Volume 44 — Pennsylvania Superior Court Reports

<p>Evidence — Witness—Opinion of witness — Grounds for opinion — Real estate values — Road law.</p> <p>1. Where a witness properly qualified has given an opinion as to real estate values, he may be permitted to state the grounds upon which his opinion is based.</p> <p>2. In a proceeding to assess damages for injuries to land caused by the change of grade of a street, a witness may be permitted to state the cost of restoring the property to its former state of ease of access from the street, not as an independent and distinct item of damages, but as furnishing some moans to enable the jury to determine how much less the property is worth after the change of grade than it was before.</p>

<p>Appeal, No. 168, April T., 1910, by defendants, from judgment of .C. P. Somerset Co., Sept. T., 1907, No. 338, on verdict for plaintiff in case of.C. S. Coughenour v. Charles E. Stewart & Company.</p> <p>Trespass quare clausum fregit.</p> <p>At the trial the plaintiff made the following offer:</p> <p>Mr. Scott: We propose to prove by the witness on the stand that the dwelling house, stable and other outbuildings were in a good, tenantable condition when the defendants took possession of the same; that the fences were good; the bars and gates and the inclosure around a certain garden on the leased premises were in good condition; that when they surrendered possession of the leased premises, the partitions in the dwelling house were torn away; that the window lights were broken out; that the porch was destroyed, etc., as to the dwelling; as to the stable, the stalls were destroyed, four in number; the weatherboarding torn therefrom, and the outbuilding, to wit, the spring house, was used by the defendants as an oil storage place, and that by reason of the use of said oil it has rendered that building entirely worthless, and another outbuilding, to wit, a coal house, was entirely destroyed; that the fences were torn down, and rails broken and burned.</p> <p>Mr. Ruppel: This evidence is objected to for the following reasons: First, it is inadmissible under the pleadings; second, this being an action of trespass, none of the matters contained in the offer can be adjudicated in this proceeding.</p> <p>The Court: I think, having joined issue on it, we will overrule the objection and note an exception to the defendants. [1]</p> <p>Mr. Scott: “Q. State in what condition you handed over the property, with reference to gates, and fences surrounding the property? A. Everything was in good condition.”</p> <p>Mr. Ruppel: I object to this, first, as inadmissible under the pleadings, and second, as the agreement expressly provides for the payment of damages for these items, there can be no recovery in this action, as it is an action of trespass.</p> <p>Objection overruled and exception noted to defendants. [2]</p> <p>Defendant made this offer:</p> <p>Mr. Ruppel: We propose to prove by the witness and others that the persons living in the shanties and who, it is alleged, carried away the rails and posts and fencing material, and used it for firewood, did so of their own responsibility, and that the defendants were not in any wise connected with such- improper use of plaintiff’s material; that the tenants under the defendants were to furnish their own fuel, and some fuel was furnished by the defendants and paid for by the tenants.</p> <p>Objected to as immaterial and irrelevant.</p> <p>Objection sustained and exception noted to defendants. [3]</p> <p>The court charged in part as follows:</p> <p>[When the statement was filed, an examination of it would have shown that it involved a variety of claims, some of which were founded on a tort; that is to say, on a wrong or an injury, and some of which were founded upon a direct, distinct contract, so that these various claims were not in harmony with one another, in so far as the form of action adopted by the plaintiff was concerned; in other words, damages for what I have called a tort, or a wrong or an injury, must be recovered in an action of trespass, and the other damages which are sought to be recovered must be recovered in an action of assumpsit, and these various claims were blended in this action. I mention this now only because the question has been argued at length before you on a motion to the court last evening, and was referred to again in the argument of counsel, and I desire to say at this point that that matter is not to concern you one way or another. The court has held that by reason of there having been no demurrer filed, and by reason of the lapse of time and the circumstances, and from the further reason that we thought the rights of the parties could be adjusted without injury to either of them in the form of the action as it now stands, we ruled that we would proceed with this case and try it to its end. So that any of the matters that you may have heard in the discussion relating to whether this is a trespass, whether these damages are claimed upon trespass, or whether part of them, are claimed upon contract, need not concern you.] [4]</p> <p>[As to the fences, gates and bars, it is not claimed by the defendantsxthat they had any right to remove them— they or their employees — and if you find that they were destroyed, as the plaintiff contends — find from the whole of the evidence that they were destroyed — you would ascertain the damages or extent of the injury suffered by the plaintiff by the destruction of the fences, gates and bars, and allow that to him as a part of your verdict; and just so, if you find that damage was done of the character described by the plaintiff’s witnesses, to the house or the stable, or both of them, you would from the testimony ascertain the amount of such damage and allow that to the plaintiff.] [5]</p> <p>[You may ascertain first if the plaintiff suffered damage from the wandering of this stock over his ground, and if he did, the amount of it, and if any amount, that will be added to the other matter.] [6]</p> <p>[If that meant that Mr. Coughenour gave consent to the taking of the timber, that relieved the defendants from any question of treble damages, or, if the answer of Mr. Coughenour led Mr. Wilmoth to believe that he could take it upon paying for it, that relieved him from treble damages, but in neither event did it relieve from single damage, because the defendants would still have to pay for the timber.] [7]</p> <p>Defendants presented these points:</p> <p>Under the pleadings and all the evidence in the casé the verdict must be for the defendants. Answer: Refused. [S]</p> <p>2. The damages claimed for in this action for injuries done to the house, stable, fences, gates, bars, coal house, woodhouse, and all other items which defendants had a right to use or take or change in any way under the lease offered in evidence by the plaintiff cannot be recovered in this form of action as it is expressly provided in the agreement or lease that the defendants are to pay the value of the property injured, destroyed or taken by the defendants. Answer: Refused. [9]</p> <p>3. Under the plaintiff’s own testimony that after some trees had been cut by the defendants, being part of the 217 for which damages are claimed in this action, he called on the defendants with reference to them and they promised to pay him for the trees that they had taken and would take, and no objection or protest having been made by the plaintiff at that time the defendants had a right to assume that they were permitted to cut these trees and pay their value and were not trespassers and neither damages nor the value of the trees thus cut can be recovered in this action. Answer: As stated this point is refused. [10]</p> <p>4. The plaintiff has not in his statement for cause of action, nor in his proof sufficiently defined and described the premises on which the alleged trespasses were committed, such as destroying wheat, and spoiling grass and herbage, so as to enable the jury to properly determine whether the same were included within the terms of the lease from the plaintiff to the defendants or not, and therefore there can be no recovery in this action for these claims. Answer: Refused. [11]</p> <p>Verdict and judgment for plaintiff for $364.75. Defendants appealed.</p> <p>Errors assigned were (1-3) rulings on evidence, quoting the bill of exceptions; (4-11) above instructions, quoting them.</p>

<p>Mechanic’s lien — Notice to owner■ — Subcontractor—Acts of June 4, 1901, sec. 8, P. L. 431, and April 17,1905, P. L. 172.</p> <p>Under the Act of June 4, 1901, sec. 11, P. L. 431, as amended by the Act of April 17, 1905, P. L. 172, a mechanic’s lien filed by a subcontractor must set forth when and how service of notice of intention to file the lien was made upon the owner. If the lien does not set forth when and how service of notice was made, it is not self-sustaining, and will be stricken off on motion.</p>

Appeal, No. 42, April T., 1910, by defendants, from decree of C. P. No. 2, Allegheny Co., July T., 1908, No. 1,094, on bill in equity in case of Samuel A. Purvis v. Samuel S. Overlander, Marian Meek and Minnie Dietrick. Bill in equity for an injunction. Shafer, J., filed the following opinion: The bill is for an injunction to restrain defendants from obstructing a right of way. FINDINGS OF FACT. 1.

Appeal, No. 65, April T., 1910, by defendant, from judgment of C. P. Mercer Co., Jan. T., 1902, No. 138, on verdict for plaintiff in case of Goldie Morford, by her father and next friend, H. 0. Morford, v. Sharpsville Borough. Trespass to recover damages for personal injuries to a child two years old. Before Galbreath, P. J., specially presiding. The facts appear by the opinion of the Superior Court, and by the former report of the case in 28 Pa.

Appeal, No. 193, April T., 1910, by defendant, from judgment of C. P. Armstrong Co., Dec. T., 1904, No. 217, on case tried by the court without a jury in suit of W. R. McGaughey, Administrator of Franklin A. McGaughey, for use v. William R. Mc-Gaughey. Case tried by the court without a jury under the Act of April 22, 1874, P. L. 109. Before Prather, P. J. The opinion of the Superior Court states the case.

Appeal, No. 188, April T., 1910, by plaintiff, from judgment of C. P. Armstrong Co., March T., 1909, No. 179, on verdict for defendant in case of Belber Trunk & Bag Company v. M. Silberblatt. Assumpsit for goods sold and delivered. The opinion of the Superior Court states the case. Verdict and judgment for defendant. Plaintiff appealed.

Appeal, No. 156, April T., 1910, by Florence May Miller, from decree of O. C. Butler Co., Dec. T., 1908, No. 25, surcharging accountant in Estate of Florence May Miller. Exceptions to report of A. T. Scott, Esq., auditor. The opinion of the Superior Court states the case. Error assigned was decree surcharging the accountant.

Appeal, No. 190, April T., 1910, by plaintiff, from judgment of C. P. No. 3, Allegheny Co., Nov. T., 1902, No. 156, on verdict for defendant in case of L. A. Clark, trading as L. A. Clark & Company, v. George Hubbard. Assumpsit on a promissory note. Before Kennedy, P. J. The facts are stated in the opinion of the Superior Court. Verdict and judgment for defendant. Plaintiff appealed.

<p>Mechanics’ liens — Discharge of lien by bond — Practice, C. P. — Waiver of formalities — Scire facias — Act of June 4, 1901, P. L. Jfil.</p> <p>Where the owner of a building files a bond to discharge a mechanic’s lien against his property as provided by the Act of June 4, 1901, P. L. 431, and the lien creditor instead of proceeding in the manner provided in see. 25 of the act issues a scire facias, and the defendant files an affidavit to the merits and a plea, and also an amended affidavit to the merits, and the case is tried upon the merits, the defendant will be presumed to have waived all irregularities and technicalities, and will not be permitted, after a verdict against him to object to the form of the proceedings; nor under the circumstances will he be permitted to avail himself of the five year limit contained in the mechanic’s lien law relating to the time of trial; nor will he be permitted, after having released his property from the mechanic’s lien by means of the act of June 4, 1901, to raise for the first time in the appellate court any question as to the constitutionality of the act.</p>

Appeal, No. 127, April T., 1910, by defendants, from judgment of C. P. Butler Co., March T., 1909, No. 16, on verdict for plaintiff in case of Mary A. Swaney v. Arthur Doumont and Aaron Fisvitz. Trespass for an alleged wrongful distress and sale of goods. Before Galbreath, P. J. The facts are stated in the opinion of the Superior Court. Verdict and judgment for plaintiff for $100. Defendants appealed.

Appeal, No. 171, April T., 1910, by defendant, from order of C. P. Butler Co., Dec. T., 1908, No. 83, making absolute rule for judgment for want of a sufficient affidavit of defense in case of A. C. Shrader v. T. W. Phillips Gas & Oil Company. Assumpsit for rental. Before Criswell, P. J., specially presiding. The opinion of the Superior Court states the facts. Error assigned was order making absolute rule for judgment for want of a sufficient affidavit of defense.

<p>Appeal, No. 78, April T., 1910, by Edward Sergeant, Trustee, from decree of C. P. Lawrence Co., Dec. T., 1906, No. 29, removing Trustee in Estate of John Bell, deceased.</p> <p>Petition to remove trustee. Before Porter, P. J.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was decree removing the trustee.</p>

Appeal, No. 73, April T., 1910; by Edward Sergeant, from decree of O. C. Lawrence Co., Dec. T., 1907,-No. 20, discharging him as trustee of the Estate of John Bell, deceased. Petition for the removal of an executor. Before Porter, P. J. The facts appear by the opinion of the Superior Court. Error assigned was decree removing executor.

<p>Appeal, No. 129, April T., 1910, by plaintiff, from judgment of C. P. Lawrence'Co., Sept. T., 1909, No. 104, on case stated in suit of Pennsylvania Company v. Fred F. Wallace.</p> <p>Case stated to determine liability for costs of printing paper-books. Before William E. Porter, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The court entered judgment for defendant on the case stated.</p> <p>Error assigned was in entering judgment for defendant on the case stated.</p>

<p>Appeal, No. 10, April T., 1911, by defendant, from decree of C. P. Beaver Co., March T., 1910, No. 6, on bill in equity in case of Asenath J. Marshall v. Pennsylvania Company, Lessee of and Operating the Pittsburg, Fort Wayne & Chicago Railway.</p> <p>Bill in equity for an injunction. Before Holt, P. J.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was decree continuing injunction.</p>

<p>Appeal, No. 74, Oct. T., 1909, by plaintiff, from judgment of C. P. No. 4, Phila. Co., March T., 1907, No. 2,365, on verdict for defendants in case of Lafayette A. R. Lichetti v. William Conway and Frank S. Elliott.</p> <p>Assumpsit to recover hand money paid under articles of agreement for the sale of real estate. Before Audenried, J.</p> <p>At the trial the court gave binding instructions for defendant.</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Error assigned was in giving binding instructions for defendant.</p>

<p>Appeal, No. 34, Oct. T., 1909, by Walter C. Stephens, Executor of O. L. Schoonover, deceased, from decree of O. C. Clearfield Co., No. 4,751, awarding specific performance in Estate of O. L. Schoonover, deceased.</p> <p>Petition for specific performance. Before A. O. Smith, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was decree awarding specific performance.</p>

<p>Appeal, No. 225, Oct. T., 1909, by plaintiff, from order of C. P. Huntingdon Co., May T., 1909, No. 23, refusing to take off nonsuit in case of D. M. Cloyd v. H. P. Reynolds.</p> <p>Assumpsit for money had and received from the sale of a horse. Before Woods, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>At the trial the court refused to admit under objection and exception certain letters written by the defendant to the plaintiff, offered for the purpose of showing that the defendant had represented to the plaintiff that the horse in question had been killed on a railroad.</p> <p>The court entered a compulsory nonsuit which it subsequently refused to take off.</p> <p>Errors assigned were various rulings on evidence and order refusing to take off nonsuit.</p>

<p>Appeal, No. 21, Oct. T., 1909, by plaintiff, from judgment of C. P. Lancaster Co., March T., 1908, No. 11, for defendant non obstante veredicto in case of P. W. Weidman v. Frank J. Rieker, Manager, and M. T. Zeigler, Sheriff.</p> <p>Replevin for furniture of a hotel. Before Hassler, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was in entering judgment for defendant non obstante veredicto.</p>

<p>Contracts — Sale—Delivery—Evidence.</p> <p>In an action to recover damages for the breach of a contract to purchase plaintiff’s crop of tobacco at a certain price and of a designated quality, where it appears that the plaintiff failed to deliver or offer to deliver the tobacco at the warehouse of the defendant as provided by the contract, the jury should not be permitted to find that the plaintiff was excused from delivering or offering to deliver the tobacco at the warehouse, where the evidence shows that after some dispute about the quality of the tobacco and some talk on the part of the defendant as to rescinding the contract, the plaintiff in a letter demanded to know whether the defendant would receive the crop, to which the defendants answered that they would accept all the tobacco provided it was in accordance with the contract at the time of delivery.</p>

<p>Appeal, No. 131, Oct. T., 1909, by Jacob Zeller, from order of Q. S. Lebanon Co., June T., 1908, No. 1, dismissing a petition to rescind an order in road proceedings in Bethel township.</p> <p>Petition to rescind an order in a road proceeding.</p> <p>Ehrgood, J., filed the following opinion:</p> <p>In the petition presented, we are asked to rescind the order of court, confirming the report of viewers absolutely and for leave to file exceptions nunc pro tunc. If this petition were based upon the want of notice or actual knowledge of the meeting of the viewers by the land owners through whose land the road passes, we might hold that the prayer of the petitioners ought to be granted, but they do not so state in their petition, nor is it a fact according to the report of the viewers in which they state as follows: “Due proof was made to the viewers before they viewed said premises that proper notices were given of the intended view as required by law, as shown by the annexed copies of notices, with proof of, or acceptance of service.” It is admitted by counsel for the petitioners, and is a fact as disclosed by the records in these proceedings, that the report of the viewers was not only confirmed absolutely, but said road was ordered to be opened and was actually opened for public travel, and the land damages paid as assessed by the viewers. Under these circumstances, we are of the opinion that a petition to vacate the road laid out and opened and to open the road vacated is the proper proceeding, rather than the petition presented.</p> <p>And now, January 28, 1909, the prayer of the petitioners is refused and the petition dismissed.</p> <p>Error assigned was the order of the court.</p>

<p>Appeal, No. 217, Oct. T., 1909, by plaintiff, from judgment of C, P. Berks Co., Sept. T., 1909, No. 31, on verdict for defendant, in case of Wallace M. Anspach, administrator c. t. a. of Elmina Schlaseman, deceased, v. Charles J. Christman.</p> <p>Assumpsit on a promissory note. Before Stevens, 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 (1, 3) rulings on evidence without quoting the evidence admitted; (2) refusal of binding instructions for plaintiff; (4) portion of charge referred to in the opinion of the Superior Court.</p>

<p>Trusts and trustees — Accounting—Findings of fact.</p> <p>A finding of fact by an orphans’ court judge auditing an account himself without reference to an auditor, which results in a surcharge of a trustee, will not be reversed by the appellate court where the record discloses sufficient evidence tending to support the finding, and there is nothing to show palpable or manifest error on the part of the judge.</p>

<p>Appeal, No. 140, April T., 1910, by plaintiff, from judgment of Q. S. Indiana Co., June Sessions, 1909, No. 14, allowing motion in arrest of judgment in case of Commonwealth v. George Cosick.</p> <p>Appeal from a summary conviction of an unnaturalized citizen of Austria-Hungary, for having in his possession a shotgun.</p> <p>The facts are similar to those in Commonwealth v. Papsone, post, p. 128.</p> <p>Error assigned was the judgment of the court in arresting judgment.</p>

Appeal, No. 164, Oct. T., 1909, by defendants, from judgment of Q. S. Berks Co., Sept. T., 1908, No. 77, on verdict of guilty in case of Commonwealth v. Jacob Nolde, Palmer Kershner and Charles A. Dustin. Indictment for violating the act of April 22, 1874. Before Trexler, P. J., specially presiding. The facts are stated in the opinion of the Superior Court. Verdict of guilty, upon which the defendants were fined jointly and severally the sum of $10.00. Defendants appealed.

<p>Appeal, No. 168, Oct. T., 1909, by defendant, from order of C. P. Lancaster Co., April T., 1909, No. 38, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Herbert Estes v. John A. Kauffman, trading as The Conestoga Paper Company.</p> <p>Assumpsit for goods. Before Landis, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was order entering judgment for plaintiff.</p>

<p>Divorce — Indignities to the person — Evidence.</p> <p>1. A divorce will not be granted to a wife on the ground of indignities to her person where the only evidence on the subject is that given by one witness, whose testimony shows that what she said was from hearsay, and largely from statements made to her by the libelant herself.</p> <p>Divorce — Residence—Jurisdiction—Act of March IS, 1816, 6 Sm. L. m.</p> <p>2. The intention of the Act of March 13, 1815, 6 Sm. L. 286, was that the libelant must reside in the state at the time the libel was presented, and must have so resided for at least one whole year immediately before such filing.</p> <p>3. Where a libelant in divorce comes into this state and files her libel, averring that she is a citizen of Pennsylvania, the burden is upon her to show that her place of residence was within the commonwealth at the time she filed her libel and during the entire year immediately preceding. Proof that she had lived within the commonwealth for a period of eight years is insufficient, if it is not shown that the eight years included the year immediately preceding the filing of the libel.</p>

<p>Contract — Building contract — Defective wall — Evidence.</p> <p>1. In an action to recover the contract price for the erection of a building, the plaintiff is not entitled to recover the full amount, where the evidence shows that the party line walls were so negligently built out of the vertical that they overhung abutting property. The defendant is entitled to have deducted from the contract price the cost of reconstructing the walls in a proper manner, and in accordance with the contract.</p> <p>2. In such a ease the owner does not waive any right to have the walls built in a proper manner by making payments during the progress of the work and by using the building afterwards, if it appears that he never assented to the defect in the construction, nor waived his objection thereto.</p>

<p>Appeal, No. 162, April T., 1910, by defendant, from judgment of Q. S. Allegheny Co., Oct. T., 1909, No. 27, affirming a summary conviction in case of Commonwealth v. Joseph Papsone.</p> <p>Indictment of an unnaturalized foreign-born resident for having in his possession a double-barrel shotgun.</p> <p>From the record it appeared that the defendant was convicted before a justice of the peace for having in his possession a double-barrel shotgun, and that he was sentenced to pay a fine of $25.00. He appealed from the conviction. After hearing, the court in an opinion by Evans, J., adjudged the defendant guilty as charged.</p> <p>Error assigned was the order of the court.</p>

<p>Deed — Deed of partition — Easement—Bight of way.</p> <p>1. Where several tenants in common of a tract of land execute a deed of partition of the land, and in the deed provide that certain roads thereon “shall be used, enjoyed and maintained by the parties hereto, their heirs and assigns forever hereafter as perpetual easements over the several purparts which the same may cross,” the way thus provided for is not one by implication or necessity, but by express grant, and is appurtenant to every part of the land with which it is connected and the right to its use passes to every one to whom any part of that land is thereafter conveyed.</p> <p>2. A right of way cannot be destroyed by mere nonuser. Adverse occupancy for the statutory period must be added to nonuser by the dominant owner in order to extinguish an easement.</p> <p>3. Where a deed of partition of land reserves to all the parties thereto a right of way over an existing plank road on the land divided, the mere destruction of the planks by a flood and the failure to replace them, does not extinguish the easement, and this is especially so where the deed contains a mutual covenant for repairs.</p> <p>4. The remedy for an unauthorized use of a right of way is by action. Such use does not justify an obstruction of the way.</p>

<p>Appeal, No. 38, March T., 1910, by Fletcher Walker, from judgment of C. P. Luzerne Co., Oct. T., 1908, No. 382, on appeal of Fletcher Walker from report of county auditor.</p> <p>Appeal from county auditor.</p> <p>Ferris, J., filed the following opinion:</p> <p>The auditors of the township of Plains (a township of the first class) filed their report for the fiscal year ending March, 1908, in the office of the clerk of the court of quarter sessions on June 20, 1908, wherein they reported an indebtedness to the township of $112.81 by its treasurer, John J. Walsh.</p> <p>On July 13, 1908, Fletcher Walker, a taxpayer, gave bond and took an appeal from this report; and upon his petition averring that the auditors should have found a balance due the township of $1,781.37, the above stated rule was granted upon John J. Walsh to show cause why his account as treasurer as set forth in the report of audit should not be reformed and the treasurer be surcharged with the sum of $1,674.56 over and above the said balance of $112.81, “or with such sum as the court may determine, and judgment be entered against him and in favor of said township for the whole amount found to be owing by him.”</p> <p>Since this rule calls- for a reformation of the account and the ascertainment of the true amount due, if anything, by the treasurer to the township, the second rule, obtained by Walsh to show cause why he should not be allowed to appeal nunc pro tunc from the auditors’ report, was unnecessary for the purpose stated in his petition, viz., that of permitting the allowance of a credit to which he claimed to be rightfully entitled but which the auditors had failed to allow him in their report. As the court has no power, in the absence of allegation or proof of fraud in obtaining the report, to allow the appeal asked for after the expiration of the statutory period for taking it (School Dist. v. Wahlers, No. 2, 28 Pa. Superior Ct. 39) this rule must be, and is hereby, discharged.</p> <p>Fortunately for the treasurer, however, any equities to which he might be entitled may be considered in disposing of the rule for a reformation of his account.</p> <p>It is conceded that the account as set forth in the auditors’ report is incorrect and needs revision. The facts involved in such'revision are undisputed, and the only questions for the court to determine are questions of law.</p> <p>1. The first of these is whether the treasurer is entitled to credit for the amount of taxes which the township commissioners exonerated him from collecting, where, as is here admitted, the taxables owned personal property from which the taxes could have been made or real estate which might have been returned to the proper officials for sale.</p> <p>On the part of the appellant, it is claimed that the auditors should not have allowed the treasurer credit for these exonerations because the township commissioners had no power to grant them — that all statutes giving the right to exonerate from payment of taxes had been abrogated by the constitutional provision that all taxes shall be uniform, etc., and the Act of May 14, 1874, P. L. 158, passed in pursuance thereof.</p> <p>On the part of the treasurer it is argued that the commissioners had the right to exonerate these taxes, but even if they had not, the fact that they did so, whether their action was ultra vires or not, relieved the treasurer from the duty, and, indeed, deprived him of the lawful right to collect them and absolved him from any obligation to account for them; that when these taxes were exonerated they were in effect expunged from the duplicate by the same authority that had placed them there, and the treasurer had thereafter no more power to collect them nor duty to account for them than if they had been originally omitted from the duplicate altogether.</p> <p>The Act of April 15, 1834, P. L. 509, sec. 48, provides that, “the commissioners of the proper county, and the supervisors and overseers of the poor of the proper township, as the case may be, shall at all times make abatements or exonerations for mistakes, indigent persons, unseated lands, etc., as to them shall appear just and reasonable.”</p> <p>The Act of June 25, 1885, P. L. 187, provided for the annual election in each township of “an officer to be styled collector of taxes to whom the supervisors were required to deliver their duplicates of taxes with their warrants attached, and vested in him all the power for the collection of said taxes, during his term of office, heretofore vested in collectors of county taxes under existing laws.” Section 10 of this act provides that “exonerations may be made by the authorities and in the same manner as heretofore.” By the Act of June 6, 1893, P. L. 333, the tax collector’s term of office was extended to three years. The Act of April 28, 1899, P. L. 104, classified townships and provided that, in townships of the first class, a township treasurer should be elected triennially, upon whom were conferred all the powers possessed by township tax collectors under existing laws.</p> <p>It would thus appear that the township commissioners were authorized by statutes enacted both before and after the adoption of the constitution of 1874, “to make abatements or exonerations for mistakes, indigent persons, unseated lands, etc., as to them shall appear just and reasonable.”</p> <p>Article IX of the constitution of 1874 provides as follows:</p> <p>“Section 1. All taxes shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax, and shall be levied and collected under general laws; but the general assembly may, by general laws, exempt from taxation public property used for public purposes, actual places of religious worship, places of burial not used or held for private or corporate profit, and institutions of purely public charity.</p> <p>“Section 2. All laws exempting from taxation other than the property above enumerated, shall be void.”</p> <p>The Act of May 14, 1874, P. L. 158, was passed to carry these provisions into effect and provides that certain property falling within the general classes as to which sec. 1 of art. IX permits exemption “be and the same are hereby exempted from all and every county, city, borough, bounty, road, school and poor tax: Provided, That all property, real or personal, other than that which is in actual use and occupation for the purposes aforesaid, and from which any income or revenue is derived shall be subject to taxation, except where exempted by law for state purposes, and nothing herein contained shall exempt same therefrom.”</p> <p>It is urged that exoneration from the payment of taxes is exemption from taxation, and that these provisions of the organic law and the act of 1874, operate as a repeal of the act of 1834 in so far as the latter statute authorizes exonerations.</p> <p>It must be borne in mind, however, that art. IX, secs. 1 and 2, of the constitution, did not execute themselves so as to repeal any existing laws providing for the assessment and collection of taxes; they merely imposed restrictions upon future legislation when it should be enacted: Coatsville Gas Co. v. County of Chester, 97 Pa. 476; County of Erie v. City of Erie, 113 Pa. 360; Evans v. Phillipi, 117 Pa. 226. If the act of 1834, so far as it confers authority to exonerate, was repealed by the Act of May 14, 1874, P. L. 158, it must have been either expressly or by implication. The latter act contains no words of express repeal. Its language is affirmative. Its purpose as expressed in its title is not to subject to taxation property theretofore exempt, but “to exempt from taxation” certain kinds of property enumerated.</p> <p>The enacting clause of the act specifically does this. It contains nothing inconsistent with the power of abatement and exoneration conferred upon the township authorities by the act of 1834, and, therefore, could not operate as an implied repeal, pro tanto, of that act. The only provisions, if any, of the act of 1874 at all inconsistent with the power to exonerate are contained in the proviso to the act, viz.: “That all property, real or personal, other than that which is in actual use and occupation for the purposes aforesaid and from which any income or revenue is derived shall be subject to taxation,” etc. This proviso was held to be unconstitutional in Sewickley Borough v. Sholes, 118 Pa. 165, as imposing, instead of exempting from, taxation, and therefore being legislation upon a second subject not expressed in the title to the act, and thus violative of art. Ill, sec. 3, of the constitution. In Philadelphia v. Barber, 160 Pa. 123, the decision in Sewickley Borough v. Sholes was reaffirmed in so far as the proviso to the act of 1874 attempted to impose taxation; but the proviso was held to be a valid expression and explanation of the legislative intent in regard to the exemptions made in the previous enacting clause.</p> <p>We are, therefore, led to the conclusion that the power to exonerate conferred by the act of 1834, has not been abrogated by the constitution and the act of 1874, nor has it been by any subsequent legislation.</p> <p>It follows that, there being no evidence that this power was abused or illegally exercised in any case, the treasurer is entitled to credit for the amount of such exonerations, and the question whether their allowance by the township commissioners if it had been done without legal authority; would have relieved the treasurer, pro tanto, from his obligation to account for the full amount of his duplicate, need not be decided.</p> <p>2. The second question presented for consideration is whether the treasurer is entitled to a commission of five per cent on moneys received or collected by him (a) as the township’s share of liquor license fees, and (b) as license fees imposed by the township authorities upon telegraph or telephone companies at the rate of a certain sum for each pole erected by such companies within the township limits.</p> <p>This question has been decided in the negative by this court as to liquor license fees in the case of Kane v. Township of Wilkes-Barre, No. 168, June Term, 1907, and as to both liquor license fees and pole license fees, in the case of Davis v. The Township of Newport, No. 340, October Term, 1907. We are of opinion that these cases were properly decided and that such fees and not “taxes” within the meaning of sec. 14 of the Act of April 18, 1899, P. L. 104, fixing the compensation of treasurers of townships of the first class at “five per centum of all taxes received or collected by him.” The treasurer should, therefore, be surcharged with the amount of commissions at the rate of five per cent upon such fees allowed him by the auditors, unless he should be held entitled to a commission of one per cent thereon under the Act of June 7, 1907, P. L. 452.</p> <p>3. Whether he is so entitled or not is the third question of law involved in this proceeding.</p> <p>The act of 1907, just referred to, provides that “each township treasurer (in townships of the first class) shall receive, as full compensation for his services, a sum equal to five per centum of all taxes received or collected by him, and in addition thereto, a sum equal to one per centum on all other moneys received or collected by him, unless a different rate be fixed by ordinance of the township commissioners, passed thirty days prior to his election.”</p> <p>This act was passed during the incumbency of office of Mr. Walsh, and it is argued by appellant that the treasurer is a public officer within the meaning of art. Ill, sec. 13, of the constitution, which provides that, “no law shall extend the term of any public officer or increase or diminish his salary or emoluments after his election or appointment.” That the act, if it applies to Mr. Walsh, does increase his emoluments is obvious. Is he a public officer within the constitutional inhibition?</p> <p>The latest authoritative decision on this subject is Richie v. Philadelphia, 37 Pa. Superior Ct. 190. Richie was appointed a real estate assessor of Philadelphia county in 1903, his salary being fixed by the Act of April 12, 1873, P. L. 715, at $2,000 per annum. During his term of office an act was passed which increased the salaries of such assessors from $2,000 to $3,000 per annum. A case was stated to determine whether he was entitled to the increased salary, or whether he was a public officer within the^ meaning of sec. 13, art. Ill, of the constitution, and therefore not so entitled. The court, in an opinion by Judge Willson, held that he was a public officer within the constitutional prohibition. Upon appeal to the Superior Court the case was argued before all the judges, and on behalf of the assessor the distinction was drawn between “legislative” and “constitutional” officers and Com. v. McCombs, 56 Pa. 436; Com. v. Weir, 165 Pa. 284; Lloyd v. Smith, 176 Pa. 213; Com. v. Moir, 199 Pa. 534, and Kilgore v. Magee, 85 Pa. 401, were cited in support of the proposition that the assessor, being a “legislative” officer, was not a "public officer” within the meaning of sec. 13, art. Ill, of the constitution. In affirming the court below, Judge Henderson, who delivered the opinion of the Superior Court, said (referring to the authorities cited by the assessor), “they relate to the power of the legislature to abolish or diminish the term of an officer not commanded by the constitution. There is a very clear distinction, however, between the power of the legislature to abolish or regulate an office which it created, the control over which is unlimited, and a restriction of the constitution over such power as applied to a particular subject. Even if it be considered inconsistent that the legislature may abolish an office the term of which it may not extend, or by such abolition entirely take away a salary which it may not increase, the restraint is nevertheless imposed by the paramount law of the State and is not to be got rid of by interpretation in the face of clear, and unambiguous language. The power of the legislature to abolish an office not ordained by the constitution is unquestioned, for there is no restraint on such action, but as to both constitutional and legislative offices the command is that no law shall extend the term or increase or diminish the salary or emoluments after the election or appointment of the incumbent.” After conceding that certain agents, employees or petty officers were not intended (under the authority of Houseman v. Com., 100 Pa. 222) to be embraced in the constitutional provision, Judge Henderson goes on to say (p. 197), “Where, however, the officer exercises important public duties and has delegated him some of the functions of government and his office is for a fixed term and the powers, duties and emoluments become vested in a successor when the office becomes vacant, such an official may properly be called a public officer.” Being of opinion that the collector, custodian and disburser of public funds, in this case the township treasurer, falls within this definition quite as .truly as an assessor, we must consider this case as ruling the one before us, and conclude that the treasurer is not entitled to the benefit of the act of 1907 and, therefore, cannot lawfully claim credit in his account for a commission of one per centum on the liquor and pole license fees received by him. He should, accordingly, be surcharged to the extent of commissions allowed him on such money.</p> <p>4. The fourth question of law arising in the case is whether, in this proceeding, the treasurer can be allowed credit for the amount of uncollectible taxes (a credit omitted by the auditors from the account as stated by them) and if so whether he should not be surcharged with the amount of the commission allowed upon them by the auditors.</p> <p>This question is answered in the affirmative as to both of its divisions. Upon petition of the appellant this rule was granted not solely for the purpose of surcharging the treasurer but for the reformation of his account and the ascertainment of and obtaining judgment for "the whole amount found to be owing by him.” In order to do this it is, of course, necessary to allow him any and all credits to which he is justly and lawfully entitled. The undisputed testimony shows that, by reason of the death and removal of taxables or his inability after due diligence to' identify and locate them, the treasurer could not and did not collect taxes to the amount of $450.44. He is justly entitled to credit for this sum in the reformed account, and of course should not be allowed commissions on such uncollected taxes.</p> <p>A claim of credit has also been made by the treasurer for the amount of taxes which certain coal companies refused to pay because they had appealed from the assessment or valuation of their properties, the appeals being still pending. No such claim can be allowed. The Act of April 19, 1889, P. L. 37, giving the right of appeal expressly provides that the appeal shall not prevent the collection of the taxes complained of.</p> <p>Error assigned was order sustaining the appeal.</p>

<p>Appeal, No. 28, March T., 1910, by plaintiff, from order of Q. S. Lackawanna Co., Oct. T., 1909, No. 278, quashing indictment in case of Com. v. Mike Hegedus.</p> <p>Indictment for assault and battery.</p> <p>Demurrer to motion to quash indictment. Before Newcomb, J.</p> <p>The case turned on whether the district attorney had the right to have his official stenographer with him before the grand jury for the hearing of testimony for the purpose of talcing notes of the evidence of the witnesses.</p> <p>The court in an opinion by Newcomb, J., relying on Com. v. Kositchy, 17 Pa. Dist. Rep. 778, quashed the indictment.</p> <p>Error assigned was order quashing the indictment.</p>

<p>Appeal, No. 3, March T., 1910, by defendant, from judgment of C. P. Cumberland Co., Nov. T., 1907, No. 96, on verdict for plaintiff in case of Charles E. Strohm v. Samuel W. Haverstick.</p> <p>Trespass to recover damages for personal injuries. Before Sadler, P. J.</p> <p>At the trial it appeared that the accident happened on August 1, 1907, by plaintiff falling into a coal hole in the sidewalk in front of defendant's store, situated directly on the line of travel to his store. There was evidence that early in the morning coal had been delivered to the hole and the covering apparently replaced. Shortly after-wards the plaintiff who was a letter carrier, in passing, in the performance of his work, fell into the hole and was injured.</p> <p>Defendant presented this point:</p> <p>4. Greater care is required of one using the sidewalk within the space in which cellar doors and openings and steps may lawfully be maintained, than in using the portion of the sidewalk within which such structures may not be maintained; and if the jury find that the plaintiff did not exercise such care, and the accident complained of resulted in consequence, then he cannot recover here, and the verdict should be for the defendant. Answer: We leave it for you to find whether or not the plaintiff exercised reasonable care, under all the circumstances, in passing along the sidewalk. If you find that he did not, the verdict should be for the defendant. [3]</p> <p>The court charged in part as follows:</p> <p>The defendant's duty was to have a pavement over which people exercising ordinary care could safely pass, and if he failed in this, and Strohm acted with care in walking over the same, and was injured, then there would be liability on his part. [41</p> <p>Verdict and judgment for plaintiff for $1,355.83. Defendant appealed.</p> <p>Errors assigned were (1) refusal of binding instructions for defendant; (2) refusal of motion for judgment for defendant n. o. v.; (3, 4) above instructions, quoting them.</p>

Appeal, No. 30, April T., 1910, by plaintiff, from order of C. P. Jefferson Co., Nov. T., 1907, No. 107, refusing to take off nonsuit in case of J. S. Land v. Punxsutawney Borough. Trespass to recover damages to real estate caused by the construction of a sewer. Before Hall, J., specially presiding. The facts are stated in the opinion of the Superior Court. Error assigned was refusal to take off nonsuit.

<p>Appeal, No. 2, March T., 1910, by plaintiff, from judgment of C. P. Dauphin Co., Sept. T., 1905, No. 467, for defendant, on case tried by the court without a jury in suit of Verdilla Hoover v. Henry L. Strohm.</p> <p>Ejectment for land in the village of Rockville in Susquehanna township. Before Shull, P. J., specially presiding.</p> <p>The case was tried by the court 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 defendant on the case stated.</p>

<p>Criminal law — Forgery—Railroad tickets — Change of name of station— Evidence.</p> <p>1. One who personally uses a railroad ticket knowing that the name of a station originally written into the ticket had been erased and that the name of another station much further away, and for which a much greater fare is demanded is inserted, may be convicted of forgery both at common law and under sec. 169 of the Act of March 31,1860, P. L. 382.</p> <p>2. On the trial of an indictment for forgery a witness who was not an expert may be permitted to show the effect produced on ink and color by using a proprietary article, where a package of such article is shown by other evidence in the case to have been in the defendant’s possession.</p> <p>Evidence — Witness—Cross-examination—Reputation.</p> <p>3. A witness who testifies to the general good reputation of one accused may be tested by asking him on cross-examination as to reports he has heard, or contradictory statements he has made, or other facts known to him, not for the purpose of discrediting the person whose reputation is involved, but solely for the purpose of affecting the credibility of the witness.</p> <p>4. A witness called by the prisoner as a character witness, is properly excluded where it appears that he had seen the prisoner only a few hours each year on annual vacation visits, away from the community in which he resided, and that he did not know of any business transacted by the prisoner, nor of people who knew him.</p>

<p>Appeal, No. 152, April T., 1910, by plaintiffs, from decree of C. P. Erie Co., Feb. T., 1909, No. 8, dismissing bill in equity in case of Central Market Company, F. M. Feasler and John E. Zeiser v. City of Erie.</p> <p>Bill in equity for an injunction.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was decree dismissing the bill.</p>

<p>Banks and banking — Deposits—Statute of limitations.</p> <p>1. The engagement of a bank with its depositor is not to pay absolutely and immediately, but only when payment shall be requested or demanded at the banking house. Until such demand is made the statute of limitations does not begin to run in favor of the bank and against the depositor. The fact that the depositor has had the account in the deposit book balanced does not affect the applicability of the rule.</p> <p>Banks and banking — Two accounts by the same depositor — Account stated.</p> <p>2. Where a depositor of a bank opens a second and separate account for which she receives a new deposit book and the depositor is not required to surrender the old book, and afterwards she ceases to draw on the old account and only uses the new account, a subsequent balancing of the new account and return of the vouchers, without anything to indicate that the new account was a continuation of the old one, has not the effect of an account stated as against a balance due upon the old account.</p> <p>Banks and banking — Deposit—Presumption of payment — Evidence.</p> <p>3. In an action against a bank to recover a balance, a presumption of payment after twenty years is rebutted by the positive and uncontradicted testimony of the depositor that the balance claimed had never been paid by the bank or any part of it drawn out by the depositor. In such a case the case is for the jury to pass upon the credibility of the testimony of the depositor.</p> <p>4. The presumption which the law raises after a lapse of twenty years is in its nature essentially different from the bar interposed by the statute of limitations to the recovery of a simple contract debt. The latter is a prohibition of the action; the former prima facie of obliteration of the debt. The presumption is equal to direct proof of payment, and it will prevail until overcome by direct proof of nonpayment, or the proof of facts and circumstances from which nonpayment may be clearly inferred.</p>

<p>Insurance — Fire insurance — Notice to produce books.</p> <p>Where all the books of account and vouchers of a person insured are burnt in a fire, and the insurance company notifies the insured to produce his books and papers at an office named within any time during the succeeding month, but the company has no person at the office to receive the books and papers, and after the expiration of the month the insured notifies the company that he will produce the papers and vouchers at the place designated on such a day, and the company keeps the office closed during the whole day, the company cannot claim as a defense to an action on the policy that it was not given an opportunity to examine the books and papers of the insured.</p>

<p>Appeal, No. 15, April T., 1910, by defendant, from order of C. P. No. 4, Allegheny County, First T., 1909, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Louisa McGovern v. Cosmopolitan Savings & Loan Assn.</p> <p>Assumpsit by a withdrawing stockholder of a building and loan association. Before Cohen, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>• Error assigned was order making absolute rule for judgment for want of a sufficient affidavit of defense.</p>

Appeal, No. 50, April T., 1910, by defendant, from judgment of Q. S. Allegheny Co., March Sessions, 1909, No. 172, on verdict of guilty in case of Commonwealth v. F. Johnston et al. Indictment for conspiracy. At the trial the jury returned a verdict of guilty on which judgment of sentence was passed. Errors assigned were (1, 2) refusal of two points presented by the defendant and (3) portion of charge, quoting it.

<p>Deed — Description of property — Parol evidence — Question for fury.</p> <p>Where a written agreement for the sale of land provides that there should go with the property “the barn frame lumber cut and sawed now on the farm,” and there is nothing in the writing to show what was the meaning of the words barn frame lumber, and the evidence does not show that they had any trade meaning, parol evidence is admissible to show the condition of things on the ground at the time and the character and quantity of the lumber on the farm, and if the evidence is conflicting, it is for the jury to determine what the parties meant by the use of these words.</p>

<p>Attachment execution — Insurance—Fire insurance — Actions.</p> <p>1. An attachment execution against a fire insurance company to attach a fund due to the defendant in the execution, for a loss by fire, is a suit or action on the policy.</p> <p>Insurance — Fire insurance — Proofs of loss — Evidence—Question for jury.</p> <p>2. Where an insured under a fire policy has made an honest and a substantial effort to comply with the requirements of his policy as to the particulars in his proofs of loss, it becomes incumbent on the company to point out the particulars in which that effort has failed; and if the company in discharging this obligation, points to but a single defect or two, it will be held to have waived any others that may exist.</p> <p>3. The question of waiver is for the jury where there is evidence that the conduct of the company was calculated to mislead the insured into the belief that if he could, by production of bills and otherwise, satisfy its representative that the loss was as great as he claimed, no further complaint would be made as to the form or character of the statements of his loss which he had previously furnished.</p>

Appeal, No. 19, April T., 1910, by defendant, from order of C. P. No. 4, Allegheny Co., Fourth T., 1908, No. 860, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Paval Starvcevic v. The National Croatian Society. Assumpsit for sick benefits. Before Cohen, J. Rule for judgment for want of a sufficient affidavit of defense. The facts are stated in the opinion of the Superior Court.

<p>Appeals, No. 53, April. T., 1910, by defendant, from judgment of C. P. Venango Co., Jan. T., 1908, No. 2, on verdict for plaintiff in case of L. F. Perrine v. The Lake Shore & Michigan Southern Railway Company.</p> <p>Trespass to recover for the loss of a steer. Before Criswell, P. J.</p> <p>At the trial it appeared that on September 29, 1907, a steer belonging to the plaintiff escaped from his pasture and straying about, crossed over a cattle guard at a public road crossing, entered upon the defendant's right of way and was struck by an engine and killed. To recover the value of the animal under the local statute of March 28, 1868, P. L. 614, extended to Venango county by the Act of April 17, 1869, P. L. 1125, the plaintiff brought this suit.</p> <p>Defendant presented, inter alia, the following points:</p> <p>2. If the jury find that the plaintiff’s fences around his pasture were insufficient to restrain orderly cattle and in bad repair, the plaintiff has failed in the performance of his legal duty to confine his stock to his own land and is not entitled to recover in this action. Answer: Refused. [1]</p> <p>3. Under all the evidence the verdict should be for the defendant. Answer: Refused. [2]</p> <p>4. That the plaintiff’s action being under the special statute of March 28, 1868, the burden of proof is upon him to establish all the facts necessary to bring himself within the terms of the statute, and the plaintiff having failed to show that the animal was an orderly animal such as is specified in the statute, he is not entitled to recover in this action. Answer: Refused. [3]</p> <p>Verdict and judgment for plaintiff for $37.35. Defendant appealed.</p> <p>Errors assigned were (1-3) above instructions, quoting them.</p>

<p>Appeal, No. 102, April T., 1910, by the city of Pittsburg, from order of C. P. No. 3, Allegheny Co., Nov. T.,, 1908, No. 226, dismissing exceptions to report of viewers In re Proctor Alley.</p>

<p>Appeal, No. 103, April T., 1910, by the city of Pittsburg, from order of C. P. No. 3, Allegheny Co., Nov. T., 1908, No. 228, dismissing exceptions to report of viewers In re Tabor Street.</p>

<p>Corporations — Trade associations — Black listing — Equity—Jurisdiction — Act of June 19, 1871, P. L. 1880.</p> <p>1. A court of equity has jurisdiction under the Act of June 19, 1871, P. L. 1360, to enjoin a trade association organized as a corporation of the first class under the Act of April 29, 1874, P. L. 73, from enforcing by-laws by which the members of the association were held bound to refuse to sell “for spot cash” to any persons indebted to members of the association, and by which provision was made for an arbitration committee consisting only of members to pass upon the validity of the claims of members against persons to whom they had sold goods, and whom they had blacklisted as delinquent.</p> <p>2. The visitorial or superintending power of the state over corporations created by the legislature will always be exercised, in proper cases, through the medium of the courts of the state, to keep such corporations within the limits of their lawful powers, and to correct and punish abuses of their franchises.</p>

<p>Constitutional law — Equal protection of the laws — Fourteenth amendment — Constitution of the United States.</p> <p>1. The fourteenth amendment of the constitution of the United States does not prohibit legislation which is limited either in the objects to which it is directed or by the territory within which it is to operate. It merely requires that all persons subjected to such legislation shall be treated alike, under like circumstances and conditions, both in privileges conferred and in the liabilities imposed. Class legislation, discriminating against some and favoring others is prohibited, but legislation which, in carrying out a public purpose, is limited in its application, if within the sphere of its operation it affects alike all persons similarly situated, is not within the prohibition of the amendment.</p> <p>Constitutional law — Fourteenth amendment — Criminal law — Embezzlement — Statute of limitations — Trustees—Executors.</p> <p>2. The Act of May 23, 1889, P. L. 48, which increased to five years the statutory period within which an indictment against trustees and executors for embezzlement may be found, is not in contravention of that portion of the fourteenth amendment of the constitution of the United States which provides that no state shall deny to any person the equal protection of the law; and this is the case although the word “assignees” does not appear in the act of 1889, as it appeared in secs. 113 and 124 of the Act of March 31, 1860, P. L. 382, relating to embezzlement by trustees.</p> <p>Criminal law — Embezzlement—Executors and administrators — Evidence.</p> <p>. 3. On the trial of an indictment of an executor for embezzlement, the inventory and appraisement of the decedent’s estate filed by the defendant in the office of the register of wills, is admissible in evidence; as is also proceedings in the orphans' court and Supreme Court as proof of what property of the estate the defendant had in his hands and which he should legally be required to pay to the distributees.</p> <p>4. Such evidence does not prevent the defendant from showing if he can, that he had lost the money in any manner which did not involve malfeasance on his part, or that he had through an honest mistake paid the money to parties who were not legally entitled to receive it.</p> <p>Evidence — Stenographer—Testimony taken in prior proceedings.</p> <p>5. Where an executor and other parties interested in a decedent’s estate agree that the proceedings in the orphans’ court shall be taken by a stenographer, the notes of testimony thus taken may be used in a subsequent trial of the executor for embezzlement, when the stenographer testifies that the notes were taken by him, promptly reduced to writing, and that the testimony offered in evidence was full and accurate, although he had no personal recollection of the testimony at the time of the criminal trial.</p> <p>Criminal law — Embezzlement—Executors and administrators — Evidence.</p> <p>6. On the trial of an executor for embezzlement where the commonwealth produced in evidence the record of certain proceedings in the orphans’ court, the defendant has a right to have read to the jury such portions of the proceedings as may be favorable to him, and if the court refuses to permit him this privilege, he has ground for complaint; but if the court after refusing subsequently permits the proceedings to be read, the refusal at first is no ground for an assignment of error.</p> <p>7. On such a trial where a witness testifies fully as to the defendant’s actions in carrying on a business belonging to the decedent, and how he had disposed of the goods of the estate, it is proper for the court to refuse to permit the witness to be asked by the defendant as to the general business conditions of the city in which the business was conducted at the time the goods were being sold.</p> <p>8. In such a case it is proper to exclude an offer by the defendant to show what the defendant’s father, the testator, had said to him during his lifetime, as to his intention with regard to the business and what he intended to direct by his will, it appearing that the deceased had made a written will, differing in its terms from that which the defendant offered to prove.</p> <p>Criminal law — Embezzlement—Executors and administrators — Conversion — Payment.</p> <p>9. Conversion by the trustee, of a trust to any other use than that of the cestui que trust is prima facie fraudulent, and the failure of the trustee to pay on settlement of his account is evidence of conversion.</p>

<p>Banks and banking — Checks—Failure to deposit check within reasonable time — Mistake—Teller’s check.</p> <p>1. Where a check is given in settlement of a transaction at 1:30 o’clock in the afternoon, but is not presented for payment until the third day afterwards, and one day after the bank on which it was drawn failed, and it appears that all the parties interested in the check, as well as the bank on which it was drawn, were located in the same city, the delay in presenting the check is unreasonable, and such delay is not excused by the fact that the person who received the check mistakenly thought that the check was insufficient in amount, and had delayed presenting it in order to find the maker, so as to have the amount corrected. In such a case it is immaterial that the check in question was a teller’s check. ; )•' ■ • '</p> <p>2. For all practical purposes in modern mercantile transactions, a teller’s check is but a substitute for a.certified cheek and much more closely resembles it than it does a bill of exchange, strictly speaking, and it is none the less a check because drawn by an executive officer of the bank upon the institution he serves.</p> <p>3. Although in the negotiable instruments act, a check is designated as a bill of exchange, nevertheless the obligation of an indorser on a check is still as it was before the act, conditional and not absolute, and it is one of the conditions on which such obligation rests that the indorsed instrument shall be promptly presented for payment at the time and place fixed therefor, and that due notice of its dishonor be at once given.</p>

<p>Deed — Estate tail — Estate in fee simple — Rule in Shelley’s case.</p> <p>Where a husband and wife execute a deed of real estate to a trustee to hold the same for the separate use of the wife for life and after her death in trust for the heirs of the body of the wife by the said husband, naming him, begotten or to be begotten forever, with power in the trustee to sell the land in fee simple, and for such sum as the wife might appoint and direct, the wife takes an estate tail in the land, which by the operation of the Act of April 27, 1855, P. L. 368, vests in her an estate in fee simple; and if her husband dies, and she subsequently remarries and has children by her second husband, such children on her death are entitled to share equally with the children of the first marriage in the real estate in question.</p>

<p>Mortgage — Amicable scire facias — Waiver of service — Confession of judgment — Judgment—Description of property — Affidavit of ownership.</p> <p>1. Where a praecipe for an amicable scire facias sur mortgage describes the mortgage by its date, the date when it was recorded, and the book and page of the mortgage book in which it was entered, and there is filed with the praecipe a waiver by the widow and administratrix of the mortgagor of service of the writ, and there is also filed a power to confess judgment, on which judgment is entered, and the land is sold under a levari facias which fully described the land, the judgment cannot be attacked as against the land because no scire facias actually issued, and no description of the land was filed in the case. Wilson v. McCullough, 19 Pa. 77, distinguished.</p> <p>2. An omission to file an affidavit of ownership with a prsecipe for a scire facias sur mortgage, as provided by the Act of July 9, 1901, P. L. 614, as amended by the Act of April 23, 1903, P. L. 261, does not render a judgment entered in the case invalid as against the land. The effect of the omission is that the heirs may make any available defense against the purchaser of the land at sheriff’s sale, that they might have set up on the trial of the scire facias in case they had been made parties to that proceeding in the manner prescribed by the act.</p> <p>3. Where the widow and administratrix of a mortgagor confesses judgment to an amicable scire facias sur mortgage, a purchaser after a sheriff’s sale in the proceedings is not affected by any misrepresentations that the administratrix had made in her application for letters of administration as to the decedent leaving no children, in the absence of evidence that the purchaser was in some way a party to the representations and knew this to be untrue.</p>

<p>Taxation — Exemption—Burial grounds — Constitutional law — Special legislation — Classification.</p> <p>1. Section 5 of the Act of June 4, 1901, P. L. 364, as amended by the Act of March 19,1903, P. L. 41, exempting from taxation “places of burial not used or held for private or corporate profit,” does not contravene sec. 7 of art. Ill of the constitution, which prohibits the general assembly from passing any local or special law exempting property from taxation; neither does the act contravene sees. 1 and 2 of art. IX of the constitution relating to uniformity of taxation.</p> <p>2. Places of burial not used for private or corporate profit are exempt from liability for assessments for paving a roadway.</p>

<p>Appeal, No. 122, April T., 1910, by defendant, from decree of C. P. No. 2, Allegheny Co., April T., 1909, No. 935, on bill in equity in case of Anna E. McKay v. Meyer Jonasson & Company, Incorporated.</p> <p>Bill in equity for an injunction. Before Frazer, P. J. The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was decree awarding an injunction.</p>

<p>Appeal, No. 136, April T., 1910, by defendants, from judgment of C. P.. No. 1, Allegheny Co., Sept. T., 1905, No. 821, on verdict for plaintiff in case of W. S. Cooper v. Charles L. Walther and Frederick C. Sauers.</p> <p>Assumpsit for breach of a contract. Before Ford, J.</p> <p>At the trial the jury returned a verdict for plaintiff for $474.34.</p> <p>On a motion for judgment for defendants non obstante veredicto, Ford, J., found the facts to be as follows:</p> <p>Mary I. Gates and Annie E. Brown, respectively, owned adjoining lots fronting on Diamond street, in the city of Pittsburg. Each of the lots or pieces of ground had a width on Diamond street of about sixteen feet.</p> <p>Under date of June 13, 1904, W. S. Cooper, in writing, proposed to Joseph Painter, agent of Mary I. Gates and Annie E. Brown, to furnish all labor and material, and to erect all ironwork for the support of the sidewalk, also furnish and set sidewalk lights and lay granolithic sidewalk at building to be erected for Mrs. Gates on Diamond street, Pittsburg, according to plans furnished, for the sum of $750. Upon June 23, 1904, the proposal was accepted by Joseph Painter.</p> <p>The contract as so entered into was for the construction of a sidewalk along the properties owned respectively by Mary I. Gates and Annie E. Brown.</p> <p>By articles of agreement dated July 25, 1904, between Mary I. Gates, therein called the lessor, and Charles L. Walther and Frederick G. Sauer, called the lessees, the lessor let and demised unto the lessees, from October 1, 1904, for a term of years, at a rental therein fixed, all that certain lot situate on the northerly side of Diamond street, at the easterly corner of lot of Annie E. Brown, and extending along the easterly side of Diamond street, 15.92 feet; and it was therein provided that the lessees are to have immediate possession of the lot of ground, and at their own cost and expense are to erect a substantial brick building of at least six stories; and “the lessee further agrees to pay for the improvements already made or contracted for and to be made upon said property.” The plaintiff was not present at the execution of the lease, nor did he have knowledge thereof until later informed by Mr. Painter.</p> <p>At the execution of the lease the contract between the plaintiff and Mrs. Gates and Mrs. Brown was mentioned, and defendants agreed to assume the contract and pay for the improvement.</p> <p>In pursuance with the contract, plaintiff purchased and had the iron work ready for delivery and installation, and secured workmen to erect and place the material in position and complete the sidewalk. The ironwork was ordered from and manufactured by T. Reisik, for which plaintiff agreed to pay Reisik $370.</p> <p>Subsequent to May 25 the plaintiff, being notified by Mr. Painter of the leasing of the property to defendants, and of their assuming the contract, tendered performance to Mr. Sauer, one of the defendants. Mr. Sauer replied that he would accept the material and use it in his design for a new and larger building. Thereafter plaintiff again tendered performance to Mr. Sauer and was informed by Mr. Sauer that he would be unable to use the material, and therefore did not want it and would not pay for it. Plaintiff made no tender to, nor did he have any understanding with, Charles L. Walther, his negotiations being with Mr. Sauer. Upon Mr. Sauer’s refusal to accept the material or permit performance, plaintiff sold the material to Mr. Reisik, receiving a credit of $129 on account, that being, he testified, the fair market value of the material.</p> <p>The verdict of the jury was in the sum of $474.34, of which $208.90, amount paid for material, and the balance, viz.: $265.44, termed profits, was ascertained by deducting from the contract the amount, viz.: $370, agreed to be paid Reisik, together with the cost of material, cement, etc., not purchased, and the cost of labor necessary to place the material and complete the improvement.</p> <p>The court overruled the motion for judgment for defendants non obstante veredicto.</p> <p>Error assigned was the order of the court.</p>

<p>Appeal, No. 137, April T., 1910, by defendant, from decree of C. P. No. 2, Allegheny Co., April T., 1909, No. 154, on bill in equity in case of Carrie H. Berger, Administratrix of the Estate of Charles A. Berger, deceased, v. William Berger and Homewood Building & Loan Association.</p> <p>Bill in equity for a reassignment of stock of a building and loan association.</p> <p>Haymaker, J., found the facts to be as follows:</p> <p>1. We find that Charles A. Berger, the plaintiff’s intestate, in August, 1907, purchased a newspaper route for $2,600; that not having sufficient money to pay for the same, he applied to his father, William Berger, the defendant, for a loan of $2,400, which amount the father procured for him by giving a mortgage on his real estate for that amount, and paid the proceeds thereof to his son, to wit, $2,400; that on September 4, 1907, an agreement was entered into between the father and son whereby the son agreed to repay the father from time to time until this indebtedness of $2,400 and interest should be fully paid and satisfied, and assigned and transferred thereby twenty shares of stock in said, association to the father, and also agreed to assign to him a certain life insurance policy for $1,500, which policy the father was to hold as collateral security for said loan and reassign the same when said indebtedness should be fully paid; that on September 23, 1907, the son, by writing, transferred to the father the same shares of stock, then worth $713; that in January, 1908, the son sold this newspaper route and with the proceeds of this sale paid and discharged the Schmitz mortgage; that about the time of the sale of this route by the son, he borrowed the further sum of $350 from his father, and out of the proceeds of the sale paid the father $200 on account of the loan of $350, leaving a balance due the father of $150.</p> <p>2. Charles A. Berger, the son, died February 22, 1908, intestate, and letters of administration on his estate were granted to Carrie H. Berger, his widow and plaintiff in this case, on February 28, 1908. The administratrix tendered payment to William Berger of the amount she believed to be due him, and has been at all times ready and willing to pay the same, upon the transfer and delivery to her of said shares of stock. The estate of Charles A. Berger is indebted to William Berger for the balance of said loan of $350, to wit, $150, with interest from January 1, 1907, and also in the amount paid David S. McCann, Esq., by William Berger, for legal services in relation to the Schmitz mortgage, and recording same, $27.50; and for interest on said mortgage by defendant for his son, $36.00; and the further amount paid by defendant, $55.00, due on the stock, on which several amounts the defendant is entitled to interest to January 4, 1909.</p> <p>3. We further find that there is no evidence in the case to prove that the father loaned the son any money other than on the two occasions of which we have spoken, when he gave him $2,400, which the son subsequently repaid by discharging the mortgage and $350, of which the son paid $200 on account.</p> <p>4. The defendant made no application to the association, during the lifetime of his son, to have the stock transferred to him on the books of the association, although he claims to have been the absolute owner of the stock for five months prior to the death of his son, during which time the defendant paid the biweekly dues on the stock to the association .and was in possession of the son’s pass book with the association.</p> <p>The court entered a decree directing a reassignment of the stock in controversy.</p> <p>Error assigned was the decree of the court.</p>

<p>Husband and wife — Debts of wife — Principal and surety — Judgment—■ Opening judgment.</p> <p>1. Formerly the capacity of a married woman to contract was exceptional and her disability general; now the disability is exceptional and her capacity general; the burden is on her when she seeks to avoid her contract to bring it within one of the few exceptions. Since the passage of the Acts of June 3, 1887, P. L. 332, and June 8, 1893, P. L. 344, her confession of judgment is presumably valid, and when she seeks to avoid it it devolves upon her to show affirmatively, not only the fact of marriage, but the presence of those circumstances which relieve her from liability. The rule is not different when she executes a judgment note jointly with her husband.</p> <p>2. Prima facie, when husband and wife join in the execution of an obligation, they are joint debtors, and subject to all the legal incidents of joint indebtedness. There is no presumption that either is a surety. This is a matter of defense and like other joint debtors, either may show, as against any party to be affected, in law, by such proof, that he or she is in fact a surety for the other. When this is done by the wife, the act of June 8, 1893, makes her obligation void.</p> <p>3. A proceeding to open a judgment is an appeal to the equity powers of the court; a judge, exercising the functions of a chancellor, is vested with the discretion to pass upon the weight of the evidence and credibility of the witnesses, and to dispose of the questions presented upon equitable principles. The action of the court below will only be reversed in such cases where the abuse of judicial discretion is apparent.</p> <p>4. An application to open a judgment entered against a married woman on a judgment note signed jointly by herself and husband is properly refused, where the evidence tends to show that although the husband received the proceeds of the note in money, yet the loan was made to the wife as principal on the security of her furniture, and that the application for the loan contained the following statement: “This money is borrowed by me for my own use and for the improvement of my separate estate.”</p>

<p>Appeal, No. 142, April T., 1910, by plaintiffs, from decree of C. P. No. 4, Allegheny Co., Second T., 1909, No. 296, dismissing bill in equity in case of R. L. McCully et al. v. Pittsburg Railways Company.</p> <p>Bill in equity for an injunction. Before Swearingen, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was decree dismissing the bill.</p>

<p>Appeal, No. 184, April T., 1908, by defendant, from judgment of C. P. No. 2, Allegheny Co., Jan. T., 1908, No. 216, for plaintiff on case stated in suit of William H. Ashworth v. Pittsburg Railways Company.</p> <p>Case stated to determine the constitutionality of the Act of June 7, 1907, P. L. 453, relating to rates of fare of street railway companies in cities of the second class.</p> <p>The court in an opinion by Shaper, J., found that the act was constitutional and entered judgment for plaintiff for $200.</p> <p>Error assigned was in entering judgment for plaintiff.</p>

<p>Appeal, No. 165, April T., 1910, by defendant, from judgment of Q. S. Allegheny Co., Feb. T., 1910, No. 227, on verdict of guilty in case of Commonwealth v. John Doe, alias J. W. Webber.</p> <p>Indictment for violating the Act of June 7, 1907, P. L. 453, relating to street railway fares in cities of the second class.</p> <p>At the trial counsel for defendant proposed to prove by a witness upon the stand, to be followed by other testimony, that the line upon which the prosecutor took passage, at the date laid in the indictment, was the Fifth, Shady and Penn avenue line; that the end of this line was the corner of Eleventh street and Penn avenue in the city of Pittsburg; that each and every trip upon the said line at that time was made from the corner of Eleventh street and Penn avenue, out . Penn avenue eastwardly to Shady avenue, along Shady avenue to Fifth avenue, along Fifth avenue to Cecil alley, along Cecil alley to Penn avenue, and out Penn avenue to Eleventh street; that when the car reached Eleventh street it was the end of the trip, and the end of the-line, and that neither the prosecutor nor any other passenger could ride further than the end of the trip, and the end of the line, to wit, the corner of Eleventh street and Penn avenue, for one fare; and that the Pittsburg Railways Company, the company operating this line, had, and always had, in force a rule and regulation to this effect, and this for the purpose of showing the defendant is not guilty of any offense under this act.</p> <p>Objected to, by counsel for the commonwealth, because the offer does not propose to show that the point named, to wit, Eleventh street and Penn avenue, is the physical end of the Fifth, Shady and Penn avenue cars, but merely a fictitious point fixed in some manner by the defendant or his employers.</p> <p>Second, because the trip referred to in the offer is an ideal trip, and not a trip either fixed by physical points of destination or by the intention of the passenger.</p> <p>Third, because in no event has the street car company (a public carrier) the right to enforce even a reasonable rule or regulation, unless the public be given proper notice of the same.</p> <p>Fourth, because the Pittsburg Railways Company has no authority, by rules and regulations, to modify a statute of the commonwealth of Pennsylvania.</p> <p>Fifth, because the alleged modification by rule or regulation is not reasonable.</p> <p>Sixth, because the testimony proposed is irrelevant and immaterial to the issue.</p> <p>The Court: There is an admission that this car makes a continuous trip?</p> <p>Mr. Burleigh: Yes.</p> <p>The Court: There is no purpose here to prove that this is the physical end of the line?</p> <p>Mr. Burleigh: No purpose whatsoever; the car perhaps does not even stop at Eleventh street and Penn avenue unless a passenger is to be received or discharged.</p> <p>Objection sustained. Exception. [4]</p> <p>Counsel for defendant further proposed to prove, by the witness upon the stand, and by other witnesses, that a complete trip on the line prosecutor took was only from Eleventh street and Penn avenue, Pittsburg, to Eleventh street and Penn avenue, Pittsburg, and said trip ended at the corner of Eleventh street and Penn avenue, Pittsburg.</p> <p>Objected to, by counsel for the commonwealth, as before, with this addition — it being admitted that the cars on this line do not stop at the destination fixed in the offer, to wit, Eleventh street and Penn avenue, in the city of Pittsburg, except to take on or discharge passengers.</p> <p>Objection sustained. Exception. [5]</p> <p>Counsel for defendant further proposed to prove by the witness on the stand, and by other witnesses, that the Pittsburg Railways Company operates a line of street cars upon double tracks, going upon the same streets but in opposite directions to each other, and called the Fifth, Shady and Penn avenue line; that the end of one of said lines is the corner of Eleventh street and Penn avenue in the city of Pittsburg and that line starts at said corner and travels eastwardly along Penn avenue to Shady avenue, along Shady avenue to Fifth avenue, along Fifth avenue to Cecil alley, along Cecil alley to Penn avenue, and along Penn avenue to the corner of Eleventh street, Eleventh street being the end of the line and the end of the trip; that the other of said lines begins at the corner of Grant street and Fifth avenue, and runs eastwardly along Fifth avenue to Shady avenue, along Shady avenue to Penn avenue, along Penn avenue to Cecil alley, along Cecil alley to Fifth avenue, and along Fifth avenue to Grant street, Grant street being the end of the line and the end of the trip; that for the convenience of the public what is called a lap over exists on both lines, so that people traveling on the first line may board the cars at Grant street going west, or any point west of Grant street, and make a continuous trip from such point without paying an additional fare when Eleventh street is reached, and passengers boarding the cars upon the other of said lines may board the cars at Eleventh street, or any point east of Eleventh street, and make a continuous trip without paying an additional fare when the end of the line and the end of the trip is reached; that the Pittsburg Railways Company always had, and enforced a rule and regulation to this effect, and that the prosecutor, by crossing Fifth avenue at the point or place where he took the car, could have taken a car on the same line, to wit, the Fifth, Shady and Penn avenue line, going in the opposite direction to the car which he did take, and the trip of which car would have taken him to his destination, to wit, Eighteenth street and Penn avenue, during its trip, and for one five cent fare.</p> <p>Objected to, by-counsel for the commonwealth, for the same reasons as heretofore stated, and further that it would be immaterial and irrelevant, because the actual trip taken and intended by the prosecutor in this case was the shortest distance he could traverse on the cars of the Fifth, Shady and Penn avenue car line.</p> <p>Objection sustained. Exception. [6]</p> <p>Counsel for defendant further proposed to prove by the witness upon the stand, and other witnesses, that the Pittsburg Railways Company, the company employing the defendant, for years has regularly run the line on Fifth avenue, passing the point or the place where the prosecutor took the car, to wit, the Fifth, Shady and Penn avenue line, which would have taken the prosecutor to his destination on one trip, and for one fare of five cents.</p> <p>Objected to, by counsel for the commonwealth, as before.</p> <p>Objection sustained. Exception. [7]</p> <p>Verdict of guilty, upon which the defendant was fined $5.00, and costs.</p> <p>Errors assigned were (1, 2) instructions relating to the constitutionality of the Act of June 7, 1907, P. L. 453; (4-7) rulings on evidence, quoting the bill of exceptions.</p>

<p>Appeal, No. 159, April T., 1910, by defendant, from judgment of C. P. No. 4, Allegheny Co., Fourth T., 1907, No. 689, on verdict for plaintiff in case of Mary A. Cawley v. Baltimore & Ohio Railroad Company.</p> <p>Trespass to recover damages for death of plaintiff’s husband. Before Carnahan, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $550. Defendant appealed.</p> <p>Error assigned among others was in refusing binding instructions for defendant.</p>

<p>Negligence — Railroads—“Stop, look and listen ” — Grade crossings— Contributory negligence — Case for jury.</p> <p>1. Where a woman about to go over a crossing of a railroad where there are four tracks, stops on the first track, when she is invited by the track foreman to continue over, and in doing so is struck jüst as she is leaving the third track, by a locomotive which had been standing about twenty or thirty feet from the crossing when she started, and the locomotive gives no signal, the case is for the jury and a verdict and judgment for plaintiff will be sustained. In such a case the evidence as to the trackman’s invitation may be taken as a part of the res gesta.</p> <p>Pleading — Practice, C. P. — Negligence.</p> <p>2. The plaintiff in an action for negligence is not bound to sustain all the averments of the declaration. Where the evidence supports an allegation of the declaration, which if proved would entitle the plaintiff to a verdict, it is sufficient.</p>

<p>Equity — Decree pro confesso — Setting aside decree.</p> <p>While the courts exercise considerable liberality in the disposition of a motion to set aside a decree pro confesso, particularly where a meritorious defense is sought to be set up, yet the motion is not to be granted as matter of course, but only upon cause shown. If the lower court finds that the defendant has been guilty of a default of an aggravated character, and that the special defense set up with a motion to take off the decree, has been previously adjudicated, the appellate court will not interfere with an order refusing to strike off the decree pro confesso.</p>

<p>Appeal, No. 154, April T., 1910, by defendant, from judgment of Q. S. Jefferson Co., Nov. Sessions, 1909, No. 18, on verdict of guilty in case of Commonwealth v. Pugliese.</p> <p>Indictment for conspiracy to cheat and defraud Salvatorie Cammaratti of the sum of $75.00 by means of threats and false representations.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>At the trial Mike Bosko was asked this question:</p> <p>“Q. What transactions, if any, had you with them concerning work in Adrian mines?”</p> <p>Mr. Gillespie: Objected to for the reason that we are not charged in these indictments with cheating and defrauding anybody but Barbara and Cammaratti. One indictment is for defrauding Cammaratti and the other is for defrauding Barbara. We are not charged with getting any money from Mike Bosko under these indictments.</p> <p>The Court: That might all be true. He could not be convicted of defrauding or cheating those parties, but still the evidence would be competent as bearing on the intent with which he acted with these other parties, would it not?</p> <p>Mr. Gillespie: No; I do not think we would be compelled to meet that. We have pleaded to indictments for cheating and defrauding and threatening to cheat and defraud two parties, Vincenzo Barbara and Salvatorie Cammaratti. Those are the only parties that we are alleged to be defrauding, and I undérstand the principle of law to be well settled that you cannot prove a crime by proving another crime, even of the same character.</p> <p>The Court: There are lots of cases in the books which allow proof to show that the transaction is a part of a transaction or series of transactions, to show system.</p> <p>Mr. Gillespie: I object to the question in its present form.</p> <p>“Q. [Question amended to read as follows]: What transactions, if any, had you with Frank Pugliese and Charles Farnella concerning work in Adrian mines, in the presence of Vincenzo Barbara and Salvatorie Cammaratti?”</p> <p>Mr. Gillespie: Objected to for the reason that there is no charge in the indictments of any transactions between the defendant and anyone except Barbara and Cammaratti. What was done with some one else in their presence would not be evidence.</p> <p>The Court: We think it is a part of the same transaction and it would be evidence. The objection is overruled, the testimony admitted, and at the request of his counsel a bill of exceptions is sealed to the defendant. [1]</p> <p>Verdict of guilty upon which the defendant was sentenced to the workhouse for one year. Defendant appealed.</p> <p>Errors assigned were (2) ruling on evidence, quoting the bill of exceptions and (3-10) various instructions.</p>

<p>Appeal, No. 191, April T., 1910, by plaintiff, from judgment of C. P. Jefferson Co., Aug. T., 1908, No. 309, on verdict for defendant in case of Punxsutawney Borough v. Edward A. Carmalt.</p> <p>Assumpsit for the cost of curbing. Before Reed, P. J.</p> <p>At the trial it appeared that the defendant owned land abutting on North Main street in the borough of Punxsutawney. On February 4, 1907, a borough ordinance was passed providing for the curbing of North Main street for a stretch, which at the time was an unimproved country road. The entire width of the street was twenty-five feet. The curb on either side was set twelve and one-half feet from the property line, and the space between the curb lines, twenty feet, was to be paved with brick. There was evidence that one of the purposes of the curb was to hold the brick pavement in place, and that the borough could not build a brick pavement without the curb. The jury returned a verdict for the plaintiff for $863.89, subject to the question of law reserved whether there was any evidence entitling the plaintiff to recover. Subsequently the court entered judgment for defendant non obstante veredicto.</p> <p>Error assigned was in entering judgment for defendant non obstante veredicto.</p>

Appeal, No. 35, April T., 1910, by defendant, from order of C. P. Somerset Co., Feb. T., 1909, No. 280, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Mary Rees, Administratrix of Thomas Rees, deceased, v. Ellen M. Ringler and her husband, S. J. Ringler. Scire facias on a purchase money mortgage. Rule for judgment for want of a sufficient affidavit of defense.

Appeal, No. 195, April T., 1910, by defendants, from judgment of C. P. No. 4, Allegheny Co., Fourth T., 1907, No. 101, on verdict for plaintiff in case of Commonwealth to use of Carrie A. Schmeltz v. A. J. Schmeltz and A. W. Null. Assumpsit on a bond. The facts are stated in the opinion of the Superior Court. Verdict and judgment for plaintiff for $300. Defendant appealed. Error assigned was in giving binding instructions for plaintiff.

<p>Conversion — Remedy—Actions—Assumpsit—Sale or lease of goods.</p> <p>Where personal property of one has been wrongfully taken by another and remains in his possession, the owners cannot recover the price or value in an action of assumpsit; but this rule does not apply where the wrongdoer has by sale or lease of the goods, or otherwise, put it out of his power to respond in an action against him for the recovery of the goods themselves.</p>

<p>Appeal, No. 133, April T., 1910, by defendant, from judgment of C. P. Armstrong Co., Sept. T., 1908, No. 168, on verdict for plaintiff in case of C. A. Weisfield v. Joseph G. Beale.</p> <p>Trespass quare clausum fregit. Before Patton, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $1.00. Defendant appealed.</p>

<p>Municipal liens — Locality index — Mandatory statute — Statutes.</p> <p>1. Section 27 of the Act of June 4, 1901, P. L. 364, which provides that “it shall be the duty of the prothonotary of the courts of common pleas to keep a locality index in which shall be entered all tax or municipal claims hereafter filed,” is mandatory; and if a locality index is not kept in a county, and a municipal lien for improvements is entered in the wrong name in the judgment and mechanic lien indexes, a purchaser of the property assessed, without actual notice of the hen, takes it free of the lien.</p> <p>2. Whether the words of a statute are to be interpreted as mandatory or merely directory depends upon whether the thing directed to be done is of the essence of the thing required, or is a mere matter of form.</p> <p>3. A direction contained in a statute though couched as in permissive language will not be construed as leaving the acceptance optional, where the good sense of the entire enactment requires its provisions to be deemed compulsory.</p> <p>4. The words “shall be lawful” though permissive in form are to be construed as directory or mandatory according as the circumstances in each case show the intention of the legislature to be. '</p>

<p>Contract — Sale—Evidence—Question for jury.</p> <p>In an action to recover the price of lumber sold and delivered where there is evidence that the defendant ordered a car load of lumber from a third person whom he thought was in business for himself, and paid such person for the same before delivery, and subsequently such a third person ordered a car load of lumber from plaintiffs and directed it to be delivered and charged to defendant, and thereafter a car load was delivered, but the evidence is conflicting as to whether the lumber was delivered under the first order or the second, the case is for the jury. In such a case a finding by the jury that the lumber was delivered under the first order relieves the defendant from any payment to the plaintiffs.</p>

<p>Deeds — Street—Dedication—Call for boundary.</p> <p>1. A call in a deed for a street as one of the boundaries of the land conveyed, is not sufficient to establish a dedication of the street to public use, where at the date of the deed no street in point of fact existed either by marks on the ground, or upon any paper, plot or plan or other deed made by the grantors, or for which they were responsible, and where there is no evidence that any such street had ever been used by the public, or accepted as a street by the public authorities.</p> <p>2. The grantors in a deed may covenant that a forty-foot strip of land contiguous to the land conveyed shall remain open for the benefit of the grantee, although such covenant does not amount to a dedication of the strip as a street for public use,</p> <p>3. Where, in such a case, a subsequent grantee of the contiguous land fences in a portion of the forty-foot strip and holds it adversely for more-than forty years, a successor in title to the grantee of the other land who takes his title after the expiration of the forty years and with full knowledge of the improvements and fences on the strip, has no standing to claim any rights in the strip either as a street or otherwise.</p> <p>4. Where a grantor in a deed refers to a forty-foot street as a boundary, but no street exists at the time either by dedication or by plan of lots, or otherwise, and long afterwards in an action of trespass the question arises as to whether such a street in fact existed, it is reversible error to introduce in evidence a plan of lots, showing such a street, where it appears that the plan was not made until years after the deed, and that the grantors in the deed were in no wise responsible for it, and had never adopted or ratified it.</p>

<p>Deeds — Recitals—Boundaries—Case for jury.</p> <p>1. Where a deed describes the land conveyed by metes and bounds, and also by adjoinders, and states that the land conveyed was fifty-four acres, and a subsequent deed refers to the first deed, but describes the land by adjoinders only, and states that the land conveyed was fifty acres, a finding by a jury that the two deeds referred to the same fifty-acre tract of land will be sustained, and it is immaterial that the two deeds stated the acreage to be different.</p> <p>Lunacy — Inquisition—Return of inquisition.</p> <p>2. A return of an inquest in lunacy sets forth a clear finding of lunacy where the inquisition shows the following: “who being respectively sworn and charged to inquire of the premises on their oaths aforesaid respectively do say, that the aforesaid H. at the time of taking this inquisition, aged about sixty years, and is by reason of lunacy incapable of managing his estate; that he hath been in the said state of incapacity by reason of said lunacy for the space of about thirty years last past.”</p>

<p>Road law — Change of grade — Municipal authority — Jurisdiction— Common pleas — Boroughs—Act of May 24,1878, P. L. 129.</p> <p>Where on exception filed in the court of common pleas to a report of viewers, awarding damages for a change of grade of a street in a borough, the evidence shows that no ordinance or resolution of the borough council had ever been passed which provided for or authorized any change in the grade of the street in question, nor that there had ever been any adoption of a change of grade after it had been made, nor that there had been in fact any physical change in the grade, the court commits no error in sustaining the exception on the ground of lack of jurisdiction, and in dismissing the proceedings.</p>

<p>Appeal, No. 208, Oct. T., 1909, by plaintiff, from judgment of C. P. Berks Co., March T., 1907, No. 74, on verdict for defendant in case of The Press Publishing Company v. Reading News Agency.</p> <p>Appeal from judgment of justice of the peace.</p> <p>Assumpsit for money due under a contract. Before Stevens. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>At the trial the court admitted under objection and exception various offers of evidence showing the manner in which the defendant conducted the business, the volume thereof, and the profits thereon. [2-7]</p> <p>Verdict for defendant with certificate in defendant’s favor for $163.92, upon which judgment was entered.</p> <p>Errors assigned were (1) in permitting defendant to show the additional consideration over and above that mentioned in the letter of April 1, 1903, quoted in the opinion of the Superior Court; (2-7) various rulings on evidence, quoting the bill of exceptions; (8-17) various instructions, quoting them.</p>

<p>Appeal, No. 11, Feb. T., 1910, by defendant, from judgment of C. P. Lycoming Co., March T., 1909, No. Ill, on verdict for plaintiffs, in case of Mary H. Eigenbrodt et al. v. City of Williamsport.</p> <p>Trespass to recover damages for personal injuries. Before Hart, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for Mary H. Eigenbrodt for $660 and for John H. Eigenbrodt for $341.25. Defendant appealed.</p> <p>Error assigned among others was in refusing binding instructions for defendant.</p>

Appeal, No. 94, April T., 1910, by defendant, from order of C. P. Washington Co., Nov. Term, 1909, No. 89, affirming sentence in case of Commonwealth v. John W. Sarver, Jr. Exceptions to the record of a justice of the peace. Before McIlvaine, P. J. The facts are stated in the opinion of the Superior Court. Error assigned was in dismissing the exceptions to the record.

<p>Negligence — Master and servant — Violation of instructions by servant— Infant — Parent and child.</p> <p>1. Where the act of a servant complained of is done in the performance of the duty he owes to his master or in furtherance of the business of the latter, in legal contemplation he is acting under the direction of the master, and the latter cannot escape liability for the consequences of such act even though the manner of doing it violated the instructions which the servant had received.</p> <p>2. If a master leave to his servant a discretion as to the manner in which his duty is to be performed, he must be responsible for the manner in which that discretion is exercised. If he -undertake to determine for himself the manner in which his servant shall perform his prescribed duties, the obligation is on him to see that such instructions are carried out and that the servant does not substitute his own methods for those of his master.</p> <p>3. Where the janitor of a building, whose duty it is to collect and burn accumulations of waste paper in the building, is instructed by his employer to bum such paper in the furnace, but in violation of his instructions the janitor burns the paper on a large uninclosed lot frequented by children and at a time when a high wind is blowing, and a child of tender age is seriously burned by her clothing taking fire, the master is liable for the injuries sustained.</p> <p>4. In such a ease neither the janitor nor the child could be regarded as trespassers in making such use as they respectively did of the lot in question. As to each other they were occupying neutral ground, and each owed to the other the general duty of care according to the circumstances.</p> <p>5. Where a mother permits her seven year old daughter to play with other children on an uninclosed lot, and the child is injured by a fire made on the lot for the purpose of destroying waste paper, the question of the mother’s contributory negligence is under all the circumstances, a question for the jury.</p> <p>6. Where a person lights a fire to burn waste paper on an uninclosed lot on a windy day, when children are playing on the lot, and a child is injured by the fire, the court cannot say as a matter of law that the lighting of the fire under the circumstances was not an act of negligence.</p>

<p>Banks and banking — Checks—Payment—Lien—Commercial paper— National banks — Act of May 16, 1901, P. L. 19Jf., sec. 27.</p> <p>1. In a suit by a national bank against the maker of a check where the plaintiff avers in its statement of claim that it is the “holder of said check for value paid in good faith and without notice,” and the affidavit of defense does not deny this but merely avers that the defendant gave the check in suit to the payee under the representation that the latter was going to a particular city to buy cattle, and that the defendant found out that he did not go, and thereupon stopped payment of the check, and it is admitted that the plaintiff bank had advanced to the payee the full amount of the check, the bank becomes entitled to a lien upon the paper for the full amount thus advanced, and under the Act of May 16, 1901, P. L. 194, sec. 27, must be deemed to be a holder for value to the extent of the lien.</p> <p>2. A national bank may lawfully acquire title to commercial paper, although it may be unable to show that it has made a profit upon the purchase of the paper.</p>

<p>Liquor laws — Distiller’s license — Refusal of license — Review—Appeals —Record.</p> <p>1. The action of the court of quarter sessions in refusing a distiller’s license will not be reversed by the Superior Court where the record and decree of the lower court shows that petitions for and remonstrances against the license were filed, that oral testimony was offered in open court both for and against the application, that the matter was argued upon by co.unsel, and that the court after due consideration, refused the license.</p> <p>2. While the court’s discretion is not as broad in an application for a distiller’s license as for one at retail, because the reasons which may influence the discretion of the court are fewer in the former than in the latter case, nevertheless the same general principle applies that where a license has been refused after a hearing, the presumption is that the refusal was for a legal reason, unless the contrary affirmatively appear.</p> <p>3. On an appeal from an order refusing a liquor license, the appellate court cannot consider the case on the merits, inasmuch as the appeal does not bring up the evidence.</p>

<p>Appeal, No. 35, April T., 1911, by defendants, from judgment of Q. S. Cambria Co., June T., 1909, No. 223, on plea of guilty in the case of Commonwealth v. Helen Hamel.</p> <p>Indictment for keeping a bawdyhouse. Before O’Conner, P. J.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was the sentence of the court imposed on June 14, 1910.</p>

<p>Ground rents — Failure to pay taxes — Suit for taxes — Set-off.</p> <p>1. Where the plaintiff in an action on a ground rent obtains a judgment, and on execution the property is sold for less than the amount of the judgment, but for more than sufficient to pay the arrearages of taxes, and such taxes are paid in cash by the plaintiff to the sheriff before he can secure his deed, the plaintiff is entitled to recover the amount so paid from the real owner of the land against whom he had recovered the judgment in the action on the ground rent.</p> <p>2. In such a case a claim of set-off arising out of an alleged distress for arrears of rent, set up in an affidavit of defense, cannot be considered where there is nothing to show the amount realized by the distress, and it is not averred that it was not within the power of the defendant to make the affidavit certain in this particular.</p>

Appeal, No. 19, Oct. T., 1910, by defendant, from judgment of C. P. Fulton Co., June Term, 1909, No. 49, on verdict for plaintiff in case of George F. Keefer v. Rowe Mellott. Trespass to recover damages for injuries to the water power of a mill.

Appeal, No. 148, Oct. T., 1910, by plaintiff, from order of C. P. No. 3, Phila. Co., Sept. T., 1909, No. 3,639, discharging rule for judgment for want of a sufficient affidavit of defense in case of Morris Black v. Louis Isaacman. Assumpsit for money loaned. Rule for judgment for want of a sufficient affidavit of defense. Error assigned was order discharging rule for judgment for want of a sufficient affidavit of defense.

Appeal, No. 168, Oct. T., 1910, by George M. Hurd, from order of C. P. No. 3, Phila. Co., Dec. T., 1909, No. 3,533, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Heralds of Liberty v. George M. Hurd et al., trading as Hurd, Baker & Company. Assumpsit on a check.

<p>Appeal, No. 60, Oct. T., 1910, by E. H. Flick, assignee of Fred Haller, from decree of C. P. Blair Co., June T., 1897, No. 51, dismissing petition for a rehearing, In re Assignment of Fred Haller.</p> <p>Petition for rehearing. Before Shull, P. J., specially presiding.</p> <p>The petition of the Superior Court states the case.</p> <p>Error assigned was decree dismissing the petition for a rehearing.</p>

Appeal, No. 80, Oct. T., 1910, by Catharine McCool, from decree of O. C. Blair Co., No. 78, 1910, sustaining exceptions to auditor’s report in Estate of Sarah McTamany, deceased. Exceptions to report of C. J. McCullough, Esq., rejecting claims of William J. Maher and wife and Thomas Monahan and wife for services rendered in boarding and nursing decedent. Shull, P. J., specially presiding filed an opinion, the material portion of which was as follows: 1.

Appeal, No. 106, Oct. T., 1910, by defendant, from judgment of C. P. Huntingdon Co., Sept. T., 1909, No. 9, on verdict for plaintiff in case of E. F. Spencer v. W. S. Conrad. Trespass for an alleged wrongful levy and sale of mine ties.

Appeal, No. 227, Oct. T., 1910, by defendant, from order of C. P. Huntingdon Co., May T., 1907, No. 27, overruling exceptions to auditor’s report in case of W. S. Lytle v. John H. Rupert. Exceptions to auditor’s report. The record showed the following decree: And now, September 3, 1910, the exceptions to the auditor’s report are overruled and the report is confirmed.

<p>Appeal, No. 70, April T., 1911, by defendant, from order of Q. S. Allegheny Co., May T., 1910, No. 316, awarding a weekly payment in nonsupport proceedings in case of Commonwealth v. George S. Edgar.</p> <p>Petition by Lottie E. Edgar, wife of defendant, to compel him to contribute to the support of his daughter, Lottie Edgar, twelve years old. Before Haymaker, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was the order of support.</p>

Appeal, No. 219, Oct. T., 1910, by defendant, from order of Q. S. Franklin Co., Miscellaneous Record, page 78, dismissing petition for equalization in case of Chambersburg Borough School District v. Guilford Township School District. Petition for equalization.

Appeal Nos. 5 and 6, March T., 1911, by defendants, from judgment of Q. S. Lackawanna County, Dec. Sessions, 1908, No. 211, on verdict of guilty in case of Commonwealth v. Thomas Leyshon and Abram Howells. Indictment for conspiracy. Before Heydt, P. J., specially presiding. The facts are stated in the opinion of the Superior Court. At the trial John Mishler was asked this question: • “Q. Do you know how much money that was?

Appeal, No. 185, Oct. T., 1910, by defendant, from order of C. P. No. 1, Phila. Co., Sept. T., 1909, No. 2,690, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Robert L. Montgomery et ah, trading as Montgomery, Clothier & Tyler, v. James G. Lindsay. Rule for judgment for want of a sufficient affidavit of defense. ■ ' The facts are stated in the opinion of the Superior Court.

<p>Appeal, No. 116, April T., 1910, by defendant, from order of C. P. No. 4, Allegheny County, Second Term, 1908, No. 1,007, discharging rule to quash writ in case of Frick & Lindsay Company v. Maryland, Pennsylvania & West Virginia Telephone & Telegraph Company.</p> <p>Rule to quash writ.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was the order discharging the rule to quash the writ.</p>

<p>Appeal, No. 138, April T., 1910, by defendant, from decree of C. P. Mercer Co., Jan. T., 1906, No. 3, on bill in equity in case of Sharon Borough v. Pennsylvania Company.</p> <p>Bill in equity for an injunction. Before Williams, P. J.</p> <p>The opinion of the Superior Court states the facts.</p> <p>The court entered the following decree:</p> <p>And now, December 6, 1909, this cause came on to be further heard at this term, and was argued by counsel; and thereupon, upon consideration thereof, it was ordered, adjudged and decreed as follows:</p> <p>That the Pennsylvania Company shall, on or before February 1, 1910, submit plans and specifications to the plaintiff, the borough of Sharon, for the construction of a suitable undergrade passageway under the tracks of the defendant company where said tracks cross Franklin street in the borough of Sharon; which plans and specifications shall provide for a passageway fifty feet in width with sufficient clearance to permit of a thirty-four foot passage for wagons and other vehicles, with an eight-foot sidewalk on either side; said passageway to be suitably roofed, banked and paved for such distance as the same shall be below the present level of Franklin street, with drainage provided from the lowest part of the roadway.</p> <p>That upon approval by the borough of Sharon of plans and specifications as above decreed, the defendant company shall forthwith commence and pursue to completion as speedily as possible and in good and workmanlike manner, such undergrade crossings.</p> <p>And it is further ordered that the defendant, the Pennsylvania Company, pay the costs, including the master’s fee.</p> <p>Error assigned was the decree of the court.</p>

<p>Boroughs — Relocation of water course — Culvert—Damages—Benefits— Line of improvements — Act of April 28,1899, P. L. 74-</p> <p>Where a borough in proceedings under the Act of April 28, 1899, P. L. 74, vacates a portion of a stream in a borough, and substitutes for it a new channel, properties abutting on the stream above the line of the improvement, cannot be assessed for benefits, although they may have been indirectly benefited by the improvement.</p>

<p>Appeal, No. 48, April T., 1911, by defendant, from judgment of Q. S. Allegheny Co., March Sessions, 1910, on verdict of guilty in case of Commonwealth v. A. V. Simon.</p> <p>Indictment for bribery. Before MacFarlane, J.</p> <p>The opinion of the Superior Court states the case.</p> <p>Verdict of guilty, upon which judgment of sentence was passed.</p> <p>Errors assigned were (1-10) various rulings and instructions which sufficiently appear by the opinion of the Superior Court.</p>

<p>Practice — Trial—Harmless error.</p> <p>1. A conviction in a criminal case will not be reversed because of a slight inaccuracy in the trial judge’s statement of the testimony, where counsel does not call the judge’s attention to the mistake at the time, and the judge in express terms tells the jury to take all the testimony and consider it as they remember it.</p> <p>Criminal law — Bribery—Evidence.</p> <p>2. On the trial of an indictment for bribery where the commonwealth shows that the defendant received a sum of money from one of the witnesses, such witness may be permitted to testify from what source he received the money.</p> <p>3. Where, in such a case, an accomplice testifies that he received the money at a certain house, another witness may testify that he saw the accomplice coming from the house designated with a package.</p> <p>Trial — Practice—Keeping jury together.</p> <p>4. On the trial of a public officer for bribery it is within the sound discretion of the trial judge to keep the jury together, and such discretion will not be reviewed by the appellate court where there is nothing to show that it was abused.</p> <p>Criminal law — Trial—Bill of particulars.</p> <p>5. Where a bill of particulars is furnished to a defendant at his request in a criminal prosecution, and the case is then put at issue to be tried on the merits, it is too late at the trial to object to the insufficiency of the bill of particulars.</p>

<p>Constitutional law — Mines and mining — Act of July If, 1897, P. L. 287.</p> <p>1. The Act of July 15, 1897, P. L. 287, entitled, “An Act to provide for the examination of miners in the anthracite coal regions of this commonwealth and to prevent the employment of incompetent persons as miners in the anthracite coal mines” is constitutional.</p> <p>Criminal law — Forgery—Miner’s certificate.</p> <p>2. On the trial of an indictment for forging a miner’s certificate where a witness testifies that he is familiar with the signatures of the miners’ examining board of the district, and with the certificates which they issue, he may be permitted to testify as to the differences between the certificate in question and the signatures thereto and the genuine certificates issued by the board.</p> <p>3. In such a case where it appears that the genuine certificates as well as the forged one were made out upon printed blanks which blanks were filled in with writing when the certificate was issued, it is competent for the commonwealth to prove that all genuine certificates were printed alike in a particular form, and upon a peculiar colored paper essentially different from that used in the certificate in question. The possession of other blanks similar to the one fraudulently filled out by the defendant raises no presumption in law of the defendant’s guilt, but such possession is evidence in connection with the other evidence in the case tending to show guilt.</p> <p>4. The competency and skill of a miner whose name has been inserted in a forged miner’s certificate cannot be considered on the trial of an indictment for forging such a certificate.</p> <p>Criminal law — Bribing constable — Presumption—Evidence.</p> <p>5. On the trial of an indictment for crime evidence is admissible that the prisoner had offered the constable who arrested him money to let him go; but it is reversible error for the court to charge the jury that such evidence raises a presumption of the prisoner’s guilt.</p> <p>Criminal law — Forgery—Guilty knowledge.</p> <p>6. On the trial of an indictment for forgery a conviction cannot be sustained unless it is shown that the defendant had knowledge that the instrument in question was forged.. The mere fact that the instrument was forged and that the defendant had uttered it, is not sufficient.</p> <p>Evidence — Spelling of foreign name — Forgery—Criminal law.</p> <p>7. The manner in which foreign proper names are spelled, and whether in spelling those names those familiar with the language use a “z” where in the English language an “s” would be used, are not questions of law, but of fact.</p>

<p>Affidavit of defense — Practice, C. P. — Pleading—Statement of claim— Chech.</p> <p>1. Where an affidavit of defense has been filed to the merits and the court below has made absolute a rule for judgment for want of a sufficient affidavit of defense, the defendant cannot on an appeal from the judgment of the court below allege for the first time that the statement of claim is insufficient.</p> <p>2. In an action founded on a check the plaintiff averred in his statement of claim that the defendant forwarded the check to him with directions that he should pay the proceeds thereof to a third person, and that immediately upon receipt of the check he did pay over the amount of it to the person designated. The defendant in his affidavit of defense denied “that he made any such request to plaintiff, or that the plaintiff expended any of said moneys as he had alleged he did.” Held, that the affidavit of defense was sufficient.</p>

<p>Appeal, No. 175, April T., 1910, by plaintiff, from order of C. P. No. 3, Allegheny County, Aug. T., 1909, No. 150, discharging rule for judgment for want of a sufficient affidavit of defense in case of National Bank of Lawrence County v. Joseph S. Kaufman et al.</p> <p>Assumpsit upon a promissory note. Before Kennedy, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was order discharging rule for judgment for want of a sufficient affidavit of defense.</p>

<p>Liquor law — Revocation—Practice, Q. S. — Action of the court.</p> <p>Where a decree revoking a liquor license purports on its face to have • been made by the court of quarter sessions with the concurrence of the president judge and two associate judges, and the record as made up shows a hearing of testimony by the three judges and argument of counsel, and no objection is made at the time that the court was not properly sitting, it cannot be subsequently objected that the decree was the mere act of the judges in vacation, and not the act of the court of quarter sessions itself. Such a decree cannot be set aside by the two associate judges at a subsequent day on a hearing without testimony or petitions in favor of the respondent. Petitions by stranger to the record are not sufficient.</p>

<p>Mechanic’s lien — Implied contract — Breach of contract.</p> <p>1. A builder who is engaged to erect a small building not defined by any specific plan at a price to be determined by the amount of labor and material required, may file a mechanic’s lien for work done and material furnished. The mechanic’s lien act provided for implied contracts.</p> <p>Contract — Entire contract — Performance—Instructions.</p> <p>2. Where in an action on a mechanic’s lien the jury finds as a fact that the agreement between the parties did not amount to an entire contract for the completion of the work at a fixed price, the trial judge cannot be convicted of error in refusing to charge that if the plaintiff failed in the performance of his contract in any material matter he could recover nothing.</p>

<p>Appeal, No. 33, March T., 1910, by plaintiffs, from judgment of C. P. Lackawanna County, Nov. T., 1907, No. 185, for defendant non obstante veredicto in case of Stanley Rumovicz and Edward Rumovicz by his father and next friend, Stanley Rumovicz, v. Scranton Electric Company.</p> <p>Trespass to recover damages for personal injuries to a boy eleven years old.</p> <p>At the trial the jury returned a verdict for the plaintiff Stanley Rumovicz, for $100 and for Edward Rumovicz for $1,000.</p> <p>On a rule for judgment for defendant non obstante veredicto Newcomb, J., filed the following opinion:</p> <p>There was a verdict for plaintiffs in an action by father and son for injuries to the son occasioned by his coming in contact with an uninsulated wire on defendant’s premises. At the close of plaintiffs’ case defendant asked for binding instructions. The present motion is founded on the refusal of that request. The facts are free from complication.</p> <p>As a part of its light and power plant in the village of Dickson City the defendant had on its premises a brick building used as a storage house. It stood twenty or thirty feet from the street. The lot not being inclosed the intervening area was from time to time resorted to by boys at play. Inside the building electric wires were strung. Their purpose was not disclosed at the trial. Therefore they were presumably there for some use in the conduct of the company’s business. At the end nearest the street the wires ran along the wall just inside a window of which the sill was upwards of two feet from the ground. To some extent the glass, consisting of small panes, had been broken, apparently by boys throwing stones. It had been in that condition for some weeks, if not months, before the accident. While the boys had been accustomed to play on the ground, none had been known to meddle with the building itself, otherwise than by throwing stones. In July, 1907, Edward Rumovicz, then eleven years old, was passing there with two other boys, all of whom lived in the neighborhood. Out of curiosity they turned aside to look in through the window. Apparently they put their hands on the sill. In some way, which neither could explain, Rumovicz received an electric shock, thereby sustaining a severe injury. It was taken for granted at the trial, and will be assumed now, that either consciously or unconsciously, he put his hand through the broken window far enough to touch one of the wires.</p> <p>Subject to the general question reserved, the case was submitted on the allegation of negligence set out in the statement. True, it was also alleged that the wires had been intentionally charged by defendant for the specific purpose of inflicting an injury under the circumstances of this accident. That, however, was wholly unsupported, and the question left to the jury was whether the defendant was guilty of negligence in failing to keep the glass, or some other barrier, in place in view of the proximity of the wires to the street and the known habit of the children to play and idle about the premises.</p> <p>The question now is whether the case was for the jury at all.</p> <p>Had the defendant strung and charged the wires in the open lot after knowledge brought home to it that persons, whether children or adults, were accustomed to resort there, a different question would be presented. The same would be true if, seeing the boys at the window with their hands on the sill, an employee of the company had charged the wires without warning them. But there was nothing of that kind. No servant of the company was about. Apparently the wires were in their usual condition as required in the company’s operations. Hence the liability, if any, must arise solely from what has been called the principle of “attractive nuisances.” That doctrine, however, so far as I can find, has in no jurisdiction been extended to injuries to a trespasser arising from machinery within private buildings to which the intruder gets access through a window without the permission, and in the absence of the owner or those representing him. If it were so every proprietor of a mill or factory would operate it subject to the duty of active vigilance in keeping trespassers out. That is not the law.</p> <p>On review of the case I cannot distinguish it in principle from Thompson v. R. R. Co., 218 Pa. 444. There children were accustomed to resort to the railroad yard. That was inclosed by a high board fence, broken in places and having gates usually open. In the yard was a turntable. When not in use, instead of being kept locked, it was fastened only by a brake which anyone could open. A boy of about eight years entered the yard at night through the open gateway. He stood near the table as it was being turned by other boys at play. A projecting bar struck him whereby he was thrown into the pit and seriously hurt.</p> <p>In reversing judgment on a verdict for the boy the course of decision on the present subject in our own and other jurisdictions was extensively reviewed by the Supreme Court. In effect the doctrine of the so-called “turntable cases” as it had been generally understood was repudiated. The proposition that the owner of private property may incur liability to a trespasser for an injury induced by mere childish curiosity or heedlessness, unconnected with any negligence in the use of his property, was rejected as unsound in legal theory and unsupported by the weight of authority. It was held that the fact that the person injured was a child makes no difference in the absence of negligence, and.that as regards an adult the facts in that instance showed no breach of duty. It was said: “He was where he had no right to be, on the property of the defendant, which it was using in a lawful manner for a lawful purpose in the conduct of its business. It owed him the duty not to injure him intentionally, but it was under no duty to take care of him either by keeping him out of the yard or by protecting him after he entered it from his pwn acts or the acts of others who, like him, had entered without permission.” This must be regarded as the settled rule in this state.</p> <p>But it is contended by the learned counsel that the question here is ruled otherwise by Henderson v. Refining Co., 219 Pa. 384, and Walsh v. Pittsburg Rys. Co., 221 Pa. 463. In my judgment both are clearly distinguishable from the present case. In the Henderson case a permissive way across a vacant lot had become established. It formed a well-marked line of communication between two dwelling houses on opposite sides of the lot. It led from the side door of one to a gate opening out from the other. All three parcels belonged to defendant. The houses were occupied by its tenants. A boy had occasion to go to one of the houses. When he left he went out by the exit opening on the path. He was hurt by being caught in some way in the machinery of a pumping plant then recently set up by defendant either on or at the edge of the • path. It must be noted that the path had acquired its status with the implied consent of the defendant before the machinery was placed there. The Supreme Court, therefore, held that the boy was not a mere trespasser. The path had become an appurtenance to the houses as part of the curtilage. In other words, the boy was using the path under defendant’s quasi license. The machinery formed a menace to the safety of those lawfully exercising an ostensible right which had attached to the premises. There was nothing in the mere location of the machinery which would operate to extinguish the apparent right of way of those having lawful occasion to go in or out by that entrance. The case in no way weakens or narrows the general rule that the landowner owes no duty of protection to those who may intrude on his premises. On the contrary, it was distinctly held that the facts took it out of the scope of that rule.</p> <p>In Walsh v. Pittsburg Rys. Co. the defendant had a power house for the operation of a cable on an uninclosed lot adjacent to the street. Children resorted to the lot as a playground. On the occasion in question a girl of eight years was attracted there by a fight in which some boys were engaged. The machinery was then idle and the man in charge absent. She stood within two feet, or less, from the door of the motor house, and in dangerous proximity to the cable if in motion. Defendant’s employee returned, facing her as he came and almost brushing against her as he entered the door. Without warning her he immediately put the machinery in operation. The frayed and broken strands of the cable caught the girl’s clothing and being drawn into the machinery she was injured. It is apparent that the circumstances might well charge the defendant’s employee with knowledge of her peril, and make his act in starting the machinery one of wanton recklessness. And it was so held. While the rule stated in Thompson v. R. R. Co. was again reaffirmed and it was again said that “the standard of duty in such case is the same whether the person injured be an adult or child,” it was further said: “There was, however, a duty not to in- . jure her intentionally, or wantonly by any act to expose her to danger. If the man who started the motor knew at that time that the plaintiff was standing between the rails close to the frayed cable, which would touch her dress when in motion, and from his knowledge of the circumstances was conscious that she would be exposed to danger if the machinery was put in motion, a duty of care arose, as it would in case of an engineer who sees a child on the track in front of his engine.”</p> <p>As between these cases and the one at bar I can see no analogy. On the contrary, the present case is to my mind clearly within the general rule of immunity as regards an injury to a trespasser where the landowner is making a lawful and proper use of his property.</p> <p>For that reason the defendant was entitled to binding instructions. The rule to show cause is made absolute and judgment is now directed to be entered for defendant on the point reserved sec. leg.</p> <p>Plaintiff appealed.</p> <p>Error assigned was in entering judgment for defendant non obstante veredicto.</p>

<p>Appeal, No. 158, April T., 1910, by defendant, from judgment of C. P. Allegheny County, June T., 1906, No. 533, on verdict for plaintiff in case of Laura I. Ransom v. Harris Crawford.</p> <p>Assumpsit for a balance alleged to be due by defendant as an agent. Before Ford, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $590.75. Defendant appealed.</p> <p>Errors assigned were various instructions, quoting them.</p>

<p>Appeal, No. 83, Oct. T., 1910, by defendant, from judgment of C. P. No. 5, Phila. Co., Dec. T., 1907, No. 1,190, on verdict for plaintiffs in case of Albert Paget and Mary Hannah Paget, his wife, in right of Mary Hannah Paget, and Albert Paget in his own right v. Girard Trust Company, trustee under the will of Thomas H. Powers, deceased.</p> <p>Trespass to recover damages for personal injuries. Before Martin, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for Albert Paget for $50.00 and for Mary Hannah Paget for $150. Defendant appealed.</p> <p>Error assigned was in refusal of binding instructions for defendant and in refusing to enter judgment for defendant n. o. v.</p>

<p>Equity — Equity practice — Pleading—Responsive answer.</p> <p>1. Where a defendant in an equity suit goes upon the witness stand and his credibility is successfully impeached by evidence of his general reputation for truth and veracity, the force of his answer and the rule in equity as to the sufficiency of proof to overcome a responsive answer, will be satisfied by the positive and satisfactory testimony of one witness to the facts essential to a decree of the relief prayed for, corroborated by other facts and circumstances which give it greater weight than the answer, even though the circumstantial evidence standing alone would not be sufficient to make out every essential to a decree for the plaintiff.</p> <p>Deed — Cancellation of deed — Reading deed — Fraud—Evidence.</p> <p>2. Where a grantor in a deed prior to executing it says that she could not read it because she did not have her glasses, and the grantee undertakes to read it to her, but does not read it correctly, and the grantor is thereby deceived as to what she is conveying, the deed is voidable at her instance.</p>

<p>Insurance — Fire insurance — Evidence—Proof of damages — Question for jury.</p> <p>In an action upon a policy of fire insurance where the only question is the amount of the loss, and there is sufficient evidence produced by the plaintiff to show the extent of his loss, and this evidence is not contradicted, the case is for the jury, and a judgment and verdict for plaintiff will be sustained.</p>

<p>Criminal law- — Suspension of sentence — Promise of district attorney,</p> <p>The court of quarter sessions cannot be deprived of its right to sentence a prisoner charged with bribery, to fine and imprisonment on a plea of nolo contendere, by a promise of the district attorney not concurred in by the court, to suspend sentence if the prisoner would enter such a plea and reveal all he knew about the crime.</p>

<p>Criminal law — Pleading—Sentence—Nolo contendere.</p> <p>1. A plea of nolo contendere, when accepted by the court, is, in its effect upon the case, equivalent to a plea of guilty. It is an implied confession of guilt only, and cannot be used against the defendant as an admission in any civil suit for the same act. The judgment of conviction follows upon such plea as well as upon a plea of guilty. But there is a difference between the two pleas in that the defendant cannot plead nolo contendere without the leave of the court. If such plea is tendered, the court may accept or decline it in its discretion.</p> <p>2. The court may impose a sentence of imprisonment under a plea of nolo contendere.</p> <p>3. Where the record of a criminal proceeding shows a plea of nolo contendere indorsed on the indictment and signed by the defendant and the docket entries show that on the day that the plea was entered the defendant appeared in open court and pleaded nolo contendere, and at a later date was sentenced, the action of the court in sentencing the defendant clearly imports an acceptance of the plea.</p> <p>4. On the trial of an indictment in the quarter sessions for conspiracy, an arraignment is not necessary; nor is it necessary that the record should show that the defendant was interrogated before sentence.</p>

<p>Appeal, No. 68, April T., 1910, by plaintiff, from decree of C. P. No. 2, Allegheny Co., April T., 1908, No. 814, dismissing bill in equity in case of Ernest R. Levi v. Oakmont Borough.</p> <p>Bill in equity for an injunction to'restrain the defendant from filing a municipal lien against the property of the plaintiff on the east side of Oakmont avenue.</p> <p>Shafer, J., found the facts to be as follows:</p> <p>1. The borough of Oakmont is a borough in the county of Allegheny, through which the Allegheny Valley Railroad passed, and Oakmont avenue, the street in question, is a street of the borough running parallel with, and immediately adjacent to the right of way of the railroad, so that on the west side of the avenue there is no property except that occupied by the right of way, which is used exclusively for railroad purposes.</p> <p>2. On the easterly side of the avenue there are twenty-nine properties in the part of the street in question in this case, including plaintiff, who owns about 200 feet front, the whole frontage being over 3,700 feet.</p> <p>3. On or before September, 1907, a petition signed by twenty-five of the twenty-nine property holders before mentioned, representing over 3,100 feet frontage, was presented to the council of the borough, praying for the grading, paving and curbing of the street, the cost and expenses to be assessed under the act of April 23, 1889, and its supplements, whereupon the council, on September 2, 1907, passed an ordinance, reciting the petition providing for the making of the improvement prayed for, and letting a contract therefor, and a contract was thereupon made, as set out in the bill, and the work completed some time in November, 1907, and an assessment made against the abutting property holders on the easterly side of the avenue, the assessment against plaintiff being $606.</p> <p>4. During all the time from the presentation of the petition up to the present time, plaintiff has lived upon the lot in question, and was aware of the passing of the ordinance and the paving of the street as the work was done.</p> <p>5. There is a street car track on the avenue, about five feet from the westerly side, which was already paved between the tracks by the street car company. The paving directed by the borough and charged for, was the paving of the street east of the street car track, leaving the five feet next to the railroad unpaved.</p> <p>The court entered a decree dismissing the bill.</p> <p>Error assigned was decree of the court dismissing the bill.</p>

<p>Appeal, No. 113, Oct. T., 1910, by Howard W. Lennox, from order of C. P. Berks Co., Assignee Docket Entry, vol. 4, p. 134, dismissing exception to report of auditor In re Carlenwright Lamp & Brass Company’s Insolvent Estate.</p> <p>Exceptions to report of Adam H. Schmehl, Esq., auditor.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was order dismissing exceptions to report of auditor.</p>

<p>Insurance — Fire insurance — Certificate of magistrate — Proofs of loss— Waiver.</p> <p>Where a fire insurance policy requires the insured to furnish to the insurance company a certificate of the nearest magistrate as to the loss, and the insured furnishes a certificate of the nearest magistrate, but this is returned to him by the company on the ground that it is insufficient, but without the particular insufficiency being stated, and the magistrate on request refuses to furnish any other certificate, a ruling by the trial judge that the proofs of loss were sufficient in law, and a resultant verdict and judgment for the insured, will not be reversed on appeal.</p>