Volume 43 — Pennsylvania Superior Court Reports

<p>School law — High schools — Tuition—Suit by parent — Act of May 28, 1907, P. L. 202 — Presumption.</p> <p>1. A suit by the father of a pupil against the school district in which he resides to recover money paid for the tuition of the pupil in a high school in an adjoining district, can only be maintained for money which had been paid after the passage of the Act of May 23, 1907, P. L. 202.</p> <p>2. In such a suit where it appears that the principal of the high school of the adjoining district duly examined the son of the plaintiff for admission to his school, it will be presumed that he does so under the direction of the county superintendent, not only because the acts of a public officer are presumed to have been done in accordance with law, but also because a teacher with a certificate of the county superintendent, is supposed to act under his direction in all things so far as his duties are made subject to the direction of the county superintendent.</p>

<p>Appeal, No. 3, Oct. T., 1910, by defendant, from judgment of Q. S. Chester Co., on verdict of guilty in case of Commonwealth v. James Spence.</p> <p>Indictment for selling liquor without a license.</p> <p>At the trial the jury returned a verdict of guilty.</p> <p>On a motion for a new trial and in arrest of judgment, Butler, J., filed the following opinion:</p> <p>Prior to the passage, in 1887, of what is known as the Brooks high license act, the law provided for an inn or hotel license, under which spirituous, as well as vinous, malt and brewed liquor could be sold, and for an eating-house license, under which only the last named class of liquors, comparatively low in percentage of alcohol, could be sold. Where a fit person applied for a hotel license, and it was proved that he could provide proper meals and lodging for his guests, and it was further proved that the traveling public had substantial need for hotel accommodation at the place asked to be licensed, he was entitled to a hotel license. Where a suitable person applied for an eating-house license and demonstrated that the public needed his place as an eating house, he was entitled’to that form of license. The Brooks act of 1887 has created a retail liquor license, a license that has no necessary relation to a hotel or eating house, for it may lawfully be granted, and commonly is in the cities, to those who intend to provide the public with nothing but a liquor saloon. Confronted by this state of the law, Judge Futhey, then upon the bench of the district, felt that the public would be sufficiently accommodated with spirituous liquors, if the new retail liquor license should be confined to the hotels. He was not willing to grant it-for the creation of mere drinking places, nor did he consider it a proper license, authorizing as it did the sale of spirituous liquors, to grant to the eating houses. At the same time he was of opinion that those eating houses which were necessary to the convenience and comfort of the public, should be permitted to furnish liquors containing a small percentage of alcohol, as they had in the past, under the old eating-house license. Such licenses were granted by Judge Futhey, and have continued to be granted by his successors down to the present time, the licensees paying the same amount of license fee as the hotel proprietors who are granted the Brooks retail liquor license. The defendant, who has for many years conducted an eating-house in West Chester, after the passage of the act of 1887, annually applied for and received a license of the character above described, to sell vinous, malt and brewed liquors, as sanctioned by the old eating-house license, until a few years ago, when having greatly improved his building, he asked for the retail liquor license of the act of 1887. Feeling as did Judge Futhey that this license should be confined to the necessary hotels of the county and concluding that his house was not needed as a hotel, because of its proximity to existing hotels, and the absence of occasion for more, the court refused to grant this license, but under another and appropriate application granted him the other form of license. Such a license he continued to apply for and receive; and such a license he held — authorizing the sale only of vinous, malt and brewed liquors at the time he was convicted. On the trial the proof was conclusive and unquestioned, that he sold spirituous liquor, what was substantially a low grade of whisky, very much richer in alcohol than any vinous, malt or brewed liquor, such a percentage as could not be produced by fermentation, but only by distillation. The jury was instructed that the defendant had no license to sell spirituous liquor, and that if he had done so, it was their duty to convict him. In support of this motion for a new trial, it is contended that error was committed in telling the jury that defendant had no license to sell spirituous liquor, that the license granted him must be treated as any act of 1887, retail liquor license, because, as is contended, the law sanctions no other retail license. We cannot subscribe to this. If the law permits no other retail liquor license to be issued, than that prescribed by the Brooks act, then the defendant’s request for, and the court’s granting of another and different kind of retail liquor license was a mere abortion, and defendant received no license at all. A few years ago he was refused the Brooks retail liquor license, and on his other petition granted a different license, which, on similar petition, has been renewed each year. In view of this, we cannot regard him as holding the first-named license. Surely if one should ask for and receive a written authorization from the court to sell cider and should pay the license fee prescribed for a Brooks retail license, it would not be contended that he had been granted the latter license. We agree with counsel for defendant that if this court had granted the Brooks license, it could not have imposed restrictions and conditions of its own making, could not have denied the right given by it, to sell spirituous liquors. We also acquiesce in the proposition that if it appeared that the court had intended to grant the Brooks license, the fact that its decree or order, following the petition as it does, omits the word, “spirituous,” would not prejudice the defendant, for the extent of privilege granted would be controlled by the law under which the decree was made, and with which it would, in such case, have been intended to accord. This is foreign to the case being considered, however, for there was no appearance even, of a purpose to grant the defendant the Brooks license. The application on which his present license issued, states on the outside or back, 'that it is a petition for an eating-house license, and inside reads that it is a petition for a license to sell vinous, malt and brewed liquors, and it is such a license, and none other, that the court undertook to grant. It may have granted no license, but it certainly did not grant, and was not understood by the defendant to have granted, the Brooks license authorizing the sale of spirituous liquors. We think that the propositions of defendant’s counsel to the effect that the defendant was in any sense coerced into accepting an emasculated Brooks license, and has been imposed upon by being required to pay the license fee therefor, are not sound. As already stated, his petition for the Brooks license was positively and finally refused, and that application was fully determined and at an end, and he has never paid any license fee in that connection. On his petition for what is practically the old eating-house license, favorable action was taken, and voluntarily paid, as he and all other eating-hóuse licensees have paid since Judge Futhey began issuing this license, after the passage of the act of 1887, the same fee as is paid by those who receive the Brooks license. We must also except to the proposition that if there is no authority in law for issuing such a license, a wrong has been done the defendant in granting it, and permitting him to pay a license fee therefor. The fallacy of this contention becomes manifest when it is appreciated that no trouble has come to the defendant by reason of any weakness or defect in his license, that on the other hand, his calamity is referable solely to his' willful deliberate violation of the express terms of his license, to his sale of spirituous liquor, whisky, which it did not purport to authorize. We understand that there are at least two districts in the state, that composed of Montgomery county being one, in which, as here, what is substantially the old eating-house license is still issued.</p> <p>The rules for new trial and in arrest of judgment are dismissed.</p> <p>Error assigned among others was in refusing to arrest the judgment.</p>

<p>Divorce — Desertion—Indignities to person — Question for jury.</p> <p>1. Desertion is an actual abandonment of matrimonial cohabitation with an intent to desert willfully and maliciously persisted in without cause for two years.</p> <p>2. Where a husband withdraws from the presence and society of his wife, introduces into his household his father and mother, takes control of the house from the wife, forces her to live in separate apartments not properly heated, and so conducts himself as to lead to the inference that he was making life uncomfortable for her in order that she might be induced to leave, and the wife leaves the house under such circumstances as to show that she had no intention of deserting her husband, the question as to whether there was a desertion by the wife is a question for the jury in a divorce proceeding instituted by the husband, and a verdict and judgment for the wife in such proceeding will not be reversed.</p>

<p>Railroads — Eminent domain — Widening Act of March 17, 1869, P. L. 12 — Straightening a stream.</p> <p>1. A railroad company which has exhausted its power of appropriating land for its right of way under the Act of February 19, 1849, P. L. 79, has no authority under the widening Act of March 17, 1869, P. L. 12, to condemn land near its right of way for the purpose of straightening a stream and doing away with two bridges along its right of way.</p> <p>2. The widening contemplated by the act of 1869, has reference to the right of way as the physical foundation of the road and the tracks, sidings, water tanks, stations and other facilities essential to and connected immediately with the maintenance of the road. A widening for any other purpose is not authorized. The statute relating to the improvement of aqueducts does not apply to railroads.</p>

Appeal, No. 88, Oct. T., 1909, by defendant, from judgment of C. P. No. 4, Phila. Co., March T., 1907, No. 3,490, on verdict for plaintiff in case of Hayes A. Clement v. Adams Express Company. Trespass to recover damages for the killing of a dog. Before Carr, J. The facts are stated in the opinion of the Superior Court. Verdict and judgment for plaintiff for $350. Defendant appealed. Error assigned was in refusing judgment for defendant non obstante veredicto.

<p>Easement — Deeds—Boundaries—Privies.</p> <p>1. Where an owner of land subjects part of it to an open, visible, permanent and continuous service or easement in favor of another part, and then aliens either, the purchaser takes subject to the burden or the benefit as the case may be.</p> <p>2. Where 'four lots on which dwelling houses are erected are owned by one person, and at the common intersection of the four lots there has been constructed a large privy vault with a building over it divided by partition walls into four separate and distinct sections or privies for the use of the four houses respectively, and the owner conveys one of the lots by a deed whose boundaries include two of the contiguous sections or privies, and thereafter conveys to another person the contiguous lot by a deed whose boundaries do not include the contiguous privy section, the grantee in the first deed takes the land conveyed to him subject to the easement of the privy which had always been used by the tenants of the second lot conveyed.</p>

Appeal, No. 192, Oct. T., 1909, by defendant, from judgment of C. P. No. 2, Phila. Co., March T., 1908, No. 2,392, for plaintiff on case stated in suit of Daisy Wright v. Adams Express Company. ’ Case stated to determine liability for loss of furs. The case stated was as follows: It is hereby agreed by and between the parties in the above-entitled action that the following case be stated for the opinion and decision of the court in the nature of a special verdict.

Appeal, No. 87, Oct. T., 1909, by defendant, from judgment of C. P. No. 1, Phila. Co., March T., 1907, No. 1,701, on verdict for plaintiff in case of Abe Davidson, trading as Davidson & Son, v. Adams Express Company. Trespass to recover damages for loss of goods. Before Brégy, J. The facts are stated in the opinion of the Superior Court. Error assigned was, inter alia, in dismissing defendant’s motion for judgment non obstante veredicto.

Appeal, No. 159, Oct. T., 1909, by defendant, from judgment of C. P. No. 1, Phila. Co., Dec. T., 1906, No. 4,181, on verdict for plaintiff in case of Charles Cutler, by his father and next friend, Frank Cutler, and Frank Cutler in his own right v. Andrew G. Morrison. Trespass to recover damages for personal injuries. Before Kinsey, J,, The circumstances of the accident are stated in the opinion of the Superior Court. The defendant presented these points: 1.

Appeal, No. 194, Oct. T., 1909, by defendant, from judgment of C. P. Northumberland Co., Feb. T., 1909, No. 200, on verdict for plaintiff in case of William J. Brown and Ellen Brown, his wife, v. Sunbury & Selinsgrove Electric Street Railway Company. Trespass to recover damages for personal injuries. Before Auten, J. The facts are stated in the opinion of the Superior Court. Verdict and judgment for Ellen Brown for $375, and for William J. Brown for $50.00.

Appeal, No. 78, Oct. T., 1909, by defendant, from order of Q. S. Centre Co., Feb. Sessions, 1908, No. 5-8, making absolute rule on school directors to enter into a contract for the tuition of pupils of a neighboring high school in case of A. C. Grove et al. v. School District of Spring Township.

<p>Appeal, No. 155, Oct. T., 1909, by plaintiffs, from judgment of C. P. No. 4, Phila. Co., June T., 1908, No. 2,005, on verdict for defendants in case of David F. Thompson et al., trading as Thompson, Son & Company, v. Pia Stone et al., trading as Stone Brothers & Company.</p> <p>Assumpsit to recover damages for breach of a contract for the sale of goods. Before Audenried, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The court charged in part as follows:</p> <p>[On February 10, however, a meeting took place in the office of Thompson, Son & Company, in New York, between two of the partners of that concern, Mr. Thompson and Mr. Bryson, on one side, and one of the defendants on the other. This particular defendant, Morris Stone, went to New York and called at the plaintiffs’ office on the morning of that day, and referring to the correspondence which passed between them, said that they were not in a position to do as the plaintiffs requested the defendants to do, and take all the goods at once; that, in fact, he did not want to take any more goods unless the price could be reduced, that times were hard, he could not sell the output of his factory, he had- been obliged to mark down the price of his goods, and that he wanted the plaintiffs to make a reduction in the price at which these goods were to be paid for. They seem to have replied by requesting him to take the goods promptly. He said he could not do that. Mr. Thompson then said that if he would take the goods within a reasonable time he could have them at the price of six and one-half cents a yard, although the original price fixed by the contract was seven and five-eighths cents per yard. So far, Mr. Morris Stone and Mr. Thompson agree as to what was said between them. They agree also in saying that Mr. Stone replied to Mr. Thompson that he would take the goods at that price, but he was unwilling to have the goods charged against him then, immediately. He said he could not raise the money with which to pay the bill. The case, I think, turns on what transpired between these men in the afternoon, when Mr. Morris Stone returned to the plaintiffs’ place of business. According to the testimony of Mr. Stone,- the plaintiffs, at his instance, modified their proposition of the morning, and said that they were willing to waive performance of the contract made between them and the defendants on May 15, 1907, and let the defendants take the goods just as the requirements, of their business made it convenient for them to do so, and charge the goods to the defendants at the market price prevailing at the time the goods were delivered. Now, Mr. Thompson says that no such arrangement was made between him and Mr. Stone.] [1]</p> <p>[Mr. Bryson testifies to the talk between himself and Mr. Stone, which seems to indicate that the modification in these terms of the original contract between these parties, which had been agreed on, was not what Mr. Stone said it was. If what Mr. Stone says about this matter is correct, the plaintiffs’ case fails. If you believe that on February 10, it was agreed between the plaintiffs and the defendants, acting by their partners who were present at this interview, that the plaintiffs would waive the exact performance by the defendants of the terms of their agreement of May 15, 1907, and that they would permit the defendants to call for the goods just as they needed them, and pay for them at the price prevailing in the market at the time the goods might be called for, as each lot of goods might be called for, then, under that view of the matter, the verdict in this case ought to be in favor of the defendants.] [2]</p> <p>[If what Mr. Stone says about this matter is correct the plaintiffs’ case fails.] [3]</p> <p>[If the goods were sold, and sold at these prices, and these prices were the market prices, and in so selling them the plaintiffs acted as reasonable business men would act under the circumstances, and they had the right to sell them because of the default on the part of the defendants in taking the goods within a reasonable time after February 10, 1907, then I charge you that for the loss on the goods, that is, the difference between the prices at which the goods sold and the price at which the defendants agreed to accept and pay for them, seven and five-eighths cents a yard, the defendants are responsible.] [4]</p> <p>[The plaintiffs have asked that after this be awarded them you award them also, in addition to that, an allowance of six per cent on the original contract price of the eleven cases of cambric, amounting to $121.86, to cover insurance, expenses of handling, and compensation for efforts to make the sale. In my judgment the proofs do not entitle them, under any view of the case, to an allowance of that commission here. I instruct you that if your verdict is for the plaintiffs, it cannot exceed the sum of $753.88 with interest from May 15, 1908.] [5]</p> <p>6. The learned court erred in his charge to the jury in instructing them as follows:</p> <p>[If, however, you are of the opinion that the terms of this contract were so waived by Mr. Thompson and Mr. Stone when they met on February 10, 1908, at Mr. Thompson’s office in New York, that the arrangement then left remaining open between the defendants and the plaintiffs was that the defendants would call for the goods just as the requirements of their business made desirable, and the plaintiffs would, when the goods were called for, deliver them and charge for them at the rate prevailing in the market at the time the cambric was delivered, your verdict ought to be in favor of the defendants and against the plaintiffs.] [6]</p> <p>Verdict and judgment for defendants. Plaintiffs appealed.</p> <p>Errors assigned were (1-6) above instructions, quoting them.</p>

<p>Appeal, No. 22, Oct. T., 1909, by plaintiffs, from' judgment of C. P. Lancaster Co., March T., 1906, No. 32, on verdict for defendant in case of A. J. Steinman and Charles S. Foltz, trading as Stein-man & Foltz, Publishers of the Intelligencer, v. The Edison Electric Illuminating Company.</p> <p>Trespass to recover damages for an alleged unlawful discrimination in rates for. electric lighting. Before Landis, P. J.</p> <p>At the trial when C. E. Titzel was on the stand he was asked the following question:</p> <p>. “Q. I call your attention to the fact that the contract with M. T. Garvin & Company, made May 20, 1902, provides for a period of three years, with privilege of five, and that Garvin covenants and agrees to take all the electric current necessary for lighting and power used in the store, at a designated rate, subject to a discount for forty per cent, for lighting purposes;:that the contract with the Cochrans is for five years, subject to the same discount for lighting purposes; that the contract with the New Era Company is for five years, with the privilege of ten, subject to the discount of forty per cent for current used for lighting purposes. State whether or not like terms were given to any other patrons or consumers applying, who you knew consumed a specified quantity or over?”</p> <p>Mr. Atlee: If the court please, that offer is objected to, because the contracts speak for themselves and express the consideration to this defendant company for entering into the contracts.</p> <p>The Court: That may be; but still, they would not show that the same contract was not offered to others. The contracts would not show that.</p> <p>Mr. Atlee: I object as immaterial and irrelevant, further.</p> <p>The Court: It goes to the question of discrimination— unjust discrimination.</p> <p>Plaintiffs except. Bill of exceptions signed, sealed and filed for the plaintiffs. [1]</p> <p>Mr. Hensel: “Q. Were those or like terms given to all other patrons or consumers, whose patronage amounted to a specified sum or excess? A. Yes, sir; they were given the same. Q. It has been testified here that, in this period between 1902 and'1906, there was no competing company in this city. Was there or not, in this city, besides yours, another organized and incorporated electric light company?”</p> <p>Mr. Atlee: If the court please, that is objected to as immaterial and improper and irrelevant, as the contracts speak for themselves.</p> <p>The Court: We will let him answer.</p> <p>Plaintiffs except. Bill of exceptions signed, sealed and filed for the plaintiffs. [2]</p> <p>“A. The Lancaster Electric Light, Heat & Power Company were incorporated. Q. About what.amount, of money did you spend in the development and increase of your lighting facilities subsequent to the date of the execution of these contracts?”</p> <p>Mr. Atlee: If the court please, that is objected to as immaterial, irrelevant and incompetent; because the contracts do not set forth any special reason other than that expressed in the contracts. They speak for themselves.</p> <p>The Court: I do not see that it makes very much difference. I think we will let the facts come out.</p> <p>Plaintiffs except. Bill of exceptions signed, sealed and filed for the plaintiffs. [3]</p> <p>Mr. Hensel: “Q. What amount of money? A. Our company spent about $300,000 on the power plant.”</p> <p>The court charged in part as follows: .</p> <p>[But, on the other hand, if the company, from proper motives and for proper business reasons, agreed with certain persons who consumed 500 kilowatts per month, to furnish them electricity at a certain fixed rate under certain conditions, and all persons of that class who wished to take advantage of that, rate could do so, if they so desired, then there is no discrimination, simply because the parties of that class received larger discounts than the plaintiffs and other persons who did not consume that amount of electricity and were not embraced in that class. If, therefore, the jury find that such were the circumstances, and under such circumstances there was no unjust or unreasonable discrimination in the fixing of these rates in the contracts, then your verdict should be for the defendant.] [4]</p> <p>Verdict and judgment for defendant. Plaintiffs appealed.</p> <p>Errors assigned were (1-3) rulings on evidence, quoting the bill of exceptions, and (4) portion of charge quoted above.</p>

<p>Wills — Exclusion of heir — Personal estate — Intestacy.</p> <p>1. Merely negative words in a will axe not sufficient to exclude the title of the heir and next of kin. There must be an actual gift to some other definite object. The rule applies to personal property as well as to real property.</p> <p>2. Where a testatrix directs that a nephew named shall not participate in the distribution of her estate, and dies intestate as to a part of her personal estate, the nephew named will be entitled to a share of such personal property undér the intestate laws notwithstanding the words of exclusion.</p>

<p>. Taxation — Collateral inheritance tax — Decedents’ estates — Payment of tax out of residuary.</p> <p>1. An executor is justified in paying a collateral tax out of the residuary estate, where he is authorized by the will “to sell sufficient property or proceeds of crops to pay any debts and expenses collateral tax, and legacies bequeathed, before any division is made of said rents, issues and profits; ” and this is the case although in a later clause in the will testatrix has given real estate to her trustees “to rent, farm or crop .... to the best advantage, and from the rents, issues and profits thereof (1) to pay all taxes, repairs and insurance, and keep the properties in good condition; (2) to divide the balance,” etc.</p> <p>2. In such a case the word “taxes” in the later clause is to be construed as meaning local taxes, and not to include the collateral tax.</p>

<p>Deeds — Descriptions—Boundaries—Reference to plot — River as boundary.</p> <p>1. Where reference is made in deeds for the sale of lots to a plot on which they are shown with numbers, streets, alleys and water courses, the plan so referred to becomes a material part of the conveyance, and is to have the same effect as if it were copied into the deed.</p> <p>2. Ordinarily the construction of a deed or other document is for the court, but where boundaries are to be ascertained, and where the intention of the parties is to be discovered in the light of conditions and circumstances extraneous to the documents the case is for the jury .</p> <p>3. Where a deed calls for a street as one of the boundaries, and refers to a plot, and the plot does not show the street, but a river as the boundary, and evidence as to the local conditions and circumstances tend to show that the river and not the street was intended as the boundary, the question as to what was the boundary intended is for the jury and not for the court.</p> <p>4. Where a road is laid out or dedicated to a navigable stream, the road runs to the water even though it has not been worked or used further than the top of the bank. The ground between high and low-water mark is as much subject to appropriation to a road as any other land; and the same rule applies to a road terminating at a navigable river which is applicable in the case of one road connecting with another the two thereby becoming a continuous public highway.</p> <p>5. Where a plan of lots indicates the west boundary of the lots as a river, and subsequent deeds by the owner call for a street as the west boundary, and it appears that the high-water line of the river overlapped the street, it may be inferred that the owner did not claim to reserve anything between the street and low-water mark. In such a case it will be presumed that the owner intended to secure to the purchasers of the lots and to the public access to the water; and this presumption is strengthened if it appears that the river bank was precipitous, and that there was no soil available to the owner between the street and the river for improvements'of any kind. The intention of the owner, however, is for the jury. ‘</p> <p>Boroughs — Streets—Removal of earth.</p> <p>6. A borough may make use of the soil in a street for any authorized public purpose, and an abutting owner has no standing to object to such use.</p>

<p>Vendor and vendee — Parol contract — Statute of frauds — Evidence.</p> <p>1. A plaintiff may recover damages for the breach of a parol contract to convey land, and this is so, although the contract cannot be specifically enforced.</p> <p>2. Where a person purchases a lot and house for a dwelling, takes a deed therefor, and pays the full amount of the purchase money, and it appears that he is induced to make the purchase by a parol promise on the part of the vendor to remove a foundry in the immediate vicinity, which the latter owned, and the vendor fails to perform his promise, the vendee will be entitled to damages for the breach, and the measure of his damages is the difference between the market value of the property with the foundry in the vicinity and the market value of the property with the foundry removed. The statute of frauds does not apply to such a verbal contract.</p> <p>3. The evidence to establish such a verbal agreement must not be loose, vague and uncertain, but must be sufficient to show a definite agreement upon which the vendee relied. It is reversible error to admit testimony to establish the agreement, which could only be considered as the expression of an intention or purpose at some time or other to remove the foundry.</p>

<p>Appeal, No. 121, Oct. T., 1909, by plaintiff, from order of C. P. Lancaster Co., Trust Book No. 21, page 95, dismissing petition to appoint viewers to assess damages in case of Joseph W. Davis v. Pennsylvania Railroad Company.</p> <p>Petition for the appointment of viewers. Before Landis, P. J.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was in dismissing the petition.</p>

<p>Appeal, No. 196, Oct. T., 1909, by Ernest Schaeffer, from order of Q. S. Lancaster Co., Jan. T., 1905, No. 514, discharging rule to show-cause why an attachment should not issue for contempt In re West Lampeter Township and Lancaster City.</p> <p>Rule for attachment for contempt.</p> <p>Landis, P. J., filed the following opinion:</p> <p>On January 16, 1905, a petition was presented, setting forth that the “petitioners labor under great inconvenience for want of a public road or highway to lead from a point in a public road near the Old Factory bridge, known as the Old Factory Road, to a point in East Hager street, at or near the Garbage Plant.” The court thereupon appointed viewers, and on- April 19, 1905, these viewers filed their report in favor of the road. This report was confirmed nisi, and the width of the road was fixed at thirty-three feet. On December 18, 1906, the report was confirmed absolutely, and thereupon an appeal was taken to the Superior Court. On February 28, 1908, that court affirmed the judgment of the court below. See Lampeter Twp. Road, 35 Pa. Superior Ct. 379. Thereupon orders were issued to the supervisors of West Lampeter township and to the street commissioner of the city of Lancaster, to open the said road, and it is admitted in the petition for this attachment that that part of the road lying in West Lampeter township has been duly opened by the supervisors; and the answer filed by the street commissioner, which is not contradicted, asserts that the order of the court has also been complied with in the city of Lancaster, in that said road is opened to the width set forth in the report of the viewers and the order of the court, with the exception that the petitioner himself has erected on the road in his pasture a fence across, obstructing and preventing passage thereon by vehicles and pedestrians.</p> <p>The point of controversy, however, seems to arise from the fact that it is asserted in the petition that the Conestoga creek, at the point at which the road was laid out by the viewers, is impassable without a bridge, and that no bridge has been erected or constructed by. the street commissioner. It is not claimed that the order specifically directs the street commissioner to build a bridge, and in point of fact we do not see how he could do so, even if he had been so directed. Supervisors of townships have authority to levy taxes, and, therefore, they can, whenever it is required, erect necessary bridges; but the street commissioner’s duties do not embrace any such authority. On pp. 90, etc., of the City Digest, his duties are defined by the city ordinances, and he is directed to keep open and in good order and repair the streets, lanes, alleys and highways of the city, and to superintend the digging down and filling up the same, according to the pitch and regulation of the street regulators, and to direct and appoint the depth of all wells, sinks or vaults for privies, hereafter to be dug in the city. He is also authorized and required, as often as the several streets, lanes and alleys shall be out of repair, or want' cleaning, to hire and employ a sufficient number of laborers; and the necessary carts or wagons, to work upon, amend, repair and cleanse the same. He is also directed to take care of the public property and all materials intended for improvement, and to see that all nuisances whatsoever be properly removed, and generally exercise a superintendence and care over the cleanliness of the city. He is not authorized to make contracts of any considerable amount, authority of that character being vested in the street committee and councils. In fact, his duties are ministerial. How, then, could he build a bridge over the creek in response to our order; and, if he, by reason of inability, has' failed to do so, should we, notwithstanding his lack of power to perform such a work, issue an attachment against him? Attachments are issued to compel persons to do that which they can do but will not; but, in a case of this character, it would be an attachment issuing against the street commissioner compelling him to do something which he cannot do.</p> <p>We are of opinion that, in the first place, the order issued by the court does not compel the street commissioner to buiíd a bridge, and, in the second, that such an order, in any event, could be considered as one improvidently granted.</p> <p>The Act of January 31, 1857, P. L. 9, sec. 1, enacts: “That hereafter, upon the final confirmation by the Court of General Quarter Sessions of the Peace of Lancaster County of a report of viewers, reviewers or re-reviewers, under an order of the said Court, laying out any street, lane or alley within the limits of the city of Lancaster, in said county, no order shall issue from the said Court for the opening of such street, lane or alley; but it shall be the duty of the clerk of the said Court to certify, under his official seal, the fact of such confirmation, with the width decreed in the premises, to the Select and Common Councils of the said city, for which service he shall be entitled to the like fees, and from the same source, heretofore allowed for orders to open from the Court. And whenever afterwards, the said Councils shall deem expedient, it shall be lawful for them, by joint resolution, to direct their Street Commissioner to open the premises described in such certificate, in the same manner and form as in similar cases he was heretofore required to do by the said Court, and according to the width which the said Court may decree.” Section 2 provides: “That so much of any law heretofore passed, as vests in the Court of General Quarter Sessions of the Peace of Lancaster County the right to direct the opening of any street, lane or alley laid out in the city of Lancaster, is hereby repealed.” The words “street, lane or alley,” as used in this act, include, we think, a road of this character, and, therefore, the act of assembly applies to it with full force. In re,East Grant Street, 121 Pa. 596, it is decided that streets and alleys in Lancaster city, not upon the city plan, are to be laid out and opened under the general road laws of the commonwealth, as modified by' the special Acts of April 13, 1854, P. L. 352; January 31, 1857, P. L. 9, and April 28, 1857, P. L. 338.</p> <p>We have concluded that no attachment ought to issue in this case, and, therefore, the rule is discharged.</p> <p>Rule discharged.</p> <p>Error assigned was order discharging the rule.</p>

<p>Appeal, No. 216, Oct. T., 1909, by plaintiff, from decree of C. P. Berks Co., Equity Docket, 1906, No. 906, on bill in equity in case of David H. Keiser v. The Reading Suburban Real Estate Company, Thomas P. Merritt, Albert Thalheimer, Levi W. Men-gel and Hannah Keiser.</p> <p>Bill in equity for partition and an accounting. Before Endlich, P. J.</p> <p>The bill alleged that the plaintiff and the four individual defendants had been substantially the only stockholders of the Reading Suburban Real Estate Company each owning about one-fifth of the stock; that the corporation was the owner of sundry tracts of land; that the plaintiff and the four individual defendants also jointly owned other tracts of land, each owning one-fifth; that on May 31, 1901, the corporation and the five individuals entered into an agreement that all the lands owned by the corporation and by the individuals jointly should be parted (and the other small stockholders settled with at the joint expense) so that the plaintiff and Hannah Keiser should each own a divided fifth of the company’s lots and lands on surrendering their stock for cancellation, leaving the corporation the owner of the other three-fifths and that the plaintiff and Hannah Keiser should have a two-fifth share of thé lands held individually, and that the plaintiff and Hannah Keiser should each have also one-fifth of the moneys owing and other assets of the corporation on an accounting; that the agreement had been partially carried into effect by the plaintiff and Hannah Keiser surrendering their stock and receiving deeds for one-fifth each of part of the company’s lands in pursuance of a partial partition, and for a two-fifth share of the lands held individually, but that other tracts' remained to be parted and an accounting remained to be stated and prayed relief accordingly.</p> <p>Hannah Keiser appeared but did not answer.</p> <p>The answer of the corporation and the three other individual defendants admitted the main averments of the bill but alleged that some of the other tracts of which the plaintiff claimed partition were incapable of partition or were included in the description of the purparts already allotted to the three defendants. The answer admitted the right of the plaintiff to partition of other tracts and to the accounting.</p> <p>The agreement on which the bill was based, is as follows:</p> <p>“This agreement made the 31st day of May, a. d. 1901, by and between The Reading Suburban Real Estate Company, a corporation, and Thomas P. Merritt, Albert Thalheimer, Levi W. Mengel, Hannah Keiser and David H. Keiser, witnesseth:</p> <p>“Whereas, the individuals above named own nearly all the stock of The Reading Suburban Real Estate Company, which Company owns land situate in Spring Township, Berks County, and as individuals, own also a number of tracts of land, namely, the Yeager tract and the Yost tract, that is to say, the remainders of. the said tracts, part thereof having been sold, and</p> <p>“ Whereas, the said individuals own also a Water Plant located upon the property, aforesaid, and</p> <p>“Whereas, the said parties have determined to divide the said properties among them as hereinafter fully set forth;</p> <p>“Now therefore, it is agreed by and between the said parties as follows:</p> <p>“First. All the lots and land owned by The Reading Suburban Real Estate Company shall be divided by David H. Keiser into five equal parts, the portion of the Yost Farm situate west of Evans Avenue, containing about sixty-two (62) acres, shall not be embraced in the said division, and the said Hannah Keiser and David H. Keiser shall each of them take such one of the said one-fifth parts as the said Thomas P. Merritt, Albert Thalheimer and Levi W. Mengel shall indicate; in default of the said last named three parties indicating, then the said Hannah Keiser and David H. Keiser may severally choose one of the said 5 purparts.</p> <p>“The purparts so chosen shall be conveyed to the said Hannah Keiser and David H. Keiser, respectively, in fee simple, and moreover, the said Reading Suburban Real Estate Company shall assign, transfer and set over unto the said Hannah Keiser and David H. Keiser an undivided two-fifths of all moneys owing to the corporation for lots sold or otherwise and the undivided two-fifths of all other property or assets not otherwise hereinafter disposed of in this Agreement and the said corporation shall from time to time account for and pay to the said Hannah Keiser and David H. Keiser two-fifths of the net proceeds of moneys collected, as hereinafter more specifically set forth and upon said conveyance and assignment, the said Hannah Keiser and David H. Keiser shall surrender their holdings of stock in the said Reading Suburban Real Estate Company to the corporation for cancellation.</p> <p>“Second. There shall be made two parcels or purparts of certain of the remaining property of the said parties as follows:</p> <p>Purpart No. 1.</p> <p>Yost, 62 acres, $160, $9,300</p> <p>Mortgage $10,000, 10,000 - $700</p> <p>Yeager, 33 acres, $300, $9,900</p> <p>Chestnut, 10 acres, $10, 100 - $10,000</p> <p>$9,300</p> <p>Purpart No. 2.</p> <p>Water Plant, $6,000</p> <p>Endy House, 2,000</p> <p>Springmont House, $1,800</p> <p>Mortgage, 1,200 $600</p> <p>Hartgen House, $2,000</p> <p>Mortgage, 1,275</p> <p>$725</p> <p>$9,325</p> <p>“The said Hannah Keiser and David H. Keiser may elect to take either one of the said purparts named, that is to say, purpart No. 1 for $9,300, subject to the mortgage of $10,000, or purpart No. 2 for the sum of $9,325, and as the said Plannah Keiser and David H. Keiser have but a two-fifths interest as against a three-fifths interest of the remaining three parties, the said Hannah Keiser and David H. Keiser shall be charged with such sum as shall equalize the said parties.</p> <p>“Third. The said Hannah Keiser and David H. Keiser shall be entitled to receive each of them one-fifth of the moneys in the treasury of The Reading Suburban Real Estate Company and any other money on hand in the said enterprises and shall also receive each of them one-fifth of all moneys collected on account of lots or land already sold, but from the said moneys there shall be deducted before a division of them, the cost of collection and expenses of keeping up the streets and walks through the property of the said corporation.</p> <p>“Fourth. It is hereby covenanted and agreed that the present building restrictions shall be binding upon all of the said parties their heirs and assigns with reference to the property hereby disposed of and that all the parties to this Agreement, their heirs and assigns, shall be entitled to be served with water as to any and all of the property hereby disposed of through and by means of the said Water Plant upon equal terms, so that the parties, who under this Agreement, do not take the Water Plant, their heirs and assigns, shall have the same rights to be served with water, through and by means of the said plant as the parties taking the said Water Plant, their heirs and assigns.</p> <p>“Fifth. The said five individual parties hereby covenant with each other that all expenses, costs and damages incurred by or accruing from any litigation concerning past matters, including the appropriation of streams or parts of streams of water for the Water Plant, shall be borne equally by the said five individual parties, their heirs, executors and administrators.</p> <p>“Sixth. The shares of stock of The Reading Suburban Real Estate Company held by other than the individual parties to this Agreement, shall be purchased by, for and on account of the individual parties to this Agreement at such prices as shall be satisfactory to all of the said parties and the purchase money to be paid out of the funds of the Company and the interests of Hannah Keiser and David H. Keiser in the stock so acquired shall be surrendered with their other stock in accordance with the terms of Article First of this Agreement.</p> <p>“The terms of this Agreement shall be fully carried out and executed within thirty days of the time of the division of the lots by David H. Keiser, as hereinbefore provided, and the Reading Suburban Real Estate Co. shall promptly furnish to the said David H. Keiser such data as he shall ask for and require to enable him to make the said division.</p> <p>“Witness, the corporate seal of the said Reading Suburban Real Estate Company and the hands and seals of the parties hereto the day and year first above written. “The Reading Suburban Real Estate Co. [seal]</p> <p>“Thos. P. Merritt, Pres’t.</p> <p>“Thomas P. Merritt [seal]</p> <p>“Albert Thalheimer [seal]</p> <p>“Levi W. Mengel [seal]</p> <p>“Hannah Keiser [seal]</p> <p>“David H. Keiser [seal]”</p> <p>Other facts appear by the opinion of the Superior Court..</p> <p>Error assigned was the decree of the court which sufficiently appears by the opinion of the Superior Court.</p>

<p>Appeal, No. 183, Oct. T., 1909, by defendant, from judgment of C. P. Chester Co., April T., 1909, No. 27, on verdict for plaintiff in case of Esther Goldstein v. East Fallowfield Township.</p> <p>Trespass to recover damages for personal injuries. Before Butler, J.</p> <p>The opinion of the Superior Court states the case.</p> <p>At the trial Dr. D. P. Rettew was asked this question:</p> <p>“Q. You have heard Abraham Goldstein describe the accident that he suffered there on the road on the 12th of October, 1907, when he and his daughter went down over this embankment into the Brandywine, and he has detailed to you the circumstances of that fall. Now, from your observation of the daughter the day following the accident, from the manner that she acted, and the way she complained to you, from that time on down to the present, and from the examinations that you have made, the observations that you have made from time to time, and the examination you have made a week ago, you say the girl is suffering from inflammation of the hip, is that it? A. Yes. Q. Can you tell whether or not that is the result of the accident which the girl suffered? ”</p> <p>Objected to.</p> <p>The Court: Ask him whether this condition is consistent with the accident in which the girl had a fall and struck those parts?</p> <p>“A. It is.”</p> <p>Mr. Hause: I desire to object to that.</p> <p>The Court: The objection is overruled. To which ruling counsel for defendant excepts and prays the court to seal a bill of exceptions thereto, which is done accordingly.</p> <p>Mr. Sproat: “Q. Your answer is that it is?”</p> <p>The Court: “Q. It. is consistent with violence to that part? A. Yes.”</p> <p>Mr. Sproat: “Q. What are the prospects of this girl’s becoming cured or becoming better or becoming worse? ”</p> <p>Objected to on the same ground.</p> <p>The Court: “Q. Taking her condition just as it is and as you have observed it, what are the prospects of her getting better or worse?”</p> <p>Mr. Hause: I object to that. I do not think he can be asked a hypothetical question on a condition of affairs that he has not described himself or anybody else has described.</p> <p>Objection overruled. To which ruling counsel for defendant excepts and prays the court to seal a bill of exceptions thereto, which is done accordingly. [1]</p> <p>The Court: The question is, taking her present condition as he has observed it.</p> <p>Mr. Sproat: “Q. What are the prospects of this young girl’s recovering, if any? A. I would say there are no prospects of a complete recovery.”</p> <p>The court charged in part as follows:</p> <p>I repeat, if the horse frightened at the tin and went over the declivity because of the absence of a guard rail, the absence of the guard rail was the efficient, immediate cause of the accident, and the presence of the tin, if the tin, where and as it was, was in character a not unusual incident to travel upon the public highway.</p> <p>Verdict and judgment for Esther Goldstein for $1,000 and for Abraham Goldstein for $650.50.</p> <p>Errors assigned were (1) ruling on evidence; (2) portion of charge as above, quoting it, and (3) refusal of new trial.</p>

<p>Contract — Construction—Written agreement.</p> <p>1. Where a court is called upon to construe a particular clause of a written instrument, it will take into consideration the situation and relation of the parties, and all the other provisions of the instrument, and will apply the language used in the writing to the surrounding circumstances exactly as it believes the parties applied it.</p> <p>2. In construing a written instrument the courts will, if the construction is doubtful, take into consideration the interpretation which the parties themselves put upon it.</p> <p>3. A partnership consisting of three persons owned land, and farmed and dealt in live stock. Two members of the firm and a third person constituted a limited partnership which leased a portion of the partnership land for lumbering purposes. The limited partnership owned a sawmill and other necessary buildings located on the land. It also owned horses and wagons and other property necessary for its business, and a large number of staves piled at its mill. At a time when such were the conditions, the three partners of the general partnership entered into an agreement in the preamble of which they styled themselves as partners trading under the firm name. The agreement recited that certain differences had arisen between the members of the partnership and that -they agreed to dissolve the same. It provided that the two partners who were interested in the limited partnership should sell their undivided half interest in the land to tjie other partner “and all their right, title, interest in and to all the personal property upon the said lands, and all their right, title and interest in and to all other personal property owned by the said firm of whatsoever character or wheresoever situated.” The agreement also excepted from its operation the stave mill and the buildings in connection with it, ,and it was also provided that the manufacture of staves would continue until a certain date specified upon a royalty, but that after such date •operations should cease, and the mill be removed. The agreement was fully executed in so far as it related to the land and the cattle and farming implements of the general partnership. Subsequently the partner to whom the half interest in the land was sold claimed the staves and the horses and wagons and other property which had been in the possession of the limited partnership. Held, that under a proper construction of the agreement, considering the circumstances and the situation of the parties, such a claim could not be sustained.</p>

Appeal, No. 47, Oct. T., 1909, by defendant, from order of C. P. Monroe Co., Feb. T., 1907, No. 16, discharging rule to tax expense of printing paper-books as part of the costs in case of Phillip G. Henning v. Amos Keiper. Rule to show cause why the defendant should not be permitted to have taxed, as a part of his costs, the expense of printing his paper-book on appeal. The court in an opinion by Staples, P. J., discharged the rule.

Appeal, No. 28, Oct. T., 1909, by defendants, from decree of C. P. Lehigh Co., Sept. T., 1908, No. 2, In Equity on bill in equity in case of The Mountain Water Company v. Emaus Borough, Harvey T., Wickert, Burgess et al. Bill in equity for an injunction. Before Trexler, P. J. The facts are stated in the opinion of the Superior Court. Error assigned was decree awarding injunction.

<p>Appeal, No. 98, Oct. T., 1909, by defendants, from decree of C. P. Schuylkill Co., July Term, 1905, No. 10, on bill in equity in case of Joseph Corbe v. E. P. Burkert, Citizens’ National Bank of Ash-land, Charles A. Weidman, Richard Price, Anthony Dougherty and Schuylkill County.</p> <p>Bill in equity to compel the surrender of bonds.</p> <p>The bill averred that on May 1,1905, the complainant was the owner of five Schuylkill county bonds of $100 each. That on that day he delivered the same to C. 0. Burkert, who is now a fugitive from justice, to have them exchanged for one Pottsville bond of $500 at four per cent.</p> <p>It further averred that C. O. Burkert fraudulently attempted to sell and did deliver possession of the bonds to some of the defendants, and that he had no power of attorney or indicia of ownership to sell, pledge, or assign these bonds for other securities.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>Shat, P. J., entered a decree in accordance with the prayer of the bill.</p> <p>Error assigned was the decree of the court.</p>

Appeal, No. 105, Oct. T., 1909, by defendant, from judgment of C. P. Schuylkill Co., May T., 1906, No. 288, on verdict for plaintiff in case of Edward Dempsey v. Patrick Devers. Trespass to recover damages for personal injuries. Before Bechtel, J. The facts are stated in the opinion of the Superior Court. The court refused binding instructions for defendant. Verdict and judgment for plaintiff for 81,400. Defendant appealed.

<p>Evidence — Practice, C. P. — Trial—Province of court and jury.</p> <p>1. Where there is any evidence which alone would justify an inference of a disputed fact, it must go to the jury, no matter how strong or persuasive may be the countervailing proof.. A court may set aside a verdict as against the weight of the evidence, but that is the most they can do to assist the party. But in a case in which a court ought to say that there is no evidence sufficient to authorize the inference, then the verdict would be without evidence, not contrary to the weight of it. Whenever this is so they have the right, and it is their duty to withhold it from the jury.</p> <p>Practice, C. P. — Trial—Points.</p> <p>2. A point should contain but a single legal proposition, and be so' constructed that the trial court can answer it by a single affirmation or negation. If it is not so constructed, its refusal is not reversible error.</p> <p>Landlord and tenant — Lease of farm — Increase of live stock.</p> <p>3. In the absence of stipulations to the contrary in the lease of a farm, the annual increase of stock leased with the farm accrues to the tenant; but where the. lease is not for a money rent, but for a certain quantum of the product of the farm, the tenant is only entitled to his quantum of the progeny of the live stock born during the tenancy.</p> <p>Evidence — Title—Assessment—Payment of taxes.</p> <p>4. Assessments and the payment of taxes, although not evidence of title, may be shown as evidence more or less efficient as to the question of the claim of possession of the party against whom the assessments have been made, and by whom the taxes have been paid.</p> <p>Interpleader■ — Sheriff’s interpleader — Form of verdict — Practice, C. P.</p> <p>5. On the trial of a feigned issue under the interpleader act to determine the ownership of personal property on a farm, a verdict “for plaintiff for possession of all property in appraisement,” although informal is not insensible and null where the jury has been properly instructed as to the questions at issue. The words “possession of” may be treated as superfluous, and the appellate court will treat the verdict as if it had been molded into proper form in the court below.</p> <p>Trial — Practice, C. P. — Instructions—Interpleader.</p> <p>6. ' Where on the trial of a sheriff’s interpleader it appeared that the issue involved about thirty different articles, the ownership of which was derived from various sources, and the trial judge summarizes the testimony pro and con as to most of the articles specifically, he cannot be charged with reversible error in omitting to make reference to a particular article where counsel makes no specific request for instructions as to such article.</p> <p>7. Where in such a case there is testimony that the plaintiff bought the property at a sheriff’s sale and the crier of the sale testifies to this effect, the plaintiff’s right to go to the jury is not defeated by the testimony of the prothonotary that there was no record of such a sale. There may have been a public sale, although the witnesses may have been mistaken in stating that it was a sheriff’s sale.</p> <p>8. Where in an interpleader the plaintiff alleges in his statement of claim ownership of a particular item of personal property, but there is no evidence to show his ownership of such particular item, it is reversible error for the court to submit to the jury the question of the ownership of the article.</p> <p>Evidence — Trial—Practice, C. P.</p> <p>9. Where a paper is offered in evidence accompanied by an offer to follow it by other proof, the judgment will not be reversed because the other proof has not been produced, if it appears that the mere admission of the paper did no harm. In such a case the opposite party cannot complain if he did not move to strike out the paper or ask the court to direct the jury to disregard it.</p>

<p>Appeal, No. 171, Oct. T., 1909, by defendants, from judgment of C.: P. Lehigh Co., Oct. T., 1905, No. 25, for plaintiff in. case tried by the court without a jury in suit of Francis L. Hall v. Alvin S. Haines and J. Martin Koons, trading as the Provident Slate Company.</p> <p>Assumpsit on account rendered.</p> <p>The case was tried, Trexler, P. J., without a jury under the Act of April 22, 1874, P. L. 109.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was in entering judgment for the plaintiff.</p>

<p>Appeal, No. 188, Oct. T., 1909, by defendant, from decree of C. P. Northampton Co., Feb. T., 1909, No. 4, on bill in equity.in case of E. T. Fraim Lock Company v. Milton J. Shimer, trading as William Shimer & Company.</p> <p>Bill in equity for an injunction.</p> <p>Scott, P. J., filed the following opinion:</p> <p>The plaintiff corporation claims property in a trademark by prior adoption against the defendant and by registration on November 6, 1907, in the office of the secretary of the commonwealth, under the provisions of the Act of assembly of June 20, 1901, P. L. 582. Some facts are stated in the answers to requests, separately filed. These are additional.</p> <p>The design or emblem is the keystone symbol of the commonwealth, slightly raised, over the keyhole which divides it of a small ordinary padlock such as is usually sold in commerce. The lock manufactured by the defendant is similar in size, shape and design, with the same emblem, cast in the same manner. Both are exactly alike in general appearance, but the plaintiff’s is a little finer in finish. There are no letters or words of any kind on either.</p> <p>The plaintiff company and its predecessors, whose rights it owns, have manufactured different patterns of locks in various designs, with the keystone emblem, since 1879. The defendant and his predecessors, in whose firms he has been a member since 1875, have manufactured continuously from that date certain small articles of hardware, such as sadirons, polishing irons, and others specified in the findings, with the same unlettered and otherwise unmarked symbol stamped upon them. They began to manufacture locks in 1887, but without any symbol. The padlocks in question were not made by the plaintiff until 1900, nor by the defendant until January, 1906. Each party was without knowledge of the other’s manufacture. In the summer of 1906, the plaintiff’s president, who lives at Lancaster, Pa., learned of goods upon the market similar to its own, but did not ascertain that the defendant, who lives at Freemansburg, in Northampton county, was manufacturing them until 1908. He then caused notice to be served upon the defendant to desist from the alleged infringement. The latter, who thus first obtained knowledge of the plaintiff’s goods, stopped the manufacture by advice of counsel, and withdrew his locks from the market. From January, 1906, until August, 1908, the defendant sold 242f gross of said locks upon which the profit was $359.14. The plaintiff’s sales of these locks in 1905 were 4,872 dozen; in 1906 they were 4,127 dozen; 830 dozen in 1907; 1,020 dozen in 1908. His profit was twenty-three cents per dozen.</p> <p>I cannot find that the diminution in plaintiff’s sales for 1907-1908 measures the damages which he sustained. In the absence of other conditions by which they would probably be affected, it might perhaps be legally sufficient for the conclusion if the loss were no greater than the profit at his own price would be upon the amount of defendant’s sales: Shaw & Co. v. Pilling & Son, 175 Pa. 78. But when we regard the universal business depression of all kinds during that period, and still existing, it is inadmissible. There is no other evidence.</p> <p>OPINION AND DISCUSSION.</p> <p>The penalty clause of the act of 1901 was declared to be constitutional in Bergner & Engel Co. v. Koenig, 30 Pa. Superior Cfc. 618, but otherwise the statute has not been before the appellate court for interpretation. Reference will, however, be made to another case yet unreported, in which its specific terms were not drawn into the controversy.</p> <p>Upon making and filing certain affidavits by the applicant the secretary of state is authorized to issue a certificate, which “shall in all suits and prosecutions under this act be sufficient proof of the adoption of such label, trade-mark,” etc. But it is no more. The secretary is a ministerial, not a judicial officer, and his certificate upon ex parte proofs without hearing could not divest the jurisdiction of the courts to determine the validity of the act of appropriation or the charactér of the symbol as a lawful trade-mark. One who had already, before the statute was passed, acquired title to or property in a trade name which became a valuable asset, or even afterwards, and before such registration does not forfeit it to some recent business rival who may wish to use it and applies for registry. But the act itself points out a method of retention if a prior owner has omitted the registration, and the courts always for either contestant may upon bill supervise this action. As a trade-mark is property, if the statute was intended to be conclusive and does upon its face effectuate this purpose, it is in contravention of the bill of rights and of the fourteenth amendment to the federal constitution. Recording acts may postpone but do not create titles. An act of assembly which operates retrospectively to take the property of John Doe and give it to Richard Roe, is prohibited by the fundamental law: Palairet’s Appeal, 67 Pa. 479. The statute, however, does not purport to be so intended. The certificate is declared to be proof of adoption only, without reference to time, and. prohibits infringement subsequent to registration, until or less the. registry is revoked upon proof before the secretary of state that there has been a prior adoption of the mark. In neither particular is his action judicial nor beyond ultimate determination by the courts. But unless the remedy for revocation given by the statute be invoked it is not subject to collateral attack.</p> <p>The original acts of congress providing for registration were declared to be unconstitutional because they were a regulation of domestic commerce: Trade-mark Cases, 100 U. S. 82. Then followed the Act of March 3, 1881, 7 Fed. Stat. Ann. 329. This defined registration as prima facie evidence of ownership only and all existing rights were in terms expressly reserved. A bill by the registering party under it may be dismissed because the name registered is not a lawful trade-mark: Elgin Nat. Watch Co. v. Illinois Watch Co., 179 U. S. 665 (21 Sup. Ct. Repr. 270); Leschen & Sons Rope Co. v. Broderick & Bascom Rope Co., 201 U,. S. 166 (26 Sup. Ct. Repr. 425). One person may be registered owner, and another the actual owner of the mark: Sarrazin v. Cigar, etc., Co., 93 Fed. Repr. 624, 628. Under this statute an injunction will not issue upon the certificate of registration from the Patent Office. It is not a judicial act: Leschen & Sons Rope Co. v. Broderick & Bascom Rope Co., 123 Fed. Repr. 149 (aff’d 201 U. S. 166). Nor does it give title, if none existed independently: Edison v. Thomas A. Edison, Jr., Chem. Co., 128 Fed. Repr. 1013. But the Pennsylvania act expressly authorizes an injunction and assessment of damages for its violation, upon exhibition of an unrevoked certificate. The act of 1901 was designed for something, and within the limits of constitutional legislation that effect must be given to it.</p> <p>Now it is clear enough that after the date of the statute the defendant here, before the adoption of any mark of his own, was bound to inquire in the registration office, and would be answerable by constructive notice thereof for infringement of any mark then shown to have been registered. He adopted the mark in January, 1906, but without registration on his own part, as he might have done, and the plaintiff’s' registry was not made until November 7, 1907. He received actual notice from the plaintiff and his first knowledge of the similar symbol in August, 1908, whereupon he ceased the manufacture and withdrew his locks from the market. Does he under these circumstances, by unintentional violation of the statute, incur its penalties? A chancellor is never easily moved to penalize an innocent party against whom relief is sought,</p> <p>In Brennan v. Emery-Bird-Thayer Dry-Goods Co., 99 Fed. Repr. 971, it was held under the act of congress, that if there had been innocent infringement, but stopped under actual notice, an injunction bill would not be entertained, because there was no threatened injury. It was said, however, these facts must appear in the pleadings, while in the present case there is in the answer a general denial of the plaintiff’s rights, and' no assertion or suggestion that the manufacture may not be continued.</p> <p>The statute is mandatory. “The court in addition to the penalty shall award,” etc. It must at least, as in all other such cases, receive a strict construction, and exact compliance be shown with all its terms. “The fine or penalty” is to be inflicted irrespective of the fact that the plaintiff in any case may have suffered no actual damages at all, or be unable to prove they have resulted from the acts of a defendant. If the certificate is to be taken as proof of the plaintiff’s adoption of the mark, it does not, therefore, extend beyond the date of. registry. If the statute protects the owner of a trade-mark by requiring the world to take notice of the registry, it also protects the alleged infringer of his rights to the extent that he is not bound to inquire beyond the record which he makes for himself. In any event no profits made by defendant would be recoverable, nor damages if they had been established, except from the date of registration to August, 1908. They are expressly limited to unlawful sales made afterwards. The statute is penal in character. The court is to impose a fine of $200, forfeit defendant’s profits, beside award actual damages. Whether the two last items correctly represent the measure of damages in a suit at law for infringement, they are nevertheless penalties here, for a chancellor does not always, or necessarily, decree them for unintentional offending. A person innocently selling goods bearing the spurious trade-mark of another is not in equity absolutely liable to account for the profits made thereby, but the owner is entitled to an injunction: Moet v. Conston, 33 Beav. 578. The Superior Court in the case cited has sustained its validity because on behalf of public interests as well as for private protection “the object of the statute is to punish one who unlawfully appropriates the trade-mark of another.” This was predicted of the fact admitted by demurrer that the defendant “wrongfully and injuriously adopted an imitation which he falsely represented to be the trade-mark of the plaintiff.” The later decision, December 14, 1908, at Pittsburg (not yet reported), in Hohenstein et al. v. Abraham Prelstein et al.,No. 37, April Term, 1908, the exemplification of which is before me, shows that the defendants continued to use the registered trade-mark of the Carter shoes, after personal notice of the registration, and continued to sell them under the trade name. “They persistently sought,” said Judge Head, “to secure to themselves some of the benefits, real or fanciful, which they must have assumed attached to the use in some form of the word ‘Carter.’ ” The forbidden acts it seems partake of the nature of a public offense. The penalties are to follow only when “any person shall hereafter wrongfully perform or permit” any act expressly prohibited or declared unlawful in sec. 3.</p> <p>But I have found no authority to support the proposition that this emphasized word means willful or intentional or anything more when employed in statute making than a bare invasion of a right. Vide 8 Words and Phrases; 2 Bouvier’s Law Diet. 1251. A Wrong is inflicted in legal contemplation whether or not it may have been done with a bad motive. That ingredient of the act is only a question of aggravation (Williams v. Hays, 143 N. Y. 442, 447), and penalties are frequently imposed for acts ignorantly committed. They are sometimes punished by indictment: Com. v. Holstine, 132 Pa. 357.</p> <p>In such cases it required another statute to give relief: Act of May 25, 1897, P. L.93. It was the necessary conclusion from this discussion:</p> <p>1. That if this be a lawful trade-mark the defendant must pay the penalty prescribed for default in not registering his own. when adopted, and continuing to employ it without examination of the registration record, or making application to have that of the plaintiff’s revoked.</p> <p>2. That he is liable to- pay plaintiff the profits made from his manufacture and sale of the marked padlock from November 7, 1907, to August, 1908. But no exact account of this proportion of total profits from manufacture have been shown. No other damages have been proven.</p> <p>3. That the registration of adoption by the plaintiff does not close judicial inquiry into the validity of the alleged trade-mark to give him by appropriation of it a monopoly in its use.</p> <p>The defendant had used the symbol of a keystone on various small articles of his hardware manufacture, as far back as 1875, but not on these locks until 1906. The plaintiff’s predecessors began business in 1879 and first employed this mark in 1900. It is the rule that when one has acquired the right to use a trade-mark in connection with particular goods, no one else can adopt it to distinguish wares of that same general class.</p> <p>The defendant, however, did not employ the device on any of the different varieties of locks, the manufacture of which he began in 1887, until he stamped it on this particular padlock first made in 1906.</p> <p>The application of the rule is too restricted to protect the defendant, as it would have done had the symbol been employed earlier -on any of his different styles and patterns of locks. Many cases which illustrate the distinction will be found collected in 28 Am. & Eng. Ency. of Law (2d ed.), 389, and notes. But the question of prior adoption is not open to be disputed in this proceeding. Registration would not otherwise serve the purpose intended by its specific terms which are unlike the act of congress. In point of fact plaintiff’s original employment of it was first.</p> <p>There is a further question in the contention. The plaintiff’s right to*an injunction is challenged on the ground that the particular device or symbol is not a distinctive or lawful trade-mark at all. The cases which bear any relation to this subject are not entirely plain in meaning, because the facts in each are so variously different that discussion of some of them in connection with a general rule has led to statements apparently confusing or equivocal when set in comparison with others. I have closely examined a great many more of them than will find reference in this opinion. There may be cases in. which a mere arbitrary symbol or device (not name) without other label or designation in association pointing to individual origin or ownership, or distinguishing it in combination, will be protected as a trade-mark, but none of that exact kind have been pointed out. It has been said “A trade-mark is one’s commercial signature to his goods:” Leidersdorf v. Flint, 8 Biss. (U. S.) 327.</p> <p>Even a device not a technical trade-mark because generic or geographical may by long adoption and use acquire what is called a “secondary signification” which will be protected against unfair competition through imposition and fraud: Elgin Nat. Watch Co. v. Illinois Watch Case Co., 179 U. S. 665 (21 Sup. Ct. Repr. 270). The intentional purpose it has been said in unfair competition must be clearly proven: Lawrence Mfg. Co. v. Tennessee Mfg. Co., 138 U. S. 537 (11 Sup. Ct. Rep. 396); Cheavin v. Walker, L. R. 5 Ch. D. 850; vide dissenting opinion of Mr. Justice Mitchell in Brown et al. v. Seidel et al., 153 Pa. 60. In Juan F. Portuondo Cigar Mfg. Co. v.. Cigar Mfg. Co., 222 Pa. 116, to which I am referred, the design to deceive was expressly found, and constituted the fundamental reason for the decree. But there are authorities opposed to this view too, and in the case of identical trade names, which however differ from an arbitrary symbol standing alone, a more stringent rule is applied: American Clay Mfg. Co. v. Clay Mfg. Co., 198 Pa. 189.</p> <p>If there be a lawful trade-mark or name, the motive of infringement is immaterial. It will be protected in the owner when established, although two traders have taken the same symbol, each in ignorance that the other uses it, or with an honest doubt as to who has the legal right therein: Brown on Trade-marks, sec. 449; Pratt’s App., 117 Pa. 401.</p> <p>The keystone is the popular symbol of the commonwealth. I do not imply that thereby the device in itself or her coat of arms must be assigned to the generic or territorial class as if it were a name like “Lackawanna” (Canal Co. v. Clark, 80 U. S. 311) or “Glendon” (Giendon Iron Co. v. Uhler & Fulmer, 75 Pa. 467), which all persons within the district or state might use with equal liberty and truthfulness. There is no other distinguishing or physical mark to identify its origin. But it is not necessary that the name or place of business of the owner should appear upon it, nor that the purchaser should know to whom it belongs, if its long use points definitely to some unknown proprietor to whom it has become valuable: 28 Am. & Eng. Ency. of Law (2d ed.), 351, and notes. This principle in actual application seems to be almost, if not entirely, limited to cases, so far as reported, in which there is an arbitrary or fanciful name which it will be perceived has a significance of its own more specific than a symbol: 28 Am. & Eng. Ency. of Law, 359.</p> <p>In Leschen & Sons Rope Co. v. Broderick & Bascom Rope Co., 201 U. S. 166 (26 Sup. Ct. Repr. 425), the mark registered was to consist of a red or other distinctively colored streak applied to or woven in a wire rope. It was held that this was too indefinite in the first place, and then “whether mere color can constitute a valid trademark may admit of doubt. Doubtless it may be if it be impressed in a particular design, as a circle, , square, triangle, a cross or a star. But the authorities do not go farther than this: Vide Putnam Nail Co. v. Dulaney, 140 Pa. 205; Lafean et al. v. Weeks & Co., 177 Pa. 412.</p> <p>The rules to be deduced from the decisions are formulated in Columbia Mill Co. v. Alcorn, 150 U. S. 460 (14 Sup. Ct. Repr. 151), and are thus stated:</p> <p>1. That to acquire the right to the exclusive use of a name, device or symbol, as a trade-mark, it must appear that it was adopted for the purpose of identifying the origin or ownership of the article to which it is attached or that such trade-mark must point distinctively either by itself or association to the origin, manufacture or ownership of the article on which it is stamped. It must be designated as its primary object and purpose to indicate the owner or producer of the commodity, and to distinguish it from like articles manufactured by others.</p> <p>2. That if the device, mark, or symbol was adopted or placed upon the article for the purpose of identifying its class, grade, style, or quality, or for any purpose other than a reference to or indication of its ownership, it cannot be sustained as a valid trade-mark.</p> <p>3. That the exclusive right to the use of the mark or device claimed as a trade-mark is founded on priority of appropriation, that is to say, the claimant of the trademark must have been the first to use or employ the same on like articles of production.</p> <p>4. Such trade-mark cannot consist of words in common use as designating locality, section or region of territory.</p> <p>An illustration of the kind of trade-mark in an arbitrary symbol which will be protected when used in combination with something that points to its origin, will be found in Pratt’s App., 117 Pa. 401.</p> <p>These rules have found substantial expression in Pennsylvania: Ferguson et al. v. Davol Mills et al., 7 Phila. 253; Dixon Crucible Co. v. Guggenheim, 7 Phila. 408, 415, 416 (approved generally by the Supreme Court in Heinz v. Lutz, 146 Pa. 592); White v. Schlect, 14 Phila. 88 (device was merely a drum on collars); Laughman’s App., 128 Pa. 1; McVey v. Brendel, 144 Pa. 235. In Hohenstein et al. v. Perelstine et al., supra, the device registered was combined with the trade name “Carter.”</p> <p>But the real test of application here must be taken to lie in the meaning of the words “either by itself or association” in the statement of the first rule above cited.</p> <p>It must not be forgotten that while the keystone mark on this lock is absent from, any combination of words to point to the manufacturer, its design is a particular one. It is pierced by the keyhole, and not stamped generally upon the lock, and by its use thus with specific combination for six years prior to its employment by the defendant may be properly said to have acquired “association” with the owner and his wares in the market, although unidentified by name.</p> <p>This view was adopted by the president judge, now of the Superior Court, when sitting in the common pleas, Gowans v. Ahlborn Bros., 4 Kulp, 31, and he referred to Sheppard et al. v. Stuart et al., 7 W. N. C. 498, where Judge Finletter declined to follow the decisions of two of his associates in Philadelphia in the cases above noted. Upon the consideration herein stated I must conclude that the plaintiff has shown its right to a technical trade-mark; its specific design and use in the market has given to it that association and character by which the defendant's ignorant and accidental employment of it if continued would have a tendency by the exact similarity, as in the case of the same trade name (American Clay Mfg. Co. v. Clay Mfg. Co., 198 Pa. 189) to confuse the public mind respecting the manufacturer, and the identity of the wares. For this equity will extend its protection.</p> <p>Now, June 21, 1909, this cause came on to be heard, and after arguments of counsel and due consideration, it is ordered, adjudged and decreed that the defendant be and he hereby is enjoined from the manufacture and sale of the padlock similar in design and mark to that of the plaintiff as registered in the office of the secretary of state November 6, 1907; that he be and hereby is adjudged to pay to the plaintiff a penalty of $200 and the further sum of $207.20 as profits realized by him upon sales of the infringed locks from November 6, 1907, to the time he ceased manufacture of them in August, 1908. The defendant will pay the costs.</p> <p>Error assigned was the decree of the court.</p>

<p>Appeal, No. 246, Oct. T., 1909, by plaintiff, from decree of C. P. Montgomery Co., March T., 1908, No. 5, on bill in equity in case of Louis M. Childs, Receiver of the Eureka Knitting Company, v. Edward S. Adams and Edwin Metcalf.</p> <p>Bill in equity to compel the return of alleged illegal dividends. Before Swartz, P. J., and Weand, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Errors assigned were various findings of fact and conclusions at law.</p>

<p>Corporations — Stock—Transfer of stock — Liability for assessments.</p> <p>Where a person subscribes for the stock of a New Jersey corporation, and pays a portion of his subscription and receives a stock certificate in his own name, and subsequently signs the blank transfer on the back of the certificate, and sells and delivers the certificate to a firm of brokers, who in turn sell and turn over the certificate to another party in the same form as they received it, and long afterwards the company levies an assessment, and the original owner from whose name.the stock has not been transferred on the books of the company is compelled to pay the assessment under the laws of New Jersey, he cannot recover the amount thereof from the brokers to whom he sold and delivered the certificate. His only recourse is to the owner of the stock at the time the assessment was levied.</p>

<p>Waters — Injury to riparian owner — Damages—Evidence.</p> <p>1. Where it is proved that damage has resulted from an injurious trespass such as to a lower riparian owner from the taking of water, and the only uncertainty is as to the exact amount thereof, such uncertainty is not ordinarily ground for refusing to allow any damage at all, if the evidence furnish a basis from which a reasonable calculation can be made.</p> <p>2. A permanent injury will not be presumed, and where one seeks to recover damages on that theory, he must aver and prove that his property is permanently injured, or at least that the condition complained of is reasonably certain to be permanent.</p> <p>3. The loss of power to a mill resulting from the subtraction of water from a creek on which the mill is situated, is not a permanent injury, and the measure of damages for the injury is the cost of restoring the property to its former condition. In such a case the person causing the injury will not be permitted to show the cost of a different kind of power, such as that produced by a gasoline engine or electric motor, as a method bf determining his liability. The person injured is under no obligation to install another kind of power, but he may abide by the conditions resulting from the loss of the water, and demand that he be compensated to the extent of his loss.</p>

<p>Road law — Petition—Termini.</p> <p>A petition for a public road is fatally defective which specified that the road is “to connect with a proposed road” in another county.</p>

<p>Appeal, No. 95, Oct. T., 1909, by defendant, from judgment of C. P. Chester Co., Aug. T., 1907, No. 101, on verdict for plaintiffs in case of Ephraim Blackburn and Joseph S. Townsend, trading as Blackburn & Townsend, v. Adams Express Company.</p> <p>Assumpsit for loss of horses. Before Hemphill, P. J.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiffs for $515.02. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for defendant, and in .refusing to limit the amount that might be recovered to $75.00 for each horse as stipulated in the contract of carriage.</p>

<p>Appeal, No. 227, Oct. T., 1909, by defendant, from judgment of C. P. Delaware Co., June T., 1907, No. 231, on verdict for plaintiffs in case of Hector M. Ralston et al., trading as Ralston Brothers, v. Sharon Hill Borough.</p> <p>Feigned issue on appeal from an award of a jury of view assessing damages for the construction of a sewer. Before Johnson, P. J.</p> <p>At the trial when the plaintiff was on the stand, he was asked this question:</p> <p>“Q. What is your estimate of the amount of damage done to you by the construction of this sewer and the manner it was constructed through your property?”</p> <p>Mr. Bliss: I object to that. The question is not what the damage was arising from the manner in which it was constructed, but, what was the damage arising from the necessary construction of the work?</p> <p>Objection overruled.</p> <p>To which ruling counsel for the defendant objects and prays the court to seal a bill of exceptions thereto, which is accordingly done. [1]</p> <p>“A. About a ton and a half of hay was destroyed. Q. And that was worth what? A. Well it was worth about $18.00 a.ton. . . . Q. What was your idea of the damage to your corn, the four acres altogether? What was absolutely destroyed and what you could not cultivate.”</p> <p>Mr. Bliss: I suppose my objection and exception applies to this?</p> <p>The Court: Yes.</p> <p>Mr. Hall: “Q. Have you figured that? A. The corn is worth about $200. The corn I had in that patch.”</p> <p>The Court: “Q. Not what the corn was worth. What was the damage? A. I guess they done about $100 worth of actual damage.”</p> <p>Mr. Hall: “Q. You say that during those eight days you had to keep your cows in? A. I had to keep them in the stable and in the barnyard for eight days. . . . Q. And during that time you had to feed them hay and féed? A. Had to feed them hay and grains in the stable. . . . Q. That cost you how much? A- The grains cost me $6.00 a load. Q. You had three loads. Your hay cost you $27.00? A. Twenty-seven dollars. . . .”</p> <p>Mr. Hall: “Q. What further damage did you sustain by reason of this blocking of this passage so far as the operation of your milk dairy was concerned? A. My cows milked from 320 to 330 quarts a day — before a couple of days they were down to 180 and 190 quarts. . . . Q. How do you determine about the amount? A. Well, they went down about 130 quarts. That is what they dropped. . . . Yes. That was an actual loss to me. If it had not been for that, they would not have went down. Q. You were supplying milk? A. I was supplying milk for my customers’ trade in Philadelphia. Milk routes. I had to turn around and buy that milk at the depot. During July, I had to pay seven cents a quart for about 130 to 140 quarts of milk, for about twenty days, and after that time, milk got a little plenty again and I paid five cents. . . . Q. Then you were again put to the expense of keeping your cattle? A. Yes. Had to keep them in the barn and in the yard again. Q. Did you keep an account of what the expense was? A; Yes. I fed about twenty-five bushel of grain extra to my cows, and in them twenty-one days I judge I used about three ton of hay. ... Q. For how many days? A. Twenty-one days. ... Q. Was there any loss of milk supply then? A. My cows went down about fifty quarts then. . . . Q. You lost fifty quarts for twenty-one days? A. Twenty-one days. Q. It was worth what then? A. Five cents a quart. I had to go and buy from a milkman.”</p> <p>Defendant presented this point:</p> <p>4. Under the testimony in this case, the plaintiffs cannot recover for the alleged loss of milk caused by their being deprived of pasture, since it has not been shown that this deprivation was the necessary result of the work undertaken by the borough, to which the answer of the court was as follows: Answer: That is a question for the jury. We cannot say that as a matter of law. If you find from the testimony that this loss of milk, and this money that he said he expended for grains and hay arose — could have been avoided by the contractor — why, of course, this point would be affirmed, but, as that is a question of fact, we decline to affirm it and submit it to the jury to say whether it is so or not. [2]</p> <p>5. The plaintiffs having failed to show what part, if any, of the damage sustained by them was the necessary result of the laying of the sewer, the verdict must be for the defendant. Answer: Refused. [3]</p> <p>6. Under all the evidence the verdict must be for the defendant. Answer: Refused. [4]</p> <p>Verdict and judgment for plaintiffs for $300. Defendant appealed.</p> <p>Errors assigned were (1) rulings on evidence, quoting the bill of exceptions; (2-4) above instructions,'quoting them.</p>

<p>Appeal, No. 00, Oct. T., 1909, by plaintiff, from judgment of C. P. Schuylkill Co., Oct. T., 1909, No. 1, for defendant non obstante veredicto in case of Maria Murphy v. Israel Matthews and the Philadelphia & Reading Coal & Iron Company.</p> <p>Trespass to recover damages for the diversion of waters of a stream. Before Marr, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict for plaintiff for $250. Subsequently the court entered judgment for defendants non obstante veredicto. Plaintiff appealed.</p> <p>Error assigned amongst others was in entering judgment for defendants non obstante veredicto.</p>

<p>Contract — Sale—Lex loci — Custom.</p> <p>Where a manufacturer is requested to quote a price and he does so f. o. b. the place of residence of the proposed customer, and six weeks thereafter the customer requests an order to be booked for a certain amount of goods at the price quoted, and the manufacturer accepts the offer, the place of the contract is fixed by the place of the acceptance; and if the contract is to be construed in the light of a trade custom, it is the custom of the place of acceptance and not of the place from which the offer is made, that will prevail. In such a case the letters f. o. b. followed by the name of the customer’s residence were intended to fix a price beyond which no charge could be made against the vendee either by shipper or carrier, and did not necessarily imply that they were to be delivered at the place mentioned as a consideration of the contract.</p>

<p>Appeal, No. 205, Oct. T., 1909, by defendants, from judgment of C. P. No. 5, Phila. Co., Sept. T., 1905, No. 2,291, on verdict for plaintiffs, in case of William D. Edson and Joseph S. McCullouch, trading as Edson Brothers, v. Horace L. Magee et al., trading as Magee Brothers.</p> <p>Assumpsit for goods sold and delivered. Before Ralston, J.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiffs for $1,120.64. Defendants appealed.</p> <p>Errors assigned were (1-22) various rulings on evidence and instructions.</p>

<p>Bailment — Carriers—Warehouseman—Degree of care — Burden of proof — Measure of damages.</p> <p>1. Where a railroad company accepts the baggage of an intending passenger and deposits it in the place provided by the company for the purpose of checking and for safe-keeping, and subsequently the passenger changes his mind as to making the journey, and without having bought a ticket, goes for his baggage which is not forthcoming, and it appears that the company in the course of its business charged storage where there was such a change of intention, the company is not a gratuitous bailee of the baggage, and the burden is upon it, whether it is in the position of a carrier or warehouseman, to show that the baggage was not lost through its own negligence. Mere proof that the baggage had been placed in a proper building, in charge of trusty servants, and properly guarded, is not sufficient to rebut the presumption of negligence arising from the nondelivery, of the baggage to its owner.</p> <p>2. In such a case the railroad company is in the position of a warehouseman under the laws of New York, and the law of New York approved June 6, 1907, and known as the “Public Service Commissions Law of New York,” limiting the amount of liability by a carrier for baggage to $150 has no application.</p> <p>3. Where baggage is left with a carrier in anticipation of a journey not about to be commenced, and to be called for and checked when the passenger is ready to begin his journey, the carrier is liable therefor as a warehouseman only.</p> <p>4. In a suit against á carrier for the loss of clothing contained in a trunk, the measure of damages is not the amount which the clothing would bring if put into the market and sold for secondhand clothing. The rule is the value of the clothing for use by the owner.</p>

<p>Appeal, No. 242, Oct. T., 1909, by plaintiff, from order of C. P. No. 1, Phila. Co., June T., 1909, No. 1,440, discharging rule for judgment for want of a sufficient affidavit of defense in case of Commonwealth to use of Harry L. Randal v. Isador M. Gould and the National Surety Company.</p> <p>Assumpsit on a bond.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was the order of the court discharging rule for judgment for want of a sufficient affidavit of defense.</p>

<p>Appeal, No. 81, Oct. T:, 1909, by defendants, from decree of C. P. Delaware Co., Dec. T., 1906, No. 175, on bill in equity, in case of House of Refuge v. John T. Dyer Company et al.</p> <p>Bill in equity for an injunction. Before Johnson, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was decree awarding an injunction.</p>

<p>Appeal, No. 240, Oct. T., 1909, by plaintiff, from judgment of C. P. No. 2, Phila. Co., June T., 1908, No. 3,976, for defendant on demurrer to statement in case of Robert Baile, to use of Robert Baile Company, Incorporated, v. Alexander D. Robinson.</p> <p>Trespass to recover damages for an alleged' breach of trust.</p> <p>Demurrer to statement.</p> <p>The court in an opinion by Wiltbank, J., sustained the demurrer and entered judgment for defendant.</p> <p>Error assigned was the judgment of the court.</p>

<p>Evidence — Examination of witness — Offer of proof — Failure to make offer.</p> <p>Where an assignment of error is to the rejection of an offer, made at the proper time, to prove relevant and material facts by a competent witness, it must be assumed by the appellate court that if the evidence had been admitted it would have come up to the offer; but where a question insufficient in itself, is not accompanied by an offer, and the court overrules it, there is nothing before-the appellate court by which it can determine whether the party asking the question had been injured, and the assignment of error will be overruled. In such a case it is the duty of. the party to make a proper offer so as to show the relevancy of the question. The fact that if the question had been more specific, it would have been objectionable as leading, is not an excuse for failing to make a proper offer.</p>

<p>Appeal, No. 253, Oct. T., 1909, by plaintiff, from order of C. P. No. 1, Phila. Co., Sep,t. T., 1907, No. 2,686, discharging rule for judgment for want of a sufficient affidavit of defense in case of Margaret M. Jack v. Pennsylvania Railroad Company.</p> <p>Assumpsit to recover death benefits.</p> <p>The averments of the statement of claim and affidavit of defense are set forth in the opinion of the Superior Court.</p> <p>Error assigned was in discharging rule for judgment for want of a sufficient affidavit of defense.</p>

<p>Appeal, No. 112, Oct. T., 1909, by plaintiff, from judgment of C. P. No. 1, Phila. Co., March T., 1907, No. 1,160, for defendant non obstante veredicto in case of Louise Reardon v. Philadelphia Rapid Transit Company.</p> <p>Trespass to recover damages for personal injuries. Before Brégy, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The jury returned a verdict for $500. Subsequently the court entered judgment for defendant non obstante veredicto.</p> <p>Error assigned was in entering judgment for defendant non obstante veredicto.</p>

<p>Appeal, No. 239, Oct. T., 1909, by defendants, from order of C. P. No. 1, Phila. Co., March T., 1909, No. 783, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Katharine Huegle v. Charles H. Bean and George E. Bean, trading as Charles H. Bean & Company.</p> <p>Assumpsit to recover an assessment on stock which the plaintiff was compelled to pay.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>The facts were identical as those in Rogers v. Toland, ante, p. 248.</p> <p>Error assigned was in making absolute rule for judgment for want of a sufficient affidavit of defense.</p>

<p>Appeal, No. 5, Jan. T., 1910, by plaintiffs, from order of C. P. Tioga Co., Sept. T., 1908, No. 191, dismissing appeal of judgment of justice of the peace in case of S. F. Bowser & Company, Incorporated, v. Sharping.</p> <p>Appeal from justice of the peace.</p> <p>Rule to strike off appeal.</p> <p>Cameeon, P. J., filed the following opinion:</p> <p>The plaintiff served with the summons an affidavit of claim with a copy of the contract upon which the action was founded. The summons was returnable July 14, 1908. The defendant filed an affidavit of defense. On the return day S. F. Channell, of counsel for the plaintiff, appeared; the defendant did not appear. ' Judgment was reserved by the justice to July 20, 1908, at nine o’clock, A. M.</p> <p>The transcript contains the following entry: “After consideration had upon the statutory provisions relating to actions under the Act of July 7, 1879, P. L. 194, before justices of the peace whereby no proof other than the affidavits filed by the plaintiffs and defendant it is hereby held that, inasmuch as no evidence has been offered by the plaintiffs to substantiate their claim and cause of action the same is hereby dismissed and judgment of no cause of action is thereby entered.” The plaintiffs took this appeal July 7, 1908. Defendant’s counsel on August 18, moved the court to discharge and set aside the appeal taken “for the reason that the record shows no judgment of the said justice of the peace, O. H. Davis, Esq. in the above-entitled action in which an appeal could be taken.”</p> <p>On the same day the court granted a rule to show cause why the appeal should not be stricken off and dismissed.</p> <p>The plaintiffs contend that because Mr. Channel! appeared on the return day the justice could not enter a nonsuit.</p> <p>No case was cited at the argument and we have not been able to find any deciding the precise question now before us.</p> <p>Section 6 of the Act of March 20, 1810, 5 Sm. L. 161, provides that: “In case the plaintiff does not appear, either in person or by agent to substantiate his charge the justice may then or at such other day as he may judge reasonable, proceed ’to give judgment against him by nonsuit for the costs and fifty cents per day for the reasonable costs of the defendant for his trouble in attending the suit; as the'defendant did not attend, the justice could not give judgment for his trouble in attending.</p> <p>Were we to eliminate the words “to substantiate his charge” the position taken by the plaintiffs’ counsel would undoubtedly be correct; if the appearance is sufficient to authorize the justice to enter a judgment on the merits then the party aggrieved by the judgment has the right of appeal. It has been decided many times that a judgment of nonsuit could not be entered after a hearing. And, if the justice of the peace exceeded his jurisdiction by so doing the remedy is by appeal. There could be no judgment on the merits if no evidence was offered. How can it be said there was an appearance of the plaintiffs to substantiate their charge if he does not undertake to do so by submitting evidence in support of it? This idea was evidently in the mind of the justice when he reached a tíonclusion, because he sets forth in the record that “it is hereby held that inasmuch as no evidence has been offered , by the plaintiffs to support their case and cause of action, the same is hereby dismissed.” That is what he would have to do in the absence ■ of evidence if the phrase “to substantiate his charge” means anything. It is true the justice subsequently sets forth “and a judgment of no cause of action is hereby entered;”, the justice could not say that the plaintiffs had no cause of action because no evidence was offered, but he could and did say that the plaintiffs had offered no evidence and therefore his action is dismissed:</p> <p>Plaintiffs’ counsel strenuously contended that under •Gould v. Crawford, 2 Pa. 89, and Lawver v. Walls, 17 Pa. 75, the appearance of the plaintiffs’ counsel without anything further, requires the justice to enter a judgment of no cause of action. By an examination of Gould v. Crawford, we find on p. 91, that “parties appeared and on the hearing justice ordered the plaintiff to be „non-suited because, as he says, the case is brought against Isaac and Stephen Gould instead of being brought against Isaac and Stephen Gould and others. It must be noted that it is the judgment of the justice and not a nonsuit or a discontinuance by the plaintiff, nor does it appear that he consented at the time to this disposition of the case. The question therefore is, Has a justice, after hearing the parties, their proofs and allegations, power to order a nonsuit?”</p> <p>We insert this quotation to show that the judgment in that case was entered after a hearing and the court holds that, although it was in words a nonsuit, yet, as it was after hearing it is equivalent to a judgment that the plaintiffs have no cause of action.</p> <p>The case of Lawver v. Walls, 17 Pa. 75, is not in point because, the quotation given from the record of the justice sets forth that “Parties appeared by an agent; plaintiffs not able to substantiate their claim.”</p> <p>This shows conclusively that an effort must have been made to substantiate their claim and the justice passed on the merits after such evidence. It is true the syllabus in the last case declares that a justice of the peace has no authority to enter a judgment of nonsuit after an appearance by the plaintiff, but that assertion is not justified by what follows because the docket of the justice declares “plaintiffs not able to substantiate their claim.” The question presented to the jury in that case was: Was the suit before Deemer for the same cause of action now trying? The jury found that it was. The case is very meager in details, but sets forth sufficient to show that the plaintiff had made an unsuccessful effort to substantiate his claim and failed; hence it is a judgment on the merits, the only remedy for which is by appeal. In disposing of the case last cited the court in a per curiam opinion say: “Gould v. Crawford settles the present case.” But we have seen that in the latter case the “parties appeared and on the hearing the justice ordered the plaintiff to be nonsuited because, as he says, the suit is brought against Isaac and Stephen Gould instead of being brought against Isaac and Stephen Gould and others. It must be noticed that it is the judgment of the justice of the peace and not a nonsuit or discontinuance of the plaintiff. . . . The question therefore is, Has a justice after hearing the parties, their proofs and allegations, power to order a nonsuit and if he undertakes to do so what is the legal effect of his decision?” Thus it appears that there was a full hearing in Gould v. Crawford and that the latter case rules Lawver v. Walls — for the same reason. In each case it was held that after hearing-before a justice the remedy is by appeal, no matter what form the justice uses in making his decision.</p> <p>These two cases were cited by Justice Williams in Vought v. Sober, 73 Pa. 49. In that case suit was brought on a note. On the return day both parties appeared and again on the day to which'the hearing was adjourned. On the day finally set for hearing the plaintiff did not appear, whereupon judgment of nonsuit was entered. On a second suit on the same note the court below, in substance, held that the former suit was a bar to a recovery. On appeal by plaintiff the court below was reversed on the ground that, although he appeared on the return day, nonappearance on the day set for hearing .only authorized a judgment of nonsuit which was no bar to the action pending. In disposing of the case Justice Williams said: “It (meaning the judgment of nonsuit) was not rendered after hearing their proofs and allegations as was the judgment of nonsuit in Gould v. Crawford, 2 Pa. 89, which was consequently held to be final regardless of its form; nor was it entered after the appearance of the parties on hearing as in Lawver v. Walls, 17 Pa. 75, because the plaintiff was not able to substantiate his claim.”</p> <p>We have quoted from Vought v. Sober, to show that the Supreme Court in that case took the same view of Gould v. Crawford and Lawver v. Walls expressed by us, and that they do not sustain the contention of plaintiffs’ counsel, because in both cases there was an appearance and an attempt to substantiate the claims.</p> <p>These two cases are often cited to support the proposition that there is no appeal from a judgment of non-suit entered by a justice of the peace on default of plaintiffs’ appearance.</p> <p>Plaintiffs’ counsel also cited Blair v. McLean, 25 Pa. 77, and Gibson v. Gibson, 20 Pa. 9. In the former case the court held that when the parties appear and submit their proofs and allegations the plaintiff may become nonsuited at his own motion. Judge Black in delivering the opinion said: “When the parties in a suit pending before a justice of the peace appear and submit their proofs and allegations the justice cannot order the plaintiff to become nonsuited. If he attempts to do so and enters his judgment in that form upon the record it will be considered equivalent to a judgment in proper form for the defendant and no other suit can afterward be brought for the same cause of action.” This case simply holds that the plaintiff has the right to withdraw or discontinue his suit at any time before the justices pronounce upon it. It is also said by Justice Black in concluding his opinion that, “The cases which decide that the justice cannot give a judgment of nonsuit against him (plaintiff) after he appears have no applications here.” This is mere dictum and the cases cited by his honor in support of that dictum are Gould v. Crawford and Lawver v. Walls, 17 Pa. 75. We have already shown by these cases that in addition to an appearance there was a hearing.</p> <p>Gibson v. Gibson decides substantially the same question that is decided in Blair v. McLean. The justice’s record in Gibson v. Gibson sets forth: “July 6, plaintiff appeared, draws the suit and confesses judgment for costs.” But these cases hold that the plaintiff had the right to do that and, if he did so it was no bar to another action on the same cause. Hess and Valentine’s “Practice in the Subordinate Courts” was also cited by plaintiffs’ counsel.</p> <p>We have examined that citation very carefully. It upholds the doctrine set forth in Gibson v. Gibson and Blair v. McLean, 25 Pa. 77. This authority holds that if evidence has been taken and judgment entered for the plaintiff he cannot then discontinue, neither can he bring another action on the same cause and that a judgment of nonsuit for want of an appearance is no bar to a new action even though the justice enters it as judgment in default of an appearance.</p> <p>There is nothing in any of these authorities to sustain the contention of plaintiffs’ counsel that a mere appearance without evidence requires the justice to enter a judgment on the merits.</p> <p>In Selfridge v. Tilgham, 1 Phila. 580, it was held that there is no appeal from a judgment of nonsuit entered by an alderman or justice of the peace because of the nonappearance of the plaintiff. In disposing of the case the court said: “It is further provided in the same section that if the plaintiff does not appear either in person or by agent, to substantiate his charge, the justice may then, or at such other day as he may deem reasonable, proceed to give judgment against him by nonsuit; but from this judgment of nonsuit there is no appeal given, as there is in the case of a judgment by default against the defendant, and the reason for the distinction is obvious; on the one hand the defendant may elect to try his case before the alderman, reserving his rights of appeal, or he may choose to let judgment be entered against him by default, having determined to submit his case to the consideration of a court and jury.</p> <p>But, on. the other hand, if a plaintiff having instituted his suit and having brought the defendant in to answer his demand at a time and place selected by himself, neglects to appear and prove his claim, the statute directs that he shall be punished by having imposed upon him the costs of suit and defendant’s costs for attendance and from this there is no appeal; the act does not give it to him and we can see nothing in the law that favors the extension of that right by implication, but, on the contrary, an obvious intention to compel the payment of costs before he shall be permitted to proceed by the institution of new proceedings.</p> <p>Sections 4 and 6 of the act of March 20, 1810, contain the only authority given a justice to enter judgments of any kind except where the demand is less than $5.23, and except the authority given by the act of 1879, neither of which apply here. Section 6 sets forth the conditions under which the justice is authorized to enter a judgment of nonsuit, to wit: When the plaintiff does not appear to substantiate his claim. If these conditions happen the effect of the judgment is simply that of a nonsuit no matter what form of expression the magistrate uses; from this there is no appeal, but it is not a bar to a new action on the same cause. Section 4 sets forth the conditions under which the justice is authorized to enter a judgment on the merits, to wit: When he has heard and examined the proofs and allegations. If he has heard and examined the proofs and allegations the judgment is final, no matter what form of expression he uses in the entry thereof, and the aggrieved party’s only remedy is by appeal. The conclusion in the first case is a consequence of a lack of evidence. The conclusion in the second case is a result of the evidence.</p> <p>To give the effect to the statute, contended for by the plaintiffs’ counsel, we must eliminate or consider redundant and meaningless the phrase “to substantiate his charge.”</p> <p>The fact that a given-construction would make a word redundant is some reason for its rejection, for, it being presumed (wherever that presumption can be sustained) that the legislature meant precisely what it said, no word in it (the statute) is to be treated as unmeaning if a construction can be legitimately found which will preserve it and make it effectual. And the same rule forbids the rejection as meaningless or superfluous of any clause in the statute: Endlich on the Interpretation of.Statutes, sec. 23.</p> <p>Applying these rules to the statute in hand, we must give effect to the phrase “to substantiate his charge.” There is nothing to prevent us in so doing. The statute is plain, unambiguous and easily understood; and, giving effect to every word in it, it simply provides that, if the plaintiff does not appear to substantiate his charge, the justice may then, or at such other day as he may judge reasonable', proceed to give judgment against him by nonsuit. Not only must he appear, but he must appear to substantiate his charge. . This he did not do. Failing to make the attempt by evidence the justice had no authority to do more than to give judgment against him by nonsuit. No matter what expressions the justice used in entering his decision on the record, the effect of it would simply be a judgment against the plaintiff by nonsuit from which there is no appeal.</p> <p>From the foregoing conclusions it follows that the judgment in this case is but a nonsuit from which there' is no appeal, and which is no bar to another action. The appeal must, therefore, be dismissed and stricken off.</p> <p>And now, March 22, 1909, after argument and due consideration had, the appeal is dismissed and stricken off.</p> <p>Error assigned was the order of the court.</p>

<p>Criminal law — Larceny—Conflict of evidence — Question for fury.</p> <p>1. On the trial of an indictment for larceny for stealing a razor, the property of a county, the case is for the jury and a conviction will be sustained where the evidence for the commonwealth tends to show that the defendant was a prisoner in the county jail, and that, when he was discharged, he clandestinely took a razor which was kept for the use of prisoners, knowing it to be the property of the county, for the purpose of appropriating it to his own use.</p> <p>Evidence — Declarations—Res gestee — Criminal law — Larceny.</p> <p>2. Declarations to become a part of the res gestse, must have been made at the time of the act done, or- be so connected with the main facts in issue as to constitute a part of the transaction.</p>

<p>Practice, C. P. — Trial—Charge—Mistake—Review—Appeals—Assignments of error.</p> <p>1. The appellate court will not reverse a judgment on account of alleged misstatements in several portions of the charge quoted in various assignments of error, where an inspection of the portions of the charge complained of show no substantial misstatement of fact, and there is nothing in the record to indicate that the attention of the trial judge had been called to any misstatements at the trial.</p> <p>Evidence — Custom of trade — Opinion of witness — Construction of writing.</p> <p>2. While a witness may be examined as to the existence of a trade custom with reference to which a written contract may have been made, although the contract is silent as to the custom, the witness cannot be permitted to construe and interpret the written contract according to his idea of what the trade would understand from his language. Such construction of a written agreement is primarily the function of the trial court, or, in certain cases, of the jury under the evidence with the aid of proper instruction from the court.</p> <p>Practice, C. P. — Verdict—Blank verdict — Reforming verdict.</p> <p>3. Where a jury seals a verdict and separates for the night, and when it is opened in the following morning in court is found to be “in favor of the plaintiff for--dollars,” the court may direct the jury to return to their room to fix the amount of the damages if they find for the plaintiff. A verdict in due form for a fixed sum subsequently brought in and properly recorded, is valid.</p> <p>4. The trial judge has full power to see that the verdict, as finally rendered, shall be in the form sanctioned by long custom, and, with the consent of the jury, he may so mold and shape it as to make it conform to these requirements.</p>

<p>Appeal, No. 15, March T., 1910, by defendants, from judgment of C. P. Lycoming Co., March T., 1909, No. 153, on verdict for plaintiff in case of Mead & Speer Company v. Charles R. Krimm et al., trading under the firm name of Williamsport Planing Mill Company.</p> <p>Assumpsit on a contract of sale. Before Hart, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $551.05. Defendants appealed.</p> <p>Error assigned was in not entering judgment for defendants non obstante veredicto.</p>

Appeal, No. 27, March T., 1910, by plaintiff, from decree of C. P. Pike Co., Oct. T., 1908, No. 2, dismissing bill in equity in case of Isidor Levin v. John D. Houck. Bill in equity for an injunction.

Appeal, No. 8, March T., 1910, by plaintiffs, from judgment of C. P. Luzerne Co., Oct. T., 1906, No. 348, for defendants non obstante veredicto in case of Barbara Brace, by her next friend and father, Martin Brace, and said Martin Brace, each in her and his own right, v. F. M. Kirby & F. J. Weckesser, partners, doing business under the firm name of F. M. Kirby & Company. Trespass to recover damages for personal injuries.

Appeal, No. 22, March T., 1910, by defendant, from judgment of C. P. Luzerne Co., May T., 1906, No. 495, on verdict for plaintiff in case of Joseph Langford v. People’s Light Company of Pittston. Trespass to recover damages for injuries to land. Before Fuller, J. The facts appear by the opinion of the Superior Court. Verdict and judgment for plaiiitiff for $1,000. Defendant appealed. Errors assigned were (1, 2) rulings on the evidence of.

Appeal, No. 30, March T., 1910, by plaintiff, from order of C. P. Luzerne Co., Oct. T., 1904, No. 1,291, refusing to take off nonsuit in case of C. L. Nagle v. Pennsylvania Railroad Company. Trespass to recover damages for injuries to a cab. Before Lynch, P. J. The facts are stated in the opinion of the Superior Court. Error assigned was order refusing to take off nonsuit.

Appeal, No. 30, March T., 1910, by plaintiffs, from order of C. P. Adams Co., Aug. T., 1909, No. 154, sustaining appeal by defendant upon taxation of costs in the case of William B. Flemming et al. v. B. F. Bush, Receiver of the Western Maryland Railway Company. Appeal from taxation of costs.

Appeals, Nos. 20 and 21, March T., 1910, by plaintiff, from order of C. P. Perry Co., Aug. T., 1908, Nos. 58 and 59, making absolute rule to strike off judgments in case of International Harvester Company of America for the use of James G. Brandt v. Tuscarora Township. Rule to strike off judgment. Before Shull, P. J. The facts are stated in the opinion of the Superior Court. Error assigned was order making absolute rule to strike off judgment.

Appeal, No. 7, March T., 1910, by plaintiff, from judgment of C. P. Dauphin Co.,, June T., 1908, No. 503, for defendant non obstante veredicto in case of John Yingst v. Harrisburg. Trespass to recover damages for the construction and maintenance of a manhole of a sewer on plaintiff’s premises. Before Shull, P. J., specially presiding. The facts appear by the opinion of the Superior Court. Verdict for plaintiff for $432.

<p>Landlord and tenant — Option to renew lease — Partnership—Unincorporated associations — Parties—Practice, C. P.</p> <p>1. Where two partners take a lease with an option of renewal from an unincorporated association, and one partner sells out to the other, and the latter gives notice of renewal to the secretary of the association, who acting within the scope of his powers accepts the notice and agrees to the renewal, the association will not be heard to object that a covenant to renew a lease to more than one lessee cannot be enforced by one of them for himself.</p> <p>2. Where a landlord is sued in trespass for an eviction and a failure to perform a covenant to renew a lease, evidence that the tenant who had leased the premises for a skating rink had conducted a disorderly house in violation of the laws of chastity, and of the liquor laws of the commonwealth, is admissible to show that the tenant was not entitled to recover damages for injuries to a business conducted in violation of law; and this is especially the case where the tenant is permitted to show the amount of his business, and his receipts therefrom.</p> <p>Practice, C. P. — Parties—Unincorporated associations — Trespass.</p> <p>3. An action of trespass may be maintained against the president, secretary and the directors, named as such, of an unincorporated association, where it appears that the defendants sued were responsible for the tortious act of which complaint is made.</p>

<p>WiUs — Construction—Life estate — Bond—Heir at law — Disinheriting heir — Acts of May 17,1871, P. L. 169, February 24,1884, P• L- 70, and April 17,1869, P. L. 70.</p> <p>1. An heir can only be disinherited by express devise or necessary implication, and that implication is such a strong probability that an intention to the contrary cannot be supposed.</p> <p>2. Where a testator gives a portion of his estate to a daughter on condition that the daughter shall “enter into a bond” conditioned that if she shall die without issue her share shall be distributed among testator’s children or legal representatives, the daughter’s refusal to execute a bond with surety when she offers to execute her individual bond, is no ground for excluding her from her bequest under the will.</p>

<p>Appeal, No. 22, March T., 1910, by defendant, from judgment of C. P. York Co., Aug. T., 1908, No. 72, on verdict for plaintiff in case of Mary J. Emig and Belle L. Emig for the use of the Spring Garden Mutual Fire Insurance Company v. The Northern Central Railway Company.'</p> <p>Trespass to recover damages for destruction of a building by fire. Before Warner, J.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $1,318.81. Defendant appealed.</p> <p>Error assigned was various rulings on evidence and instructions.</p>

Appeal, No. 59, April T., 1910, by defendant, from judgment of C. P. Erie Co., Feb. T., 1908, No. 67, on verdict for plaintiff in case of I. R. Reeder v. Harborcreek Mutual Fire Insurance Company. Assumpsit on a policy of live stock insurance. Before Walling, P. J. At the trial it appeared that the policy of insurance contained a clause insuring live stock against direct loss by hghtning.

<p>Appeal, No. 10, Jan. T., 1910, by plaintiff, from judgment of C. P. Lycoming Co., Dec. T., 1908, No. 366, on verdict for defendant in case of Atlantic Refining Company v. C. K. Fisher.</p> <p>Assumpsit for goods sold and delivered. Before Ormerod, P. J., specially presiding.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>Verdict and judgment for defendant.</p> <p>Errors assigned were in refusing binding instructions for plaintiff and in refusing judgment for plaintiff non obstante veredicto.</p>

Appeal, No. 145,. April T., 1910, by plaintiff, from order of C. P. Erie Co., May T.,‘ 1897, No. 7, refusing to set aside-decree in divorce in case of T. M. Nagle v. Agnes D. Nagle. Rule to set aside decree in divorce. Walling, P. J., filed the following opinion: The libel in above case asked for a divorce on the ground of adultery. The subpoena was personally served on the respondent in January, 1897.

<p>Wages — Notice of claim — Sheriff’s sale — Lien.</p> <p>Where a wage claimant has his notice prepared and takes it with him to a sheriff’s sale, but withholds it until after a considerable part-of the property has been sold, he loses his preference in the distribution of the fund created by the sale, over a junior creditor who had no knowledge at the time of the sale that there was a claim for wages; and in such a case the claimant loses his preference, even as to the proceeds of the sale of the property that was made after he gave his notice.</p>

<p>Principal and agent — Real estate agents — Commissions of rents collected — Contract—Affidavit of defense.</p> <p>In an action against real estate agents to recover rents collected by them after alleged revocation of the agency, where the statement of claim avers that the defendant’s full compensation was to be a commission of five per centum on all rents collected by them up tó such time as the plaintiffs might elect to terminate the agency, an affidavit of defense is sufficient which avers that defendants were to receive five per centum upon the rents during the entire period of the leases which they procured and that they were to advertise for tenants and that they did so with the consent and approbation of the plaintiffs, and that the amounts which they had received in commissions up to the date of attempted revocation was much less than the amount which they had expended in reasonable advertising and that in consequence of such expenditures a reasonable time for the existence of the employment had not elapsed on the date of the attempted revocation.</p>

<p>Appeal, No. 48, April T., 1910, by defendant, from judgment of C. P. No. 3, Allegheny Co., Nov. T., 1908, No. 407, to determine a dispute between the Pittsburg & Allegheny Telephone Company and the Borough of Braddock.</p> <p>Proceeding under the act of April 17, 1905, for the determination of a dispute as to the reasonableness of license fees imposed by the borough of Braddock on the Pittsburg & Allegheny Telephone Company. Before Kennedy, P. J.</p> <p>From the record it appeared that in 1894 the borough of Braddock passed an ordinance imposing a license fee of $1.00 on each telephone pole and $2.50 per mile for suspended telephone wire. This ordinance was declared valid by the Supreme Court in 1903. The present proceeding was to recover for license fees alleged to be due for the years 1905, 1906, 1907 and 1908.</p> <p>Kennedy, P. J., found, inter alia, the following facts:</p> <p>6. That the Pittsburg & Allegheny Telephone Company, the petitioner, has maintained during the years 1905 to 1908, both inclusive, 242 poles and seventy-one miles of wire in the borough of Braddock. The entire length of its pole lines is five miles and a thorough inspection of its poles and vares can be made in one day, but not by one man.</p> <p>7. There are and have been during the years 1905 to 1908, inclusive, erected and maintained in said borough by other companies than the petitioner, additional lines of poles and wires. The number of poles so erected, including those of the petitioner, number 1,273. The number of miles of wire erected by the several Companies is not definitely fixed by the testimony, but are approximately 200 or 300, the entire length of the pole lines being about five miles and the license fees provided for by the said ordinance would amount to about $2,000, annually.</p> <p>8. The inspection which is made by the borough is made by the chief of police and the street commissioner, who is also superintendent of public works and borough engineer, at the end of each month, and is made in connection with other duties of said officers, requiring a considerable amount of time on their part to make the inspection and reports. The policemen, also, are instructed to look out for any defects in the poles and wires, and to report the same. This inspection of the poles and wires is a regular examination of the same, and is made monthly by the chief of police, who files a written report of the result of his inspection with council at its monthly meetings, in accordance with the provisions of the ordinance attached to the answer filed in this case and marked exhibit “C.” The -superintendent of public works, who is also street- commissioner and borough engineer, also makes an inspection monthly of the same character of the condition of said poles and wires, a report of which is in writing and is filed with council at its monthly meeting; that these reports are considered monthly by council and the defective conditions, if any, as shown by said reports, are immediately referred to the company, the inspection covering the physical condition of the poles and wires, ascertaining whether the poles are sound or decayed and whether the wires are properly attached to the cross-arms and their proximity to other wires. In addition to these inspections, so reported, the entire police force of the borough, which numbers fourteen officers, are charged with the duty of constantly maintaining a supervision over and inspection of said poles and wires, both day and night; that these officers, in the discharge of their duty, report the condition, though not in writing, to the chief of police. In addition to this the chief of police and the superintendent of public works made an annual inspection, counting the number of poles and ascertaining the number of miles of wire, and this system of inspection has been in force for some time prior to 1905, to the present date, and is still in force.</p> <p>9. The chief of police of said borough receives a salary of $3.10 a day; the police officers $2.70 a day, and the superintendent of public works a salary of $150 a month. The cost of the maintenance of the police department of the borough annually exceeds the sum of $17,000, and the annual license fees charged to the petitioner, under the terms of the ordinance, is $419.50, which is applied to the maintenance of the police department.</p> <p>10. A thorough and efficient monthly inspection of the said poles and wires in the said borough, made by the chief of police and superintendent of public works, together with the oversight of the same by the members, of the police, would be sufficient to protect the public from any injury which might be occasioned by the construction and maintenance of the poles and wires in the public highways of said borough, but the same cannot be made'by one person in one day’s time, and the wages of competent persons for that purpose would exceed the sum of $2.70 per day.</p> <p>11. The poles and wires belonging to the petitioner have, at all times, been maintained in good repair, and a thorough system of inspection and supervision is, at all times, maintained by the company petitioner.</p> <p>12. That the inspection of all the poles and wires of all the companies in said borough cannot be made as readily and quickly as the poles and wires of any single one of the companies maintaining poles and wires in the highways of said borough.</p> <p>13. That the moneys collected as license taxes in said borough are mingled with the general revenues and taxes of said borough, and no separate account of same has been kept and no separate account of the inspection and supervision of . the poles and wires by the said borough has been kept by said borough, and the salaries of the police officers and the street commissioner are paid out of the general revenues of the borough. No addition was made to the salaries of the officers by reason of the inspection or supervision and regulation of the poles and wires of the company petitioner, although there is additional expense incurred by reason of such inspection, supervision and regulation.</p> <p>14. The borough of Braddock has a length of about one mile and a width of upwards of one-half a mile, with a dense population aggregating upwards of 22,000 people, and is closely built up and is directly in the pathway of commerce east and west; the Pennsylvania railroad lines running north of the borough; the Baltimore & Ohio lines through almost the center of the borough its entire length, and the Pittsburg & Lake Erie Railroad on the south about parallel with the Baltimore & Ohio, and along the lines of these railroads are numerous poles and wires. The Western Union Telegraph Company also has a line of poles through the borough, upon which are numerous wires. The Central District and Printing Telegraph Company maintains a line heavily strung with a number of wires through the center of the town. The Pittsburg Railways Company and the Monongahela Light & Power Company also maintain lines of poles and wires along the main streets and over some of the side streets and alleys. The telephone companies and light companies have numerous service lines running from the main lines, to private properties. Petitioner’s lines cross and recross above and below all of these various lines, making a network of very many wires, and some highly charged; thus rendering a most careful, thorough and efficient inspection and supervision of the various lines of poles and wires on the part of the borough for the safety of the same and its citizens and the public.</p> <p>15. Practically all of the streets and alleys of the borough of Braddock are paved and its territory almost entirely built up; that Braddock avenue, which is the main public highway of said borough, upon which are located all the banks and a majority of the stores and business houses, is crowded with poles and wires of other public corporations as well as those of the petitioner’s lines, almost its entire length, and the necessity for the inspection of the poles and wires on that thoroughfare exceeds the requirements of other streets in the borough and renders necessary a high degree of care and the most thorough, careful and efficient inspection and supervision of the lines of the petitioning company for the safety and protection of the borough, its citizens and the public.</p> <p>The court found that the act of 1905 was constitutional; that the ordinance was unreasonable, and that fifty cents was a proper fee for each pole and fifty cents per mile for each single line of suspended open wire.</p>

<p>Corporations — Officers—Secretary—Letter of secretary.</p> <p>1. Where a letter addressed to a corporation is answered by the secretary of the company over his individual signature, and the letter so signed showed that it was an answer to the letter received, the court cannot, in the absence of any evidence on the subject, say that the answer was the individual act of the secretary, and not the act of the corporation.</p> <p>Master and servant — Contract of employment — Change of employment— Evidence — Charge of court.</p> <p>2. Where a construction company employs a number of foreign workmen, puts them to work at a plant of its own, but subsequently transfers them to another plant which is alleged to have been operated by an independent contractor, and the men are not notified of any change in their employment, or that they are to look to a new employer for their wages, and the work is of the same character as at the other plant, and visibly part of a continuous line, and one month’s wages for work done at the second plant is paid by the construction company, the latter company will be liable for the wages of the workmen for work done at the second plant.</p> <p>3. In such a case where there is evidence that a written order was given by the construction company, assigning the laborers to the other work, although the paper is not produced, it is error for the court to refer to the order as merely a paper of identification.</p> <p>4. Where in such a case the construction company makes a clear admission of its liability when the claims of the laborers are presented to it by a justice of the peace, it is reversible error for the trial judge in a suit against the company for the wages to use such language as would lead the jury to conclude that the amount claimed was not duo from the construction company, but was due from the independent contractor.</p> <p>5. When there is sufficient evidence upon á given point to go to the jury, it is the duty of the judge to submit it calmly and impartially. And if the expression of an opinion upon such evidence becomes a matter of duty under the circumstances of the particular case, great care should be exercised that such expression should be so given as not to mislead, and especially that it should not be one-sided. The evidence, if stated at all, should be stated accurately, as well that which makes in favor of a party as that which makes against him; deductions and theories, not warranted by the evidence, should be studiously avoided; they can hardly fail to mislead the jury and work injustice.</p>

<p>Road law — Damages—Right of mortgagee — Assignment of award.</p> <p>1. An owner of land at a time the land is taken for public use is the person entitled to the damages awarded for such taking; but where the land is subject to the lien of a mortgage, the court having jurisdiction of the subject will guard the rights of the lien creditors.</p> <p>2. While the award is in the name of the owner, however, he becomes a trustee for the mortgage creditor, and until there has been an actual payment of the damages assessed to the owner, by the municipality, the mortgage creditor has standing to intervene and claim the fund to the extent necessary to satisfy his lien; and he may maintain this right against an assignee of the award although the latter paid a valuable consideration for the assignment, and took it without actual knowledge of the mortgage.</p>

<p>Appeal, No. 21, April T., 1910, by Geo. H. Calvert, receiver, from judgment of C. P. Westmoreland Co., Aug. T., 1908, No. 950, on verdict for plaintiff in case of Samuel Lapcevic v. Guardian Fire Insurance Company of Pennsylvania.</p> <p>Motion to quash appeal.</p>

<p>Carrier — Railroads—Notice of claim — Waiver.</p> <p>1. Where a railroad company is sued for the loss of a carload of tomatoes which were alleged to have rotted from the neglect of the company properly to ice them, and the company has full knowledge of the condition of the car and its contents upon arrival, and in the course of correspondence with the owner denies its liability on the ground that it had properly performed its contract of carriage, it cannot after suit brought defend on the ground that it had not received the thirty day notice of loss provided for in the bill of lading.</p> <p>2. In such a case where the evidence is conflicting as to whether the decayed condition of the tomatoes was caused by a lack of ice which the defendant had agreed to supply, the case is for the jury.</p>

<p>Evidence — Witness—Statement by expert.</p> <p>1. It is reversible error to permit an expert witness to make a statement which rested on nothing to warrant it in the evidence.</p> <p>Contract — Sale—Repair of engine.</p> <p>2. Where a manufacturer sells an engine and the customer accepts it and a dispute arises as to its running, and the seller agrees for a certain amount to repair it and put it in running order within a period stated and he fails to do so for a considerable time after the expiration of such period, the purchaser is justified in notifying the seller to remove the engine without giving him any further time to make it work. In such a case the burden is not upon the purchaser to show that it was impossible for the engine to be repaired.</p>

<p>Appeal, No. 11, March T., 1909, by defendants, from decree of C. P. Lackawanna Co., Sept. T., 1905, No. 8, awarding injunction in case of Helen M. Fuller v. Charlotte Fisk et al.</p> <p>Bill in equity for an injunction. Before Edwards, P. J.</p> <p>The facts appear by the opinion of the Superior Court- and by the report of Fuller v. Cole, 33 Pa. Superior Ct. 563.</p> <p>Error assigned was decree awarding injunction.</p>

<p>Constitutional law — Class legislation — Liberty to contract — Municipal corporations — Municipal contracts.</p> <p>1. The Act of July 26,1897, P. L. 418, entitled, “An Act to regulate the hours of labor of mechanics, workingmen and laborers in the employ of the state, or municipal corporations therein, or otherwise engaged on public works,” is not unconstitutional as violating secs. 1 and 9 of art. I, and secs. 3 and 7 of art. Ill, of the state constitution as class legislation and an unjust interference with a mechanic’s, workman’s or laborer’s liberty to contract.</p> <p>2. A contractor for the construction of a filtration plant of a city may be convicted of violating the provisions of the Act of July 26,1897, P. L. 418, if he compels his workmen to labor for more than eight hours a day while engaged in work on the filtration plant.</p> <p>Morrison and Head, JJ., dissent.</p>

<p>Contract — Sale—Intention—Delivery—Province of court and jury.</p> <p>1. When a purchase of personal property is made in good faith a fair and honest purpose of the vendor and the vendee will not be defeated, if the conduct of the parties shows that there was an intention to transfer the possession as well as the title, and the vendee assumes such control of the property as ought reasonably to indicate a change of ownership.</p> <p>2. Whether the sale was made in good faith or was colorable and whether the change of possession was all that could reasonably be expected of the vendor, and was in fact made by the parties to the transaction, taking into consideration the character and situation of the property, are questions of fact to be determined by the jury.</p> <p>3. While the delivery of a bill of sale is not a delivery of the property and such transaction is not a sale, if it is not so intended by the parties, strangers have a right to inquire into the transaction and to have it fully explained.</p> <p>4. A tenant owed his landlord for money advanced to purchase farm implements; subsequently he executed a bill of sale for the implements, vesting in the landlord their absolute ownership. Before all of the advances were repaid he rented a farm in another township, and the new landlord paid the first landlord the balance due on the bill of sale, and took an assignment of it. The implements were then removed to the other farm. Prior to the original execution of the bill of sale the tenant had given judgment notes to relatives. The second landlord did not know of the existence of these notes, and judgments were not entered upon them until after the assignment of the bill of sale, and the open removal of the implements from the one farm to the other. Held, that the question of the sufficiency of the delivery and the good faith of the transaction was for the jury.</p>

<p>Summary convictions — Boroughs—Appeal from judgment of burgess.</p> <p>1. While many of the technical formalities of summary convictions have long since been dispensed with, theré are some essentials which still exist and must appear upon the record. It is still necessary that a summary conviction shall contain a finding that a specific act has been performed by the defendant, and that it shall describe or define it in such a way as to individuate it and show that it falls within an unlawful class of acts.</p> <p>Corporations — Water companies — Use of streets — Opening streets— Boroughs — Discretion of borough council.</p> <p>2. A water company chartered under the general laws of the commonwealth is not compelled to obtain the consent of a borough council before it may lay its pipes in the streets, or open the streets in order to obtain access to them for a necessary purpose, and a borough exceeds its powers, when, as to such a company, it undertakes to make the exercise of the chartered rights of the coihpany dependent upon the consent of the borough council.</p> <p>3. A borough ordinance is invalid as to a chartered water company, which provides that the borough secretary may issue permits to open or dig up a street (1) for the purpose of making connections with the sewer, (2) to lay or connect a water or gas pipe with the main and (3) to make repairs to such pipe or connection, but prohibits the opening of the streets for any other purpose without permission of council.</p>

<p>Appeal, No. 9, March T.,' 1910, by defendant, from judgment of C. P. York Co., Oct. T., 1908, No. 37, on verdict for plaintiffs in case of Samuel Senft and William Senft, trading as Samuel Senft & Son, v. James K. Mcllvain.</p> <p>Trespass to recover damages for wrongful distress when no rent was due. Before Bittenger, P. J.</p> <p>Plaintiffs’ statement was as follows:</p> <p>The plaintiffs, Samuel Senft and William- Senft, trading and doing business as Samuel Senft & Son, by their attorneys James G. Glessner and Kerwin W. Altland, claim damages of the defendant James K. Mcllvain, constable, in the sum of $283.50, which is justly due and owing to the plaintiffs by the defendant upon the cause of action, whereof the following is a statement:</p> <p>The plaintiffs, to wit, on August 26, 1908, to wit, in Spring Grove, York county, Pa., held and enjoyed certain premises, with the appurtenances, as tenant thereof to E. W. Senft, at and under a certain rent; yet the defendant, not regarding the act of assembly, entitled, “An act for the sale of goods distrained for rent, and to secure such goods to the persons distraining the same for the better security of rents, and for other purposes therein mentioned,” approved March 21, 1772, then and there wrongfully and injuriously seized, took, and distrained certain goods and chattels, to wit, one black horse, of the plaintiffs’ then found and being in and upon the said premises, with the appurtenances, of the value of $140, and sold said black horse on September 8, 1908, as such distress as aforesaid, by color of said act, for certain rent, to wit, the sum of $50.00, then and there pretended by plaintiffs’ landlord E. W. Senft, to be in arrear and due said E. W. Senft, for the said demised premises, with the appurtenances; whereas at the time of the making of the said distress and sale, as aforesaid, no rent was in arrear or due to the defendant, for or in respect of said premises, with the appurtenances: that on September 8, 1908, aforesaid, said defendant, also sold as the property of plaintiffs, on account of said rent alleged to be in arrears and due to said E. W. Senft, one halter and one horse blanket, of the value of $1.75, that had not been levied upon or distrained by said defendant: said acts being contrary to the form of the said statute in that case made and provided, to the damage of the plaintiffs of $283.50: wherefore this suit is brought.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiffs for $130. Defendant appealed.</p> <p>Errors assigned were the various rulings and instructions set forth in the opinion of the Superior Court.'</p>

<p>Waters — Rivers—Rights of riparian owners — Evidence—Expert.</p> <p>1. The rights of riparian owners under the common law in England do not apply to the principal rivers of Pennsylvania. The owners cannot occupy them to the prejudice of navigation.</p> <p>2. Navigable rivers are subject to the control and regulation of the secretary of war.</p> <p>3. Where the secretary of war issues a permit to a pipe line company to lay its pipes under and across a navigable river, and he also issues a permit to another company for dredging sand and gravel in the same river, and the pipe line company charges the dredging company with injuring its pipe line, and the evidence is conflicting as to the negligence of both companies in the exercise of the permissions to use the river under their respective permits, the question of negligence is for the jury.</p> <p>4. Where in such a case a witness for the pipe line company testifies as to a long continued experience in repairing bréales in pipe lines, he may be permitted to express an opinion as to what caused the particular break in question.</p> <p>5. Where a question to a witness is objected to and in part sustained, and exception noted, and thereafter another question is asked the witness, which ho answers without objection, the second question and answer cannot be used as a basis for an assignment of error inasmuch as no exception was taken to it.</p>

Appeal, No. 58, April T., 1910, by defendant, from order of C. P. No. 4, Allegheny Co., Third T;, No. 98, discharging rule to open judgment in case of Maurice Joy v. Frank Amantea. Rule to open judgment. The facts are- stated in the opinion of the Superior Court. Error assigned was order discharging rule to open judgment.

<p>Appeal, No. 181, April T., 1910, by plaintiff, from order of C. P. Fayette Co., March T., 1909, No. 220, refusing permission to amend the record in case of the White Company v. Fayette Automobile Company.</p> <p>Assumpsit on book accounts. Before Umbel, J.</p> <p>From the record it appeared that the suit was brought on a book account running from September 3, 1907, to August 3, 1908.</p> <p>Other facts appear by the opinion of the Superior Court.</p> <p>Error assigned was order refusing the amendment.</p>

<p>Road law — Street improvements — Void legislation — Retroactive legis~ lation.</p> <p>1. Where abutting property has been benefited by a street improvement made under void authority the lots may be charged for their proportionate shares of benefit received by subsequent legislation. A retroactive enactment can cure a want of authority in levying the tax. The liability of the land to such a charge, does not depend on the question of ownership. It is the benefit which the improvement confers on the land which creates the liability.</p> <p>2. When it is decided that retroactive legislation is valid which charges property with benefits conferred under void legislation, no reason exists why the property actually benefited should not be charged with its share of such benefit without regard to the ownership of the property at the time the charge is fixed.</p> <p>3. Where a person purchases property around which a city had recently made extensive and costly street improvements, although there is no present valid lien therefor, he is presumed to know that the property is liable to be charged with its proportion of the expense of such improvements, and that this may be done by subsequent as well as by antecedent legislation.</p>

<p>Practice, O. C. — Auditing judge — Findings of fact.</p> <p>1. Where a question is one of fact depending for its decision upon oral testimony, the finding of the auditing judge of the orphans’ court approved by the court in banc, if there is evidence which warranted it, will not be reversed on appeal, unless palpably erroneous.</p> <p>Practice, O. C. — Bill of review — Laches—Estoppel. '</p> <p>2. A review of the account of an executor based upon the alleged fraud of the executor who was testator’s attorney in inducing the testator to purchase stock in a corporation, is not demandable as matter of right; but the court will require very strong and satisfactory proof of the alleged fraud, where it appears that the petition was not presented until nearly ten years after the purchase of the stock, nearly nine years after testator’s death, and more than four years after the confirmation of the account.</p> <p>3. A bill of review will not be granted on the ground of after discovered evidence where such evidence could have been produced at the audit if due diligence had been observed.</p>

<p>Appeal, No. 39, April T., 1910, by T. J. Lawton, guardian, from decree of O. C. Allegheny Co., Feb. T., 1909, No. 30, surcharging him as guardian of the Estate of Michael A. O’Brien.</p> <p>Exception to' account of guardian. Before Hawkins, P. J.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was decree surcharging the guardian.</p>

Appeal, No. 40, April T., 1910, by T. J. Lawton, from decree of O. C. Allegheny Co., Feb. T., 1909, No. 31, surcharging him as guardian of the Estate of Paul O’Brien, a minor. Exceptions to account of guardian. Before Hawkins, P. J. The opinion of the Superior Court states the case. Error assigned was decree surcharging accountant.

<p>Affidavit of defense — Practice, C. P. — Warranty.</p> <p>1. In. an action to recover for a large number of articles of jewelry sold and delivered, an affidavit of defense is insufficient which alleges a warranty, but does not show whether the warranty was written or verbal, and which is evasive and uncertain in respect of the goods alleged to have been warranted.</p> <p>2. Such an affidavit is also insufficient which avers that the defendant immediately upon discovering the inferiority of the goods notified plaintiff thereof. The defendant is bound to show that he exercised the right to rescind within a reasonable time, and he must therefore set out sufficient facts to show the court what was the actual time at which he gave the notice of rescission.</p> <p>3. Such an affidavit is also fatally defective if it furnishes no basis whatever for assessing the damages suffered by the defendant on account of the inferiority of the goods.</p>

<p>Appeal, No. 7, April T., 1910, by defendants, from judgment of C. P. No. 2, Allegheny Co., Jan. T., 1906, No. 85, on verdict for plaintiff in case of B. F. Lee Company v. George W. Sherman, with notice to Jacob Weinman, Jr., and Joshua Weinman, terretenants, and all other persons in possession.</p> <p>Scire facias sur mechanic’s lien. Before Haymaker, .J.</p> <p>Verdict and judgment for plaintiff for $498.93. Defendants appealed.</p> <p>■Errors assigned were in the following form:</p> <p>The appellants in this case, the defendants below, by their attorneys, Brown & Stewart, assign as errors to the judgment of said common pleas in said case as follows:</p> <p>1. The court erred in overruling the plaintiff’s motion for a compulsory nonsuit upon the trial of said case.</p> <p>2. The court erred in refusing to instruct the jury as requested by the defendants, on the trial of said case, that the verdict of the jury must be for the defendants.</p> <p>3. The court erred in instructing the jury in the judge’s general charge, using the following language: “If the plaintiff in this case delivered to the defendant the materials spoken of as having been delivered on the 9th and 13th of May, for these two particular houses, it would not, of course, make any difference in the plaintiff’s right to recover if the defendant diverted that property to some other building. That is, if the plaintiff delivered it to the defendant they were not bound to follow it to the house or stay there and see that it actually was put into the houses and used in these particular houses. If the defendant used it for some other purpose, or diverted it, the plaintiff would have a right to recover, notwithstanding that the property did not go into the house for which he had delivered it to the defendant.”</p> <p>4. The court erred in refusing the defendants’ motion for judgment for the defendants non obstante veredicto.</p>

<p>Road law — Boroughs—Street improvement — Act of May 16, 1891, P. L. 71.</p> <p>1. The Act of May 16, 1891, P. L. 71, is limited in its application to street improvements completed within two years preceding the approval of the act and those in progress of completion at the date of approval.</p> <p>Road law — Boroughs—Street improvements — Omission of ordinance— Remedial ordinance — Act of May 16,1891, P. L. 75.</p> <p>2. Where a petition is presented in accordance with the provisions of the Act of May 16, 1891, P. L. 75, for the grading, curbing and paving of a street of a borough and the street is improved under a contract made by the borough without the ordinance provided by the act, the borough councils may subsequently pass a remedial ordinance and thus legalize the contract so as to sustain municipal liens filed against abutting properties for the cost of the improvement.</p> <p>3. Where an improvement of a street is made by the officers of a municipality without authority of ordinance, councils may, by subsequent ratification, validate and adopt the unauthorized act.</p>

<p>Practice, C. P. — Amendments—Justice of the peace — False arrest— Constable.</p> <p>1. Where a justice of the peace and a constable are sued in their official capacity for false arrest without notice in writing delivered to the justice thirty days before the suit, as required by the Act of March 21,' 1772, 1 Sm. L. 370, an amendment, charging that the arrest was made in pursuance of a conspiracy and to compel'payment of a judgment founded upon a contract, and that the arrest was made without a writ, will not be permitted to be filed, inasmuch as the amendment is an entire change in the cause of action.</p> <p>2. While the statutes of amendments are to be construed liberally so as to give effect to their clearly defined intent and to prevent the defeat of justice through mere mistake, they will not be allowed to the prejudice of parties by introducing a new cause of action or bringing in a new party, or changing the capacity in which ho is sued.</p>

<p>Contract — Sale—Delivery of goods — Rescission.</p> <p>1. Where goods are sold under an agreement that they are to be delivered at the purchaser’s residence, and if satisfactory to him on delivery, they are to be accepted and paid for at once, if not, they are to be taken away by the plaintiff, the purchaser may, if he finds the goods defective after delivery, immediately rescind the contract and demand that they be removed. He is under no obligation to remove the goods to a storage warehouse if they are not taken away by the seller. ' 2. In such a case where suit is brought for the contract price of the goods four days after the seller had been notified of the rescission, evidence that the purchaser had used some of the goods after the suit had been brought, is inadmissible.</p> <p>3. The plaintiff cannot supply the want of a valid claim after the commencement of the action by the acquisition or accrual of one during the pendency of the action, nor can a plaintiff recover in a pending action on a cause of action which occurred after the institution of such action, even though such cause of action relate to the subject-matter of the pending action.</p>

<p>Liquor law — Appeals—Certiorari—Facts—Remew—Sales—Brewer’s license.</p> <p>1. On a writ of certiorari to the refusal of the lower court to grant a brewer’s license, the appellate bourt will accept as established the facts as stated by the court below.</p> <p>2. Where a brewing company having a license to sell beer only at its brewery in a certain borough, employs agents in other places to take orders for beer, and agrees to deliver, or cause to be delivered beer to purchasers at the town or place where the order is given, the contract is executed only when the beer is delivered to the purchaser at the place where the order was given, and the company in making such a sale, is guilty of selling liquor without a license; and for such action in the past the court may refuse to the company a license to sell beer in the future.</p>

<p>Negligence — Master and servant — Elevator—Evidence.</p> <p>In an action by an employee against an employer to recover damages for injuries resulting from a fall from an elevator, the case is for the jury and a verdict and judgment for plaintiff will be sustained where it appears that the plaintiff on the morning of the accident reported the elevator to be out of repair to the defendant’s general superintendent and manager who hired and discharged men and supervised the general operation of the plant, and that the superintendent after an examination of the elevator told the plaintiff “Go ahead, that it was all right,” and that the plaintiff in pursuance of this direction went on to the elevator and was injured.</p>

<p>Practice, C. P. — Affidavit of defense — Waiver by plaintiff — Arbitration.</p> <p>1. A party who intends to ask for judgment for the reason that the affidavit of defense is deficient must do so before he has taken any steps in the case, subsequent to the affidavit, calculated to mislead his opponent.</p> <p>2. Where a plaintiff after having filed his statement of claim, enters a rule for arbitration, and the defendant files an affidavit of defense, and thereafter the plaintiff proceeds with the arbitration until an adverse decision is rendered against him by arbitrators, he cannot after such decision, enter a rule upon the defendant for judgment for want of a sufficient affidavit of defense.</p>

<p>Deed — Mental capacity of grantor — Consideration—Fraud—Equity.</p> <p>On a bill in equity to declare a deed void, a decree in favor of plaintiff will not be reversed by the appellate court where it is based on findings of fact sustained by competent proof to the effect that the grantor at the time of the execution of the deed was of feeble mind and incompetent to transact business, that the deed was without consideration, and that the defendants had fraudulently conspired to procure its execution.</p>

<p>Equity — Findings of fact — Municipal contract — Interest of councilmen.</p> <p>On a bill in equity to declare a municipal contract invalid because ■ several councilmen who had voted for it were stockholders of the cor- , poration with which the contract was made, a finding by the lower court based upon sufficient evidence that the councilmen in question had parted with their stock absolutely and in good faith before they voted for the'contract, will not be disturbed in the absence of manifest error.</p>

Appeal, No. 153, April T., 1910, by defendants, from judgment of C. P. No. 3, Allegheny Co., Aug. T., 1905, No. 685, for plaintiff non obstante veredicto in case of J. B. Ewald v. Fidelity Title & Trust Company of Pittsburg, Ella B. Kirk and Walter M. Kirk, Executors of the last will and testament of David Kirk, deceased, and D. M. Saylor, Constable. Replevin for goods alleged to have been unlawfully distrained. Verdict for defendants for $162.45.

<p>Courts — Judges—Interested judge — Calling in outside judge — Additional judge — Acts of April 22,1856, P. L. 500, April 2,1860, P. L. 552, May 1, 1861, P. L. 494, April 9, 1874, P■ A 54, August 7, 1888, P. L. (1885) 828, June 15,1887, P. L. 404, June 12,1895, P. L. 190, and July 18, 1901, P. L. 669.</p> <p>1. In a county where there are two judges, the additional law judge is qualified to try a contest growing out of the accounts of the election expenses of the president judge. In such a case it is not-neeessary to call in an outside judge from another county as provided by the Act of April 22, 1856, P. L. 500. Com. ex rel. v. White, 161 Pa. 576, distinguished.</p> <p>Constitutional law — Title of statutes — Election and powers of additional law judges — Acts of April 9,1874, P- A 54, August 7,1888, P. L. (1885) 828, June 12, 1895, P. L. 190, and July 18, 1901, P. L. 669.</p> <p>2. The titles of the Acts of April 9, 1874, P. L. 54, August 7, 1883, P. L. (1885) 323, June 12, 1895, P. L. 190, and July 18, 1901, P. L. 669, are sufficient to give notice of the general scope of the acts, particularly as to the election and powers of additional law judges.</p> <p>Election law — Expenditures of candidates — Accounts—Act of March 5, 1906, P. L. 78.</p> <p>3. An account of a candidate for nomination showing expenditures made in his behalf to secure the nomination, is insufficient under the Act of March 5, 1906, P. L. 78, if it shows moneys paid by the candidate to individual agents of his own to be used on his behalf, but fails to show for what purposes the moneys thus intrusted to the agents were used.</p> <p>4. An account which merely exhibits the fact that the candidate has deposited money in the hands of an agent to be used for legitimate expenses, and does not show the person to whom, and the purpose for which, the agent paid the money, is not such “a full, true and detailed account,” as the act of 1906 plainly contemplated.</p> <p>5. To be a true account within the spirit and intent of the act, it must set forth each and every sum of money disbursed by the candidate, whether personally, or by his agent for election expenses, the date of each disbursement, the name of the person to whom paid, and the object or purpose for which the same was disbursed; and, moreover, the account must be accompanied by vouchers for all sums expended exceeding $10.00 in amount. Filing the receipts of his agent for the money placed by him in their hands does not fully meet the requirements of the act.</p> <p>6. In a contest over a candidate’s account, an agent to whom the candidate intrusted money to be expended, may be asked to. give a detailed statement of the manner in which he expended the sums intrusted to him, without any preliminary proof that the candidate knew and consented to the disbursement of the moneys by the agent for illegal purposes. Bechtel’s Election Expenses, 39 Pa. Superior Ct. 292, distinguished and explained.</p> <p>7. The agent of the candidate may be asked whether he had spent the moneys received by him from the candidate in the purchase of a vote, or whether he had used moneys of his own for such a purpose with the candidate’s knowledge and consent.</p> <p>8. An offer to prove that the agent expended moneys received from the candidate for the purchase of votes to be followed by further proof that such practice and means of getting votes was known to and consented to by the candidate, should be admitted.</p> <p>9. In a contest over a candidate’s account of expenditures it is not competent upon cross-examination of the candidate to inquire as to his motive in permitting his counsel to raise objections which they deemed proper to the offer or admission of testimony.</p> <p>10. Where a candidate includes in his account the price of a box of cigars, he is not estopped by the fact that he included such an item in his account, from showing that the use of the cigars was but the common courtesy which men extend to friends without any thought on his part or their part that the latter would be influenced in their votes thereby.</p>

Appeal, No. 180, April T., 1910, by plaintiff, from order of C. P. Fayette Co., Dec. T., 1906, No. 334, discharging rule for judgment for want of a sufficient affidavit of defense, and from judgment on the verdict in case of Monongahela Natural Gas Company v. Ellwood Natural Gas & Oil Company. Assumpsit for gas. Before Umbel, P. J. The facts are stated in the opinion of the Superior Court.

Appeal, No. 172, April T., 1910, by plaintiff, from decree of C. P. No. 1, Allegheny Co., Sept. T., 1908, No. 6, dismissing bill in equity in case of the Dilworth Coal Company v. John W. Kidney. Held: that the existence of the defendant as a corporation is to be assumed, unless it is put in issue. by the pleadings: Barton v. National Express Co., 9 Kulp, 212; Pennsylvania Knitting Co. v. Mfg. Co., 21 Pa. C. C. Rep. 537.

Appeal, No. 95, April T., 1910, by defendants,' from order of C. P. Beaver Co., Dec. T., 1908, No. 243, maldng absolute rule for judgment for want of a sufficient affidavit of defense in case of Rochester Improvement Company v. H. C. Foerstige et al. Assumpsit against sureties to recover rent alleged to be due on a lease. Before Holt, P. J. Rule for judgment for want of a sufficient affidavit of defense. The facts are stated in the opinion of the Superior Court.

Appeal, No. 189, April T., 1910, by defendant, from judgment of C. P. No. 2, Allegheny Co., Jan. T., 1907, No. 322, on verdict for plaintiff in case of Charles G. Mitchell v. John C. Schreiner. Assumpsit-to recover commissions for-sale of real estate.

Appeal, No. 107, April T., 1910, by Joseph. E. Barnett, Executor and Trustee, from decree of O. C. Westmoreland Co., May T., 1909, No. 160, dismissing petition to pay over money in Estate of Martin V. Maxton, deceased. Petition to pay over money.

<p>Appeal, No. 6, April T., 1910, by plaintiff) from judgment of C. P. Jefferson Co., April Term, 1908, No. 295, on verdict, for defendant in case of G. A. Morrison, Executor of James McGee, deceased, v. C. A. Curry, Executor of Gurnie Curry.</p> <p>Assumpsit to recover moneys which it was alleged plaintiff’s testator had been compelled to pay as a surety of defendant’s testator. Before Reed, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned were (2-7) various portions of the charge, and (8, 9) ruling as to the testimony of Gurnie Curry, quoted in the opinion of the Superior Court.</p>