Volume 45 — Pennsylvania Superior Court Reports

Appeal, No. 12, March T., 1910, by defendant, from judgment of C. P. Luzerne Co., Feb. T., 1907, No. 508, on verdict for plaintiff in case of Henry Vivian, by his next friend Eliza Thomas, v. William Challenger. Trespass for wrongful conversion of personal property. Before (Ferris, J. The facts are stated in the opinion of the Superior Court. Verdict and judgment for plaintiff for $700 punitive damages and $150 for value of personal property converted.

<p> Criminal law—Kidnaping—Evidence—Circumstantial evidence—Jurisdiction. </p> <p>Where a man and a woman go to a town in Pennsylvania, give themselves out as man and wife, stay there for a time, and then leave, falsely stating that they are going to a distant state, but in fact going to a city in an adjoining state, and thereafter the man returns to the town in Pennsylvania, there kidnaps a boy and takes him to the city in the adjoining state where the woman had prepared lodgings for the boy’s reception, the woman may be convicted of the overt act in Pennsylvania by her own declarations showing knowledge of pre-existing facts and conditions in the Pennsylvania town, and by evidence of the whole course of her connection with the reception, detention and subsequent release of the child, including the fact that the very money that was paid for the release of the child was found after her arrest secreted on her person.</p>

<p>Appeal, No. 64, Oct. T., 1910, by defendant, from judgment of C. P. Berks Co., Feb. T., 1907, No. 49, on verdict for plaintiff in case of Adam M. Filbert v. Simon Behney.</p> <p>Assumpsit for breach of contract to sell land. Before Endlich, P. J.</p> <p>At the trial it appeared that Simon Behney was the' owner of the Pleasant Hill Hotel on October 13, 1906, and that on that day he made a written contract to sell the property to plaintiff for $8,500. There was evidence that on the same day he verbally contracted to sell the same property for the same price to W. L. Donmoyer, the proprietor of the New Lebanon Brewing Company. At the time of the execution of the written agreement plaintiff paid to defendant $300 hand money. On October 18, 1906, the defendant conveyed the premises to the brewing company in accordance with the verbal contract. The defendant offered evidence tending to show that the plaintiff was in fact the agent of the brewing company. This evidence was contradicted by that of the plaintiff.</p> <p>The attorney for the defendant made the following offer:</p> <p>Mr. Nicolls: We offer in evidence a letter from A. M. Filbert to Simon Behney, dated October 3, 1906 (exhibit “B”).</p> <p>Mr. Keiser: What is the purpose of the letter?</p> <p>Mr. Nicolls: Mr. Behney having testified that he did not see Mr. Filbert from October 3 until October 15, and Mr. Filbert in this letter having said .that the negotiations were concluded and that his man would not take the hotel property, the letter is offered for the purpose of showing that Mr. Behney thought he was not dealing with Mr. Filbert but with some other party and that that party was the New Lebanon Brewing Company.</p> <p>Mr. Keiser: Objected to for the purpose stated.</p> <p>Mr. Nicolls: Secondly, to corroborate the testimony of Mr. Behney that he thought he was dealing with the New Lebanon Brewing Company and not with Mr. Filbert.</p> <p>The Court: Objection sustained; bill sealed for defendant. [2]</p> <p>A copy of said letter is as follows:</p> <p>“A. M. Filbert,</p> <p>“Wholesale Dealer in</p> <p>“Wines and Liquors.</p> <p>“Southwest Cor. 9th and Cumberland Sts.</p> <p>“Lebanon, Pa., Oct. 3,1906.</p> <p>“Mr. Simon Behney,</p> <p>“Reading, Pa.</p> <p>“Dear Sir:</p> <p>“I seen my customer this morning, in regards the Hotel. He now tells me he has changed his mind, that I should not try and get it for him. So do not keep it for me. If any one comes and makes you an offer and wish to sell it, its for you to say so. Coming up in the train yesterday I met Wm. Blecker who was at Reading looking at different places to buy out, so I do not believe Mr. Wills wants it for him. If you come to Lebanon stop in to see me.</p> <p>“Resp.</p> <p>“A. M. Filbert.”</p> <p>Defendant presented this point:</p> <p>- 3. If the jury believe that the plaintiff knew of Behney's verbal agreement to sell to the brewing company before he, the plaintiff, made his written agreement of purchase with Behney, then the plaintiff cannot recover. Answer: Declined (and not read to jury). [1]</p> <p>Verdict and judgment for plaintiff for $875 damages and $300 down money. Defendant appealed.</p> <p>' Errors assigned were (1) answer to point as above, quoting it, and (2) ruling on evidence, quoting the bill of exceptions.</p>

<p> Municipalities—License fee—Milk inspection—Cities of the second class. </p> <p>1. A city of the second class has the power to enact an ordinance entitled, “An Ordinance to secure the wholesomeness and purity of milk, meat and meat products, by authorizing the inspection thereof, by providing for the licensing of persons dealing therein, by prohibiting the sale or offering for sale of milk, meat and meat food products which are impure, unwholesome or adulterated, or otherwise unfit for human consumption, by providing penalties for the enforcement of the same,” and directing the appointment of a “milk and meat inspector,” providing for the licensing of vendors upon payment of $10.00 per year, and imposing penalties for violation of the ordinance ranging from $10.00 to $25.00 for first offenses, and from $50.00 to $100 for repeated offenses.</p> <p>2. Such an ordinance does not violate the provision of the Act of May 23, 1889, P. L. 277, which forbids an ordinance to be passed “containing more than one subject, which shall be clearly expressed in its title.”</p>

<p> Criminal law—Evidence—Circumstantial evidence—Presumption of innocence—Question for court—Incendiarism. </p> <p>1. When a crime charged is sought to be sustained wholly by cir- . cumstantial evidence, the hypothesis of guilt or delinquency should</p> <p>flow naturally from the facts and circumstances proved, and be consistent with them all. The evidence of facts and circumstances must be such as to exclude to a moral certainty, every hypothesis but that of guilt of the offense imputed, or in other words the facts and circumstances must not only all be consistent with and point to the guilt of the accused, but they must be inconsistent with his innocence.</p> <p>2. It is the right and duty of the trial judge, after the evidence of the commonwealth has been fully produced, to determine as matter of law, whether the proof has been sufficient in volume and quality to overcome the presumption of innocence, and thus put the accused to a defense. Where the proof fails to measure up to this standard there is nothing to support a conviction and the prisoner is entitled to be discharged.</p> <p>3. The conviction of an elderly woman on an indictment for burning a barn will be set aside by the appellate court, where there is no sufficient evidence of motive, and the circumstantial evidence produced is not inconsistent with the prisoner’s innocence.</p>

<p>Appeal, No. 166, Oct. T., 1910, by defendant, from judgment of Q. S. Phila. Co., May Sessions, 1910, No. 51, on verdict of guilty in case of Commonwealth v. Frank Stovas.</p> <p>Indictment for conspiracy. Before Davis, J.</p> <p>The opinion of the Superior Court states the case.</p> <p>Verdict of guilty upon which the court sentenced the prisoner to two years’ imprisonment. Defendant appealed.</p> <p>Errors assigned were (1) in overruling defendant’s motion to direct the jury to find a verdict of not guilty; (2-8) the motions of charge quoted in the opinion of the Superior Court; (9) in overruling defendant’s motion for a new trial; (10) in overruling defendant’s motion in arrest of judgment; (11) in sentencing the prisoner.</p>

<p> Wills—Codicils—Revocation—Devise. </p> <p>Where a testator devises a particularly described parcel of real estate to one of his sons for life with remainder to the son’s children, and by a later clause in his will directs his executors to sell all of his real and personal estate and divide the proceeds thereof among his eight children share and share alike, and by a codicil practically repeats the direction to sell all the estate and make division among all the children, neither the later clause in the will, nor the codicil revokes the specific devise to the son.</p>

<p>Appeal, No. 27, Oct. T., 1910, by defendant, from judgment of C. P. Berks Co., Dec. T., 1909, No. 60, for plaintiffs on case stated in suit of Rebecca A. Schmucker et al. v. Agnes H. Adams.</p> <p>Case stated to determine title to real estate.</p> <p>Error assigned was the judgment of the court.</p>

<p>Appeal, No. 87, April T., 1910, by plaintiff, from order of C. P. No. 1; Allegheny Co., June T., 1896, No. 889, discharging rule to set aside satisfaction of judgment in case of Thomas E. Summerville, for use of E. R. Summerville v. George Galey et ah, partners doing business as the Stanley Oil Company.</p> <p>Rule to set aside satisfaction of judgment.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was the order discharging the rule.</p>

<p>Appeal, No. 108, April T., 1910, by defendant, from order of C. P. No. 4, Allegheny Co., Third Term, 1909, No. 578, making absolute rule for judgment for want of a sufficient affidavit of defense in case of John R. Riesmeyer v. Kate O’Day.</p> <p>Assumpsit for rent.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>Errors assigned were in the following form:</p> <p>The court erred in that</p> <p>1. The affidavits filed do aver a good and sufficient defense.</p> <p>2. There has been here raised an issue of fact or facts in defense sufficient for, and only legally determinable in court by, a jury; because whereof the right of trial should not have been denied defendant.</p> <p>3. Defendant has been deprived of her constitutional right of trial by .jury, in this final judgment; because ordered against and notwithstanding her ungainsaid averments, directed to the contrary.</p> <p>4. The case should have been (should be) submitted to a jury.</p> <p>5. The opinion shows and works a usurpation of the reserved prerogative for and power of the jury.</p> <p>6. The rule should have been discharged, not made absolute; and judgment thereon should not have been entered against defendant.</p>

<p> Taxation—Beal estate—Personal property—Act of April 15, 1881¡., P. L. 509. </p> <p>Where a contracting company enters into a contract with a coal company to sink a coal shaft in land owned by the coal company and in which the contracting company has no estate or interest whatever, and in order to carry out the contract the contracting company installs boilers and an engine, a compresser, a steel tower and a dynamo which are all to be removed at the completion of the contract, such articles are personal property, not attached to the land, and therefore not taxable as land under the provisions of the Act of April 15, 1834, P. L. 509. Bemis v. Shipe, 26 Pa. Superior Ct. 42, explained and distinguished.</p>

<p>Appeals—Assignments of error—Rulings on evidence—Paper-books—■ Evidence.</p> <p>1. Assignments of error to the admission of evidence are insufficient if they do not set forth the rulings of the court to which the assignments refer.</p> <p>2. An appeal will be affirmed where the appellant fails to print in his paper-book essential parts of the record, making it impossible for the appellate court to pass upon the questions raised by the' assignments of error.</p>

<p>Appeal No. 15, March T., 1910, by plaintiff, from judgment of C. P. Luzerne Co., Oct. T., 1903, No. 731, on verdict for defendant in case of Harper W. Agnew v. Frank L. Stroud.</p> <p>Trespass to recover damages for the cutting of timber trees and the destruction of a fence. Before Ferris, 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 refusal of binding instructions and the instructions quoted in the opinion of the Superior Court.</p>

<p>Negligence — Joint liability—Bridge—City—Borough — Township—■ Contributory negligence—Act of April 16, 1870, P. L. 1199.</p> <p>1. In an action against a city, a borough and a township, in the county of Luzerne, as joint defendants, to recover damages for personal injuries resulting from a fall into a deep excavation made in reconstructing a county bridge at a point where the city, borough and township meet, there can be no joint judgment where the evidence shows that the accident happened at a point wholly within the limits of the borough, and that neither the city nor the township were guilty of any negligence in failing to erect barriers which would have prevented the accident.</p> <p>2. A municipality is under no obligation to erect a barrier across a sidewalk on the approach of a bridge under reconstruction, where the condition of things on the bridge make it plainly visible to every one that there was no footway open for the public.</p>

<p>Vendor and vendee—Title to growing crops—Lien of execution— Ejectment.</p> <p>1. Where a vendee under articles of sale of real estate goes into possession, pays a portion of the purchase money, plants crops, and thereafter a judgment is entered against him and an execution issues under which a levy is made upon the growing crops, such execution will maintain its priority of lien over a judgment in ejectment entered under an ejectment clause in the articles for nonpayment of an installment of the purchase money.</p> <p>2. When he who is in the lawful possession of land owns the growing crops, not the natural products of the soil but the annual fruits of industry and labor, those crops are personal property and may be seized and sold on execution, although in the absence of such constructive severance, they would pass with the realty in case of conveyance, unless reserved.</p>

<p> Fish 'law—Summary conviction—Appeals—Discretion of court—Review. </p> <p>1. The allowance of an appeal from a summary conviction before a justice of the peace of a violation of the fish laws is within the discretion of the quarter sessions; and a judgment of the quarter sessions refusing such an appeal will not be reversed by the Superior Court, except where it clearly appears that there has been an abuse of the discretion by the quarter sessions.</p> <p>2. The action of the court of quarter sessions in refusing to allow an appeal from a justice of the peace in such a case will not be reversed, where it appears that the averments of the petitioner for the appeal amounted to nothing more than an assertion that the opinion of the petitioner differed from the justice’s findings of fact and conclusions of law without any statement as to what the evidence was, or what the law should have been; and equally immaterial is an averment that in the opinion of the petitioner and from what he had heard from others, and from what the justice had afterwards said to him, he believed the magistrate was under coercion or duress.</p>

<p>Appeal, No. 8, March T., 1910, by plaintiff, from judgment of C. P. York Co., Oct. T., 1908, No. 28, on verdict for defendant in case of Jacob H. Sechrist v. Dallastown Borough.</p> <p>Appeal from an award of a jury of view. Refore Bittinger, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>At the trial the court gave binding instructions for defendant.</p> <p>Verdict and judgment for defendants Plaintiff appealed.</p> <p>Error assigned was in giving binding instructions for defendant.</p>

<p> Liquor laws—Distiller’s license—New license—Act of July 80, 1897, p. l. m- </p> <p>Where a distilling company is granted a license upon going into business, and during its first year of business distils a large quantity of whisky, and at the end of the first year is granted a new license, but during the second year, although it continues its business by selling its products theretofore made, distils no whisky, it will not, in taking out a license for the third year, be required to pay a license fee of $1,000, as a new applicant within the meaning of that term in the Act of July 30,1897, P. L. 464, but it will only be required to pay a fee of $100 as having distilled, as an old applicant, less than fifty barrels during the preceding year.</p>

<p>Appeal, No. 110, April T., 1910, by Harriet J. Williams, administratrix, from decree of O. C. Allegheny Co., Feb. T., 1908, awarding specific performance in estate of Andy Welsh, deceased.</p> <p>Petition for specific performance. Before Hawkins, 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>Justice of the peace—Amendment of name—Judgment—Transcript— Scire facias—Fieri facias—Execution.</p> <p>Where a judgment is entered against a defendant by a justice of the peace, and subsequently a scire facias is issued to amend the name of the defendant so as to bring in the real party, but the writ is not served upon the real party, and thereafter without any judgment having been entered on the scire facias against the real defendant, a transcript of the justice’s record is filed in the common pleas and a fieri facias is issued thereon, the defendant named as the real party is entitled to have the execution stayed inasmuch as there was no judgment against him on the scire facias.</p>

Appeal, No. 32, April T., 1910, by plaintiff, from judgment of C. P. Westmoreland Co., Feb. T., 1907, No. 570, for defendant non obstante veredicto in case of Joseph Smith, administrator of the estate of Amanda Vance, deceased, v. Charles Danielson’s Executors. Assumpsit to recover a charge on land. Before McConnell, J. The facts are stated in the opinion of the Superior Court.

<p>Appeal, No. 179, April T., 1910, by defendant from order of C. P. Indiana Co., March T., 1910, No. 175, granting writ of mandamus in case of H. H. Alms v. Indiana County.</p> <p>Petition for writ of mandamus. Before Telfoed, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was order granting the writ.</p>

<p>Appeal, No. 167, April T., 1910, by plaintiff, from judgment of C. P. Somerset Co., May Term, 1909, No. 398, on verdict for defendant in case of J. C. Lowry v. M. Letzelter.</p> <p>Sheriff’s interpleader to determine ownership of goods taken in execution. Before Kooser, P. J.</p> <p>At the trial the court admitted under objection and exception the appraisement made by the appraisers summoned by the sheriff. [1]</p> <p>The court charged in part as follows:</p> <p>[If you find that it was not a fair" sale, a bona fide sale, you would then return your verdict in favor of the defendant. But if you find the sale itself at its inception, October 13, was fair and bona fide, then come down to the later question and determine whether such possession was taken as is required by the law; and even if the sale was fair, if you find the possession taken was not such as the law requires, even then your verdict would be for the defendant.] [2]</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned were (1) rulings on evidence as above, quoting the bill of exceptions, and (2) portion of charge, quoting it.</p>

<p> Equity—Specific performance—Agents—Beal estate agents—Counsel fee and expense—Punitive damages. </p> <p>1. Where real estate agents secretly purchase real estate of their client, and take title in the name of a clerk in their employ for their own benefit, and the principal on the discovery of the transaction refuses to accept certain mortgages offered in partial payment of the purchase money because they were not of their face value, and the agents then offer to reconvey if the mortgages are returned, the client is justified in refusing the offer and may maintain a bill for specific performance, and therein recover reasonable compensation for counsel fee and expenses, if evidence to support such claim is offered; but the client in such a proceeding will not be entitled to recover punitive damages.</p> <p>Appeals—Assignments of error—More than one point—Printing testimony—Decree.</p> <p>2. Assignments of error which embrace more than one point will not be considered.</p> <p>3. Assignments of error in an equity case, which refer to questions of fact will not be considered where the appellant fails to print the testimony.</p> <p>4. An assignment of error to the refusal of the court to grant a motion for the taking of new evidence, and for an additional hearing in an equity case, will not be considered where the evidence is not printed.</p> <p>5. An assignment of error to the effect that the court “erred in striking from draft of final decree submitted under equity rule 84, the express saving of plaintiff’s right to bring an action of deceit at law,” will not be considered where it appears that the final decree as presented was not printed, and that that which was signed by the court and printed by the appellant as the final decree, showed no erasures or omissions.</p>

<p> Decedents’ estates—Real estate—Lien—Sale for expenses of administration. </p> <p>1. The orphans’ court has jurisdiction to decree the sale of the real estate of a decedent to pay the expenses of the administration of his estate, and such sale may be decreed after the expiration of the lien of the decedent’s debts.</p> <p>2. A sale of a decedent’s real estate for the payment of the expenses of administration will be sustained where the petition of the administrator avers generally that the personal estate was insufficient to pay debts and that a sale was necessary, and the records of the orphans’ court show that an account was filed by the administrator exhibiting a balance due from the estate to himself.</p>

<p>Appeal, No. 185, April T., 1910, by plaintiffs, from order of C. P. Beaver Co., Dec. T., 1909, No. 96, affirming judgment of justice of the peace in case of E. A. Durbin, Isaac Watson, Robert Cairnes, Lawrence Strohm, John Carven and Louie Finley v. Commonwealth ex rel. Frank Mason.</p> <p>Certiorari to judgment of justice of the peace. Before Holt, P. J.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was in sustaining the judgment of the justice of the peace.</p>

<p>Appeal, No. 196, April T., 1910, by plaintiff, from decree of C. P. Beaver Co., Sept. T., 1908, No. 13, dissolving preliminary injunction in case of John A. Miller v. Joseph H. Grandey.</p> <p>Motion to dissolve preliminary injunction. Before Holt, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was decree dissolving preliminary injunction.</p>

<p> Corporations—Stock—Increase of stock—Right to subscribe to new stock. </p> <p>1. When the capital stock of a corporation is increased by the issue of new shares, each holder of the original stock has a right to offer to subscribe for and demand from the corporation such a proportion of the new stock as the number of shares already owned by him bears to the whole number of shares before the increase.</p> <p>2. The persons entitled to participate in the distribution of the new stock are those who are stockholders at the time the stock actually goes out.</p> <p>3. The stockholder of a corporation authorized an increase of stock by the addition of 2,000 shares in 1892. All of the new stock was issued prior to 1901, except 172 shares. At the time the increase was authorized a resolution was passed providing the stock that day authorized and remaining undisposed of should issue thereafter upon such terms and in such manner as the board of directors might thereafter direct. In 1901, the directors of the company, who owned a controlling interest in the stock, entered into an arrangement among themselves by which they divided the 172 shares among themselves at par. No notice of their intention to do so was issued to the stockholders, and no stockholder other than themselves had knowledge of the transaction until the new shares had been issued and paid for. In the interval between 1892 and 1901 the stock had become three times as valuable, and five years after 1901, it was sold for four times the par value. One of the stockholders brought an action against the directors to recover his proportion of the profit derived by the directors from the sale of the stock to themselves. Held, that the plaintiff was entitled to recover.</p>

<p> Criminal law—Fornication and bastardy—Single conviction. </p> <p>The conviction of a man of fornication prevents a subsequent prosecution for bastardy growing out of the same illicit act of carnal intercourse.</p>

<p>Criminal law—Indictment—Embezzlement—Act of March SI, 1860, sec. 114, P• A. 882, 410.</p> <p>1. An indictment for embezzlement which charges the offense in the very words of sec. 114 of the Act of March 31, 1860, P. L. 382, 410, is good and sufficient.</p> <p>2. On the trial of an indictment for embezzlement against a real estate broker who was charged with retaining moneys of his principal realized from the sale of real estate, evidence as to later sales on which commissions were claimed by the defendant, is inadmissible where the issue is clearly defined as to the appropriation of the specific sum stated in the indictment, and the sales upon which the commissions were claimed were not made until after the appropriation aforesaid.</p>

<p> Criminal law—Sentence—Terms of court—Adjourned court—Schuylkill county. </p> <p>1. In Schuylkill county where a person has been convicted at a regular term of the criminal court, he may be sentenced at an adjourned court, and the day to which the court was adjourned is to be treated for that purpose as part of the term. A subsequent day before the beginning of the next regular term, to which the court is again regularly adjourned may, with equal propriety, be treated as part of the term for the purpose of reconsidering, altering, or revoking the sentence.</p> <p>2. Where a person is convicted by a jury before one of the three judges of the court, and he is subsequently sentenced by the three judges sitting together, and thereafter the trial judge makes an order suspending the sentence until the matter should be considered by his associates and himself acting together, and finally the other two judges make an order refusing to modify the original sentence, and directing that it should not be further suspended, such order is a proper and legal one and will be upheld by the Superior Court against the prisoner in habeas corpus proceedings brought by him in that court.</p>

<p> Ranks and banking—Certificate of deposit—“Current funds”—Negotiable paper. </p> <p>1. The holder of a certificate of deposit payable in “current funds/'. who is otherwise entitled to recover thereon, is entitled to judgment for the amount specified in the certificate, without proof of value.</p> <p>2. In an action upon a certificate of deposit, where the certificate shows an indorsement by the depositor and various other parties and the statement avers that the depositor had assigned and transferred the certificate and that similar assignments and transfers had been made by the other holders, until the instrument came into the hands of the plaintiff, and that suit was brought in the name of the depositor to the use of the intervening holders and the plaintiff, and the affidavit of defense does not deny the allegation of transfer and assignment, nor that the certificate when presented was indorsed, as required by its terms, the plaintiff will be held to be an assignee of such interest in the certificate as the depositor originally had.</p> <p>3. In an action on a certificate of deposit where it appears that the certificate by its terms was payable “in current funds on return of this certificate properly indorsed,” on a day stated, a mere averment in an affidavit of defense to the effect that before maturity the depositor had stopped payment of the certificate, is insufficient to prevent judgment; nor is an averment of the affidavit sufficient which states that the defendant had no current funds belonging to the depositor or any of the subsequent holders at the time of the maturity of the certificate, and that the defendant had received no notice of the assignment prior to the maturity of the certificate.</p>

<p> Negligence—Contractors—Party walls—Evidence—Act of May 5, 1899, sec. 24, P. L. 198. </p> <p>1. In an action of trespass against a contractor to recover damages for cracks in walls, bulging plaster, staining of wall, and water in cellar, alleged to have been caused by the defendant in erecting a dwelling house on an adjoining lot, the burden is upon the plaintiff to show that the defendant or his workmen were negligent in the performance of their work, and if there is no evidence to connect the defendant or his workmen with the particular injuries alleged, it is proper to withdraw the case from the jury.</p> <p>2. Section 24 of the Act of May 5, 1899, P. L. 193, regulating the construction of buildings and party walls in cities of the first class, applies to owners, and not to contractors.</p>

<p>Municipalities—School district—City of Philadelphia—Trespass— Appropriation of strip of land.</p> <p>1. No action will lie against the city of Philadelphia for entering upon a strip of ground belonging to a citizen and in his quiet possession, and erecting thereon a public school building. In such a case the action, if any, lies against the board of public education.</p> <p>2. The city of Philadelphia takes title to all real property designed for school purposes, but it holds such title only as a dry trustee. This doctrine is recognized by the legislation on this subject, and particularly by the Act of April 22,1905, P. L. 267.</p>

Appeal, No. 44, April T., 1911, by plaintiff, from order of Q. S. Cambria Co., Dec. T., 1909, No. 148, sustaining motion in arrest of judgment in case of Commonwealth v. May Weible. Indictment for abortion.

<p>Appeal, No. 91, Oct. T., 1910, by T. J. Cummings, from judgment of Q. S. Schuylkill Co., Sept. T., 1910, No. 1,199, on verdict of guilty in case of Commonwealth v. T. J. Cummings.</p> <p>Indictment for making of false election return. Before Brumm, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned among others was in refusing to withdraw a juror called.</p>

<p> Railroads—Passengers—Parcel check—Limitation of liability—Loss of baggage—Negligence—Contract. </p> <p>1. Where a person having a railroad ticket takes a dress suit case, and a hatbox to the parcel room of the railroad station, and after paying ten cents for each parcel receives therefor two parcel checks on which there is printed in small letters a limitation of liability of thfe company to the amount of $10.00 for each parcel, and no notice is given to him by the attendant of the limitation of liability, and no opportunity is given to him to read the writing on the check before he pays his money, and no questions are asked of him as to the value or character of the articles contained in the packages, the passenger will not be bound by the limitation, and if the parcels are lost by the negligence of the company, he may recover their full value.</p> <p>2. Where a passenger receives from the carrier a paper which, from the circumstances of the transaction, he has a right to regard merely as a voucher or receipt to enable him to follow and identify his baggage, and no notice is given to him that it embodies the terms of a special contract, or is intended to subserve any other purpose than that of a voucher, his omission to read it is not per se negligence, and he is not, as a matter of law, bound by its terms. And the question whether in a given case, the passenger accepted it with notice of its contents, or with notice that it contained a special contract, so as to acquaint himself with its contents, is one of evidence for the jury. An attempt by words on such a check to limit the carrier’s liability for loss of baggage will be -wholly unavailing unless the carrier shows that the passenger, with knowledge of such limitations, agreed that it might be made, and that such was the understanding of the parties.</p>

<p>Appeal, No. 46, Oct. T., 1910, by defendant, from order of C. P. No. 1, Phila. Co., June Term, 1909, No. 645, making absolute rule for judgment and discharging rule to open a judgment, etc., in case of Henry Steiner et al., trading as William Steiner Sons & Company, v. C. S. Turner, trading as C. S. Turner & Company.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>Rule to strike off judgment and to permit defendant to file a supplemental affidavit of defense.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was in making absolute rule for judgment and in discharging rule to open judgment, etc.</p>

<p>Appeal, No. 53, Oct. T., 1910, by Mary A. McCracken et al., from order of C. P. No. 3, Phila. Co., Sept. T., 1908, No. 2,605, in the matter of David McCracken, an alleged lunatic.</p> <p>Inquisition in lunacy.</p> <p>Error assigned was the action of the court on the exceptions.</p>

<p>Appeal, No. 58, Oct. T., 1910, by defendant, from judgment of C. P. No. 2, Phila. Co., Sept. T., 1907, No. 3,348, on verdict for plaintiff in case of Meier Reiniseh and M. Stangart, trading as Meier Reiniseh & Company v. Consolidated National Bank.</p> <p>Trespass against a bank for dishonoring checks. Before Sulzberger, P. J.</p> <p>Verdict and judgment for plaintiff for $100. Defendant appealed.</p> <p>Errors assigned were (1,2) answers to points quoted in the opinion of the Superior Court and refusal of motion for judgment n. o. v.</p>

<p>Appeal, No. 66, Oct. T., 1910, by defendant, from order of C. P. No. 1, Phila. Co., Dec. Term, 1909, No. 2,426, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Brush Hat Manufacturing Company, Incorporated, v. Simon Abeles, trading as S. Abeles & Co.</p> <p>Assumpsit to recover the sum of $2,318.18 for goods sold and delivered.</p> <p>The affidavit of defense contained the following averment :</p> <p>After the writ was issued in this case, to wit, on or about January 7, 1910, the plaintiff offered to accept from the defendant in full satisfaction and accord for the amount claimed in this suit, with interest and costs, the sum of $2,012.82 in order to save further delay and trouble of proceeding with this suit. The defendant accepted the said offer of plaintiff and therefore, to wit, on January 11, 1910, paid to the said plaintiff, Brush Hat Manufacturing Company, Inc., the said sum of $2,012.82 and the same was accepted by said plaintiff in full satisfaction and accord for the amount claimed, with interest and costs aforesaid.</p> <p>The court made absolute rule for judgment for want of a sufficient affidavit of defense.</p> <p>Error assigned was the order of the court making absolute rule for judgment for want of a sufficient affidavit of defense.</p>

<p> Railroads—Carriers—Demurrage—Lien. </p> <p>Where a seller ships the first of several deliveries of iron, and subsequently the railroad company notifies him that the purchaser will not accept the iron, and thereafter he ships other deliveries, consigning them to his own order, although the purchaser continues the embargo, and the cars remain unloaded on the tracks of the railroad, the seller will be liable to the railroad company for demurrage; and if after the embargo is raised, the railroad company refuses to release the cars until the demurrage is paid, the seller will be liable for demurrage from the time the embargo was raised until the time when he finally paid the original demurrage, if the bill of . lading provides for a lien for demurrage.</p>

<p> Contract—Time for performance—Waiver—Notice—Question for jury. </p> <p>Whore the time fixed by a contract within which the agreement is to be carried out is permitted to pass, both parties concurring, the time of performance thereafter becomes indefinite, and one party cannot rescind until full notice and a reasonable time for performance is given; what is a reasonable time is a question for the jury.</p>

<p> Divorce—Cruel and barbarous treatment—Condonation. </p> <p>1. Where a husband has subjected his wife to a long continued course of illtreatment amounting to indignities to the person, rendering her condition intolerable and her life burdensome, she will not be deprived of her right to divorce, merely because she condoned his illtreatment of her by resuming marital relations with him for a time until he again began to illtreat her; nor will her right to divorce be defeated because she was not actually forced to withdraw from his house and family, inasmuch as he had deserted her.</p> <p>2. Where a wife is forced by the cruel and barbarous treatment of her husband to withdraw from the rooms they occupied, and to live in another part of the same house, she has been forced “to withdraw from his house and family,” within the true intent and'meaning of the act.</p>

<p>Appeal, No. 228, Oct. T., 1910, by defendant, from judgment of C. P. Clearfield Co., Dec. Term, 1908, No. 325, on verdict for plaintiff in case of Lee Stiteler v. George Ditzenberger. ’</p> <p>Assumpsit for labor and material.</p> <p>Holt, P. J., specially presiding, charged in part as follows:</p> <p>Lee Stiteler has brought this action against George Ditzenberger for the purpose of recovering a balance of a claim, which the plaintiff avers is due to him from the defendant, amounting to $594.05, with interest thereon from August 18, 1908. As.the basis of his right of action in this case he has offered testimony for your consideration to the effect that in the latter part of the year 1907, along about December 23, the defendant holding himself out as the representative or agent of the owners of a certain property in which the defendant was keeping a hotel, by the name Scheutz, Renziehousen & Company, employed him to do the work of papering, painting and otherwise modifying the interior of the hotel in which the defendant was living at that time and which he held as a tenant from the owners of the building. You have heard the testimony of the plaintiff as to the nature and character of that work, gentlemen, and he has testified that the total amount of his bill, including $10.00 worth of varnish which the defendant purchased from him, amounted to $1,216.18, and that he had been paid on account thereof the sum of $622.13, leaving this balance of $594.05.</p> <p>It seems, gentlemen of the jury, that the owners of the hotel property, prior to the time of this engagement of the plaintiff by the defendant as agent for the property owners, had received a bid for the doing of this work from a person by the name of Romulus Stiteler and the bid amounted to $622.13. It is in evidence that upon the receipt of this bid of Romulus Stiteler the owners of the hotel property wrote a letter to the defendant in this case, inclosing with the letter this bid of Romulus Stiteler, authorizing the defendant in this case as their representative to close up the contract for this work in the hotel for the price of $622.30, authorizing him of course to make the contract with Romulus Stiteler. But it seems that the defendant by a mistake—and I think you will find that there is no contradictory evidence on that point—entered into a contract with the plaintiff, Lee Stiteler, not exhibiting to him the specifications and bid that had been received by him from his principals, the owners of the hotel; making a contract in general terms with the plaintiff for the doing of this work, not specifying any amount, as I remember the testimony.</p> <p>But later or before the transaction was closed up between Lee Stiteler and the defendant, or during the negotiations, the evidence is undisputed in this case that he asked Lee Stiteler, the plaintiff, if he had a bid in for this work and that he informed him that he had. Now just what that bid was I believe we do not know, gentlemen.</p> <p>There is testimony here on the part of Lee Stiteler that he had given a bid or an estimate to the person by the name of Chambers, an estimate or a bid for which this work would be done, but the plaintiff denies that he gave the owners of the property any bid for the doing of this work. So that, gentlemen of the jury, when Lee Stiteler, the plaintiff, and the defendant met at the hotel for the purpose of closing up the transaction, I do not recall that there is any testimony in the case that they there discussed any specific terms what the contract price would be or when the work was to be done, or that plaintiff was to receive so much as the same might be worth. But it seems that the defendant notified the plaintiff that he had received word from the owners of the hotel property to let him, Lee Stiteler, have the contract, and the defendant says that Lee Stiteler said that he had a bid in for the work. So, gentlemen, it is apparent that there was a mistake made in this case. It is admitted that the defendant did receive this bid for $622.13 and the letter accompanying the same, authorizing him to employ a person by the name of Stiteler to do that work. Now the bid discloses the name of Romulus Stiteler and the letter written by Scheutz, Renziehousen & Company also contains the name of the person who had submitted the bid.</p> <p>[Now we say, gentlemen of the jury, that if the defendant in this case, with the written authority from his principals and the bid in his possession, made an error and authorized work to be done that his principals did not authorize him to do, and the plaintiff did not have knowledge of the want of authority, then the plaintiff would have a right to recover from the defendant in this case the price and value of the work which he did that was not authorized by the owners of the building. Now it is for you, gentlemen, to determine what amount of work did the plaintiff perform on the strength of this employment of him by the defendant. You will find in this case that the defendant represented to the plaintiff that he was acting for the owners of the building, Scheutz, Renziehousen & Company. But, gentlemen of the jury, it is the law that even if one does make the statement or representation to one with whom he deals that he is acting in the transaction as an agent of another, that he is only excused from personal liability when he carries out in his contract that which he is authorized to do. If he exceeds the authority that authorizes something else or something in addition to be done, he thereupon becomes personally liable and the person doing the work may elect to treat him as principal so far as the work or that part of it that was not authorized was concerned.] [1]</p> <p>Now, gentlemen of the jury, you will under this evidence in the case determine work in addition to that which was authorized, how much in addition to this bid of $622.13 did this plaintiff perform at the instance and request of this defendant. You have the testimony of the witnesses as to the amount of work done wherein it exceeded that which was specified in this bid, in relation to which the owners of the property authorized the defendant to contract. Now if you find that the plaintiff performed work at the instance and request of this defendant over and above that amount, then determine the fair and reasonable value thereof. You have the testimony of the plaintiff as to the full amount of the work, he has testified that it all aggregated $1,216.18. Now do you find under the evidence, gentlemen of the jury, that he is correct in that, and if you do, then there would be the balance of $594.05 of the bill unpaid.</p> <p>Verdict and judgment for plaintiff for $500. Defendant appealed.</p> <p>Errors assigned were (1) portions of charge as above, quoting it, and (2) in not directing a verdict for defendant.</p>

<p>Appeal, No. 81, Oct. T., 1910, by plaintiff, from judgment of C. P. No. 1, Phila. Co., March T., 1909, No. 3,196, for defendants on demurrer to statement of claim in case of DeWitt Wire Cloth Company v. John R. Griffith and Samuel F. Wilson, now or late trading as Shields & Brother.</p> <p>Assumpsit for goods sold and delivered.</p> <p>The statement of claim averred that the plaintiff was a corporation of the state of New York registered in the state of Pennsylvania, with a store and sales room in the city of Philadelphia. It further averred that on February 11, 1908, the defendants gave the plaintiff written orders for certain hardware to be shipped to their agent "John O’Donnell, Atlantic City, N. J.,via. ReadingR. R.” The statement further averred as follows:</p> <p>And the plaintiff avers that, excepting one roll of thirty-eight inch wire cloth for which the order was subsequently canceled, all of the said goods were shipped by the plaintiff from its factory at Bellville, N. J., via the Pennsylvania Railroad, to the said John O’Donnell at Atlantic City, aforesaid, where the said goods arrived on March 28,1908, of which fact the defendants, through their said agent John O’Donnell, the consignee, then and there had notice. And shortly thereafter, to wit, on or about March 30, 1908, the said John O’Donnell called at the plaintiff’s place of business in Philadelphia, stated that he had notice of arrival of said goods, and requested the plaintiff to procure for the defendants a bill of lading signed by the agent of said railroad company, so that, by indorsing and delivering it to the defendants’ customer for whom the said goods had been ordered, their said customer might be able to get the said goods at the railroad depot. In accordance with said request the plaintiff thereupon procured said bill of lading, and on April 2, 1908, delivered the same to the defendants at their store in Philadelphia; and shortly thereafter they, the defendants, turned over the said, bill of lading to their said customer, viz.: The Chelsea Hardware Company of Atlantic City, and directed them to get the said goods at the said railroad depot, and thereupon they, the said defendants, sent their said customer their bill for the price of said goods.</p> <p>And the plaintiff avers that the defendants, by virtue-of the facts aforesaid, accepted the goods so delivered by the plaintiff.</p> <p>Immediately following the shipment of the said goods to the defendants, to wit, on March 25, 1908, the plaintiff sent them an invoice or bill for the larger part of said goods, and a few days later, to wit, on April 6, 1908, the invoice for the balance thereof; and the defendants then and there admitted to the plaintiff the receipt of said goods, delivered as aforesaid, and made no objection to the plaintiff’s bill therefor. A true copy of the plaintiff’s book of original entries of the goods, so sold and delivered to the ■ defendants, is hereto attached and marked Exhibit “B.”</p> <p>The defendants demurred to the statement. The court entered judgment for defendants on the demurrer.</p> <p>Error assigned was in entering judgment for defendants on the demurrer.</p>

<p>Appeal, No. 84, Oct. T., 1910, by defendant, from judgment of C. P. No. 1, Phila. Co., Sept. T., 1907, No. 2,172, ,on verdict for plaintiff in case of C. P. Peters, trading as C. P. Peters & Son, v. Margaretta Holmes, executrix of the estate of Sophie M. Holmes, deceased.</p> <p>Assumpsit for commissions.</p> <p>Kinsey, J., charged as follows:</p> <p>If a broker brings the seller and buyer together in a real estate transaction such as this, he is entitled to his commission—I mean, bringing them together whereby a sale is consummated. The question for you to determine is, Did the efforts of the plaintiff here bring about that result with Mrs. Holmes? If they did, he is entitled to his commission; if not, he is not so entitled. [What are the facts? Plaintiff puts up a sign, Mr. Price says he saw the sign, which was the first notice he had that the property was for sale. Then he made inquiry of Mr. Peters, had negotiation and conversation with them as to the price, and so forth, the usual incidents that take place when there is a negotiation of that kind going on. This lasts for awhile until finally Mr. Price visits Mrs. Holmes, the owner of the property, they negotiate, a deed is made to Mr. Price and the broker Peters is discarded.] [2]</p> <p>In bringing about those relationships the law does not contemplate that this shall go on forever, but it does say that if whatever has been done by a broker is an efficient and near by cause, that results in the purchase, he is entitled to a commission. t.</p> <p>[Did Mr. Peters start the train of incidents that orig-^ inally led] up to the taking of the title by Mr. Price? If the sale was the consummation of the events beginning with the sign “For sale” on the property, and the eventual purchase by Mr. Price, I say, if Mr. Peters was the acting cause in producing that series of events, that chain of incidents that led from the very inception up to its conclusion in the purchase, he is entitled to his commission. If he did not so do, your verdict will be the other way.] [3]</p> <p>I am asked to charge on some points by the defendant.</p> <p>2. A broker’s employment may be terminated at any time.</p> <p>That is true, it does not endure forever, but nevertheless it endures for the time the negotiation is going on, unless there is some incident so sharply defined as to separate entirely and disconnect the relationship. The owner of the property cannot go to the broker and say, “You are discharged unless you get Mr. Price now to come and agree to this matter, or you have got to get a customer now;” you cannot keep the broker out of commission by saying, “We will relieve you by selling it ourselves.” That is not what is meant by this. It can be terminated, but it has to be terminated in the natural order of things, and not if there is a purposeful intention back of it. [4]</p> <p>The last point I will refuse and will not read.</p> <p>The last point refused and not read by the court is, under all the evidence, your verdict must be for the defendant.</p> <p>[Mr. Kaufman: I will ask the court to charge the jury as to the weight to be given to the plaintiff’s own witness, Mr. Price, when he testifies that Mr. Peters had nothing to do with consummating the contract.</p> <p>The Court: Yes, they will take Mr. Price’s statement with what preceded it. Mr. Price cannot dispose of Mr. Peters’ right to commission by mere mood of mind or by temptation to get the property at a lower price. That cannot affect the rights of this man in the least if such he has.] [6]</p> <p>Mr. Kaufman: I will ask for an exception to the refusal of the last point and to the qualification of the first point: also the remarks as to the weight of the testimony of Mr. Price.</p> <p>Exceptions allowed.</p> <p>[Counsel for plaintiff being about to hand to the jury a calculation in which is calculated one per cent on $13,800, being the total consideration money and interest, Mr. Robinson objects to that calculation going to the jury on the ground that the plaintiff is only entitled to a commission on $11,800, and not $13,800, as there is an existing mortgage of $2,000. The court states that the plaintiff, if entitled to a verdict, is entitled to commissions on the whole amount.]</p> <p>Exception for defendant. [7]</p> <p>Verdict and judgment for plaintiff for $409.94. Defendant appealed.</p> <p>Errors assigned were (2, 3, 4, 6, 7) above instructions, quoting them.</p>

<p>Banks and banking—Checks—Forgery—Raised check—Collection—■ Negligence.</p> <p>1. Where a customer of a bank takes to the bank a foreign check with a good signature, but fraudulently raised in amount, to ascertain whether the check would be paid, and the customer at the request of the teller indorses the check, and the teller makes out a deposit slip, and credits the amount of the check to the customer’s account, and thereafter the bank uses due diligence in ascertaining that the check had been paid, and notifying the customer thereof, the bank after the fraud had been detected, and after it had been compelled to pay back the money to the drawee, may recover the amount thus paid from the customer who presented the check.</p> <p>2. In such a case if there is no evidence of negligence on the part of the bank, and there is no conflict of testimony as to any of the material facts, it is not error to refuse to submit the case to the jury.</p> <p> Appeals—Assignments of error—Judgment n. o. v. </p> <p>3. An assignment of error in the following form is insufficient: “The learned trial judge erred in entering judgment for the plaintiff non obstante veredicto.”’ The motion for judgment, the order of the court thereon and the exception should be printed in connection with the assignment, and reference should be made to the page of the paper-book where the same might be found.</p>

<p>Appeal, No. 23, March T., 1910, by plaintiff, from judgment of C. P. Snyder Co., Oct. T., 1907, No. 59, for defendant non obstante veredicto in case of Ida Shambach v. Middlecreek Electric Company.</p> <p>Trespass to recover damages for death of plaintiff’s husband. Before McClure, P. J.</p> <p>The case turned on the question whether the widow had the right to settle the suit.</p> <p>At the trial the jury returned a verdict for plaintiff for $1,320.80.</p> <p>Error assigned was in entering judgment for defendant non obstante veredicto.</p>

<p> Insurance—Life insurance—Incontestability clause—Statement as to age—Act of June 88,1885, P. L. 184- </p> <p>1. A provision in a policy of life insurance that if the policy shall have been in continuous force for three years it shall be incontestable except for nonpayment of premiums, is a reasonable and proper provision, and is not against public policy.</p> <p>2. Where such a policy contains a table of insurance showing the amount payable in the event of death during any policy year specified, and there is a covenant to pay the sum of money “mentioned in, and in accordance with the table of insurance,” and there is also a clause providing that the policy shall be construed according to the laws of Pennsylvania, the insurance company cannot contest in the fourth policy year the payment of the policy on the ground of misstatement of age in the application. In such a case the company will be required to pay the amount mentioned in the table of insurance, and is not entitled to the benefit of sec. 2 of the Act of June 23, 1885, P. L. 134, which provides that, “Whenever it shall be made to appear that a wrong age has been given in good faith in any application for a policy of life insurance, the company shall not be required to pay the face value of the policy, but such sum as the premium paid would have purchased at the applicant’s real age at the time of effecting the insurance.”</p>

Appeal, No. 118, Oct. T., 1910, by defendant, from judgment of C. P. No. 1, Phila. Co., Sept. T., 1905, No. 3,856, on verdict for plaintiff in case of John E. Burt v. North Philadelphia Trust Company. Trespass to recover damages for dishonoring a check. Before Brégy, J. At the trial the jury returned a verdict for plaintiff for $483.50. Subsequently the court entered judgment on the verdict dismissing defendant’s motion for judgment non obstante veredicto.

Appeal, No. 121, Oct. T., 1910, by defendant, from decree of C. P. Wyoming Co., Equity Book 3, p. 301, on bill in equity in case of Ann Henwood Yetter v. Alfred E. Yetter. Bill in equity to compel a husband to support his wife. Before Terry, P. J. The facts are stated in the opinion of the Superior Court. The court entered a decree directing the defendant to pay $400, and thereafter the sum of $50.00 per month. Error assigned was the decree of the court.

<p> Husband, and wife—Desertion—Order for support—Appeals—Certiorari. </p> <p>An appeal from an order of the court of quarter sessions requiring a husband to pay a weekly sum for the support of his wife is in the nature of a common-law certiorari, and on it the appellate court can only determine whether or not the record and proceedings are regular in form. On such an appeal the evidence given on the hearing, although printed in the paper-book, cannot be resorted to to determine questions of fact, nor can the facts recited in the opinion of the lower court be examined or looked into.</p>

Appeal, No. 119, Oct. T., 1910, from judgment of C. P. No. 4, Phila. Co., June T., 1909, No. 2,820, sustaining demurrer to statement of claim in case of Louis Korson et al., trading as Philadelphia Film Exchange, v. James H. Nixon, and George B. Wilson, landlord. Replevin for goods seized under a distress warrant. Demurrer to statement of claim.

<p>Appeal, No. 133, Oct. T., 1910, by defendant, from judgment of C. P. No. 2, Phila. Co., Sept. T., 1900, No. 257, on verdict for plaintiff in case of Richard S. Henry, Jr., by his next friend and father, Richard S. Henry, v. John Wanamaker.</p> <p>Trespass to recover damages for personal injuries. Before WlLTBANK, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $1,000. Defendant appealed.</p> <p>Errors assigned were (1) refusal to admit in evidence the contract between the defendant and Owen Grinnan; (2) refusal to admit in evidence the paper termed a "lease” between defendant and the American Bill Posting Company; (5) refusal of binding instructions for defendant, and (6) refusal to enter judgment for defendant non obstante veredicto.</p>

<p> Interest—Usury—Promissory note—Bonus for ban. </p> <p>1. In an action on a promissory note given for a loan, where it appears from the body of the note and from the evidence that the borrower gave to the lender four atlases as a bonus for the loan, the borrower is entitled to show the money value of the atlases, and deduct such amount from the interest for which he was lawfully bound.</p> <p>2. In an action on a promissory note by a payee against the maker, where the defendant seeks to set off the value of certain work done for the plaintiff, and the plaintiff alleges that the work was done gratuitously, the defendant is not concluded by the fact that he had kept no book account showing the exact times when the services were rendered, and had sent no bills for them, and had not given notice that he was expecting to be paid for the services. Such facts, however, should be submitted to the jury with proper instructions as to their bearing upon the issue.</p>

<p>Assignments—Unliquidated, damages in tort—Equitable plaintiffs— Costs—Appeals—Paper-books—Evidence.</p> <p>1. Unliquidated damages in tort are not capable of assignment before verdict.</p> <p>2. Where the plaintiff in an action of trespass to recover damages for personal injuries assigns a portion of the claim for unliquidated damages before verdict, and thereafter a verdict and judgment in his favor are reversed by the Supreme Court, the court has no power to make the assignees equitable plaintiffs at the instance of the defendant, for the purpose of enabling the defendant to proceed against the assignees for the costs of the suit.</p> <p>3. In such a case an appeal from an order making absolute a rule to make the assignees equitable plaintiffs will not be quashed because the appellants have failed to print the evidence taken at the trial. The rule applicable to such a case is rule 26, which provides that the evidence shall be printed “if necessary.” The evidence taken at the trial was not necessary to determine the question involved in the appeal.</p>

<p>Appeal, No. 180, Oct. T., 1910, by defendants, from judgment of C. P. No. 4, Phila. Co., Dec. T., 1909, No. 1,540, M. L. D. on case stated in suit of City of Philadelphia v. The Rector, Churchwardens and Vestrymen of St. Elizabeth’s Church of Philadelphia, owner.</p> <p>Case stated to determine whether a clergy house was exempt from taxation.</p> <p>The facts are stated in the opinion of the Superior Court. The court in an opinion by Carr, J., entered judgment for plaintiff on the case stated.</p> <p>Error assigned was the judgment of the court.</p>

<p>Appeal, No. 170, Oct. T., 1910, by defendant, from judgment of C. P. No. 4, Phila. Co., Dec. T., 1908, No. 843, on verdict for plaintiff in case of Eliza McCaughey v. American Ice Company.</p> <p>Trespass to recover damages for personal injuries. Before Carr, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict for Eliza McCaughey for $2,000 and for Hugh D. McCaughey for $1,000. Subsequently judgment was entered on the verdicts for $1,400 and $600, respectively, all above those amounts having been remitted. Defendant appealed.</p> <p>Error assigned among others was in refusing binding instructions for defendant.</p>

Appeal, No. 155, Oct. T., 1910, by defendants, from order of C. P. No. 3, Phila. Co., March T., 1910, No. 1,541, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Woodoleum Flooring Company v. Samuel Kayser et al., Copartners, trading as Kayser & Allman. Assumpsit for work and material furnished. The opinion of the Superior Court states the case.

<p>Appeal, No. 26, Oct.. T., 1906, by plaintiff, from judgment of C. P. Lancaster Co., Dec. Term, 1908, No. 70, for defendant non obstante veredicto in case of Grace Lehman v. Lancaster County Mutual Insurance Company.</p> <p>Assumpsit on a policy of fire insurance. Before Landis, P. J.</p> <p>The opinion of the Superior Court states the case.</p> <p>At the trial the jury returned a verdict for plaintiff for $216.22. Subsequently the court entered judgment for defendant non obstante veredicto.</p> <p>Error assigned was in entering judgment for defendant n. o. v.</p>

<p>' Negligence—Telephone companies—Master and servant—Lineman— Safety belt—Contributory negligence—Question for jury.</p> <p>In an action against a telephone company by one of its linemen, to recover damages for personal injuries, the question of the plaintiff's contributory negligence is for the jury where the evidence shows that the plaintiff, when he was about through with his work on a pole unloosed his safety belt from the pole just as the foreman on the ground below gave an order to other employees to pull the pole, and that in obeying the order a slip occurred by which the pole flew back and threw the plaintiff from the hold, which he had with his spurs, to the ground; and this conclusion is further strengthened by the fact that there was other evidence in the case to the effect that even if the plaintiff had had his belt hooked to the pole, he would have been thrown violently against the pole and injured.</p>

<p>Appeal, No. 122, Oct. T., 1910, by plaintiff, from order of C. P. Lancaster Co., Aug. T., 1907, No. 5, refusing to táke'off nonsuit in case of Z. W. Keller v. The Pennsylvania Railroad Company.</p> <p>Assumpsit against a carrier to recover damages for injuries to goods. Before Landis, P. J.</p> <p>At the trial the court entered a compulsory nonsuit which it subsequently refused to take off.</p> <p>Error assigned was refusal to take off nonsuit.</p>

<p>Appeal, No. 211, Oct. T., 1910, by plaintiff, from judgment of C. P. Lancaster Co., Sept. Term, 1909, No. 24, for defendants non obstante veredicto in case of David H. Beyer v. Henry S. Keylor, surviving husband, and Nannie Keylor and Frank S. Keylor, children and heirs and terre-tenants of Martha E. Keylor, deceased.</p> <p>Scire facias sur judgment. Before Landis, P. J.</p> <p>From the record it appeared that on June 12, 1905, Martha E. Keylor commenced an action of trespass against David H. Beyer, to August Term, 1905, No. 2, and on December 15, 1906, while it was still pending, she died intestate, leaving to survive her a husband, Henry S. Keylor, and two children, Nannie Keylor and Frank S. Keylor, as her heirs at law. On January 21, 1907, her death was suggested upon the record of the above suit, and Henry S. Keylor, as her administrator, was substituted as plaintiff. On December 7, 1907, the case came on for trial, and a verdict was rendered by a jury in favor of the defendant. On January 22, 1908, the jury fee was paid, and judgment was entered upon the verdict. Rules for the taxation of costs were subsequently entered, and these were finally disposed of on March 27, 1909. The amount of costs taxed in the suit in favor of the defendant was $116.79. The decedent left no personal property, and, in order to charge the land of Martha S. Keylor in the hands of her heirs, a scire facias was issued on the original judgment on August 19, 1909, to September Term, 1909.</p> <p>The court gave binding instructions for plaintiff and the jury returned a verdict for plaintiff for $116.79. Subsequently the court entered judgment for defendant non obstante veredicto.</p> <p>Error assigned was in entering judgment for defendant n. o. v.</p>

<p>Appeal, No. 134, Oct. T., 1910, by plaintiffs, from order of C. P. No. 1, Pbila. Co., Dec. Term, 1908, No. 1,437, refusing to take off nonsuit in case of Prank Samuel and Silas M. Tomlinson, trading as-Frank Samuel, v. Pennsylvania Railroad Company.</p> <p>Assumpsit for breach of contract to carry a car load of steel scrap. Before Brégy, P. J..</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Errors assigned were (1, 2) rulings on evidence referred to in the opinion of the Superior Court.</p>

<p>Appeal, No. 518, Oct. T., 1910, by defendant, from order of C. P. Phila, Go., March T., 1910, No. 3,219, making absolute rule for judgment for want of a sufficient affidavit of defense in case of A. C. Denahan & Company, Incorporated, v. Holmesburg Granite Company.</p> <p>Assumpsit for work done.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>Error assigned was order making absolute rule for judgment for want of a sufficient affidavit of defense.</p>

<p>Appeal, No. 159, Oct. T., 1910, by defendant, from judgment of C. P. No. 4, Phila. Co., Sept. T., 1906, No. 3,477, on verdict for plaintiff in case of Alfred P. Ford and Matilda F. Ford, his wife, v. City of Philadelphia.</p> <p>Trespass to recover damages for personal injuries. Before Audenried, J.</p> <p>The circumstances of the accident are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for Alfred P. Ford for $150 and for Matilda F. Ford for $350. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for defendant.</p>

<p>Beneficial associations — Beneficiaries—Wife —Gift of certificate — Change of beneficiary.</p> <p>1. Where the by-laws of a beneficial association give to a member an unqualified right to change the name of a beneficiary, the wife of a member who had originally been named beneficiary, and to whom the member gave his membership certificate as a gift, cannot claim the death benefits as against the stepmother of the member, whose name had been substituted as beneficiary, where at the time the membership certificate was given to the wife, no consideration had passed from her to him, and where there was no contractual relation between him and her, nor between her and the relief department.</p> <p>2. Where, in such a case, the trial judge submits to the jury the question whether there had been in fact a gift to the wife, and the jury decides that question adversely to the wife, the jury cannot recommend that the benefit be equally divided between the wife and the stepmother.</p> <p>3. Where on an interpleader to determine whether the wife of a member of a beneficial association who had been originally named as beneficiary, and the member’s stepmother, whose name had been subsequently substituted as beneficiary, was entitled to the benefits, the wife avers that substitution had been procured through the member’s mental incompetency and through undue influence exercised upon him, and there is no evidence whatever to support these claims, the trial judge cannot be convicted of error in refusing to submit them to the jury.</p> <p> Evidence—Testimony of plaintiff—Uncontradicted testimony—Province of court and jury. </p> <p>4. In an action of assumpsit the fact that the only testimony in support of plaintiff’s claim is his own testimony and that this is uncontradicted, will not justify the trial judge in taking the'ease away from the jury. In such a case it is for the jury to estimate the value of the evidence of the witness, and determine its credibility.</p>

<p>Appeal, No. 132, Oct. T., 1910, by defendant, from judgment of C. P. Blair Co., March Term, 1910, No. 356, on verdict for plaintiff in case of Margaret Tozer v. Altoona & Logan Valley Electric Railway Company.</p> <p>Trespass to recover damages for death of plaintiff’s son. Before Baldridge, P. J.</p> <p>The facts relating to the accident are set forth in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $802.86. Defendant appealed.</p> <p>Errors assigned were various rulings and instructions.</p>

<p>Appeal, No. 43, Oct. T., 1910, by defendant, from judgment of C. P. McKean Co., Dec. Term, 1908, No. 18, on verdict for plaintiff in case of George W. Snow v. Western New York & Pennsylvania Traction Company.</p> <p>Trespass to recover damages for personal injuries.</p> <p>At the trial it appeared that plaintiff was injured on June 10, 1907, while engaged in driving a large carriage over a bridge which crossed Kendall creek in East Bradford.</p> <p>The facts relating to the accident are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $450. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for defendant.</p>

<p> Appeals—Harmless error—Evidence—Admission of testimony previously excluded. </p> <p>1. A judgment will not be reversed for the exclusion of testimony, where the appellant both before and after the ruling was permitted to give substantially the evidence covered by the rejected offer.</p> <p> Landlord and tenant—Covenants for repairs—Heating plant—Evidence —Papering—Profits—Speculative damages. </p> <p>2. Where a landlord has covenanted to pay for repairs to furnace and heating plant, the tenant, in an action for rent, may show as a defense that the furnace broke completely down in the winter; that the landlord upon being notified, promised to make the necessary repairs, but failed to make them; and that in consequence the building was without heat for one month in very cold weather, except for oil and gas stoves put in by the tenant, which were inadequate.</p> <p>3. Where a landlord agrees to “ do what papering is necessary,” in a large building used as a school, which contained many more rooms than were needed for the accommodation of the pupils in attendance, the landlord will not be required to paper every room that was previously unpapered.</p> <p>4. In an action to recover rent for a large school building, where the tenant sets up as a defense that her prospects of running the school were ruined by the failure of the landlord to perform his covenants for repairs, the trial court commits no error in rejecting offers of evidence by defendant as to the amount of money which she invested in furniture, pianos and other articles for the school building. Such evidence is too speculative as a basis for measuring damages.</p> <p>5. Where a lease contains no specific covenant on the part of the landlord to repair the roof of the building leased, the landlord will not be liable for such repairs.</p>

Appeals, No. 182, Oct. T., 1910, by defendant, from decree of C. P. Blair Co., Equity No. 697, Equity Docket “D,” awarding mandatory injunction and attachment for contempt in case of Samuel C. Tussey v. I. M. Clark, Albert Smith and John Henry, Supervisors of Blair Township, and Amos Birch, Road-master. Bill in equity for an injunction. Before Shull, P. J., specially presiding. The facts are stated in the opinion of the Superior Court.

<p>Appeal, No. 196, Oct. T., 1910, by plaintiff, from judgment of C. P. Blair Co., June T., 1910, No. 122, on verdict for defendants in case of Edwin Ritter v. Wray, Moore & Company, Ltd.</p> <p>Sheriff’s interpleader to determine right to levy on stock of merchandise sold in bulk.</p> <p>Baldrige, P. J., charged in part as follows:</p> <p>Under the evidence here it appears that Mr. Ritter, the plaintiff, attempted to purchase from a man by the name of Hartman, who had a store at Lakemont, in this county, on April 15, or 16, according to his testimony. The plaintiff stated on the witness stand that he asked Mr. Hartman for a list of his creditors and that they included the four defendants in this case, which are before you. Ritter testified further that he himself went to see the firm of Kohler & Company and W. W. Blake & Company, aird notified them in person that he was about to buy Hartman out and asked for a statement of their claims and he testified that he received a statement. That so far as the other two defendants are concerned, namely, Wray, Moore & Company and Hinman & Company, that he did not go personally to see them, but that he sent a Mr. Weaver, and Weaver testified that is a fact, that he was sent and that he went to see these creditors and told them the purpose for which he came, namely, to advise them of the fact that Ritter was buying Hartman out and to get a statement of the amount due from Hartman to them.</p> <p>We say to you that if that testimony is a fact, if you believe the plaintiff, that he took these precautions, and gave the notices as he testified that he gave, that would be a compliance with this act so far as notices are concerned. The requirements of the Act of March 28, 1905, P. L. 62, relative to notice are as follows, to wit: “The purchaser shall, at least five days before the consummation of the sale, give personal notice of said proposed sale, to each of the creditors of the seller as appearing on said list, or use reasonable diligence to cause personal notice to be given to them, or shall deposit in the mail a registered letter of the notice.” The plaintiff claims that he did give such notice and that such notices were given at least five days before the sale; and as I said a moment ago, if it is a fact, if you find that that is a fact, then you would find a verdict in favor of the plaintiff.</p> <p>On the other hand, 'the witnesses for defendants go on the stand and testify that Mr. Ritter did call at the place of business of Kohler & Company, but only for the purpose of getting a statement, but plaintiff did not notify Kohler nor did he notify Blake that he purposed to purchase the store from Hartman; if plaintiff was at the defendant’s office, it was simply for the purpose of getting a statement of the amount due. You remember the testimony of Mr. Kohler and of the manager of the firm, another Mr. Kohler, on that point. The plaintiff, on the other hand, argues that defendants did not call the bookkeeper, and that Mr. Ritter may have had the alleged conversation with the bookkeeper, who was not called. The bookkeeper for Mr. Blake was called, and he says that no such conversation as was testified was had; that, while he came to the store, it was simply for the purpose of asking the amount due, which he at first demurred to giving, but subsequently did give. But the bookkeeper says that was the only thing that occurred and that he did not receive notice that Ritter was buying Hartman out, and Mr. Blake said that he did not receive such notice. Now, Mr. Wray, of the firm of Wray, Moore & Company, says that Weaver did come to see him, but that he did not tell him that Ritter was buying Hartman out; he came there and simply asked for a statement of his account. You remember Mr. Hinman testifies that while Weaver was there, he did not tell him that Ritter was buying Hartman out.</p> <p>Now, the mere fact that plaintiff or some one representing him went and asked for a statement is not sufficient; the plaintiff must also connect with that statement a notice to the effect that Ritter was buying Hartman out, and if you find that they did go there and aslc for a statement and did not notify any of these merchants or either of them that Ritter was buying Hartman out, then your verdict would be for the defendants. The defendants have put in evidence a letter from Mr. Flick, attorney for Mr. Ritter; that letter, as you will recall, and according to my recollection, was written on April 17, and in that letter Mr. Flick calls attention to the fact that on that day Ritter purchased the store from Hartman and that they desired to give notice to these creditors to whom the letters were sent, and the defendants argue by reason of that fact the way the letter was written that that was the first notice that they had received and that Mr. Ritter recognized the fact that that was the first notice by sending such a letter. On the other hand, Mr. Fletcher, representing Mr. Ritter, argues to you that that letter was sent by reason of extraordinary precautions, and that they desired to protect every person and did not desire to cheat any person; and that was the purpose of sending out that letter.</p> <p>[Now, the question, as I view this case, narrows itself down as to whether or not notice was given at the time and in the manner required by this act which I have read to you; that is the pivotal question, and that is the question for your determination. It is your duty to take into consideration the various witnesses who have testified, and conclude as to who is telling the truth or who is falsifying, or to reconcile the testimony in so far as you can to determine, from the weight of the evidence, where the truth really lies. If you come to the conclusion that Ritter notified these four defendants at the time and in the manner required by law, then your verdict would be for the plaintiff. If, on the other hand, you would find as a matter of fact that neither Ritter nor Weaver, his representative, gave the notice in the time and manner required by this act to the defendants, then your verdict must be for the defense; that is to say, that even if notice was given in the time and in the manner—say to either of these defendants, and was not given to one as required by law, still your verdict must be then for the defendants, as the law requires that proper notice must be given to all of these parties of record.] [2]</p> <p>Verdict and judgment for defendants. Plaintiff appealed.</p> <p>Error assigned among others was (2) portion of charge as above, quoting it.</p>

Appeal, No. 201, Oct. T., 1910, by D. W. Price, from decree of O. C. Huntingdon Co., directing the payment of money in Estate of George W. Price. Petition for an order to pay over money. Error assigned was decree directing payment.

<p> Wills—Legacy—Specific and demonstrative legacies. </p> <p>1. Wherever an intent is exhibited to make distribution of the value of lands either by means of a sale and division of proceeds, or by the charge of a sum in numero, payable by the devisee of the land as a quasi partial purchase of the estate devised, the bequests are always treated as specific.</p> <p>2. Where a testator devises land to a nephew at a sum stated per acre, and directs that the purchase money shall be paid by the devisee of the land to various legatees in amounts stated, the legacies are specific, and if the nephew refuses to take the land and it is sold at an amount less than the aggregate of the legacies, the legatees will be confined to the proceeds, and will not be entitled to have their legacies made up to the amount stated in the will from the other assets of the estate.</p>

<p>Appeal, No. 6, Oct. T., 1910, by plaintiff, from order of C. P. Lancaster Co., Oct. T., 1907, No. 48, refusing to take off nonsuit in case of Jacob Keller v. The Conestoga Traction Company.</p> <p>Trespass to recover damages for the killing of a cow. Before Landis, P. J.</p> <p>The fapts are stated in the opinion of the Superior Court.</p> <p>Error assigned was order refusing to take off nonsuit.</p>

<p>Appeal, No. 7, Oct. T., 1910, by plaintiff, from judgment of C. P. Lancaster Co., Jan. Term, 1909, No. 21, on verdict for defendant in case of W. D. King, to use of R. V. Alexander, his Trustee in Bankruptcy, v. The Lancaster County Mutual Insurance Company.</p> <p>Assumpsit on a policy of fire insurance. Before Landis, P. J.,</p> <p>The opinion of the Superior Court states the facts of the case.</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Error assigned was in refusing binding instructions for plaintiff.</p>

<p> Railroads—Fire from sparks—Negligence—Measure of damages. </p> <p>1. Where a wood lot is burned over, and timber, young trees and sprouts growing thereon are destroyed by sparks from a locomotive negligently emitted, the measure of the liability of the railroad company is the difference between the value of the land immediately before the fire and its value immediately thereafter.</p> <p>2. In such a case where there is positive testimony that there were grass, leaves and chunks accumulated along the right of way of the railway, and had been there for a long time, and that it was a very dry season, the question of the railroad company’s negligence is for the jury.</p> <p>3. If a fire is negligently started on a railroad company’s right of way and burns across other lands than the plaintiff’s and finally reaches the plaintiff’s lands in a direct and unbroken succession, and burns the plaintiff’s woods, the court commits no error in leaving to the jury to decide whether the railroad company’s negligence was or was not the proximate cause of the plaintiff's injury.</p> <p> Appeals—Assignments of error—Motion for judgment n. o. v. </p> <p>4. An assignment of error to a refusal to enter judgment for defendant n. o. v. will not be considered where the record discloses no exception to the action of the court below in so refusing, or any bill sealed by the court.</p>

Appeal, No. 106, Oct. T., 1910, by defendant, from judgment of C. P. Clearfield Co., Feb. Term, 1909, No. 102, on verdict for plaintiff in case of Nelson V. Hunter v. Pennsylvania Railroad Company. Negligence for damages to woodland caused by sparks from a locomotive. Before A. O. Smith, J. The facts are stated in the opinion of the Superior Court. Verdict and judgment for plaintiff for $160. Defendant appealed.

<p> Deeds—Boundaries—Private alley—Title to center line. </p> <p>1. Where a deed calls for a private alley as a boundary, the grantee takes title to the center line of the alley.</p> <p>2. Where the same person owns lots on both sides of a private alley, the title of the lots extending to the center of the alley, he may cover over that portion of the alley which he owns, provided he does not interfere with other owners along the line of the alley who have the right of “ingress, egress and regress, and passage over and along” the alley.</p>

<p>Appeal, No. 212, Oct. T., 1910, by defendant, from judgment of C. P. Berks Co., Dec. T., 1908, No. 49, for plaintiff non obstante veredicto in case of F. A. Manegold v. Michael C. Quinn.</p> <p>Replevin for a piano. Before Endlich, J.</p> <p>At the trial the jury returned a verdict for the defendant.</p> <p>Error, assigned was in entering judgment for plaintiff n. o. v.</p>

<p> Contract—Sales agent—Commissions—Corporations-—Insolvency. </p> <p>1. Where a contract between a manufacturing corporation and its sales agents, a partnership, provided that the agents should receive as a compensation for their efforts ten per cent commission upon the aggregate price of all goods sold by the company during the continuance of the contract whether sold by the agents or not, payable monthly on statements furnished by the company, with a further provision that the contract was to continue to a certain date unless the parties became insolvent, when it was to terminate as soon as all payments then due shoukhhave been made, the sales agents are entitled on the insolvency of the company to recover only the monthly percentages due at the time of the appointment of a receiver, and not to any percentages on shipments made by the receiver on orders previously procured by the sales agents.</p> <p>2. If after the receiver is appointed the sales agents bring two suits, one for commissions on shipments up to the date of the receivership, and one for commissions on shipments made thereafter on the orders of the agents, and it recovers a judgment in the first suit, but fails to recover a judgment in the second suit, the agents are not entitled to claim anything from the fund in the hands of the receiver, over and above what was adjudicated in the first suit because, (1) the claim is res adjudicata by that suit, and (2) they are not entitled to anything beyond their monthly percentages up to the date of the receivership.</p>

Appeal, No. 222, Oct. T., 1910, by defendant, from judgment of Q. S. Chester Co., Aug. T., 1910, on verdict of guilty in case of Commonwealth v. Harry Reeder. Indictment for larceny and for receiving stolen goods. From the record it appeared that the first count of the indictment charged the larceny of one hunting dog.

<p>Appeal, No. 243, Oct. T., 1909, by plaintiff, from judgment of C. P. Bradford Co., Sept. Term, 1905, No. 427, for defendant on case tried by the court without a jury in suit of A. Lloyd Rockwell, administrator c. t. a. of Isabella Rockwell, deceased, v. J. K. Silvara & Company.</p> <p>Attachment execution.</p> <p>Issue to determine ownership of a fund paid into court. Before Fanning, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was in awarding the fund to the defendant.</p>

<p> Justice of the peace—Judgment—Appeals—Acceptance of service—Sci. fa. sur recognizance—Bail. </p> <p>1. Where an appeal from a judgment of a justice of the peace is submitted to arbitrators and affirmed on their award, and subsequently a scire facias is issued to the same term and number against the sureties on the appeal, the legality of the proceedings before the justice cannot be inquired into in proceedings under the scire facias, and the fact that the scire facias was issued to the same term and number as the appeal is no ground for reversing a judgment against the sureties.</p> <p>2. Where in such a case an appeal is taken to the Superior Court by the sureties under the judgment against them on the scire facias, and there is nothing of record to show that the defendant in the judgment took a separate appeal to the Superior Court, the latter court will not recognize the defendant as an appellant.</p> <p>3. When" an appeal from a judgment of a justice of the peace is perfected and judgment obtained in the common pleas, it is in that court, and not before the justice that a scire facias sur recognizance against the bail must b.e sued out.</p> <p>4. It seems that a defendant in a case before a justice of the peace may accept service of a summons in person or by counsel with the same effect as if personally served on him by the constable.</p>

<p>Appeal, No. 11, Oct. T., 1910, by defendant, from judgment C. P. Delaware Co., March Term, 1908, No. 170, for plaintift on case tried without a jury in case of Springfield Water Company v. Philadelphia & Garrettford Street Railway Company.</p> <p>Trespass to recover the cost of lowering a water main. Before Broomall, J., without a jury, under the act of April 22, 1874.</p> <p>The facts appear in the opinion of the Superior Court.</p> <p>Error assigned among others was in not entering judgment for the defendant.</p>

<p>Appeal, No. 124, Oct. T., 1910, by defendants, from judgment of C. P. Chester Co., Aug. Term, 1909, No. 113, on verdict for plaintiff in case of Philadelphia, Baltimore & Washington Railroad Company v. S. C. Walker & Company.</p> <p>Assumpsit to recover the amount of a freight bill. Before Hemphill, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $45.98. Defendants appealed.</p> <p>Error assigned amongst others was in giving binding instructions for plaintiff.</p>

<p> Deeds—Delivery—Evidence—Recording—Husband and wife. </p> <p>1. The delivery of a deed may be consummated by words alone, or by acts alone, or by both together; no formality is essential, and the question.is to be determined by the intention of the parties as evidenced by their acts and declarations. The actual manual investiture of it need not be proved. The signing, attestation and acknowledgment by the grantor, and the recording of a deed are prima facie evidence of delivery, but there must be enough to indicate the intention of the parties to pass the title.</p> <p>2. Where a husband purchases land and takes title in his wife’s name without her in any way contributing to the purchase money or participating in the transaction, and subsequently the husband and wife convey the land to another whose deed is placed on record, and thereafter the grantee executes a deed of an undivided one-half of the land 'to the wife and delivers it to the husband, who places it on record six months thereafter, the delay in recording being for a sufficient reason, the court will hold that the delivery to the wife was sufficient as against the creditors of the person to whom the land was conveyed by the husband and wife, and who in turn conveyed the half interest to the wife.</p> <p> Practice, C. P.—Judgment n. o. v.—Points—Harmless error—Appeals. </p> <p>3. On an appeal from a judgment for defendant non obstante veredicto, where the appellant states in his argument that he had presented a point for binding instructions, and that this was affirmed by the court, and this is not denied by the appellee although the printed record did not show such a point, and it also appears that the defendant’s point for binding instructions was withdrawn, and the court below stated that it was agreed by counsel that the legal question should be disposed of on a motion for judgment n. o. v., the appellate court will not reverse the judgment, but will consider the irregularity as a consentable one that was waived at the time.</p>

<p> Negligence—Animals—Death of mule—Contributory negligence. </p> <p>In an action of trespass to recover damages for the loss of a mule by drowning in a canal, in a collision with another team going in an opposite direction, the plaintiff cannot be charged with contributory negligence as a matter of law because he permitted his team of three mules to be driven at night on the towpath by a boy thirteen years of age of slight build. In such a case where the evidence is conflicting as to the contributory negligence of the boy the case is for the jury.</p>

<p>Appeal, No. 217, Oct. T., 1910, by plaintiffs, from order of C. P. Chester Co., Aug. T., 1909, No. 32, sustaining exceptions to report of borough directors in case of J. Harry Fry et al. v. Hosea B. Keiter.</p> <p>Exceptions to report of A. T. Parke, Esq., auditor. Before Hemphill, P. J.</p> <p>Errors assigned were in sustaining various exceptions to the report of the auditor.</p>

<p> Insurance—Fire insurance—Void policy—Other insurance—Settlement of claim. </p> <p>1. Where a person procures policies of fire insurance in two different companies and both policies contain provisions to the effect that other insurance will render the policy void, the first policy is valid and the second void; and a compromise of the second policy, although it is void, will not defeat the rights of the insured to recover on the first policy.</p> <p>2. A person took out a policy of fire insurance which provided that “all policies in this company shall be null and void whenever buildings or their contents are insured in other companies.” He thereafter took from a second company a policy which provided that “the entire policy, unless otherwise provided by agreement indorsed hereon or added thereto, shall be void if the insured now has or shall hereafter make or procure any other contract of insurance whether valid or not, on property covered in whole or in part by this policy.” No reference was made in the second policy to the prior insurance. After the property insured was destroyed by fire, the insured compromised and settled with the second company, and received a payment from it on account of his loss. Held, (1) that the first policy was not rendered void by the taking out of the second policy; and (2) that the settlement with the second company did not render the first policy void.</p>

<p> Insurance—Fire insurance—Agents—Scope of authority—Secret limitations—Custom—Notice. </p> <p>1. In an action upon a policy of insurance, private instructions and secret rules that are known only to the company and its agent cannot be invoked to defeat the very contract it ostensibly holds the agent out with apparent power to make, the liability of the principal being coextensive with the agent’s ostensible authority; and where a company has certified an agent to the state insurance department as a general agent with state-wide authority, a policy holder should be given notice of any limitation upon that apparent authority by appropriate words written in the policy.</p> <p>2. When there is nothing in the record to indicate that insurance was effected in any other method than that in which such contracts are ordinarily made, or that the agent acted in excess or violation of his general authority, evidence to establish a custom among agents of writing fire insurance only in the neighborhood of their residence so as to bind the plaintiff must establish clearly and convincingly such a usage as can fairly be presumed to have entered into the intention of the parties, the true test being that it has existed a .sufficient length of time not only to have become generally known to the persons who are to be affected by it, but also to warrant the presumption that contracts were made in reference to such usage or custom.</p> <p>3. In an action against a foreign insurance company to recover on a policy of fire insurance where it appears that the plaintiff company sought insurance upon the stock and machinery in its plant located in Delaware county, this state, through a firm of insurance brokers in New York city, that the brokers wired a well-known agent in Warren, Pennsylvania, to bind the risk and received a wire reply accepting the amount asked for, that the agent transmitted to the brokers and the brokers transmitted to the plaintiff certain policies, including the one in suit, covering the insurance, that the representative of the plaintiff company in the transaction did not know, at the time the insurance was placed, the names of the companies in which it would be placed and did not know the agent at Warren, that the defendant company supplied blank policies signed by their president and secretary to the agent and that he was their legally authorized agent at Warren, and there is no evidence that the insurance was effected in any other method than the ordinary, or that there was any deceit or bad faith practiced by the plaintiff or its broker, or that the agent acted in excess or in violation of his authority except only that the written request of the insurance company to the insurance commissioner for the appointment of the agent at Warren among others as their agent for the transaction of business in this state contained the words “in accordance with the powers and instructions given to them by this company,” and the private commission of the insurance company to the agent limited his agency to Warren, Warren county, and vicinity, the question of liability on the policy is properly left with the jury and a verdict for plaintiff will be sustained.</p> <p> Insurance—Fire insurance—Payment of premiums—Credit—Presumption of payment. </p> <p>4. When the usual course of dealing between an insurance company and its agent is for the company to treat the agent as its debtor for the premiums on policies written by him, payment of the premium by the insured to the agent is payment to the company; and when a policy is delivered by a general agent to the broker of the insured and by the broker to the insured without exacting the payment of the premium, the presumption is raised that a credit is extended and this is a waiver of a condition of prepayment. Delivery of a policy properly countersigned by the agent estops the company from saying that the premium was not paid.</p>

<p> Beneficial associations—Benefits—Change of by-laws. </p> <p>1. Where a beneficial association agrees to pay a member after five years from the date of his certificate “an amount not exceeding $300 according to the laws of the order,” and there is nothing in the constitution or by-laws, or in the member’s contract fixing any stated or definite sum to which he would be entitled at the expiration of the five-year period, he cannot complain of a payment of $250 merely because the association during the running of the five years, amended its bylaws so as to change the method of apportionment so as to secure greater accuracy without, however, changing the contractual relations of the association and its members.</p> <p>2. Where the laws of a beneficial association provide for the payment of a benefit after five years from the date of a member’s certificate, and such time expires on January 1, of a particular year, the member cannot claim the benefit as apportioned for the year prior to January 1.</p>

<p> Taxation—Collateral inheritance tax—License to use real estate—Life estate—Wills. </p> <p>1. Where a testator directs that his sister shall have the right to retain the use of a house “free of rent as a family residence as long as she may live and may wish to do so,” but if she may wish to remove from it to another house, the same may be provided for her out of the funds of the estate so that it does nob exceed in value the one removed from, the sister takes merely a personal license or privilege to occupy the house specified, or another at her pleasure, and not an estate therein, from which the commonwealth may collect a collateral inheritance tax,</p> <p>2. A license in respect to real estate is defined to be an authority to do a particular act or series of acts on another’s land without possessing any estate therein. It is founded on personal confidence and is not assignable or within the statute of frauds.</p>

<p>Appeal, No. 183, Oct. T., 1910, by defendants, from judgment of C. P. Chester .Co., Oct. Term, 1909, No. 6, on verdict for plaintiff in case of Charles 0. Beaumont, trading as Joseph Oat & Son, v. William Sharpless and W. Warren Sharpless, trading as W. W. Sharpless Company.</p> <p>Assumpsit for labor and material. Before Butler, J.</p> <p>The court charged in part as follows:</p> <p>The plaintiff, who is Charles 0. Beaumont, trading as Joseph Oat & Sons, has brought this suit against William Sharpless and Warren Sharpless, trading as the Sharpless Company, Ltd., to recover $772.83, with interest from. August 1, 1908, under these circumstances: Charles Beaumont at one time was a member of the defendant company and, during his partnership, he and the other mem: bers of this firm determined to purchase an automobile and have it converted into an automobile truck for the delivery of milk in Philadelphia. They were engaged in that business. A machine was bought and was converted and improved by the plaintiff. As I have said, he was then a member also of the defendant company as then constituted. The plaintiff expended in the purchase of the automobile, in furnishing the money to buy it and in converting it and repairing it, what amounts, in the aggregate, to $772.83. The machine was delivered, accepted and used by the defendant company. It is contended, however, that, by virtue of the situation that now exists, as a legal proposition the plaintiff cannot recover. It appears that in January—I think January 22—1909, the plaintiff severed his relations with this defendant company.</p> <p>Defendants presented these points:</p> <p>1. The plaintiff having by writing under seal executed in January, 1909, sold and transferred to William Sharp-less and Warren W. Sharpless, all his right, title and interest in and to the property, real and personal of the partnership known as W. W. Sharpless Company, Limited, of which partnership he was a member, and the claim in suit against said partnership being in existence at the time of such sale and transfer, there can be no recovery and the verdict must be for the defendants. Answer: That point is disaffirmed. [1]</p> <p>2. The defendants, having covenanted with the plaintiff, by the written sale and transfer referred to, to “pay and satisfy all the creditors to whom the said Charles 0. Beaumont is chargeable or indebted for and concerning all the affairs and dealings of the said copartnership” and to “indemnify and save harmless” the said Beaumont “from all the debts and liabilities and every of them of said copartnership” such covenant measured the liability of the said William Sharpless and Warren W. Sharp-less and does not extend to the payment of a claim held by the plaintiff against the partnership of which he was a member and the verdict must be for the defendants. Answer: That point is disaffirmed. [2]</p> <p>3. The law presumes that when a partner sells and transfers his interest in the assets of a copartnership to the remaining members, such sale and transfer includes the interest of the selling partner as a creditor of the concern, and no evidence having been introduced sufficient to overcome this presumption, the plaintiff cannot recover and the verdict must be for the defendants. Answer: That point is disaffirmed. [3]</p> <p>4. Under all the evidence, the verdict must be for the defendants. Answer: That point is disaffirmed. [4]</p> <p>[We are going to instruct you to find a verdict for the plaintiff for the amount of his claim with interest.] [5]</p> <p>Verdict and judgment for plaintiff for $855.90. Defendants appealed.</p> <p>Errors assigned were (1-5) above instructions, quoting them.</p>

<p>Appeal, No. 282, Oct. T., 1909, by defendant, .from judgment of Q. S. Monroe Co., May Term, 1909, affirming summary conviction in case of Commonwealth v. Edward Layton.</p> <p>Appeal from summary conviction by justice of the peace. Before Staples, P. J.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned among others was the judgment of the court.</p>

<p> Appeals—Decedents’ estates—Insolvent estate—Heir at law. </p> <p>1. An heir at law of an adjudicated insolvent estate, has no standing to appeal from the allowance of a creditor’s claim against the estate, where, even if the claim were disallowed, the balance would not be sufficient to pay the other creditors. The heir in such a case is not a “person aggrieved” within the meaning of the Act of March 29, 1832, P. L. 190.</p> <p> Decedents’ estates—Claim against estate—Evidence—Successive accounts—Practice, O. C. </p> <p>2. The fact that the creditor of a decedent’s estate has not been able to prove by competent testimony his claim at the audit of the first account of an executor, will not prevent him from offering such proof, if he has secured it, at the audit of a second account of the executor.</p> <p> Appeals—Assignments of error—Question not raised in assignments. </p> <p>3. Where a question of law was not raised in a lower court, or in the assignments of error, or in the statement of the question involved, it will not be considered in the appellate court.</p> <p> Evidence—Admissions—Decedents’ estates. </p> <p>4. An admission made by a creditor of a decedent’s estate that his claim would not exceed a certain amount, does not estop him from presenting and proving by competent testimony his real claim. Such admission will merely militate against his credibility and the bona Mes of his account.</p> <p>5. Testimony as to admissions are to be received with great caution and scrutiny.</p> <p> Decedents’ estates—Claim against—Payment—Periodical payments. </p> <p>6. The doctrine of the presumption of periodical payments to servants for domestic services is not applicable to a superintendent of lumbering operations employed at a stipulated price per day, who was not paid at stated intervals, and who had various other dealings with the decedent apart from the contract of employment.</p>

Appeal, No. 27, March T., 1911, by defendant, from judgment of Q. S. Luzerne Co., June Sessions, 1910, No. 86, on verdict of guilty in case of Commonwealth v. Stanley Mackiewicz. Indictment for seduction. Before Little, P. J., specially presiding. Verdict of guilty, upon which judgment of sentence was passed. Error assigned was in refusing binding instructions for defendant.

<p>Appeal, No. 244, Oct. T., 1910, by defendant, from judgment of Q. S. McKean Co., Feb. Sessions, 1910, No. 14, on verdict of guilty in case of Commonwealth v. H. E. Shaffer.</p> <p>Indictment for embezzlement. Before Prather, P. J., specially presiding.</p> <p>The opinion of the Superior Court states the facts of the case.</p> <p>Verdict of guilty, upon which judgment of sentence was passed.</p> <p>Errors assigned appear by the opinion of the Superior Court.</p>

Appeal, No. 283, Oct. T., 1909, by D. G. Yuengling & Son, from order of Q. S. Schuylkill Co., transferring liquor license in petition of C. Edward Reichard. Petition for transfer of liquor license. The opinion of the Superior Court states the case. Error assigned was order transferring the license.

<p>Appeal, No. 289, Oct. T., 1909, by Ellen Buckley, terre-tenant, from order of C. P. Schuylkill Co., July T., 1906, No. 280, sustaining exceptions to sheriff’s special return in case of Commonwealth ex rel. School District of Girardville Borough v. Thomas Horan et al.</p> <p>Rule to set aside execution.</p> <p>Exceptions to sheriff’s return.</p> <p>Errors assigned were (1-3) portions of opinion as above, quoting them, and (2) the court erred in not appointing an auditor to make a report, distributing the proceeds of such sale, and to determine whether the purchaser was entitled as a lien creditor to tender her receipt for the amount which, as appeared from the record, she was entitled to receive from the proceeds of sale.</p>

<p>Contract—Joint contract—Signature of parties—Failure to sign— Parol evidence.</p> <p>Where a joint contract in writing shows on its face that it is to be signed by two persons as parties of the first part, and one person as party of the second part, and one of the parties of the first part refuses to sign after the other two persons had signed, the instrument is ineffective, and all parties are discharged. If in such a case the party of the first part who had signed the agreement and who paid over money to the party of the second part, brings an action to recover said money, he may show by his own parol testimony that he was induced to advance his own money on the express promise of the defendant that if the written agreement should not become operative by reason of the failure of the other party of the first part to sign it, the money should be refunded. Such a parol agreement is entirely outside and independent of the written agreement, and if believed by the jury is sufficient to sustain the plaintiff’s claim, although it is contradicted by the defendant, and is not supported by the evidence of another witness.</p>

<p>Evidence — Witness — Competency ■—■ Oath — Belief in God — Libel —Criminal law—Act of April 88,1909, P. L. llfi.</p> <p>1. Under the Act of April 23, 1909, P. L. 140, the opinions of a witness on matters of religion are not to be made a subject of inquiry for the purpose of affecting either his competency or credibility.</p> <p>2. Where the defendant in a prosecution for criminal libel offers to take the oath and states that it will be binding upon him, he is qualified to be sworn, although he refused to state that hé believes in a God.</p>

Appeal, No. 30, Oct. T., 1910, by defendant, from judgment of C. P. Lehigh Co., Oct. Term, 1908, No. 26, on verdict for plaintiff in case of Homer Adams v. Lehigh Valley Transit Company. Trespass to recover damages for injuries to an automobile. Before Heydt, P. J., specially presiding. The circumstances of the accident are stated in the opinion of the Superior Court. Verdict and judgment for plaintiff for $462.07. Defendant appealed.

<p> Wills—Devise—Trust and trustees—Rule in Shelley’s case. </p> <p>Testator gave and devised to his son two farms “to have and to hold the same, possess and enjoy the same for and during the period of his natural life, the said life estate not to be subject to any debts, engagements or liabilities which he may contract in future or may have contracted in the past. Upon the decease of my said son the principal or the two farms of land aforementioned shall vest absolutely in the heirs of the body of my said son share and share alike forever. And in case of the death of any one or more of said heirs of the body of my son, prior to said son’s death, such one share or shares shall vest in their respective issue or heirs of their respective bodies.” Held, that the son took an estate in fee simple in the land devised to him.</p>

<p> Husband and wife—Contract—Debt of husband—Surety—Act of April 26,1855, P. L. 808. </p> <p>Where a husband operates his wife’s farm independently of his wife, and purchases phosphate on his own credit for use on the farm, and gives his own personal note therefor, the wife eannot be held for the debt; and if it appears that,at the time the note was given she promised to pay it if her husband died, she cannot be held liable after the death of her husband, as the contract was one of suretyship prohibited by the Act of April 26,1855, P. L. 308.</p>

<p>Appeal, No. 163, Oct. T., 1910, by defendant, from order of Q. S. Schuylkill Co., March Sessions, 1910, No. 1, declaring John T. Morgan elected assessor.</p> <p>Rule to show cause why election returns should not be modified. Before Shay, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was the order of the court of quarter sessions.</p>

<p> Appeals—Summary conviction—Certiorari—Act of April 14, 1905, P. L. 169—Posting land. </p> <p>1. An appeal from the quarter sessions setting aside a summary conviction in a proceeding under the Act of April 14, 1905, P. L. 169, relating to the posting of lands is in effect but a certiorari, and brings up nothing but what appears on the record proper.</p> <p>2. On an appeal from a summary conviction in such a proceeding, the burden of proof is on the complainant, and if, upon full consideration of the evidence, the court below has a reasonable doubt as to any essential to a conviction, it is not error to discharge the defendant, and thus remit the complainant to the ordinary civil remedies.</p>

<p>Appeals, Nos. 187 and 188, Oct. Term, 1910, by defendant, from judgment of C. P. Montgomery Co., Oct. T., 1909, No. 38, on verdict for plaintiffs in case of David Ramsey and Elizabeth Ramsey, his wife, v. Alexander Martin, Sr.</p> <p>Trespass to recover damages for personal injuries. Before Swartz, P. J.</p> <p>The facts are stated in the opinio'n of the Superior Court.</p> <p>Verdict for David Ramsey for $800 and for Elizabeth Ramsey for $800. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for defendant.</p>

<p> Contract—Sale—Affidavit of defense—Practice, C. P. </p> <p>In an action to recover the price of a lot of clothing, an affidavit of defense is sufficient to prevent judgment which avers that all the clothing had been returned to the defendant; that the goods were not what were ordered; that they were not made in a way which would enable the defendant to use them in his business; and that the plaintiffs in acknowledging notice of the delivery of the goods at their railroad station offered to change the collars so as to meet the requirements of defendant’s trade.</p>