tabas et al., trading as Northern Metal Co. v. Harry Robinson et al., trading as American Metal Co.</p> <p>Rules to open judgments. Before Martin, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>On August 4, 1921, defendants filed petitions to open the judgments and let defendants into a defense, averring that there was (1) an agreement to attempt to settle the disputes; (2) that pending negotiations defendants would not file nor be required to file affidavits of defense; (3) that such negotiations were still pending, and (4) in violation of the agreement judgments were entered in both cases.</p> <p>The answer admitted that negotiations had existed for an amicable settlement and averred that all negotiations were terminated prior to July 7,1921, and were not subsequently renewed.</p> <p>Rules absolute. Plaintiffs appealed.</p> <p>Errors assigned were orders, quoting them.</p>

<p>Appeal, No. 64, Oct. T., 1921, by plaintiff, from judgment of C. P. Butler Co., June T., 1912, No. 1, for plaintiff, on ease tried by the court without a jury, in suit of Bessemer & Lake Erie Railroad Co. v. Ford Collieries Co.</p> <p>Assumpsit for demurrage. Before Reiber, P. J.</p> <p>Judgment for defendant, on case tried by court without a jury. Plaintiff appealed.</p> <p>Error assigned, inter alia, was judgment, quoting it.</p>

<p>Appeal, No. 195, Jan. T., 1922, by defendants, from decree of C. P. No. 2, Phila. Co., June T., 1920, No. 3878, for plaintiffs on bill in equity, in case of Benjamin Dobkin, assignee of Harry Cylinder v. Frank Landsberg et ux.</p> <p>Bill for specific performance. Before Stern, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Decree for plaintiff. Defendants appealed.</p> <p>Error assigned, inter alia, was decree, quoting it.</p>

<p>Yendor and vendee — Sale subject to mortgage — Assignment of contract — Deed—Merger of contract in deed — Equity—Specific performance — Actions—Parlies—Jurisdiction—Amendment—Appeal.</p> <p>1. Whether an agreement for the sale of land is merged in the deed following thereon is a question of the intention of the parties at the time the deed is executed.</p> <p>2. If an agreement for the sale of land subject to a mortgage is executed for the purchaser by an agent, named as such, without naming the principal, and subsequently the agent naming his principal assigns the agreement to another, and the assignee files a bill against the vendor for specific performance of the contract, the court will require the plaintiff to amend his bill so as to name, as parties defendant, the agent and his principal, the original vendee, so that all the indispensable parties may be before the court, and the question determined whether the agreement was merged in the deed, so as to relieve the original vendee and his agent from liability to the vendor by reason of the mortgage.</p> <p>3. A party is indispensable when he has such an interest that a final decree cannot be made without affecting it or leaving the controversy in such a condition that the final determination may be wholly inconsistent with equity and good conscience.</p> <p>4. The absence of an indispensable party goes to the jurisdiction of the court, and an objection to the proceedings on that ground may be raised at any time, during tbe bearing or on an appeal from tbe decree of tbe trial court.</p>

Appeal, No. 221, Jan. T., 1922, by plaintiff, from decree of C. P. No. 4, Phila. Co., Dec. T., 1920, No. 2234, dismissing bill in equity, in case of Amelia M. Taylor in her own right and as executrix of the will of Charles Freemont Taylor, deceased, v. Clarence G. Hoag, Thomas Raeburn White, Samuel S. Fels and Emma V. Jones, trustees. Bill to declare void certain trusts created by deed. Before Finletter, J. The opinion of the Supreme Court states the facts. Bill dismissed.

<p>Trusts and trustees — Executors and administrators — Partnership —Losses—Claim to surcharge inactive trustee.</p> <p>1. Where a testator dies leaving a son, who was his partner, and a daughter executors and trustees, and the son as a liquidating partner turns over to the estate all but a certain sum which was carried along as uncollectible, the daughter, fifteen years thereafter, will not be surcharged, as surviving and inactive trustee, with such sum, especially where the court finds as a fact that the assets were uncollectible.</p> <p>2. Under such circumstances, the inactive trustee should not be charged, where the assets in the inventory are doubtful, unless there was negligence on her part in failing to collect.</p> <p>3. In such case, it is immaterial that the books of the partnership had been destroyed years after testator’s death by a confidential bookkeeper without any purpose to injure and defraud and without any loss to the estate by their destruction.</p>

Appeal, No. 31, Oct. T., 1922, by defendants, from decree of O. P. Allegheny Co., Jan. T., 1922, No. 1001, for plaintiff, on bill in equity, in case of W. J. Campbell v. Wilkins Township, Ira W. Huey et al., Commissioners of the Township of Wilkins. Bill for injunction to restrain issue of bonds. Before Evans, J. The opinion of the.Supreme Court states the facts. Decree for plaintiff. Defendants appealed. Error assigned was decree, quoting it.

<p>Land law — Dedication to public use — Evidence—Deed—County —Bight to convey land — Legislative authority.</p> <p>1. Either the Commonwealth, where it owns, or individuals having title, may dedicate land for the use of the public, but such purpose must legally appear.</p> <p>2. A deed conveying a fee will pass a legal estate, notwithstanding an expression of the purpose for which the grant is made; but the rule will not be applied where the estate is conveyed for a specific purpose, “and no other.”</p> <p>3. Where a county owns land in fee, a legislative authorization to the county to sell it, is permissible.</p> <p>Deed — Loss of deed — Presumption of grant — Time—Possession —Quieting title.</p> <p>4. After a lapse of sixty-nine yeaTS, and a series of circumstances disclosing the enjoyment of an unchallenged title during such time, the courts will presume whatever grant is necessary to quiet the title.</p> <p>Ejectment — Strength of plaintiff's title.</p> <p>5. In an action of ejectment, plaintiff is bound to recover on the strength of his own title, and cannot rely on the weakness of that of his adversary.</p>

Appeal, No. 274, Jan. T., 1922, by defendant, from judgment of O. & T. Luzerne Co., Sept. T., 1921, No. 320, on verdict of guilty of murder of the first degree, in case of Commonwealth v. Frank Valeroso. Indictment for murder. Before Fuller, P. J. 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. 135, Oct. T., 1921, by defendant, from judgment of C. P. Cambria Co., Dec. T., 1918, No. 309, on verdict for plaintiff, in. case of John W. Stiles v. Cambria Steel Co. Trespass for personal injuries. Before Reed, P. J., specially presiding. The opinion of the Supreme Court states the facts. Verdict and judgment for plaintiff for $10,000. Defendant appealed. Error assigned, inter alia, was refusal of defendant’s motion for judgment n. o. v., quoting the record.

Appeal, No. 96, Jan. T., 1922, by James L. Gillespie, from decree of O. C. Phila. Go., Oct. T., 1896, No. 101, dismissing exceptions to adjudication in estate of Thomas Gillespie, deceased. Exceptions to adjudication of Lamorelle, P. J. The opinion of the Supreme Court states the facts. Exceptions dismissed in opinion by Gummey, J. James L. Gillespie appealed. Error assigned, inter alia, was decree, quoting it.

Appeal, No. 15, Jan. T., 1922, by plaintiff, from judgment of C. P. Bucks Co., Sept. T., 1920, No. 15, for defendants on affidavit of defense in nature of demurrer, in case of Alfred H. Muir v. Allen J. Hankele and Wynne James. Trespass for malicious prosecution. Before Ryan, P. J. The opinion of the Supreme Court states the facts. Judgment for defendants. Plaintiff appealed. Error assigned was, inter alia, judgment, quoting it.

Appeal, No. 48, Jan. T., 1922, by defendant, from judgment of C. P. Delaware Co., March T., 1920, No. 966, on verdict for plaintiff, in case of Arnold M. Snyder, a minor, by his father and next friend, Louis Snyder, and the said Louis Snyder, in his own right, v. Paul D. Klink. Trespass for personal injuries. Before Hause, J., specially presiding. The opinion of the Supreme Court states the facts.

Appeal, No. 318, Jan. T., 1922, by defendant, from judgment of C. P. Schuylkill Co., Jan. T., 1922, No. 125, for plaintiff on case-stated, in suit of Matilda Eichman v. Samuel Wall. Case stated to determine marketability of real estate. Before Berger, J. The opinion of the Supreme Court states the facts. Judgmént for plaintiff. Defendant appealed. Error assigned was judgment, but not quoting it.

<p>Appeals, Nos. 186 and 233, Jan. T., 1922, by Helen H. White, for berself and as administratrix of estate of Annie B. Arnold, deceased, from decree of O. C. Montgomery Co., Jan. T., 1921, No. 13, dismissing exceptions to adjudication, in estate of Charity Harned, deceased.</p> <p>Exceptions to adjudication. Before Solly, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Exceptions dismissed: 37 Montgomery Co. R. 181. Helen H. White, for herself and as administratrix of estate of Annie B. Arnold, appealed.</p> <p>Error assigned, inter alia, was decree, quoting it.</p>

<p>Appeal, No. 2, Jan. T., 1922, by defendant, from judgment of C. P. Schuylkill Co., Jan. T., 1921, No. 291, affirming order of Workmen’s Compensation Board sustaining award of referee, in case of William Berskis v. Lehigh Valley Coal Co.</p> <p>Appeal from order of Workmen’s Compensation Board. Before Berger, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Order affirmed. Defendant appealed.</p> <p>Error assigned, among others, was order, quoting it.</p>

Appeal, No. 215, Jan. T., 1922, by plaintiff, from judgment of C. P. Schuylkill Co., May T., 1919, No. 327, for defendant on demurrer, in case of Dodson Coal Co. v. Warren Delano and Frederick Delano, Trustees under will of Warren Delano, deceased, and under the will of James S. Cox, deceased. Demurrer to declaration.

<p>Workmens compensation — Appeals—Review—Evidence—Death —Medical opinion — Causal connection between injury and disease.</p> <p>1. On an appeal in a workmen’s compensation case, the inquiry of the appellate court as to the disputed fact is limited to the determination of whether there is sufficient competent evidence to support it. If justified, the legal conclusion of liability follows.</p> <p>2. Where a workman dies within three hundred weeks of the accident “from such violence and its resultant effects,” the employer is liable.</p> <p>3. That death does not occur for a considerable time after the accident, though an important factor to be considered by the one giving an opinion as to the cause, is not conclusive that it resulted from other than the injury.</p> <p>4. An award in favor of a widow of a workman who died of tubercular peritonitis will be sustained, where the appellate court finds there was sufficient competent testimony to support a finding that a resultant condition of a sprained ankle lowered the power of resistance of the deceased, who was tuberculous at the time of the accident.</p>

<p>Workmen’s compensation — Death—Bronchial pneumonia — Medical opinion — Causal connection between injury and disease.</p> <p>1. Where a workman dies of bronchial pneumonia six weeks after an accidental injury, an award for his death will not be sustained, where the deceased’s physician will go no further than to say that he thought the injuries were “indirectly responsible” for the pneumonia, although it might possibly have resulted from some other cause.</p> <p>2. In such cases, there must be a probable, direct relation shown between the injury and the disease resulting in death, otherwise liability would be fixed by surmise.</p>

<p>Negligence — Railroads — Automobiles — Evidence — Incredible testimony — Suction of train — Grade crossing — Contributory negligen ce — N onsuit.</p> <p>1. Courts are not required to believe that which is contrary to human experience and the laws of nature, or which they judicially know to be incredible.</p> <p>2. A court will not give credence to the proposition, that the suction from a passing train was sufficient to draw into it, up grade, a stationary automobile with the brake on.</p> <p>3. Where a person drives an automobile in front of a rapidly approaching train which he could have seen if he had looked, he cannot recover for injuries sustained.</p> <p>4. If a person drives an automobile upon the tracks of a railroad, and then backs his car, but does not permit it to travel far enough, before he puts the brake on, to clear the overhang of a locomotive, he is guilty of contributory negligence.</p>

<p>Practice, G. P. — Affidavit of defense — Promissory notes — Gase for fury.</p> <p>In doubtful cases and especially in those requiring broad inquiry into facts, where the court refuses judgment for want of a sufficient affidavit of defense, the matter in controversy should go to the jury as the proper tribunal to decide the cause, with proper instructions from the court.</p>

<p>Appeal, No. 190, Jan. T., 1922, by defendant, from order of C. P. No. 5, Phila. Co., June T., 1921, No. 2072, discharging rule to open judgment, in case of Erskine Bains v. Hugh A. Hall (appellant) and Herman G. Freed.</p> <p>Rule to open judgment. Before Martin, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Rule discharged. Defendant Hall appealed.</p> <p>Error assigned was order, quoting it.</p>

<p>Appeal, No. 119, Jan. T., 1922, by defendant, from decree of C. P. No. 1, Phila. Co., March T., 1920, No. 7312, on bill in equity, in case of A. Paul DeSanno v. George H. Earle, Jr.</p> <p>Bill for injunction to prevent violation of building restriction in deed. Before Patterson, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The location of the building in controversy, the second from the corner, ig shown by the half-tone insert:</p> <p>Decree for plaintiff. Defendant, appealed.</p> <p>Error assigned, inter alia, was decree, quoting it.</p>

<p>Appeal, No. 107, Jan. T., 1922, by defendant, from judgment of C. P. No. 2, Philá. Co., Dec. T., 1918, No. 4448, on verdict for plaintiff, in case of Emma Gail v. City of Philadelphia.</p> <p>Trespass for personal injuries. Before Rogers, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict and judgment for plaintiff for $19,235. Defendant appealed.</p> <p>Errors assigned, inter alia, were (1) allowance of amendment, quoting the record; (2) rulings on evidence offered under amended statement, quoting bill of exceptions, and (5) overruling motion for new trial, quoting record.</p>

<p>Appeal, No. 241, Jan. T., 1922, by plaintiff, from order of C. P. No. 1, Phila. Co., March T., 1919, No. 865, refusing to take off nonsuit, in case of Zack Fields v. Philadelphia Rapid Transit Co.</p> <p>Trespass for personal injuries. Before Shoemaker, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Nonsuit and refusal to take it off. Plaintiff appealed.</p> <p>Error assigned was refusal to take off nonsuit, quoting record.</p>

<p>Public service companies — Joint rates — Bate classification — Complaints — Presumption—Burden of proof — Confiscation.</p> <p>1. Except in the case of joint rates, a complaint against those of utility companies must be limited to the schedules of but one company.</p> <p>2. Except in the case of joint rates, a complaint covering those of more than one utility company should be dismissed, even though the parties agree to a different procedure.</p> <p>3. A utility company has the right to classify its rates, both as respects the purpose for which the service is needed and the quantity taken, provided always that the method adopted does not result in unjust, unreasonable, inadequate, unjustly discriminatory or unduly or unreasonably preferential rates to any consumer or class of consumers.</p> <p>4. Where a complaint is not filed until after the effective date of the tariff complained against, the burden of proof is upon the complainant to show that the rates as to him were unjust, unreasonable or unjustly discriminatory.</p> <p>5. When the effective date specified in a tariff filed passes without objection, a presumption arises that the classifications appearing therein are equitable and just, that the total probable revenue will not exceed that to which the utility company is entitled, and, on the hearing of any complaint thereafter filed, the utility company is entitled, in the first instance, to rely upon these presumptions.</p> <p>6. Under such circumstances, each customer of the utility company is entitled to rely, in the first instance, upon the presumption that the rate which he is charged is just and reasonable and will not be changed except as the result of a new tariff or by an alteration of the existing tariff, after he has been given an opportunity to be heard.</p> <p>7. If the complaint made by a particular customer is simply that he is being charged a different rate from that specified in the tariff on file, the commission may consider and decide it without notice to any other customer and without considering what effect it will have on the utility company’s total revenue.</p> <p>8. If, however, the complaint is in effect against the tariff itself, the complainant, when he has the burden of proof, must be prepared to show not only that the rates are unjust, unreasonable or discriminatory as to him, but, if notice has been given to the utility company only, at least that the result of the change desired will not deprive it of the revenue to which -under the law it is entitled.</p> <p>9. A utility company’s right to a sufficient revenue is of as high a character as a consumer’s right not to be discriminated against; the adequate revenue is the fixed factor, the apportionment of it is a relative matter and necessarily changes whenever the rates to any consumer or class of consumers are so altered as to reduce the total revenue below that to which the utility company is entitled.</p> <p>10. Confiscation pro tanto is the necessary effect of sustaining a complaint which so alters the tariff on file as to give to a utility company less than the revenue to which it is entitled; hence, such a complaint should be dismissed unless the other schedules are so altered as to restore the total revenue to the proper amount.</p> <p>11. An order of the Public Service Commission, which results in reducing a utility company’s revenue below a fair return and does nothing further, is unreasonable, under article VI, section 24, of the Public Service Company Law, and the Superior Court which permitted it is required to reverse and set it aside.</p> <p>12. Contracts between a utility company and its consumers cannot be sustained if they result in preventing the former from so increasing its charges to the latter as to deprive the company of an adequate revenue.</p> <p>13. The Public Service Company Law is to be so construed as to give effect to its paramount purpose of allowing to the company an adequate revenue so distributed among its consumers that the rates charged shall not be unjust, unreasonable, inadequate, unjustly discriminatory or unduly or unreasonably preferential as to any thereof.</p>

<p>Contract — Assignment of contract — Repayment of consideration for assignment — Statement of claim — Sale—Time for delivery — Pleading—Practice, C. P.</p> <p>Where a purchaser of goods, under contracts which specify time for delivery, assigns his interest in the contracts, specifying in the assignment the time for delivery as set forth in the contracts, and further providing that “if for any reason” the seller defaults in delivery, under the contracts with the assignor, the latter shall repay the money paid to him for the assignment, the assignee, in a suit based on failure of delivery against the assignor for the money paid, need not attach the original contracts to the statement of claim, inasmuch as the suit is based solely on the terms and conditions of the assignment, and there is nothing in the original contracts controlling the return of the consideration.</p>

Appeal, No. 116, Jan. T., 1922, by defendant, from judgment of C. P. No. 1, Phila. Co., Sept. T., 1918, No. 115, on verdict for plaintiff, in case of Natban W. Albus v. Cornelius P. Toomey. Assumpsit to recover damages alleged to have been suffered by reason of defective character of goods purchased from defendant, and which were paid for. Before Shoemaker, J. The opinion of the Supreme Court states the facts. Verdict and judgment for plaintiff for $1,750.89.

Appeal, No. 28, Jan. T., 1921, by plaintiff, from order of C. P. Lackawanna Co., Oct. T., 1920, No. 367, making absolute rule to open judgment, in case of Mary H. Budd v. Dominick Coyer and Antonette Coyer. Rule to open judgment. Before Edwards, P. J. The opinion of the Supreme Court states the facts. Rule absolute. Plaintiff appealed, Error assigned was order, quoting record.

<p>Practice, O. P. — Amendment—Parties—Additional plaintiffs— Partnership.</p> <p>1. Where a suit is brought by two persons as partners, the record may be amended at the trial, before the jury is sworn, by adding the names of two other persons as additional parties plaintiff.</p> <p>2. Such amendment does not deprive the defendant of any right.</p> <p>Fictitious names — Partnership—Parties plaintiff — New partners —Marking to use — Act of June 28, 1917, P. L. 615 — Words and phrases — "Fictitious”—“Assumed”—Appeal—Amending record on appeal.</p> <p>3. Where a contract is made by two persons as partners, and thereafter they admit two others as partners, a suit on the contract may be maintained in the names of the first two trading, etc., to the use of the four parties.</p> <p>4. If the suit is brought in the name of the first two partners, and the other two are brought on the record by amendment and made parties plaintiff, the appellate court will treat the suit as if brought in the name of the first two partners to the use of all four.</p> <p>5. Where all parties in interest are brought upon the record, the lower court may place them in whatever position will best and most practically work out the ends of justice; and what can be done at the trial may be done by the appellate court on appeal.</p> <p>6. The word “fictitious” in the Act of June 27, 1917, P. L. 645, is used as explanatory of “assumed,” and the two words were not intended to have different meanings.</p> <p>7. The Act of 1917 was never intended to cover old-fashioned genuine firm names.</p> <p>8. Where a suit on a contract is brought in the name of two partners who made the contract, the fact that two other persons were admitted to the partnership after the contract was made, does not bring the case within the prohibition of the Act of 1917.</p>

<p>Appeal, No. 164, Jan. T., 1922, by defendant, from judgment of C. P. No. 5, Phila. Co., June T., 1919, No. 2676, on verdict for plaintiff, in case of John P. Gallagher v. American Bitumastic Enamel Co.</p> <p>Trespass for personal injuries. Before Martin, P. J,</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict and judgment for plaintiff for $3,000. Defendant appealed.</p> <p>Errors assigned were (1) refusal of binding instructions, and (2) refusal of defendant’s motion for judgment n. o. v., quoting record.</p>

Appeal, No. 117, Jan. T., 1922, by defendant, from judgment of C. P. No. 2, Phila. Co., Dec. T., 1920, No. 1576, for petitioner, in case tried by the court without a jury, in suit of David McCoach v. City of Philadelphia, J. Hampton Moore, Mayor, and James T. Cortelyou, Director of Public Safety. Petition for mandamus. Before Rogers, J. The opinion of the Supreme Court states the facts. Petition granted: 30 Pa. Dist. R. 597. Defendants appealed.

<p>Municipalities — Employees—Dismissal—Cities of the first class —Act of June 25,1919, P. L. 581.</p> <p>1. Tbe legislature bas ample authority to determine tbe manner in which city employees may be dismissed.</p> <p>2. Subject to tbe limitations expressly imposed by statute, tbe proper executive officers may discharge tbeir employees.</p> <p>3. In cities of tbe first class, under tbe Act of June 25, 1919, P. L. 581, all that is necessary to discharge a classified employee by a bead of department, except in certain specified cases, is due notice of tbe charges made with tbe opportunity to answer within five days, followed by tbe filing with the civil service commission of copies of tbe written statement.</p> <p>4. What constitutes ample cause for removal within the limits fixed by tbe act must necessarily be largely a matter of discretion on the part of the head of the department. To be sufficient, however, the cause should be personal to the employee, not religious or political, and such as to render him unfit for the position he occupies.</p> <p>5. Where a classified employee is dismissed by a chief of department for failure to perform the duties of his office, a mere averment in his answer to the charge submitted to him, that he was dismissed for political reasons, does not make necessary a court proceeding to determine the correctness of such assertion.</p> <p>Mandamus — Answer—Traverse—Reply or plea — Default—Act of June 8, 1898, P. L. 8^6 — Practice, G. P.</p> <p>6. If a defendant appears in a mandamus suit brought under the Act of June 8, 1893, P. L. 346, and fails to answer, judgment of nil dicit or by default, may be entered, with the result that the averments of the plaintiff may be taken as true; but if an answer is filed and this is traversed, a reply or plea to the traverse is not required, if no attempt to set up new matter is made.</p> <p>7. Even if the joinder of issue was not deemed complete, the court could not of its own motion proceed to declare a default, but would by rule or otherwise require defendant to file any further plea necessary.</p> <p>8. Though parties will not be forced to trial without formal joinder of issue, yet they may so proceed, if they elect, and judgment entered subsequently will not, under such circumstances, be set aside.</p>

<p>Trusts and trustees — Discretion as to investments — Successor in trust — Surcharge—Depreciation in value of bonds — State constitutional provision as to trusts — Ratification.</p> <p>1. Where a testator gives the residue of his estate in trust to his “executor hereinafter named, his heirs, executors, administrators and assigns,” for his wife’s life, and then over, to invest the same “in such securities as to him may seem best, without responsibility as to the exercise of his discretion in so doing,” a successor to the executor in the trust, appointed under the Act of April 22, 1846, P. L. 483, succeeds to the discretionary powers of the former trustee, especially where the individual the testator appointed trustee is not referred to by name in the paragraph creating the trust.</p> <p>2. Where a trustee is clothed with discretionary powers as to investments and reinvestments, neither the state constitutional provision as to trust funds nor the rule as to legal investments applies.</p> <p>3. Where all parties, of full age, who are beneficiaries under a trust created by will, in which discretionary powers are given to the trustee as to investments, request the investment of the trust funds in certain securities, and ratify them after they are made, they cannot be heard, nearly eight years thereafter, during all of which time they received the income from such securities, to question the propriety of making such investments and charge responsibility upon the trustee for any shrinkage in value thereof.</p> <p>4. In determining whether a trustee should be surcharged with depreciation in value of securities in which he has invested the trust funds, the case must be judged as it appeared at the time of the investment.</p> <p>5. All that a court of equity requires from a trustee is common skill, common prudence and common caution, and he is not liable when he acts in good faith as others do with their own property.</p> <p>6. He will not be held personally liable for an honest exercise of a discretionary power in the absence of supine negligence or wilful default, nor for the result of an intervening world calamity beyond his power to foresee or prevent.</p> <p>7. Where a trustee, with discretionary powers as to the investment of trust funds, invested such funds prior to the world’s war in bonds of electric railway companies, he will not be surcharged with depreciation in their values occurring during and after the war, where it appears that he acted in good faith, and upon information furnished by reliable bankers, and that other responsible individual and corporate trustees made investments of trust funds in the same bonds at the same time, and that the legality of their issue was vouched by eminent counsel.</p> <p>Hart’s Estate (No. 1), 203 Pa. 480, distinguished.</p>

<p>Appeal, No. 74, Jan. T., 1922, by defendant, from judgment of C. P. Delaware Co., June T., 1919, No. 746, for plaintiff n. o. v., in case of Samuel J. King v. Edith King.</p> <p>Ejectment. Before Broomall, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for defendant, judgment n. o. y. for plaintiff: 15 Delaware Co. E. 509. Defendant appealed.</p> <p>Error assigned was judgment, quoting it.</p>

Appeal, No. 53, Jan. T., 1922, by defendant, from judgment of C. P. Delaware Co., Dec. T., 1918, No. 563, on verdict for plaintiff, in case of Irene J. Glasco v. Howard B. Green. Trespass for death of plaintiff’s husband. Before Johnson, P. J. The opinion of the Supreme Court states the facts. Verdict and judgment for plaintiff for $12,500. Defendant appealed.

Appeal, No. 101, Jan. T., 1922, by Isaac Ingham, father of decedent, from decree of O. C. Delaware Co., dismissing exceptions to report of auditor, in estate of Lulu D. Yeager, deceased. Exceptions to auditor’s report. Before Hannttm, P. J. The opinion of the Supreme Court states the facts. Exceptions dismissed. Isaac Ingham, father of decedent, appealed. Error assigned, inter alia, was decree, quoting it.

<p>Wills — Construction—Trusts and trustees — Active trust — Rule in Shelley’s Case — Child—Issue.</p> <p>1. The words “child” and “children” are presumptively words of purchase and not of limitation.</p> <p>2. An estate given in trust for the use of one for life and then over to his children in fee, creates bnt a life estate in the first taker, which is not changed by a provision that if the life tenant dies without children or issue him surviving, the estate is to vest in other relatives of the testator.</p> <p>3. Where testator does not give an estate to his son and his children, but in one clause gives the estate to his son for life, and in a subsequent clause to the son’s children in remainder, there is a manifest intention to limit'the interest to the son for life.</p> <p>4. In such case, as the son’s interest is equitable, and that of the remaindermen legal, there is no blending, and the rule in Shelley’s Case does not apply.</p> <p>5. Where the residue of the estate is given to the son for life, with remainder over, and this is followed by a direction to the executor to hold it in trust, and to pay thereout $10,000 to the son when he reaches the age of forty years, the trust is an active one to protect the estate both for the son and the remainderman.</p>

Appeals, Nos. 192 and 286, Jan. T., 1922, by Jessie C. Nevin, from decree of O. C. Chester Co., Account Book Docket 61, dismissing exceptions to accounts in estate of Adam A. Catanach. Exceptions to report of Miss Isabel Darlington, auditor. Before Butler, P. J. The opinion of tbe Supreme Court states the case. Exceptions dismissed. Jessie C. Nevin appealed. Errors assigned, inter alia, were decrees, quoting them.

<p>Workmen’s compensation — Railroads—Interstate commerce — Interstate train — Break in continuity of service.</p> <p>1. Where intrastate and interstate actions are mingled, or at times alternate, there is no separation; the interstate feature predominates and by it must the question be judged.</p> <p>2. Employment follows interstate transportation, and begins when the workman on a carrier’s premises makes a forward move to serve in that traffic or employment, and ends only after he has completely dissociated himself therefrom.</p> <p>3. If there be an assertion of the claim or remedy growing out of an occurrence in which there are constituents of interstate commerce, the burden of explanation and avoidance is on him who asserts the claim or remedy, not on the railroad company to which it is directed.</p> <p>4. Where an engineer is fatally injured while taking an engine from one point in the state to another, and it appears that the engine in question was to arrive at the second point about ten o’clock in the morning, and was definitely assigned to an interstate passenger train at five o’clock in the afternoon, and it also appeared that the engineer after delivering the engine at the second point was to assist in moving with another engine an interstate freight train, the engineer at the time of his injury was engaged in interstate commerce.</p> <p>5. The fact that during the interval from ten o’clock in the morning to five o’clock in the afternoon, the engine in question might possibly be assigned to other work, is immaterial.</p> <p>Workmen’s compensation — Railroads — Interstate commerce — Contractual relations under state laws superseded by Federal Act.</p> <p>6. The Federal Employers’ Liability Act excludes the jurisdiction of state workmen’s compensation acts in all matters relating to interstate commerce, including all the direct and indirect effects thereof, whether these, when applicable, create contractual relations or otherwise.</p> <p>7. It is beyond the power of the states to interfere with the operation of the Federal Act, either by putting the carriers and their employees to an election between its provisions and those of a state, or by imputing such an election to them by means of a statutory presumption.</p> <p>8. Where a railroad employee is killed while engaged in interstate commerce, his widow cannot set up a claim for compensation under the state act, because of a contractual relation between the deceased and his employer arising from the fact that neither had rejected the act, and that this contractual relation could not be overcome by the defense of interstate commerce.</p>

<p>Executors and administrators — Trusts and trustees — Mingling trust funds with administrator’s funds — Jurisdiction of orphans’ court — Trust created hy agreement.</p> <p>1. Where a testator gives a life estate to his wife with remainder to the children of two brothers, and appoints his wife and the two brothers executors, and the executors and all parties in interest sell real estate of decedent and execute an agreement that the income therefrom shall be paid to the wife for her life, and the principal at her death to those entitled to the same, the wife, surviving the other two executors, cannot, in filing her account as executrix, blend the proceeds of the estate which she received as executrix with those received from the sale of the real estate.</p> <p>2. The orphans’ court had no jurisdiction over the trust fund formed by the agreement of the living persons, in the absence of a trust created by the will, or of any conversions by the will, or necessity to sell for the payment of debts.</p>

<p>Landlord and tenant — Lease for life — Recording acts — Mortgage —Sale under mortgage — Rights of lessee — Terre-tenant—Proceedings for possession by purchaser at sheriff’s sale — Acts of May 19, 1898, P. L. 108, and April 20,1905, P. L. 289.</p> <p>1. Where a husband and wife convey land to a son in fee, and the latter, thereafter, executes a lease to his father and mother of the land for and during their natural lives, and during the natural life of the survivor of them, and at the decease of both, the tenancy created to wholly cease and determine, the leasehold is a mere chattel, and does not come within the recording Act of May 19, 1893, P. L. 108.</p> <p>2. If the son creates a mortgage on the land and such mortgage is foreclosed, and the mother, surviving the father, is made a terretenant in the scire facias proceedings, she may ignore such proceedings, inasmuch as she is not in fact a terre-tenant, and will not be bound by them or by a sheriff’s sale of the land in pursuance of the same.</p> <p>3. In such case the purchaser at the sheriff’s sale takes title subject to the outstanding lease.</p> <p>4. The mother’s rights as lessee may be asserted in proceedings under the Act of April 20,1905, P. L, 239, against her by the purchaser at sheriff’s sale to dispossess her, just as she might assert them if an ejectment had been brought against her.</p>

<p>Negligence — Railroads—Employee of contractor — Working on track — Contributory negligence — Judgment n. o. v.</p> <p>No damages can be collected from a railroad company for the death of an employee of an independent contractor working on the tracks of the company, where the evidence shows that the deceased, being aware of an approaching train, left the track with other workmen, that he did not place himself in a position beyond danger from the train, and that a proper signal was given by the watchman, but was not heeded by the deceased.</p>

<p>Appeal, No. 14, Oct. T., 1922, by Margaret B. O’Connor, widow, from decree of O. C., Cambria Co., dismissing appeal from Register of Wills, in tbe matter of tbe petition of Margaret O’Con-nor, widow of Francis J. O’Connor, deceased.</p> <p>Appeal from register of wills. Before Reed, P. J.</p> <p>Tbe opinion of tbe Supreme Court states tbe facts.</p> <p>Appeal dismissed. Margaret B. O’Connor, widow of testator, appealed.</p> <p>Error assigned, inter alia, was decree, quoting it.</p>

<p>Bailment — Lease of pianos — Failure to pay rental — Forfeiture— Replevin.</p> <p>■ 1. Where a lease of pianos contains no provision authorizing the lessor to retake the property for failure to pay rent, the lessor cannot maintain replevin for the pianos because of such failure.</p> <p>2. He may sue for the rent, as it matures, or replevin the property at the expiration of the lease.</p> <p>3. The law will not imply a forfeiture for which the parties have failed to provide.</p>

Appeal, No. 212, Oct. T., 1921, by Commonwealth, from decree of O. C. Allegheny Co., June T., 1920, No. 805%, sustaining appeal from assessment of direct inheritance tax, in estate of Edith Anne Oliver. Appeal from assessment of direct inheritance tax. Before Trimble, J. The opinion of the Supreme Court states the facts. Appeal sustained. Commonwealth appealed. Error assigned was, inter alia, decree, quoting it.

<p>Appeals, Nos. 227, 228, 229, 230 and 269, Jan. T., 1922, by John J. Joyce et al., from decree of O. C. Phila. Co., April T., 1883, No. 609, dismissing exceptions to adjudication in estate of John J. Joyce, deceased.</p> <p>Exceptions to adjudication of Henderson, J.</p> <p>The opinion of tbe Supreme Court states the case.</p> <p>Exceptions dismissed on decree entered by Lamorblle, P. J. Cf. 30 Pa. Dist. R. 840.</p> <p>John J. Joyce, Henry K. Blakeslee, Ida V. Middleton and Hortensia K. Dumphy appealed in Nos. 227, 228,229 and 230; Sbeldon M. Custer et al. appealed in No. 269.</p> <p>Error assigned, inter alia, was decree.</p>

<p>Appeal, No. 48, Oct. T., 1922, by James Nevant, from order of Q. S. Mercer Co., Oct. T., 1921, No. 156, dismissing petition for contest of election of F. S. Fish for Burgess of Farrell.</p> <p>Petition for contest of election. Before McLatjghrv, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Petition dismissed. James Nevant appealed.</p> <p>Error assigned, inter alia, was order, quoting it.</p>

<p>Appeal, No. 128, Jan. T., 1922, by plaintiff, from order of C. P. No. 2, Phila. Co., June T., 1920, No. 9728, dismissing petition for mandamus, in case of John E. Arthur v. City of Philadelphia, J. Hampton Moore, Mayor, and Frank H. Caven, Director of Public Works.</p> <p>Petition for mandamus. Before Rogers, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Petition dismissed: 30 Pa. Dist. R. 676. Plaintiff appealed.</p> <p>Error assigned was order, quoting it.</p>

<p>Appeal, No. 144, Jan. T., 1922, by defendants, from order of C. P. No. 2, Phila. Co., June T., 1920, No. 9726, awarding writ of mandamus, in case of William Sailer v. City of Philadelphia, J. Hampton Moore, Mayor, and James T. Cortelyou, Director of Public Safety.</p> <p>Petition for mandamus. Before Rogers, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Petition granted: 80 Pa. Dist. R. 565. Defendant appealed.</p> <p>Error assigned was order, quoting it.</p>

<p>Municipalities — Cities of the first class — Public employees — Dismissal — Notice—Act of June 25,1919, P. L. 581.</p> <p>1. The manager of the electrical bureau of a city of the first class, may, under the Act of J une 25, 1919, P. L. 581, be dismissed by the director of public safety, for a cause not religious or political, but personal to himself and affecting his public duties, if proper notice of the charges has been given to him.</p> <p>2. Such notice is sufficient if it charges the employee with neglect of duty as shown in frequent and protracted absence during working hours, in permitting police patrol boxes and elevator signal service to remain in disrepair and unfit for use, and in negligence in and general disregard for the requirements of the position as manager of the electrical bureau.</p> <p>8. The written statement of the reasons for dismissal are not required to specify time and place of inefficiency, neglect and absence with definiteness, if it is ample enough to inform of the nature of the offense with which the employee was charged.</p>

<p>Appeal, No. 6, Jan. T., 1922, by plaintiff, from order of C. P. Adams Co., Nov. T., 1919, No. 64, refusing to take off nonsuit in case of Charles Hull v. Harry E. Bowers.</p> <p>Trespass for personal injuries. Before McPherson, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Nonsuit; refusal to take it off. Plaintiff appealed.</p> <p>Error assigned was refusal to take off nonsuit.</p>

Appeal, No. 354, Jan. T., 1922, by plaintiff, from decree of C. P. Berks Co., Equity Docket 1920, No. 1264, dismissing bill in equity, in case of Santo Lucchese v. Joseph Kochanowsky. Bill for specific performance. Before Endlich, P. J. The opinion of the Supreme Court states the facts. Bill dismissed: Berks Co. L. J. 290. Plaintiff appealed. Error assigned, inter alia, was decree, quoting it.

<p>Appeal, No. 282, Jan. T., 1922, by plaintiff, from decree of C. P. No. 3, Phila. Co., Dec. T., 1920, No. 6682, awarding partition, in case of Helen Porter, individually and as trustee under tbe will of William Porter, deceased, v. Margaret Ann Bryant and James M. Bryant, ber husband; Simon Porter and Mary Porter bis wife; Anna L. Culligan Porter, individually and as trustee under will of Frederick P. Porter, deceased, and Mary T. Porter.</p> <p>Bill in equity for partition. Before Ferguson, J.</p> <p>Tbe opinion of tbe Supreme Court states tbe facts.</p> <p>Decree in partition granted. Plaintiff appealed.</p> <p>Error assigned, inter alia, was decree, quoting it.</p>

<p>Appeals, Nos. 122 and 123, Jan. T., 1922, by plaintiff, from judgments of C. P. No. 3, Phila. Co., Sept. T., 1918, No. 3878, on verdicts for defendants, in case of Harriet P. Young v. Masonic Life Association, interpleaded with Henry Hippie, executor under the will of George A. Brown, deceased, Knights Templar Assn, et al.</p> <p>Feigned issue to determine ownership of proceeds of life insurance policies. Before Davis, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdicts and judgments for defendant. Plaintiff appealed.</p> <p>Error assigned was, inter alia, refusal of plaintiff’s motion for judgment n. o. v., quoting record.</p>

Appeal, No. 244, Jan. T., 1922, by plaintiff, from order of C. P. No. 5, Phila. Co., Sept. T., 1919, No. 1623, discharging rule for judgment for want of a sufficient affidavit of defense, in case of Pennsylvania Company for Insurances on Lives and Granting Annuities and Andrew A. Blair, trustees under will of Frances O. Henderson, deceased, v. Harry L. Halpern.; mortgagor, and Sarah L. Halpern, real owner, and Martha Quinn, intervening defendant. Scire facias sur mortgage.

Appeal, No. 324, Jan. T., 1922, by defendant, from judgment of O. & T. Blair Co., Oct. T., 1921, No. 19, on verdict of guilty of murder of the first degree, in case of Commonwealth v. Gilbert Mc-Closkey. Indictment for murder. Before Baldrige, P. J. 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. 32, Oct. T., 1922, by plaintiff, from order of C. P. Mercer Co., Jan. T., 1921, No. 72, discharging rule for judgment for want of a sufficient affidavit of defense, in case of Walter H. Lippincott v. John Stevenson, Jr. Assumpsit on promissory note. Rule for judgment for want of a sufficient affidavit of defense. Before McLaughry, P. J. The opinion of the Supreme Court states the facts. Rule discharged. Plaintiff appealed. Error assigned was order, quoting record.

<p>Appeal, No. 33, Jan. T., 1922, by defendants, from judgment of C. P. No. 1, Phila. Co., Dec. T., 1919, No. 20, on verdict for plaintiff, in case of Herbert M. Shimer v. Penn Electric Smelting Corporation, defendant, and Midvale Steel & Ordnance Co., garnishee.</p> <p>Foreign attachment on contract. Before Shoemaker, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The letter referred to in the opinion is as follows:</p> <p>“165 Broadway, New York, April 8,1919.</p> <p>“Mr. H. M. Shimer,</p> <p>“c/o Penn Electric Smelting Corp.,</p> <p>“19th. St. & Washington Ave., Philadelphia, Pa. “Dear Sir:</p> <p>“Confirming our conversation and verbal agreement of to-day regarding the present status of our company and the procedure to be followed in order to best meet our. financial' obligations and to convert our unfinished and finished material to a commercial quality, it is mutually agreed that you are to direct and assist Mr. Benner in packing all of the material, the semi-finished and finished material now located in the plant at Philadelphia and ship same at the earliest possible moment to Metal Alloys, Inc., e/o Ludlum Steel Company, Watervliet, N. Y., with whom we will make arrangements to do the necessary refining in order to put this material in shape so that we can dispose of it.</p> <p>“It is understood that the grinding equipment, the Wilfley Table and such other equipment as will be of service to MetalAlloys,Inc.,in reworking the above product will also be forwarded to them as soon as possible.</p> <p>“As we advised you this morning, we feel obliged to continue the payment to you of the monthly rent, $250.00, but we shall gladly take advantage of your kind offer to endeavor to. lease the plant to other parties, or utilize it yourself in other work, which will result in your releasing us from the monthly rental payments.</p> <p>“We also appreciate and accept your offer of discontinuing your monthly drawing account.</p> <p>“Yours very truly,</p> <p>“Penn Electric Smelting Corporation, “HGB/AFA ' By [Sgd.] H. G. Batcheller.</p> <p>“Accepted: H. M. Shimer.”</p> <p>Verdict and judgment for plaintiff; for $16,170. Defendant appealed.</p> <p>Error assigned was, inter alia, (17) instructions recited in the opinion of the Superior Court, quoting them.</p>

<p>Criminal law — Murder—Voluntary manslaughter — Shooting "by private citizen — Arrest of criminal.</p> <p>1. A private citizen may arrest for a felony, but neither he nor an officer may shoot the felon, either to kill or wound, unless it is necessary to prevent his escape.</p> <p>Criminal law — Murder—Homicide—Degrees of murder — Involuntary manslaughter — Charge.</p> <p>2. A judge is not required to charge upon questions not involved in the case.</p> <p>3. Upon an indictment for murder there can be no conviction of involuntary manslaughter, and the trial judge is not required to give the jury a definition of that grade of homicide.</p> <p>4. Involuntary manslaughter is committed where it appears that neither death nor any great bodily harm was intended, but death is accidentally caused by some unlawful act, or an act not strictly lawful in itself, but done in an unlawful manner and without due caution.</p> <p>5. When death results from unlawful violence, intended to disable but not to kill, it is felonious homicide, although not of the highest degree.</p> <p>6. Where two join in the commission of an unjustifiable assault, which results fatally, both are guilty regardless of which one inflicted the mortal wound.</p> <p>7. In such case the trial judge does not err in charging the jury that even if entirely satisfied the defendant did not fire the fatal shot, it would still be their duty to convict of some degree of crime, if satisfied that for the purpose of committing an unlawful assault, he was acting in concert with the person who fired the shot.</p> <p>Criminal law — Murder—Verdict—Jury.</p> <p>8. The verdict of a jury is what is announced in open court and recorded as such, not what is written and handed to the trial judge; and, until so announced and recorded, the jury may correct any mistake inadvertently made thereon, and the court may request them to retire for that purpose.</p> <p>9. Where a jury comes in and hands up a written verdict of guilty of involuntary manslaughter upon an indictment under which no such conviction could be had, the court may instruct them that if they had mistakenly written “involuntary” for “voluntary” they could retire and correct it; and if they do so and return a verdict of voluntary manslaughter, such verdict may be recorded, and will be sustained.</p>

<p>Appeals — Exception—Evidence—Motive—Fundamental error.</p> <p>1. A court is not authorized to inquire into the motive of one who has only exercised a clear legal right.</p> <p>2. Upon a general exception only basic and fundamental errors will be considered.</p> <p>C onspiracy — G onfession — Evidence.</p> <p>3. Proof that one of two alleged conspirators admits his guilt, does not establish the guilt of the other.</p> <p>4. An allegation of conspiracy can only be established by full, clear and satisfactory evidence that the parties had combined to do an unlawful thing, or to do a lawful thing in an unlawful manner, that the intent so to do was common to each, and that each understood the other had that purpose.</p> <p>Practice, G. P. — Refusal of point without reading it — Trial.</p> <p>5. The court may refuse a point without reading it, if the subject-matter thereof has been fully covered in the general charge.</p> <p>Practice, G. P. — Pleading—Statement of claim.</p> <p>6. Recovery can be had only upon the basis set forth in the statement of claim.</p> <p>Replevin — Title—Possession—Refund of money — Maxim — He who seelcs equity must do equity.</p> <p>7. In an action of replevin, where it appears that defendant, acting in good faith, had paid the former owner of the property replevied a sum of money to obtain title and possession thereof, which neither party could have obtained without making such payment, plaintiff must refund or offer to refund the money thus paid or his action will be dismissed.</p>

<p>Appeal, No. 266, Jan. T., 1922, by John Zernosky, from decree of C. P. Schuylkill Co., May T., 1921, No. 314, on petition for loan to borrow money, in re Petition of the Trustees of St. Joseph’s Lithuanian Roman Catholic Church of Mahanoy City.</p> <p>Petition under Act of June 7, 1917, P. L. 388, for leave to borrow money. Before Koch, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Petition allowed. John Zernosky, intervener, appealed.</p> <p>Error assigned, inter alia, was decree, quoting it.</p>

Appeal, No. 300, Jan. T., 1922, by trustees, from decree of C. P. Schuylkill Co., March T., 1921, No. 226, dismissing petition for appointment of trustees, in re Petition of Trustees of St. Casimir’s Polish Roman Catholic Church. Petition for appointment of trustees. Before Berger, J. The opinion of the Supreme Court states the facts. Petition dismissed. Petitioners appealed. Error assigned, inter alia, was decree, quoting it.

Appeal, No. 189, Jan. T., 1922, by defendant, from judgment of C. P. Schuylkill Co., March T., 1918, No. 143, on verdict for plaintiff, in case of Annie Davis v. Shenandoah Borough. Trespass for personal injuries. Before Bechtel, P. J. The opinion of the Supreme Court states the facts. Verdict and judgment for plaintiff for $2,477.90. Defendant appealed.

<p>Wills — Construction—Life estate — Remainders—Issue—Rule in Shelley’s Case.</p> <p>1. The rule of construction whereby a devise over, in the event of the death of the first taker, is generally understood to mean death occurring in the lifetime of the testator applies only when the will itself shows no other period to which the words, on a proper interpretation, may be referred.</p> <p>2. The rule is never applied where the first takers referred to are treated as living at the period subsequent to the death of the testator.</p> <p>3. Where a testator makes limitations over to survivors after the death without issue of the first taker, and names as remainder-men persons in being, a strong presumption is raised that an indefinite failure of issue is not contemplated; and this is strengthened when the limitation over is of but a life estate.</p> <p>4. If it appears, either by expression or clear implication, that by the word “issue” testator meant issue living at a particular period, as at the death of the first taker, and not the whole line of succession, it must necessarily be construed as a word of purchase, and the rule in Shelley’s Case can have no application.</p> <p>5. Where testatrix devises her real estate in separate parcels to her three children respectively for life “only,” with power to make loans on it even to exhaustion, remainder to “issue” if any, and if none to survivors, and if all should die without issue, “then so much of my estate as may then remain to sisters of testatrix,” naming them, the children take a life estate only in the real estate respectively devised to them, and if they all survive the testatrix and die without issue, the sisters of the testatrix take such real estate.</p>

<p>Criminal law — Defendant questioned as to other offenses — Withdrawal of juror — Act of March 15, 1911, P. L. 20.</p> <p>1. There is no violation of the Act of March 15, 1911, P. L. 20, where a subject forbidden by the act, or other objectionable matter, is introduced by the prisoner himself as part of his substantive defense, and questions are then put to him in reference thereto by the court, without objection or exception by his counsel, and, on cross-examination, a question of like character, suggesting no new matter whatever, and eliciting no reply, is put by the district attorney, but afterwards withdrawn.</p> <p>2. Even if a possible breach of the letter of the act has been committed, this does not necessarily require a reversal, where the attending circumstances suggest that no material harm was done defendant, and the record indicates a voluntary participation or acquiescence in the alleged breach; and particularly is this so, where no objections or exceptions were entered to the only questions which might be accounted harmful.</p> <p>Criminal law — Appeals—Assignments of error — Sentence.</p> <p>On an appeal in a criminal case, the sentence which is the final judgment in the case, is the one thing that must be brought before the appellate court by assignment, if effective relief is desired.</p>

Appeal, No. 270, Jan. T., 1922, by plaintiff, from judgment of C. P. No. 2, Phila. Co., Sept. T., 1918, No. 3252, for defendant on pleadings, in case of Edward Prettyman v. Alexander D. Irwin, Jr. Affidavit of defense raising question of law. Before Barratt, P. J. The opinion of the Supreme Court states the facts. Judgment for defendant on pleadings. See 30 Pa. Hist. R. 480. Plaintiff appealed. Error assigned was judgment, quoting it.

Appeal, No. 118, Jan. T., 1921, by plaintiff, from order of C. P. Northampton Co., April T., 1920, No. 47, discharging rule for judgment for want of a sufficient affidavit of defense, in case of Commonwealth Finance Corporation v. L. Kramer. Replevin for an automobile. Rule for judgment for want of a sufficient affidavit of defense. Before McKeen, J. The opinion of the Supreme Court states the facts. Rule discharged. Plaintiff appealed.

<p>Appeal, No. 142, Jan. T., 1922, by Edith Craig Werner, claiming as daughter, from decree of O. C. Phila. Co., dismissing exceptions to auditor’s report, in estate of Hugh Craig, deceased.</p> <p>Exceptions to report of Hampton L. Carson, Esq., auditor.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Exceptions dismissed by majority of judges, Henderson, J., dissenting. See 30 Pa. Dist. R. 521. Edith Craig Werner, claiming as legitimate daughter, appealed.</p> <p>Error assigned, inter alia, was decree, quoting it.</p>

<p>Appeal, No. 56, Jan. T., 1922, by defendant, from judgment of C. P. Delaware Co., Dec. T., 1918, No. 202, on verdict for plaintiff, in case of Alice M. McCall v. Girard Life Insurance Co.</p> <p>Assumpsit on policies of life insurance. Before Johnson, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict and judgment for plaintiff for $3,324.50. Defendant appealed.</p> <p>Errors assigned, were inter alia, (4, 5, 6) various rulings and (7, 9) instructions, appearing by the opinion of the Supreme Court, quoting record.</p>

Appeal, No. 283, Jan. T., 1922, by Margaret S. Brown, widow of decedent’s son, from decree of O. C. Phila. Co., July T., 1916, No. 144, sustaining exceptions to adjudication, in estate of Catherine P. Brown, deceased. Exceptions to adjudication of Lamorelle, P. J. The opinion of the Supreme Court states the facts. Exceptions sustained in opinion by Gtjmmey, J. Margaret S. Brown, widow of decedent’s son, appealed. Error assigned, among others, was decree, quoting it.

<p>Negligence — Automobiles—Master and servant — Infant.</p> <p>1. Where the owner of an automobile and an owner of a garage enter into an agreement by which the latter is to deliver the car at its owner’s residence, and return it to the garage whenever requested, the driver of the car at such times is not in the employ of the owner of the ear, but of the owner of the garage, and, while being driven back and forth, the car is entirely under the control of the garage owner and his employee.</p> <p>2. If in such case, it appears that the driver was a boy thirteen years old, and that the owner of the car knew this fact, the latter cannot be charged with negligence in permitting so young a boy to- drive his car, if it appears that the accident happened after the boy had returned to the garage, and then drove the ear out again for a purpose wholly in furtherance of the garage owner’s business.</p>

<p>Negligence — Railroads—Grade crossing — Signals — Stop, look and listen — Evidence — Presumption — Contributory negligence— Sudden peril — Case for jury — Death.</p> <p>1. In a grade-crossing case to recover damages for the death of a driver, the burden is on plaintiff to show that no proper signals of an approach of a train was given by defendant railway.</p> <p>2. Such burden is met sufficiently to carry the case to the jury, where two witnesses for plaintiff, who were in favorable positions to hear signals, testify that they heard neither bell nor whistle.</p> <p>3. In such case, the presumption is that deceased stopped, looked and listened for an approaching train; if there is affirmative evidence that he stopped, the presumption that he looked and listened is strengthened.</p> <p>4. After stopping, looking and listening at a proper place, it is still the duty of the driver to keep a lookout as he approaches and crosses the tracks, and if he drives in front of an approaching train, he is guilty of contributory negligence, unless his view was obstructed. If the evidence is conflicting as to an obstruction of view, the case is for the jury.</p> <p>5. If a driver stops at a proper place, he is not bound to stop again before entering upon the tracks. If, however, his view is obstructed he must alight and go forward; but if his view is only partly obstructed or shortened, the question whether he should have gone forward to get a better view, is for the jury.</p> <p>6. One placed in sudden peril is not required to exercise the best judgment.</p>

<p>Insurance — Life insurance — Insurable interest — Beneficial association — Insurable interest in members’ lives — Misrepresentations —Estoppel.</p> <p>1. Where a beneficial association, desiring to take out insurance on the lives of its members, falsely represents to an insurance company that a particular person was one of its members, and procures a policy on the life of such person on such representation, it is thereafter estopped from asserting that the insured was not a member.</p> <p>2. A beneficial association incorporated under the laws of Pennsylvania as a corporation of the first class “for beneficial and protective purposes to its members from funds collectable” from its members, has an apparent insurable interest in the lives of its members, on which an insurance company may rely in issuing a policy for the benefit of the association on the life of a person represented to be one of its members.</p> <p>3. In such case the insurance company will not be held to have intended to become a party to an agreement condemned by law.</p>

<p>Executors and administrators — Improper valuation of interest— Sale — Accounting—Decedents' estates — Auditor’s findings of facts —Orphans’ court — Jurisdiction—Claim against estate — Evidence.</p> <p>1. An auditor’s findings of fact based on sufficient supporting evidence approved by the orphans’ court, will not be reversed, except for clear error.</p> <p>2. Where an executor has failed to exercise common care, prudence and caution in the handling of the estate, he must make whole the fund which, through his fault, has been depleted.</p> <p>3. The orphans’ court has no jurisdiction over the settlement of partnership accounts, but where an executor has made an unfair valuation of the testator’s interest in a partnership, sells such interest, and accounts for the proceeds, and brings the fund before an auditor, the orphans’ court may assume jurisdiction to pass upon the fairness of his conduct, and surcharge him if it is proper so to do.</p> <p>4. Where an executor asserts a claim for services rendered to a partnership in which testator had a half interest, and such claim is supported by the testimony of the surviving partner, and. the evidence in the case justifies a conclusion that the executor and the surviving partner were attempting to reduce the estate of the deceased for their own personal advantage, the auditor and the orphans’ court are justified in not believing their testimony.</p>

<p>Executors and administrators — Improper conduct of executor— Surcharge — Costs—Abuse of discretion in not charging costs on executor.</p> <p>1. Though costs of an audit are usually deducted from the fund for distribution, this is not an inflexible rule, and if it is made to appear that the orphans’ court has failed to exercise a reasonable discretion, relief may be granted.</p> <p>2. Where an executor has caused an unfair valuation to be made of testator’s interest in a partnership, and has asserted unfounded claims for services against such partnership, and a large amount of testimony has been taken before an auditor bearing on such matters only, and the claim has been disallowed, and the executor surcharged, it is an abuse of discretion on the part of the orphans’ court to impose the costs of the audit on the estate, and not on the executor.</p> <p>3. There is no reason why a party who presents an unfounded claim in the orphans’ court should not be compelled to pay the costs of his litigation, as does the losing party in proceedings at law. Where it is made to appear the outlays are due solely to his wrong, the burden should be placed upon his shoulders.</p>

Appeal, No. 25, Jan. T., 1922, by plaintiff, from order of C. P. Chester Co., Jan. T., 1918, No. 112, refusing to take off nonsuit, in case of John W. Payne v. West Chester Borough. Trespass for personal injuries. Before Hause, J. The opinion of the Supreme Court states the facts. Nonsuit; refusal to remove it. Plaintiff appealed. Error \assigned was refusal to take off nonsuit, quoting record.

<p>Appeal, No. 175, Jan. T., 1922, by the Security Trust Co. of Stroudsburg, guardian of Evelyn Hollinshead et al., from decree of O. C. Monroe Co., of distribution, in estate of Jane M. Hollinshead, deceased.</p> <p>Exceptions to report of J. B. Williams, Esq., auditor. Before Groman, P. J., specially presiding.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court dismissed the exceptions, and entered a decree of distribution. The Security Trust Co., guardian, appealed.</p> <p>Error assigned was decree of distribution, quoting it.</p>

<p>Appeal, No. 337, Jan. T., 1922, by plaintiff, from order of C. P. No. 3, Phila. Co., Sept. T., 1919, No. 3717, making absolute rule to open judgment, in case of Commonwealth Brewing Co. v. Joseph A. White.</p> <p>Buie to open judgment.</p> <p>Buie to release lien of judgment. Before Ferguson, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Buies absolute. Plaintiff appealed.</p> <p>Errors assigned, inter alia, were orders, quoting them.</p>

<p>Appeal, No. 388, Jan. T., 1922, by Theodosia A. Troth, defendant, from decree of C. P. No. 1, Phila. Co., June T., 1919, No. 6531, awarding partition, in estate of Lewis Taylor, deceased, Mnsiedora H. Hover v. Alfred K. Hills et al., and Theodosia A. Troth.</p> <p>Bill in equity for partition. Before Shoemaker, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Decree awarding partition was entered. Theodosia Troth, defendant, appealed.</p> <p>Error assigned, inter alia, was decree, quoting it.</p>

Appeal, No. 364, Jan. T., 1922, by plaintiff, from judgment of C. P. No. 4, Phila. Co., Dec. T., 1920, No. 4737, on verdict for defendant, in case of Alexander Backus v. Phila. Rapid Transit Co. Trespass for personal injuries. Before McCullen, J. The opinion of the Supreme Court states the facts. Verdict and judgment for defendant. Plaintiff appealed. Error assigned, among others, was portion of charge quoted in opinion of Supreme Court, quoting it.

<p>Negligence — Railroads—Passenger — Injury to hand — Sudden closing of car door.</p> <p>In an action against a railroad company by a passenger for an injury to her hand, a nonsuit is properly entered, where the evidence is that plaintiff when about to light from the platform of a standing train, placed one of her hands on a door jamb of the car on which she was riding, that the door closed, injurying the hand, and the only evidence as to the cause of the door closing is a statement by plaintiff that a man whom she described as the conductor, opened the door after the hand was pinched and said: “I am sorry, the door slipped out of my hand.”</p>