Volume 47 — Pennsylvania Superior Court Reports

<p>Appeal, No. 24, March T., 1911, by plaintiff, from judgment of C. P. Cumberland Co., May T., 1910, No. 243, on verdict for defendant in case of Charles A. Hartman v. William A. Hefflefinger and Emma Hefflefinger.</p> <p>Replevin for goods sold at a sheriff’s sale. Before Sadler, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The trial judge charged in part as follows:</p> <p>Our view of the law is that if Mr. Gilbert in good faith made a sale on February 12, 1910, to Mrs. Hefflefinger, on the agreement that it should be credited on his indebtedness, and that understanding was carried out in good faith, and that Gilbert had made all the delivery that was possible. A sale is not good as against an execution creditor unless the goods pass from the defendant to the purchaser, or the purchaser acquires all the possession that it is possible for him to acquire. At that time it was not possible, that is on February 12, it was not possible for Gilbert to hand over the goods, because they had not been set apart to him. Our view is, if you find this was a valid sale, that Mrs. Heffiefinger had received all the possession possible for Gilbert to give; that is, he had transferred them to her, but they were in the hands of Mr. Willis; they were out of his control, and he could not do any more than he did do, and if that is so, that he delivered all the possession possible, and there was a valid sale, then Mrs. Heffiefinger became the cwner of them, and the execution issued on February 28, 1910, and the levy made on the first of March, and the sale on March 17, conveyed no title to Mr. Hoffer’s client, Hartman, and he cannot recover. We simply leave the question to you, if you find that on February 12 that Gilbert sold this property to Mrs. Heffiefinger in good faith, with the understanding that it should be credited on the indebtedness due by him to her, then your verdict should be for the defendants — that is all there is in the case. I have reserved a question which I have already read to you. The simple question is, did Gilbert in good faith on February 12 sell this property to Mrs. Heffiefinger to be credited on her debt, and after it was set aside by Mr. Willis, did she take possession of it?</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned were (1) portion of charge, and (2) in entering judgment on the verdict.</p>

<p>Appeal, No. 9, March T., 1911, by plaintiff, from order of C. P. York Co., April T., 1909, No. 133, sustaining demurrer to statement in case of George Neiman v. Harry S. Ebert.</p> <p>Assumpsit to recover half of commissions on a sale of real estate. Before Wanner, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was order sustaining demurrer to statement of claim.</p>

<p>Appeal, No. 31, April T., 1911, by plaintiff, from judgment of C. P. Yenango Co., Nov. Term, 1908, No. 44, on verdict for defendant in case of Homer Brumbaugh v. Bertha Feldman and W. A. Maitland.</p> <p>Replevin for goods seized by a warrant of distress.</p> <p>The court charged in part as follows:</p> <p>[Now Mrs. Feldman claims here, and that is her contention, that these parties were attempting to remove from the premises, and there is no controversy about the fact that Mr. Brumbaugh was there with his rig to take the stuff away.] [2] [It had not been actually removed from the premises but if what was done at the time was an attempt to remove out of the premises, then by the terms of this lease the whole rent for the balance of the term became due and Mrs. Feldman had a right to dis-train for the whole amount.] [3]</p> <p>In this connection we will say to you that when rent becomes due depends upon the contract between the parties. If there simply be a contract to pay so much rent and no further details are agreed upon, then, according to the common law, the rent would not be due and could not be sued for until the expiration of the term. But the parties have the right to make their own law in this respect and if they enter into an agreement, that agreement constitutes the law.</p> <p>[Now, what are the facts in this case? Was there an attempt at removal from the premises by this lessee? If there was then the rent for the entire term became due and Mrs. Feldman had a right to distrain for it, and if she had a right to distrain for such rent, to take possession of the property there upon the premises, and Mr. Brumbaugh instituted these proceedings to take the property out of her possession, and thereby deprived her of her security for the rent, or property .which she held as security for the rent, then he is liable for damages; that is, such damages as she suffered from the property being taken out of her custody.] [4] Her damages would be the amount of rent in arrear together with any interest thereon from the time the same ought to be paid, up to date, and your verdict should be in her favor and against Mr. Brumbaugh for the amount of such rent with interest to date, that being her damages.</p> <p>If there was no attempt to remove from the premises and the rent for the whole term was not due but there was rent only for one month, then it is conceded that Mrs. Feldman would be entitled to recover that one month’s rent which would be $15.00, with interest from the time the same ought to have been paid. These are the questions that are to be solved by you, gentlemen. You are to determine what the facts are and render a verdict accordingly.</p> <p>The plaintiff made out a prima facie case by proving his ownership of these goods originally and the fact that they were turned over to Mr. Hedberg as lessee, and Mrs. Feldman conceding that and not raising any question about that comes in and alleging this tenancy of Hedberg and the fact that there was rent in arrear and due to her, undertakes to make out that contention, and the burden is therefore upon her to satisfy you that her contention is right. If you are so satisfied by the weight of the evidence, you will render a verdict in her favor, that is, for the whole amount of the rent claimed by her, or for one month’s rent. If you are not so satisfied from the preponderance of the evidence you should not render a verdict for the larger amount but render a verdict for the smaller amount.</p> <p>Upon the jury returning and asking for instructions as to whether or not they could compromise or go halfway in the' amount of their verdict, the court further charged as follows:</p> <p>Gentlemen of the Jury: Your verdict should be for either one sum or the other, for this reason: The defendant claims that under the terms of the contract the rent for the year was all due; that is, the defendants allege that Hedberg was attempting to remove his property from the premises. If he was, then the rent for the entire year all became due and Mrs. Feldman had a right to distrain for it. If Hedberg was not attempting to remove from the premises, then the rent for the entire year was not due and Mrs. Feldman had no right to distrain for anything more than what was due. So you will observe from this statement that the fact to be determined by you is whether or not the tenant was attempting to remove. It is not claimed that he had actually removed; if he had in fact removed, then, under the terms of the lease, all the rent would be due. It provides that the property may be followed for thirty days, but the language of the lease is if he removes or attempts to remove, takes any steps to remove, then it all becomes due. That was a lease for a year, — a contract for a year. The tenant agreed to pay $180 for that house for a year. It was not a renting by the month, it was a renting for a year and the contract was binding upon the tenant. He would have no right to occupy the premises for one month or six months and then say “I will move out, I won’t keep my contract.” That was a contract which was lawful for the parties to enter into, it bound one as well as the other; Mrs. Feldman could not compel him to leave before the year was up, and by the terms of the contract he was bound for the rent for the year. This is the law as we understand it applicable to the evidence. It is the duty of the court to instruct you as to the law; our responsibility ends when we do that. If we make a mistake in the law we can be corrected on appeal. It is the duty of the jury to take the law as given by the court and from the evidence determine the facts. So you observe our duties differ. You determine the facts from the evidence. The court cannot do that except in a clear case where there is practically no dispute as to the facts. But where there is any dispute as to the facts, it is the duty of the jury to determine them. If there is a conflict of/ evidence they determine which witnesses are telling the truth and which are not, and applying the law as given by the court to the facts they render a verdict and the verdict which they render is an expression of their finding of the facts under the law.</p> <p>Our answer to your question calls for a conclusion as to the law. Our answer to your question is that you have no right to go halfway. [You must either find that he was attempting to move out and was therefore liable for the whole rent, or you must find that he was not attempting to move out and therefore there was only one month’s rent due at the time this distress was made. It was made on September 28 and the rent for that month had not been paid.] [5] [Under the terms of the lease if he was not attempting to move out the rent was due on the first of September; if he was attempting to move out the rent for the whole year was due and the landlord had a right to act accordingly.] [6]</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned were (2-6) above instructions, quoting them.</p>

<p>Practice, C. P. — Trial—Charge.</p> <p>1. Where at the trial of a cause the defendant presents no points to the court and makes nothing in the way of suggestion during the delivery of the charge as to any overstatement of facts, or understatement of the defendant’s case, he will not be heard on appeal to complain that the court gave too much prominence to the plaintiff’s case, and omitted to charge the jury as to the law applicable to the questions submitted to them.</p> <p>Negligence — Damages—Evidence.</p> <p>2. Where in an accident case it appeared that the plaintiff’s leg was broken and that the defendant was negligent, the defendant cannot complain that the verdict was excessive where the amount allowed by the jury was little more than what the plaintiff had actually expended in physicians’ and hospital bills.</p>

<p>Vendor and vendee — Incumbrances—Sewers.</p> <p>1. An easement is a liberty, privilege or advantage without profit which the owner of one parcel of land may have in the lands of another; or from an opposite point of view, it is a service which one estate owes to another.</p> <p>2. Where land has incident to it a right to carry water from a sewer over other grounds, the easement is for the benefit and advantage of such land, and is not covered by an agreement to convey a title free and clear of all easements.</p> <p>3. An incumbrance is a right to or interest in land which may subsist in third persons to the diminution of the value of the land, but consistent with the passing of the fee by a conveyance.</p> <p>4. Where it appears that the owner of a house and lot will not be compelled to connect with a sewer in the street on which the premises front so long as a private sewer remains in existence, the cost that a proposed purchaser of the land would be put to if he elected, and only if he elected, to connect the premises with the sewer in the street, does not constitute an incumbrance within the meaning of the words in articles of sale, if it appears that there is no existing ordinance requiring such connection to be made.</p> <p>5. Where articles of sale provide that the title shall be “such as will be insurable at regular rates by title insurance companies,” such provision will not justify the purchaser from refusing to take a deed for the land because a single title insurance company refused to insure the land.</p>

<p>Contract — Construction—Course of dealing by parties.</p> <p>1. The courts will construe a contract in accordance with the construction put upon it by the parties themselves as evidenced by their course of dealing under it.</p> <p>Contract — Assignment—Scope of assignment — Inclusio unius est ex-clusio alterius.</p> <p>2. Where an assignment of a contract to cut timber set forth that the things assigned were all the right and interest of the assignor in the contract, together with all buildings and machinery, certain teams and wagons, and all personal property located upon lands specified, the court will not construe the assignment as covering moneys earned by the assignor prior to the assignment, and this is especially the case where a considerable portion of such moneys were actually paid by the owner of the timber to the assignor, after the assignment had been made.</p> <p>Corporations — Powers—Contracts—Ultra vires.</p> <p>3. A corporation may not avail itself of ultra vires as a defense where a contract has been entered into and executed in good faith by the other party, and the corporation has received the benefit of the performance.</p> <p>Evidence — Witness—Competency of witness — Party dead — Assignment of contract.</p> <p>4. Where a contractor to cut and haul timber assigns his contract to another, and the assignee after having done a large amount of work reassigns the contract to the original contractor, the assignee in a suit against the owner of the timber to recover for work done during the time he held the contract, is a competent witness for himself, although at the time of the trial the original contractor was dead.</p>

<p>Road law — Dedication of street — Encroachment—Act of May 9, 1889, P. L. 178.</p> <p>1. Where a street of a given length and width is dedicated to public use by a plan of lots duly recorded, and such street is promptly opened through from end to end, subjected to public travel, and improved by the expenditure of public money throughout its entire length, and a party buys a lot fronting on such street with the full knowledge of its dedication and subsequent and consequent use, and encroaches on the street by a fence, such party cannot be heard to complain when required to withdraw to the line of the dedicated street, even though twenty-one years may have elapsed since the date of the dedication.</p> <p>2. The Act of May 9, 1889, P. L. 173, which was passed after the street had been subjected to public use and improved by the expenditure of public money, does not apply to such a case, inasmuch as the act had no retroactive effect, and only applied to unused streets.</p>

<p>Insurance — Contract—Acceptance of policy — Lex loci — Application— Indorsement on policy — Suicide•—Proofs of death — Waiver.</p> <p>1. Where an application for insurance addressed to a foreign insurance company, differs from the contract of insurance, prepared and offered by the company, the contract of insurance will not be complete, until it has been accepted by the insured, and if such acceptance takes place in Pennsylvania, the contract will be deemed a contract of Pennsylvania, and not of the state of the domicile of the insurance company.</p> <p>2. An indorsement on the back of an insurance policy will not be regarded as part of the contract, where it is not referred to either in the policy, or in the application, and there is nothing to show that the parties meant it to be a part of the contract.</p> <p>3. A policy of life insurance cannot be forfeited as against the beneficiary on the ground that the insured committed suicide, unless it is stipulated in the policy that suicide will avoid the contract.</p> <p>4. Where an insurance company is notified of the death of an insured, and denies all liability on the ground that the insured committed suicide, such denial amounts to a waiver of further notice and proofs of death.</p>

<p>Appeal, No. 127, April T., 1911, by' defendant, Jesse F. Bluestone, from judgment of C. P. Allegheny Co.., Oct. T., 1910, No. 44, on verdict of guilty.</p> <p>Indictment for conspiracy. Before Macfarlane, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict of guilty, upon which' sentence was passed.</p> <p>Errors assigned were various rulings and instructions.</p>

<p>Judgments — Judgments in different counties — Priorities—Marshaling — Equity.</p> <p>1. The payment to an execution creditor of the proceeds of a sheriff’s sale of real estate is not a voluntary payment by the debtor, but a payment in invitum. An execution creditor, having several liens upon the real estate sold, cannot apply such proceeds to whatever lien he pleases, but the law will apply them to such liens as are divested by the sale in the order of their priority.</p> <p>2. Where a creditor holds two judgments against his debtor as the first and second liens on the debtor’s real estate in one county, and the same judgments by transcripts in the same order as the first and third liens in another .county, and he issues an execution in the first county on the first judgment, from the proceeds of which he makes the first judgment except a small balance, but not the second, and these proceeds are distributed to him by the sheriff, and thereafter he issues execution on the first judgment in the second county he will not be entitled to apply the proceeds after payment of the balance on the first judgment, to the second judgment, to the exclusion of the judgment of another person which is the second lien in the second county.</p>

<p>Appeals — Assignments of error — Points—Refusal of new trial.</p> <p>1. The appellate court will not consider assignments of error relating to points to which the answers are not quoted in the assignments, or which relate to points in which the answers are given, but the points are not quoted.</p> <p>2. An assignment of error to the refusal of a new trial will not be considered, except in a case where it is manifest that an injustice has been done.</p> <p>Evidence — Receipt—Explanation.</p> <p>3. A receipt in full is not conclusive but is open to explanation.</p> <p>4. Where a plaintiff has five different items of claim against the defendant, a check from the defendant to the plaintiff on the face of which it is stated that it is in full settlement of two items specified, is not conclusive evidence of full settlement for all the items, and is not conclusive of a compromise proposed by the defendant and accepted by the plaintiff.</p>

<p>Appeal, No. 121, April T., 1911, by defendant, from judgment of C. P. Crawford Co., May T., 1910, No. 26, for plaintiff on case stated in suit of Penn Furniture Company v. Lumbermen’s Mutual Fire Insurance Company of Mansfield, Ohio.</p> <p>Case stated to determine liability under policy of fire insurance. Before Prather, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was in entering judgment for plaintiff on case stated.</p>

<p>Appeal, No. 122, April T., 1911, by defendant, from judgment of C. P. Crawford Co., May T., 1910, No. 27, for plaintiff in case stated in suit of Penn Furniture Company v. Pennsylvania Lumbermen’s Mutual Fire Insurance Company of Philadelphia.</p>

<p>Landlord, and tenant — Rent—Repairs—Actions for successive installments of rent — Res adjudicata — Estoppel.</p> <p>1. Where a landlord brings two actions for successive installments of rent, and in each action the tenant while not denying the validity of the lease claims that the landlord was not entitled to the full amount of the rent because of the failure to make certain repairs, and in each case there is a verdict for the landlord less than the amount of the rent claimed, such actions are not res adjudicata against the landlord of an action for the final installment of rent.</p> <p>2. On the trial of the third action the court may examine the charge of the court in the prior action to ascertain what questions were therein submitted to the jury.</p> <p>3. The estoppel of a judgment extends only to the questions directly involved in the issue, and not to any incidental or collateral matter though it may have arisen and been passed upon.</p>

<p>Appeal, No. 197, Oct. T., 1910, by defendant, from judgment of C. P. Chester Co., Jan. Term, 1910, No. 14, on verdict for plaintiff in case of Edwin Wollaston v. Annie Lewis Park.</p> <p>Trespass to recover damages for personal injuries. 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 $600. Defendant appealed.</p> <p>Error assigned among others was in refusing binding instructions for defendant.</p>

<p>Mechanic’s lien — Notice of intention to file — Ascertainment of time— Acts of June 4,1901, P. L. 481, and April 17,1905, P. L. 172.</p> <p>1. The question whether the notice required to be given by a contractor to the owner of an intention to file a mechanic’s lien, has been served within the statutory period, is to be determined by the facts averred in the claim as filed, and not from matters outside of the record.</p> <p>2. The court of common pleas will not be justified in striking out and disregarding as defective the last two items of a mechanic’s claim so as to leave all the earlier items subject to the objection that the notice of the intention to file a lien, was not served in time, where it appears that the alleged defective items are fully explained by the contract attached to the claim as filed and by the averments in the body of the claim.</p>

<p>Appeal, No. 54, Oct. T., 1910, by defendant, from judgment of C. P. Lehigh Co., June Term, 1908, No. 1,975, on case tried by the court without a jury in suit of A. H. Gottschall v. Samuel S. Kapp.</p> <p>Issue to determine the validity of a judgment. Before Trexler, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The court entered judgment for plaintiff for $1,050. Defendant appealed.</p> <p>Error assigned was in entering judgment for plaintiff..</p>

<p>Appeal, No. 102, Oct. T., 1910, by Annie Wolf, from decree of O. C. Montgomery Co., Sept. T., 1908, No. 37, dismissing exceptions to adjudication in Estate of Sarah K. Tyson, deceased.</p> <p>Exceptions to adjudication.</p> <p>The opinion of the Superior Court states the case.</p> <p>Errors assigned were in dismissing exceptions to adjudication.</p>

<p>Appeal, No. 104, Oct. T., 1910, by Sarah A. Heckler, from decree of O. C. Montgomery Co., Sept. T., 1908, No. 37, dismissing exceptions to adjudication in estate of Sarah K. Tyson, deceased.</p>

<p>Attachment execution — Judgment on answers — Trusts and trustees.</p> <p>1. A judgment cannot be entered against a garnishee in an attachment execution issued against him individually, where he denies in his answers all individual liability, and states that he was trustee of a mortgage for a decedent of whom the defendant in the execution was an heir at law, but that this mortgage had been paid in full and satisfied, and that he had not in his hands any moneys accruing from said mortgage; nor can judgment be entered against the mortgagor summoned as garnishee where she avers in her answers that the mortgage had been fully paid and had been satisfied of record by the heirs at law of the decedent before the attachment issued.</p> <p>2. A garnishee’s answer is not to be construed with the same strictness as an affidavit of defense. A 'gárnisheeis hot bound to set forth specifically and at length the nature and character of his defense to the attachment. He is only required to answer the interrogatories that may be submitted to him. Judgment cannot be entered against him unless his answers contain either a distinct admission of funds in possession, or of such facts as leave the possession of such funds a mere inference of law.</p>

<p>Appeal, No. 10, Oct. T., 1909, by defendant, from judgment of C. P. Carbon Co., Jan. Term, 1909, No. 43, on verdibt for plaintiff in case of William H. Luckenbill v. Eastern Pennsylvania Railways Company.</p> <p>Trespass to recover damages for personal injuries.</p> <p>The circumstances of the accident are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $1,386.15. Defendant appealed.</p> <p>Error assigned among others was in refusing binding instructions for defendant.</p>

Appeal, No. 99, Oct. T., 1910, by defendant, from judgment of C. P. No. 5, Phila. Co., June T., 1906, No. 984, on verdict for plaintiff in case of Martin H. Papajian y. John H. Scott. Assumpsit to recover commissions on the sale of real estate. Before Staake, J. The facts appear in the former report of the case in 37 Pa. Superior Ct. 560. Verdict and judgment for plaintiff. Defendant appealed.

<p>Practice, C. P. — Sheriff’s return — Service—Setting .aside service— Evidence.</p> <p>1. A sheriff’s return of service on an adult member of defendant’s family cannot be set aside on evidence aliunde, that the service was made on the daughter of defendant, who was only nineteen years of age.</p> <p>Constitutional law — Special legislation — Automobiles—Service outside of county — Act of April 27,1909, P. L. 265.</p> <p>2. The Act of April 27, 1909, P. L. 265, relating to motor vehicles and providing that in actions for damages against the owners of such, service may be had in another county than that where the accident occurred, is constitutional and does not violate art. Ill, sec. 7, of the constitution of Pennsylvania, which provides that the General Assembly shall not pass any local or special law “regulating the practice or jurisdiction of, or changing the rules of evidence in, any judicial proceeding or inquiry before courts.”</p> <p>3. The negligent operator of an automobile has a manifest advantage over the driver of a horse, in avoiding service of process within the county where his negligence has caused an injury and the party injured is at a corresponding disadvantage in obtaining redress. It is on this difference that the discrimination in the Act of April 27, 1909, P. L. 265, with regard to service of process is founded, and it is a fair and constitutional basis for the legislative discretion.</p>

<p>Appeal, No. 200, Oct. T., 1910, by defendant, from judgment of C. P. No. 2, Phila. Co., Sept. T., 1897, No. 855, on verdict for plaintiff in case of Max Leithold and Ida Leithold v. Philadelphia & Reading Railway Company.</p> <p>Trespass to recover damages for the death of a child seven years old. Before Sulzberger, J.</p> <p>Verdict for plaintiff for $2,000, upon which judgment was entered for $1,000, all above that amount having been remitted.</p> <p>Error assigned was in refusing binding instructions for defendant.</p>

<p>Appeal, No. 218, Oct. T., 1910, by plaintiff, from judgment of C. P. No. 2, Phila. Co., Dec. T., 1909, No. 422, on verdict for defendant in case of Philadelphia to use of Pennsylvania Asphalt Paving Company v. George A. Bilyeu.</p> <p>Scire facias sur municipal claim for paving. Before WlLTBANK, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The court charged in part as follows:</p> <p>[The question for you is not whether this property has been damaged to the extent of $406. That has nothing to do with the case. The question for you is whether this work, no matter how done, whether lawfully or unlawfully (for that point has been reserved), has benefited this property. Was it a local improvement? If it ivas a local improvement to this property, then the property must contribute special taxation to pay for that local improvement, by way of relief of the general taxation of the city.</p> <p>When streets are made under ordinary circumstances, by virtue of the general law, they should be paid for out of the general taxation of the city, but if it is found that the construction of the street benefits the houses along there,, the separate lots, specially, then it is only just and equitable that those special lots should bear their share of the taxation and so relieve the general public from the burden.] [2]</p> <p>[The question for you to determine is whether this paving benefited the defendant’s lot, and if you find that it did not benefit the defendant’s lot it will be your duty to find a verdict for defendant. How are you going to inquire? Mr. Massey says that it did not damage it, but he says it did not benefit it, so Mr. Massey’s evidence is not of value to us in this instance. What do you find? You find here a street that is not on a level. It is higher on one side than on the other. It is up towards the north side where that bakery is, and it is down on the south side where this man has his lot. That is agreed to and there is no question about that. What is the consequence? The consequence is that all the flow is from the north side down to the south side. Is that a benefit to the defendant’s lot? If you find it is, under my general instructions then you will find a verdict for plaintiff to the extent of the benefit. You may find that the benefit is such as to justify you in giving him a verdict for his claim. The evidence is that the offal from the other side (I use that general term and you will understand what I mean), comes flowing over from the north down to the south on the gutter way of this lot and of the adjacent lots, and it flows off to a sewer or inlet which is in that region. It flows off slowly. It produces (if you find it so) an unnatural collection of stuff there in the gutter. I leave to you as a question of fact whether it does so do. If you find that it does so do, and that it produces these unpleasant odors that have been testified to, then you will be obliged.to find that that benefits his lot or else to give a verdict for defendant under my instructions.] [3]</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned among others were (1) in refusing binding instructions for plaintiff; (2, 3) portions of charge as above, quoting it.</p>

<p>Wills — Trusts and trustees — Beal estate — Distribution.</p> <p>Testatrix gave her real estate in trust to pay the income in equal shares to her two daughters for their respective lives; upon the death of either, the income to which she would have been entitled if living was to be paid to her children, and the issue of deceased children, until the death of the survivor; upon the death of that survivor, the real estate was to be sold and the proceeds divided, one-half among the children and issue of deceased children of one daughter, and one-half among the children and issue of deceased children of the other. The two daughters survived the testatrix. After the death of one of them the real estate was sold, and the proceeds came into the hands of the trustees. Held, that one-half of the proceeds from which the income of the deceased daughter had been derived could not be distributed even with the consent of the surviving daughter, until the surviving daughter herself died.</p>

<p>Appeal, No. 2, Feb. T., 1911, by Pine Township, from order of Q. S. Tioga Co., May T., 1908, No. 8, dismissing exceptions to report of viewers in case of Vacation of Big Run Road.</p> <p>Exceptions to report of viewers. Before Cameron, P. J.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was in dismissing exceptions to report of viewers.</p>

<p>Appeal, No. 16, March T., 1911, by defendant, from decree of C. P. Columbia Co., Dec. T., 1908, No. 1, on bill in equity in case of Dora Helwig and Noah Helwig v. Reuben Miller.</p> <p>Bill in equity for an injunction. Before Evans, P. J.</p> <p>The court below found the facts to be as follows:</p> <p>1. The plaintiffs and defendant own adjoining farms in this county, the defendant’s lying north of the plaintiffs’. That a public road leading from what is known as "The River hill road” to the borough of Catawissa passes through the plaintiffs’ farm. That the defendant has a private road, lane or right of way from his house and fields north of the plaintiffs’ farm through the same southwardly to the public road leading to Catawissa.</p> <p>2. That the plaintiffs maintain a gate across the entrance to said private way from the public road so as to prevent their cattle and other animals running at large in their pasture fields from straying upon the public road. That the said gate is constructed so as to open and shut with reasonable convenience and has been kept in reasonably good order and repair by the plaintiffs, and can easily and conveniently be opened by the defendant when he has occasion to pass in and out of said private way.</p> <p>3. That the gate was erected in the summer of 1908 and is substantially in the same location as that occupied by posts and movable bars which were maintained by the predecessors in title of the plaintiffs’ farm for more than thirty years immediately prior to 1895. That during all that time the defendant used his said private right of way subject to the maintenance of the said posts and bars.</p> <p>4. That the westerly side of said private way northwardly from the public road for some considerable distance is not fenced. The plaintiffs sometimes pasture their cattle in the fields adjacent to said way and if the gate across said way is not closed by the defendant when he has occasion to use the same the plaintiffs’ cattle stray upon the public road.</p> <p>5. The defendant has refused and neglects to close or shut the said gate when he has occasion to pass through the same, thereby causing continued injury and annoyance to the plaintiffs by throwing their fields open to the public road and allowing their cattle pasturing in the same to escape therefrom. And further, the defendant declared while upon the witness stand that he would not close the gate when passing in and out unless required to do so by the court.</p> <p>6. The gate in question is an ordinary swinging gate, opening either way, easily operated, causing no inconvenience to the defendant except opening and closing it as he has occasion to pass in and out, and is not an unreasonable obstruction or hindrance to the free use by the defendant of his private right of way over the plaintiffs’ land. The gate causes less inconvenience to the defendant than did the posts and movable bars.</p> <p>The court entered a decree directing the defendant, his agents, servants and employees to close the gate in a proper manner after using it.</p> <p>Error assigned was the decree of the court.</p>

<p>Appeal, No. 18, March T., 1911, by plaintiff, from judgment of C. P. Luzerne Co., June T., 1908, No. 198, on verdict for defendant in case of C. L. Wickham v. Berwick Store Company.</p> <p>Sheriff’s interpleader to determine title to a team of horses. Before Lynch, P. J.</p> <p>The court charged as follows:</p> <p>S. W. Cole lived at Bloomsburg and was the owner of two horses and other property. He contends that on December 24, 1907, he honestly, for a valuable consideration, sold this property to his father-in-law, Mr. Wick-ham; and that in pursuance of this sale, Mr. Wickham directed Cole to take the property to Mr. Wickham’s house in Fairmount township in Luzerne county, a distance of thirty miles, and that on about the twenty-sixth, Mr. Cole did take this property to Mr. Wickham’s barn in Fairmount township. The contention of the defendant is that the whole thing was done for the purpose of defrauding Cole’s creditors.</p> <p>The Berwick Store Company on June 18, 1907, being the holder of a note for $260, had judgment entered thereon in this county against S. W. Cole. On April 1, 1908, the company issued an execution thereon and placed it in the hands of the sheriff of this county, who went to the barn of Mr. Steele in Shickshinny and by virtue of this execution levied on the horses in the barn and in the custody, at least, of Cole.- Mr. Wickham then notified the sheriff that he and not Cole was the owner of this property; the sheriff being in doubt came into court and had this question submitted to court and jury. You are now to decide whether at the time of the levy by the sheriff, Wickham or Cole was the owner of the property..</p> <p>[Wickham contends that an agreement dated on the twenty-fourth between Wickham of the first part and Cole of the second part, was made, a part of it being as follows: "The party of the second part, Cole, agrees to take the team and work it for the period of one year, stand half of the expenses and receive half of all he makes. The party of the first part to find half and receive half.” Signed by Wickham and by Cole. — Cole was then the owner and had a right to take the team.] [4] Then there is a receipt: “Received in full of C. L. Wickham, three hundred dollars, for one brown horse and one sorrel horse and a wagon, harness and chains.” Signed by S. W. Cole.</p> <p>[Your first inquiry is, do you believe from the whole testimony this was an honest sale? That Cole honestly and for a valuable consideration sold this property to his father-in-law, Wickham? Or do you believe it was a contrivance in the form of an agreement, to get rid of the property by Cole, and keep it out of the hands of his creditors?] [5] If you find from the evidence this was a fraudulent sale, stop there and return a verdict for the defendant. [In case you find it was a bona fide sale, a sale made in good faith, the next question is: Did the seller, Cole, deliver possession and control — exclusive possession and control — of the property to Wickham? Although a sale may be honest and a valuable consideration pass, so far as an execution creditor is concerned there must be a delivery of the possession of the property to the buyer. On this I read what Judge Fuller charged the jury when the case was tried before him: “When a purchase is made in good faith and for a valuable consideration, followed by an act intended to transfer the possession as well as the title — both possession and title — and the vendee assumes such control of the property as reasonably to indicate change of ownership, the delivery of possession as a matter of law cannot be declared insufficient. In order to be good against existing creditors of a vendor the sale of personal property must be not only honest in fact, but accompanied by a complete change of possession, a transfer of possession from vendor to vendee, or accompanied by such change of possession as under all the circumstances, the character of the property, the use to which it is to be put and the situation generally, would be reasonable.</p> <p>After the alleged purchase by Wickham, Wickham testified, he told Cole to take this property to Wickham’s house in Fairmount, and two days after, he did take it to Mr. Wickham’s place and stayed there for five days in charge of the property. Mr. Wickham in the meantime had not returned. If I make any slight mistake in the testimony, of course, you are not bound by it. You are to remember for yourselves. Cole then took the property or part of it, at least, to Shickshinny; at least he went away to work this team, as he claimed, under this agreement that he was to work it for a year. Did Wickham take possession and control of this property or did it remain, under this agreement and the facts of the case, in possession of Cole? If you believe Wickham took possession of and exercised control over the property and it was an honest sale, he will be entitled to your verdict.] [6] If you believe it was a dishonest sale or attempt to sell, or that the possession was not changed, under the rule which I have read — or that the control of the property remained in Cole — the defendant is entitled to your verdict. What was said by Wickham and by Cole as to the possession of the property? Cole had it at Shickshinny. He had been driving the team and, so far as people there could see, exercising acts of ownership over this property. You remember the testimony as to what Cole said after this alleged sale to Wickham. Where two are associated for the accomplishment of the same illegal purpose, the acts and admissions of one made during the pendency of the unlawful enterprise and in furtherance of its objects, are receivable in evidence. The defendant claims that from the inception of this thing it was fraudulent, and the claim set up by Wickham, while the property was in the custody of Cole was fraudulent, hence this evidence was taken to show what Cole said after the alleged sale. What it is claimed he said, the substance, the gist of the whole thing — you recall the details — is, that this property is mine and I want to sell it to you. Several witnesses were called to that. Mr. Wickham testified, This property belongs to me. I do not recall any evidence to the contrary. So far as Mr. Wickham is concerned, wherever he spoke of this property when there was occasion to speak of it, he said, This is my property. In addition, many witnesses have been called to impeach the credibility for truth and veracity of Wickham and Cole. It is not the duty of the court to pass upon the credibility of witnesses nor to say who told the truth. It is for you to say whether these men have been successfully impeached.</p> <p>If the property belonged to Cole at the time the writ came into the sheriff’s hands, April 1, 1908, defendant would be entitled to a verdict. If you believe the property belonged to Wickham at‘that time, plaintiff is entitled to a verdict.</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned among others were (1) refusal of plaintiff’s point quoted in the opinion of the Superior Court and (4-6) above instructions quoting them.</p>

<p>Telegraph and telephone companies — License tax — Findings of fact by court — Act of April 17,1905, P. L. 18S.</p> <p>In a proceeding under the Act of April 17, 1905, P. L. 183, to determine the reasonableness of a license tax imposed by a municipality upon telegraph or telephone companies, the findings of fact of the court have the same conclusive force as the verdict of a jury, and the appellate court will not disturb them, except in cases of flagrant and manifest error.</p>

<p>Criminal law — Cutting trees on highway — Abutting owner — Act of April 1, 1909.</p> <p>1. The employees of an electric company authorized by a borough council to cut the branches of trees on a borough street, which might obstruct their work in stringing electric wires, cannot be convicted under the Act of April 1, 1909, P. L. 97, entitled “an act to protect trees growing by the roadsides and within the road limits, and providing a penalty for the unlawful killing, removal of, or injury to the same,” where the information is made on the complaint of a person who is owner of land on the side of the road opposite to the land on which the injured trees were growing, and who had no interest or title in such land.</p>

Appeal, No. 22, March T., 1911, by Lillian Bevan, from decree of O. C. Lackawanna Co., No. 524 of 1906, dismissing exceptions to adjudica-, tion in estate- of Thomas W. Evans, deceased. Exceptions to adjudication. Before Sando, P. J. ■ The facts are stated in the opinion of the Superior Court. Errors assigned were in dismissing exceptions to adjudication.

Appeal, No. 30, March T., 1911, by defendant, from judgment of C. P. Lackawanna Co., May T., 1910, No. 172, on verdict for plaintiff in case of The Scranton Gas & Water Company v. E. B. Sturges. Assumpsit for water rates. Before Edwards, P. J. At the trial, Arthur Car, defendant’s caretaker, testified that defendant’s family left the house on May 12, 1909, and that the water was shut off.

Appeal, No. 12, March T., 1911, by plaintiff, from order of C. P. Columbia Co., refusing to take off nonsuit in case of Joseph Cole v. J. L. Reece. Trespass for malicious prosecution. Before Evans, P. J. The facts are stated in the opinion of the Superior Court. The court entered a compulsory nonsuit which it subsequently refused to take off. Error assigned was in refusing to take off nonsuit.

Appeal, No. 21, March T., 1911, by plaintiff, from judgment of C. P. Cumberland Co., Sept. T., 1910, No. 35, on verdict for defendant in case of James Koons et al. v. Joseph Swartz. Trespass to recover damages for the alleged •wrongful cutting of timber. Before Sadler, P. J. The opinion of the Superior Court states the case.

Appeal, No. 10, March T., 1911, by Susie J. Linthicum et al., from decree of O. C. York Co., dismissing appeal from register of wills in estate of Joseph Knell, deceased. Appeal from register of wills. Bittenger, J., filed the following opinion.

<p>Appeal, No. 1, March T., 1911, by defendant, from judgment of C. P. Dauphin Co., Sept. T., 1908, on verdict for plaintiff in case of Heinrich Sieb v. Central Pennsylvania Traction Company.</p> <p>Trespass to recover damages for the death of plaintiff's son. Before Shull, P. J., specially presiding.</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>Error assigned was in submitting the case to the jury.</p>

<p>Assignment for creditors — Compensation of assignee — Attorney’s fees — ■ Services of assignor.</p> <p>1. The finding of an auditor confirmed by the court below allowing an assignee for creditors $400 as compensation for his services, will not be set aside where the evidence shows that the assignee entered a bond for an estate appraised at about $13,000, that he was in fact responsible for about $10,000 of property, that he sold about $4,000 of goods at a price more than $1,000 above their appraised value, and the testimony of competent witnesses, not in any way contradicted, was that the compensation was reasonable.'</p> <p>2. The compensation of a trustee of any character may be arrived at as a matter of convenience by way of percentage on the amount of receipts and disbursements, but after all it is a question not of percentage, but of compensation. It, therefore, comes to nothing to say the percentage is large, or the percentage is small, as compared with the estate, if the trustee has received neither less nor more than what his services are worth.</p> <p>3. An attorney for an assignee for the benefit of creditors is properly allowed $300 for his services, where it appears that he prepared the deed of assignment and other legal papers, and notices connected with the assignment, that he took charge of thirty-four cases pending against the assignor at the time of the assignment, and generally advised the assignee in a great number of legal matters.</p> <p>4. An allowance by an auditor of compensation to an assignor for services rendered to his assignee for creditors, will not be set aside by the appellate court, where the auditor’s report is confirmed by the court below, and his finding is based upon sufficient evidence, and there is no manifest error.</p>

<p>Appeal, No. 101, April T., 1911, by Mary Belle Davis, Executrix et al., from decree of O. C. Crawford Co., Feb. T., 1907, No. 34, confirming auditor’s report in Estate of Myron Park'Davis, deceased.</p> <p>Exceptions to report of John A. Northam, Esq., auditor.</p> <p>The opinion of the Superior Court states the facts.</p> <p>Error assigned was in confirming the report of the auditor.</p>

Appeal, No. 148, April T., 1911, by plaintiff, from judgment of C. P. Venango Co., April T., 1909, No. 57, on verdict for defendant in case of R. G. Koch, doing business as R. G. Koch & Company, v. Oil City. Assumpsit for goods sold and delivered. Before Criswell, P. J. The opinion of the Superior Court states the case. Verdict and judgment for defendant. Plaintiff appealed. Error assigned was in giving binding instructions for defendant.

<p>Statute of limitations — -Fraud—Discovery of fraud, — Executors and administrators.</p> <p>Where an administrator of his wife’s estate falsely and fraudulently informs the widow of his son that she has no interest in the decedent’s estate although as a matter of fact she is entitled to a share therein as the heir of her own deceased child, and distribution is made without her sharing in it, the statute of limitations begins to run in favor of the administrator or his estate only from the date when the fraud was discovered.</p>

Appeal, No. 29, April T., 1911, by defendant, from judgment of C. P. No. 2, Allegheny Co., April T., 1907, No. 354, on verdict for plaintiff in case of Robert T. Hill v. Oakmont Borough. Appeal from report of viewers. Before Shafer, J. At the trial the plaintiff was examined as follows: “Q. What, in your opinion, was the difference in the market value of your property — ” Objected to, as the witness is not qualified to express an opinion. “Q. How long have you lived there?

Appeal, No. 30, April T., 1911, by plaintiff, from judgment of C. P. No. 4, Allegheny Co., No. 233, Fourth Term, 1907, on verdict for defendant in case of Patrick O’Toole v. Catherine Escher. Assumpsit for money had and received. Before Cohen, J. The court gave binding instructions for defendant. Plaintiff appealed. Error assigned was in giving binding instructions for defendant.

<p>Insurance — Health insurance — Construction of policy — Confinement to house.</p> <p>Where a policy of health insurance provides for weekly payments of indemnity when illness “necessarily confines the insured to the house” and “prevents the insured from performing any and every kind of duty pertaining to his occupation,” the insured is not entitled to recover if it appears that during the time of his illness, for which he claimed indemnity, he was out of his house daily for a part of the time by advice of his physician, although he was incapable of performing any duty pertaining to his occcupation.</p>

<p>Appeal, No. 32, April T., 1911, by defendant, from judgment of C. P. No. 3, Allegheny Co., May T., 1907, No. 60, on verdict for plaintiff in case of Louis Meyer v. George H. Shiekler.</p> <p>Assumpsit on a promissory note. Before Evans, J.</p> <p>At the trial the court refused under objection and exception to permit the defendant to show a collateral agreement with the payee of the note, which had not been complied with (1, 2).</p> <p>Verdict and judgment for plaintiff for $1,191.17. Defendant appealed.</p> <p>Errors assigned were (1, 2) rulings on evidence, and (6) in giving binding instructions for the plaintiff.</p>

<p>Appeal, No. 54, April T., 1911, by defendant, from judgment of C. P. No. 1, Allegheny Co., June T., 1905, No. 90, on verdict for plaintiff in case of Christ Reformed Church of Pittsburg v. James M. Clark.</p> <p>Assumpsit to recover hand money paid under articles of agreement. Before Ford, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $662.50. Defendant appealed.</p> <p>Error assigned was in giving binding instructions for plaintiff.</p>

<p>Appeal, No. 60, April T., 1911, by defendant, from judgment of C. P. No. 2, Allegheny Co., Oct. T., 1907, No. 539, on verdict for plaintiff in case of L. A. Clark, trading as L. A. Clark & Company v. N. Battaglia.</p> <p>Assumpsit to recover commissions on sale of real estate. Before Shaper, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $1,242.80. Defendant appealed.</p> <p>Error assigned was in refusing to enter judgment n. o. v.</p>

<p>Promissory notes — Defense—Judgment—Payment.</p> <p>Where a judgment is entered for want of an affidavit of defense in an action on a promissory note, such judgment should be opened even after the term at which it was entered may have expired, where the evidence tends to show that the defendant was an accommodation indorser for a corporation, that the note was given by the corporation for merchandise purchased, and that the plaintiff agreed to take back the merchandise and surrender the notes, and that it did in fact take back the merchandise, but refused to surrender the notes, brought suit on the same, and secured the judgment in question.</p>

<p>Appeal, No. 21, Oct. T., 1911,</p> <p>by defendant, from judgment of Q. S. Huntingdon Co., Dec. T., 1909, No. 7, on verdict of guilty in case of Commonwealth v. Louis Rossi.</p> <p>Indictment for selling liquor without a license. Before Woods, P. J.</p> <p>The opinion of the Superior Court states the case.</p> <p>Verdict of guilty, upon which the defendant was sentenced to pay a fine of $500.</p> <p>Errors assigned were (1) the whole charge but not quoting it; (2, 3) portions of charge, quoting them; (4) refusal of request by defendant for binding instructions in his favor; (5) ruling on evidence referred to in the opinion of the Superior Court.</p>

<p>Appeal, No. 53, April T., 1911, by plaintiff, from judgment of C. P. No. 3, Allegheny Co., Nov. T., 1906, No. 469, on verdict for plaintiff in case of F. W. Dodge Company v. J. M. Williams, doing business as The Williams Gauge Company.</p> <p>Assumpsit on a contract in writing. Before Kennedy, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The court charged in part as follows:</p> <p>[Mr. King was, at the time of the making of the agreement, the partner of Mr. J. M. Williams in the company, and was general manager; that is proved here and is not contradicted, and you may, for the purposes of this case, assume that to be the fact that H. R. Williams was not the general manager or vice president; that is not contradicted; he was not the general manager and vice president at the time of the making of this contract. So in signing such a title by him it was done entirely without any authority. Mr. King was the sole general manager at that time; that is not contradicted, so that H. R. Williams in signing himself as such acted entirely without authority.] [1]</p> <p>[In the first place, this is a copartnership composed of one man only, and that is Mr. J. M. Williams, and it is quite anomalous for one man to be styled the vice president of another and yet this is the way this man H. R. Williams, signs this contract as the vice president and general manager. There may be such 'a thing as a man employing a general manager in his business, but it would seem to be absurd for a man to be vice president of another.</p> <p>Mr. King was, at the time of the making of the agreement, the partner of Mr. J..M. Williams in the company and was the general manager.] [2]</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned were (1, 2) above instructions, quoting them.</p>

<p>Negligence — Infant—Unloading wagon at sidewalk — Case for jury — ■ Damages — Permanent injuries — Evidence.</p> <p>1. In an action to recover damages for injuries to a boy eight years old, the case is for the jury where the evidence tended to show that defendant’s driver at the time of the accident was unloading beer kegs from a wagon standing alongside the curb of a street, by tossing them across the sidewalk into a lot adjoining defendant’s premises, that the child in running on the sidewalk was struck by one of the beer lcegs,. and that the driver could have seen the boy in time, and could have prevented the accident, if he had taken the simple precaution of looking.</p> <p>2. While the occupants of places of business upon public streets may have a right to use, in a reasonable manner, the sidewalk in front of their premises in receiving and sending out merchandise, yet the law imposes upon such person as it does upon all others using the sidewalk for any other lawful purpose, the duty to exercise their right with a due regard to the safety of pedestrians.</p> <p>3. Where in such a ease there is evidence that the wound on the boy’s head was about two inches in length and extended in depth to the skull bone, and that there remained a large scar and a depression of the skull which in all probability would be permanent, and that the boy who was a bright boy with good health and memory had from the time of the accident become nervous, with his memory affected and with periods of pain in his head, the evidence is sufficient to justify a jury in awarding damages for permanent injuries.</p> <p>Appeals — Assignments of error — Charge of court — Stenographers.</p> <p>4. Assignments of error to the charge of the court will not be considered where the record fails to show any request before verdict that the charge be reduced to writing from the stenographer’s notes, and filed of record.</p>

<p>Appeal, No. 85, April T., 1911, by Harry S. McKinley, receiver, from order of C. P. No. 2, Allegheny Co., July T., 1905, No. 214, refusing to take off nonsuit in case of James Bonar & Company, Inc., v. South Penn Oil Company, garnishee of C. H. Bradley, Jr., trading as C. H. Bradley, Jr., & Co.</p> <p>Attachment execution. Before Haymaker, J.</p> <p>The facts are stated in the opinion of the Superior Court.</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>

Appeal, No. 96, April T., 1911, by plaintiff, from judgment of C. P. No. 1, Allegheny Co., June T., 1905, No. 109, on certificate for defendants in case of Lem. S. Brock v. C. C. Brock and Franklin P. lams. Assumpsit to recover moneys collected by attorneys at law. Before MacFarlane, J. At the trial F. P. lams, one of the defendants, was asked this question: “Q. What did Cyrus C. Brock say to you?” Objected to by plaintiff’s counsel as incompetent, irrelevant and immaterial.

Appeal, No. 97, April T., 1911, by defendant, from judgment of C. P. No. 4, Allegheny County, Second Term, 1908, No. 1,109, on verdict for plaintiff in case of A. J. Pirhalla v. Duquesne Borough. Trespass to recover damages resulting from the flooding of a cellar. Before Cohen, J. The facts are stated in the opinion of the Superior Court. Verdict and judgment for plaintiff for $208.45. Defendant appealed.

Appeal, No. 110, Oct. T., 1910, by defendant, from judgment of C. P. Huntingdon Co., Dec. T., 1908, Nos. 41 and 42, on verdict .for plaintiff in case of J. M. Miller v. Henry Parks. Issue to determine what was due upon two judgments.

Appeal, No. 100, April T., 1911, by plaintiff, from judgment of C. P. No. 1, Allegheny Co., March T., 1906, No. 785, on verdict for plaintiff in case of Caremeno Dialesantro v. Philadelphia Company. Trespass to recover damages for personal injuries. Before MacFarlane, J. At the trial the jury returned a verdict for plaintiff for $1,200.

Appeal, No. 3, March T., 1911, by defendant, from judgment of Q. S. Mifflin Co., Jan. T., 1910, No. 3, on verdict of guilty in case of Commonwealth v. J. A. Martin. Indictment for selling liquor without a license. Before Woods, P. J. The opinion of the Superior Court states the facts. • Verdict of guilty upon which the prisoner was sentenced to pay a fine of $500 and undergo imprisonment in the county prison for three months.

Appeal, No. 102, April T.,1911, by J. M. Reid et al., from order of Q. S. Fayette Co., March T., 1909, No. 212, incorporating the Borough of South Connellsville. Petition for the incorporation of a borough. Before Van Swearingen, J. The facts are stated in the opinion of the Superior Court. Errors assigned were in dismissing exceptions to adjudications.

Appeal, No. 21, April T., 1911, by plaintiff, from judgment of C. P. Washington Co., Nov. Term, 1909, No. 80, on verdict for defendants in case of Frank B. McKinley et al. v. W. H. Ulery et al. Trespass quiere clausum fregit. At the trial the jury returned a verdict for plaintiffs for SI.00. Oh a motion by defendants for judgment n. o. v. McIlvaine, P. J., filed the following opinion: QUESTION AT ISSUE.

Appeal, No. 135, April T., 1911, by plaintiffs, from judgment of C. P. Washington Co., May T., 1909, No. 180, on verdict for plaintiffs in case of Manson T. McCleary and Nellie I. McCleary v. Pittsburg Railways Company. Trespass to recover damages for death of a child six years old. Before Taylor, J. The facts are stated in the opinion of the Superior Court.

Appeal, No. 147, April T., 1911, by H. T. Cochran, from order of Q. S. Washington Co., Nov. T., 1910, No. 31, refusing a distiller’s license. In re Application of H. T. Cochran. Application for a distiller’s license. Before Taylor, J. The facts are stated in the opinion of the Superior Court. Error assigned was order of February 9, 1911.

<p>Appeal, No. 109, April T., 1911, by defendant, iron order of C. P. Westmoreland Co., Nov. T., 1909, No. 517, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Doty Guthrie and Robert M. Doty, Administrators of the Estate of D. B. Peoples, deceased, v. Pittsburg Dry Goods Company.</p> <p>Assumpsit to recover $806.30 paid by the tax collector of Derry township and for which the defendant is alleged to be liable.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>The court below filed the following opinion:</p> <p>The tax collector was charged in the duplicate with the collection of the taxes enumerated therein, including a tax assessed against the real estate of the defendant. The collector legally had nothing to do with the assessment of that tax, nor with the ascertainment of the proper subject-matter upon which it was to be imposed; neither had he any power or authority, under the law, to exonerate any taxable for the payment of his assessed taxes. If he did not collect the taxes charged to him in the duplicate, he would be compelled to pay them himself, on the settlement of his accounts. The statement shows that this liability to account has, in fact, been enforced against him personally with respect to a portion of the real estate tax charged in the duplicate against the defendant, and the deceased collector’s legal representatives now bring this action to reimburse his estate for the expenditure of money he was thus compelled by law to make, for the discharge of a burden that, under the law, ultimately rested on the tax debtor alone. The defendant questions their right to recover, mainly, on two grounds, viz.: (1) That the subject taxation is personal property, and is, therefore, not subject to a real estate tax, no matter who may be the owner of it, and (2) That the defendant does not own the property upon which the tax is .assessed, and is, therefore, not compelled, through this action, to make payment to the collector’s estate, even though the latter may have made payment to the respective municipalities which have •undertaken to impose the tax, and have collected it. The statement shows the assessment of the real estate to stand in this form: “Factory building, $25,000; four acres, $400; improvement and machinery, $25,000.”</p> <p>As we understand it, the “improvement and machinery” are in the aforesaid “factory building,” and the ' ‘ factory building ’ ’ is located on the ‘ ‘ four acres. ’ ’ Therefore, what is enumerated above in the form of three separate items is but a mode of describing a single subject of taxation, by an enumeration of its several constituents— and the aggregate of the valuations placed on these several constituents is, in each of the assessments, the basis to which the fixed rate of taxation for real estate has been applied. The levy is on the aggregate of the valuations. The rate is the rate appropriate to a real estate tax, and no attempt has been made to levy any other kind of a tax. While the enumeration of the constituents of a single subject of taxation, when looked at from a purely logical and legal standpoint, may not be the best mode of procedure, yet it is a mode that is often pursued in actual practice, and is not violative of any legal right of the taxpayer. In view of the contention made by the defendant in this case, it has, for it, some advantages over an assessment that did not have special regard to the several constituent elements of the subject of taxation. The statement and affidavit of defense show that nothing but a real estate tax, has been imposed, and it is mainly, on that ground, that defendant seeks to defend.' The defense set up is to the portion of such a real estate tax as would result from considering the appraisement fixed on only one of the constituent elements of the subject of taxation, viz.: that on the “improvement and machinery.” The affidavit avers, with respect thereto, “that the same were the personal property and bélonged to the Pearce Manufacturing Company, and illegally assessed as real estate and the property of the defendant and against the defendant.” No facts are set up tending to show that, in its intrinsic nature, as that nature would be manifested to the eye of an assessor, the machinery lacked physical and permanent connection with the other elements of the assessed real estate, and that it was not a requisite addition to make the whole a woolen factory. The defense stands on another ground, which had been given in the first paragraph of the affidavit — the one that immediately preceded the one just quoted above. In that preceding paragraph, the defendant admits its ownership of the “factory building and the four acres,” but denies that it was the owner of certain improvements referred to in plaintiffs’ statement of claim, and avers that, on or about the March 15, 1905, the defendant leased the said four acres and factory building for the term of three years to the Pearce Manufacturing Company, a corporation duly organized and existing under the laws of this state, which said company, as said lessee, bought and placed upon the said premises owned by the defendant certain improvements, which are the improvements referred to in the plaintiffs’ statement of claim, consisting of carding machines and other machinery used for making woolen blankets from textile fabrics, and which said improvements were for the purpose of the trade and business of the said company as such lessee, which was the manufacturing of woolen and textile fabrics and articles of merchandise therefrom; that, under and by virtue of said lease, the said improvements remained the personal property of the said Pearce Manufacturing Company and removable by them.”</p> <p>1. Is the machinery just referred to free-from real estate taxation, by reason of the facts above recited?</p> <p>If the defendant did not allege that it did not own the machinery, it would scarcely have alleged that the enhanced value of the manufactory, due to the addition of the machinery essential to a carrying on of such a manufactory, would not constitute a proper basis for an increment in real estate taxation. In Patterson v. Delaware County, 70 Pa. 381, Patterson’s property was returned as a “square of ground, factory, and machinery,” the whole assessed as real estate, and a tax levied on the valuation for county purposes. It was claimed that the “machinery” was not properly taxed as real estate. “Held that under the Act of April 29,1844, sec. 32, P. L. 486, the machinery was properly tax.ed as real estate.”</p> <p>In that case, the subject of assessment was a cotton factory, owned and occupied by the taxable himself, and he also owned the machinery. In this case, the defendant, according to the affidavit of defense, only owns the land and the factory building — and a tenant owns the machinery. Would that fact — assuming it to be a fact — so differentiate this case from the case of Patterson v. Delaware County, supra, as to render the machinery in this case untaxable as real estate, while in the other case, it was so taxable? The defendant would answer that question in the affirmative. This pending case cannot be made to be a suit to determine questions arising out of a contract between the landlord and the tenant, for they are not-impleaded as the parties to the action, but the plaintiff, taking his rights from the several taxing municipalities, the question involved is rather to be looked at as having its origin out of a question between the public and the taxable, arising out of the law authorizing the imposition of the taxes by the municipalities. Considering the terms of their private contract, it may be, as between the lessor and lessee themselves, that the machinery would, in a certain figurative sense, be regarded as “personal property,” but the lawmaker enacting a law to devise revenue for governmental support, and designating the proper subjects of taxation may not look on the subject of taxation through the conventional rights of owners — making the same thing taxable in view of one state of the title — and not taxable in view of another state of the'title. In the absence of some indication to that effect in the terms of the statute authorizing the public tax, it is not to be assumed that the legislature, bound as it was by a constitutional obligation to authorize only the levying of a tax shall be uniform on the same class of taxable property, deliberately set about, in defiance of such constitutional obligation, to make the machinery in a factory taxable, if the owner of the soil owns it, and not taxable if a lessee owns it. The manufactory is a manufactory, as certainly in the one case as in the other, and the legislature, presumptively, would regard the productivity of that form of real estate as a unit, and would look at it as it appeared to the assessor from its physical aspect.</p> <p>Polonius, obsessed by the idea that Hamlet’s apparent madness was due to excessive love for his daughter, thought Hamlet to be “still harping on my daughter,” when his words were prompted by a far different cause— and, in the same manner, we, if obsessed by a consideration of the legal rights of parties under a private contract between a lessor and a lessee, and designed only to operate as between themselves, may in construing a public tax statute, have our attention diverted from the true point of consideration. That law, when properly construed, is, and must be, the paramount authority in determining a case like this. The lawmaker, in framing the statutes, to which we shall presently refer, did not descend, in the designation of the real estate that was to be taxable, into a consideration of rights which lessors and lessees might make by contract with respect to the ownership or use of that real estate, but only sought to guide the assessor, called on under the act, to find the taxable real estate, by the use of terms adequate for such guidance, no matter who might be the owner or user thereof.</p> <p>The fourth section of the Act of April 15,1834, P. L. 509, designates taxable real estate by these terms:</p> <p>“Real estate, viz.: All houses, lands, lots of ground and ground-rents, mills and manufactories of all descriptions, all furnaces, forges, bloomeries, distilleries, sugar-houses, malt-houses, breweries, tan-yards and ferries.”</p> <p>The thirty-second section of the Act of April 29, 1844, P. L. 486, provides as follows:</p> <p>“From and after the passage of this act, all real estate, to-wit: Houses, lands, lots of ground and ground-rents, mills and manufactories of all kinds, furnaces, forges, bloomeries, distilleries, sugar-houses, malt-houses, breweries, tan-yards, fisheries and ferries, wharvfes, and all other real estate not exempt by law from taxation shall be valued and assessed and subject to taxation, for the purposes in this act mentioned, and for all state and county purposes whatsoever.”</p> <p>From one or both of these acts comes the authority to assess real estate for the purposes of taxation. These acts employ their own terms of description, not contemplating the modification of their significance through the instrumentality of any private contract — and there is no other act than these applicable. The subject-matter of taxation is real estate, in the sense of these statutes — not necessarily real estate in the abstract and general sense of legal lexicography — nor yet, in the concrete and figurative sense of some private contract between two individuals in respect to its title or use. In the first of these acts, “mills and manufactories of all descriptions,” and, in the second, “mills and manufactories of all kinds” are designated as being proper subjects for assessment — and these special terms, with others, are, for a purpose, superadded to the less specific designation of real estate in general. In the sense of these statutes, when a manufactory exists in fact, it is taxable as real estate, regardless of any conventional rights with respect to the ownership of its constituent parts, as private citizens by their contracts may originate, inter se, those conventional rights.</p> <p>The assessing officer sees that which physically constitutes a mill or manufactory, and he knows from the statutes that it is taxable as real estate.</p> <p>“In estimating the value of real estate, it is the duty of an assessor, under the Act of 1844, to value coalbreakers, houses and other improvements, erected by tenants under a mining lease, without regard to whether they are owned by the landlord or the tenant, or whether, as between the landlord and the tenant, they are real or personal estate:” Gorrell etal. v. Murphy et al., 1 Leg. Gaz. Rep. (Camp.) 495.</p> <p>“In estimating the ratable value of property, machinery attached to it ought to be taken into the account, without considering whether it was real or personal estate, or whether it belonged to the landlord or the tenant:” Reg. v. Guest, 7 Adolph & Ellis, 951.</p> <p>“It would seem that the machinery should be taxed without reference to the nature of the title by which the premises upon which it is erected are held. Clearly any other construction of the law would open a wide door to fraud, and prove a constant temptation for subterfuge and false dealing at the samé time that it would relieve certain classes of manufacturers from their share of the burden of taxation. The law makes manufactories of all descriptions real estate, and subjects them to taxation.” Per Wood, J., in Luzerne County v. Galland, 3 Kulp, 11.</p> <p>“A. stationary sawmill, in which boilers are set in masonry erected upon lands belonging to another, held by the owners of the mill under a lease, and, as to which the owners of the mill had ‘the right to remove at any time prior to April 1, 1906, any buildings erected by you (them), on said mill site and lumber yard/ is liable to taxation as real estate, for county purposes:” Bemis v. Shipe, 26 Pa. Superior Ct. 42.</p> <p>In the course of the opinion in the case last cited, Judge Beaver, inter alia, says:</p> <p>“The entire argument of the appellants is based upon the premise that because, as between the owners of the lands and the owners of the mill, the latter can be called personal property, it is, therefore, personal property for all purposes, and this fact is determined by the permission in a letter from the lessors or owners of the land to the plaintiffs to remove any buildings erected by them on the land belonging to the owners prior to April 1,1906.</p> <p>“It may be admitted that, as between the owners of the land and the owners of the mill, the latter may be regarded and treated by them as personal property, and yet it by no mean's follows that in contemplation of law for other purposes it is not real estate. Without the express permission of the owners of the land to remove the buildings prior to a certain date, if nothing whatever had been said in regard to them in the original lease, they would doubtless belong to the owners of the land at the expiration of the lease, as being a part of the real estate, but such permission does not change the physical character of the property, nor does it in any way change its legal status, except as between the parties themselves and those claiming under them and as to the legal machinery through which the title of the lessees may be transferred to creditors or others who desire to secure their rights.</p> <p>It can scarcely be conceived that the legislature .... should intend to exempt from taxation a building upon one tract of land, because it happened to be erected upon a leasehold, under a concession of the right to rémove it at the termination of the lease, and impose a tax upon a precisely similar building on an adjoining tract, because it was erected by the owner, and yet, if the contention of the appellants is correct, that would be the inevitable result.”.</p> <p>The machinery appraised as a part of the real estate in this case is not shown, by any of the' facts set out in the affidavit, not to be taxable as real estate.</p> <p>The first contention of defendant in the affidavit of defense, therefore, does not embody a sufficient defense. The manufactory in its entirety constitutes a proper subject, under the law, for real estate taxation.</p> <p>2. What significance, in an action of this kind, does the defendant’s asserted lack of ownership of machinery have?</p> <p>We have already said that the alleged tenant is not and could not be impleaded in this action — that the collector was charged with the collection of the taxes enumerated in his duplicate, and that, even if the assessment was erroneous, it was not in his power to even exonerate the taxable, or relieve himself from the obligation of collecting it — or of paying it himself if it was not collected by him. As long as the assessment remained unmodified by an authority having legal power to modify it, the obligation of the collector to collect or to personally pay it, remained. This case is predicated on the legal obligation of the collector — not on the consideration that might properly be pressed by the taxable on the attention of the assessor — or, on appeal, on the attention of a board of revision. The defendant does not say that the question of ownership was ever called by it to the attention of either the assessor or the board of revision, whose exclusive duty it is to deal with such questions, but, after the collector, under compulsion of law, has paid the tax, as assessed against the defendant, and now seeks reimbursement from the taxable against whom the taxes were (as to the collector) unalterably assessed, the defendant seeks to' interpose here, as a defense to such an action, the allegation that it was not the owner of a part of what went to constitute the assessed manufactory. It was the official duty of the assessor and of the board of revision to ascertain who the taxables were, and once they had done so, the result of their work was binding on the collector. His legal obligations and legal rights attached to the ascertained states of facts, as returned to him in the duplicate. His obligations under that state of facts have been discharged, and this suit is brought to enforce his legal rights under that same special and unmodified state of facts.</p> <p>"The remedy for an unfair or illegal assessment of taxes is by appeal to the county commissioners. If the party aggrieved neglect it, the collector cannot relieve him, but must collect the tax:” Wharton v. Birmingham Boro., 37 Pa. 371.</p> <p>Even where an appeal has been properly taken on the question of the ownership of the assessed property, the presumption, in the trial of the appeal, is that the person named by the assessor as the owner is the owner — and the burden rests on him, alleging error in that regard, to show it.</p> <p>“The township assessor returned the assessment of ‘ twelve acres of improved land and splash-dam, valuation $4,500 name of owner, Emery Lumber Company.’ The presumption is that the officer acted within the limits of his duty, and that the assessment was made against the owner of the property. This established a prima facie case of liability of the Emery Lumber Company, and the burden is on it, to make it appear that the property so assessed did not belong to it, at the time of the assessment.” Per Henderson, J., in Emery Lumber Co. v. Sullivan County, 28 Pa. Superior Ct. 451.</p> <p>If, when there is an appeal properly taken, the owner, as ascertained by the assessor, is prima facie correct, it follows, on logical grounds, that,, when no appeal has been taken at all, the return of the name of the owner made by the assessor is conclusively correct — in a suit of this kind.</p> <p>“The sole remedy for an excessive or illegal assessment is by appeal to the board of revision:” Hughes v. Kline, 30' Pa. 227; Wharton v. Birmingham Boro., 37 Pa. 371; Clinton School District’s Appeal, 56 Pa. 315; Van Nort’s App., 121 Pa. 118.</p> <p>Only the person assessed can take an appeal. The statutes do not give the collector any such right. As long as the assessment stands unaltered by a tribunal invested by law with legal power to alter it, the returned assessment is conclusive on the tax collector. This is no appeal, but a suit between a tax collector and a taxable conclusively presumed to owe the tax which the former, under legal compulsion, has been obliged to pay.</p> <p>“A taxpayer cannot defend an action at law to recover the tax, on the ground-that it was improperly assessed:” Stewart v. Maple, 70 Pa. 221.</p> <p>“A common law action of assumpsit will lie at the suit of a borough collector of taxes who has not been exonerated therefrom after the expiration of his warrant against a taxpayer:” Gillespie v. Sefrin, 1 Chester County Reps. 61.</p> <p>We need not decide whether, by reason of the defendant’s not being the owner of the machinery there should be a severance of the manufactory’s constituents according to the special ownerships, and'each owner be assessed only with what he respectively owns. Even if that should be the case, the want of its being so done in this case would not constitute a defense, in a suit of this kind.</p> <p>“It is the more regular mode to value the whole together as land; but if the improvements only are valued and assessed to the tenant, he being liable by statute to pay all taxes assessed during his possession of occupancy, has no grounds of complaint:” Gorrell v. Murphy, 1 Leg. Gaz. Rep. (Camp.) 495; Caldwell v. Moore, 11 Pa. 58; Act of April 3, 1804, sec. 6, 4 Sm. L. 200, 4 Purd. Dig. 4681.</p> <p>As to the collector, the question of the name employed in the assessment may not be a very material one, and it is from his standpoint that we are to look at the case.</p> <p>This property in its entirety is assessed to the defendant, and, for the purpose of the trial of the pending case, it is conclusively presumed to be the owner — unless another thing set up in the affidavit and now to be considered can be regarded as keeping open for consideration here the question of the defendant’s ownership] The fourth paragraph of the affidavit contains this brief averment with respect to a notice of the assessment:</p> <p>“The defendant avers that they have had no notice of any assessment or opportunity to contest the said assess- • ment.”</p> <p>Section 9 of the Act of April 15,1834, P. L. 509, provides for the assessor’s giving “written or printed notice, at least five days before the day of appeal, to every taxable inhabitant within the respective ward, township or district, of the amount or sum for which he stands rated, and the rate per cent of such amount, and of the time and place of such appeal.”</p> <p>Does the defendant mean to say that it is a “taxable inhabitant” of Derry township, entitled to such notice but that it did not receive it? The affidavit does not specifically say so. The tenth section of. the same act provides that the commissioners shall publish a public notice “at least three weeks before the day of appeal of the time and place fixed for such appeal.” If the taxable was not an “inhabitant within before the day of appeal of the time and place fixed for the .... township,” but was, nevertheless, therein taxable, presumably this published notice would reach it. Does the defendant mean to assert that this public notice was not given? The affidavit does not specifically say so. But passing the question of the meagerness of the averment in the affidavit, what is the legal effect of the lack of notice of the time of appeal? It would not render the tax invalid, but might afford the taxable a right to be heard by way of appeal at some later date. The sixteenth section of the Act of April 15, 1834, P. L. 509, 4 Purd. Dig. 4639, provides as follows:</p> <p>“It shall be the duty of the commissioners to hear appeals at any subsequent time when they may be in session previous to the payment of the tax, and to make such alterations as they might have done on the regular day of appeal. Provided that no such appeal shall be heard unless the appellant shall have given due notice thereof to the assessor of the proper ward, township or district.”</p> <p>The defendant, therefore, could at any time prior to paying the tax, have a hearing on the matter of the assessment, and thereby get all the beneficial results due him that were obtainable at the general appeal. The assessment is presumed to be correct as long as it stands. If it is to be altered, it must be done by officials having jurisdiction to act in such matters — and it is incumbent on the taxable himself to make that appeal. No one else has the right to make it. The defendant does not say that it did not have knowledge, before suit brought, of the existence of the assessment of the tax. The affidavit says quite the contrary. The third paragraph of the affidavit, in part, is as follows:</p> <p>“The defendant admits the levy of the taxes as set forth in the plaintiffs’ statement of claim, and avers the defendant denied its liability thereunder, as soon as the same was presented to the defendant by D. B. Peoples, tax collector, so far as said assessment included the personal property of the Pearce Manufacturing Company, as aforesaid, on the basis of the $25,000 and informed D. B. Peoples of the illegality of the assessment,” etc.</p> <p>The defendant certainly knew, at that time, if not before the existence of the assessment, and, at that time, the opportunity for appeal to the proper tribunal was open, yet instead of resorting to the procedure and tribunal prescribed, the defendant contents itself by alleging to the collector that a portion of the tax was illegal. What had the collector to do with that question? The payment of the portion of the tax admitted to be due has no legal efficacy for exonerating defendant from liability to pay the other portion of the tax. In so far as the collector’s powers and liabilities were concerned, the defendant was liable for the whole tax. It is no defense to have simply protested against payment to the collector. To constitute a defense, the tax must be utterly void. Assuming the truth of all that is averred, this tax is not void.</p> <p>"Notice of the assessment of taxes is not essential to its validity; it merely affords opportunity to appeal from it, if it is excessive or illegally made:” Winton Coal Co. v. Lackawanna County, Lack. Legal News, 195.</p> <p>In the course of the opinion in the case just cited, Judge Akchbold says:</p> <p>"If the omission was a mere irregularity, the complainants were bound to move in the matter in due season after they knew of the assessment, and in a proper way. The mere fact that no notice was given of the assessment nor opportunity to appeal from it, did not dispose of the right of appeal. The right still existed, and could be enforced; when, therefore, the complainants knew of the assessment, they should have taken steps to assert that right.”</p> <p>The same duty rested on the defendant in this case, but has been neglected so long that, as against the plaintiff, the right is doubtless lost.</p> <p>There is nothing set up with respect to lack of.notice and opportunity to appeal that would make the allegation of a lack of ownership a defense in the trial of a case of this kind. Therefore this is no defense on either of the two grounds set up in this affidavit.</p> <p>Both of those grounds are wholly dependent on the existence and terms of an alleged written contract between the defendant and a lessee. We say written contract— because presumably a contract made on March 15, for three years would commence to operate from the first of the following April. Such a contract is within the statute of frauds and must be in writing: 88 Pa. 100; 99 Pa. 270; 112 Pa. 272. Again, machinery installed as this was, even between.lessor and lessee, is a constituent of real estate unless a writing prevents that result. Assuming that those two grounds would constitute a defense (which is not the case), a copy of that agreement would certainly be material to the defense. For affiant to state, in general and indefinite terms, what he conceives to be its proper construction and legal import is but to express a legal conclusion without giving the facts on which it depends.</p> <p>“When the paper is an important factor and the defendant attempts to set up his interpretation thereof, or inference from it, as a defense, a copy must be attached:” Hebb v. Insurance Co., 138 Pa. 174.</p> <p>The first paragraph of the affidavit, already quoted, only states the affiant’s opinion about the contract and its legal effect, no copy thereof being given. Both the rights upon which the defendant seeks to stand are wholly dependent for their existence on that paper and on the correctness of the conclusions expressed. If the grounds were tenable, the materiality of that paper would require it to be set out, to the end that the court — and not simply the affiant — may be able to pass on its proper construction and legal efficacy. The affidavit says that “under and by virtue of said lease, the said improvements remained the personal property of the said Pearce Manufacturing Company and removable by them.” What the proper construction of the instrument is, we can know from an inspection of it, but not from the affiant’s opinion of its significance alone.</p> <p>If the defendant was right about the premises on which it bases its defense, this defect would itself be fatal to the sufficiency of the affidavit.</p> <p>If the defendant has a legal defense, it must be on grounds other than those set up in the affidavit of defense.</p> <p>The rule for judgment for want of a sufficient affidavit of defense is now made absolute, and judgment is entered in favor of the plaintiff and against the defendant for the sum of $806.30 with interest thereon from February 1, 1907.</p> <p>Error assigned was the order of the court.</p>

<p>Replevin — Bank bills — Check—Principal and agent — Set-off—Act of April 19, 1901, P. L. 88.</p> <p>In an action of replevin to recover certain gold certificates of the United States government and bank notes and a check drawn to the order of the plaintiff, an affidavit of defense is sufficient which avers that the defendant was employed by the plaintiff as an agent under an agreement to pay to Mm for Ms services twenty-five per cent of all sums realized by Mm and that at the time of the receipt of the notes and check plaintiff was indebted to Mm in an amount greatly in excess of the certificates, notes and check.</p>

Appeal, No. 114, April T., 1911, by defendant, from order of C. P. No. 4, Allegheny Co., First Term 1911, No. 305, discharging rule for an appeal nunc pro tunc in case of James Thomas Laws v. Joseph Groves. Rule for the allowance of an appeal nunc pro tunc. The opinion of the Superior Court states the case. Error assigned was the order discharging the rule.

Appeals, Nos. 119 and 120, April T., 1911, by defendant, from judgment of C. P. No. 3, Allegheny Co., Feb. T., 1908, No. 251, on verdict for plaintiff in case of Samuel N. Brown and Lizzie Brown v. Pitcairn Borough. Trespass to recover damages for personal injuries. Before Kennedy, P. J. Verdict and judgment for plaintiff for $1,500. Defendant appealed. Errors assigned were to the charge as a whole and certain portions of the charge.

Appeal, No. 18, April T., 1911, by defendant, from judgment of C. P. Washington Co., Aug. T., 1907, No. 160, on verdict for plaintiff in case of Mabel Howard v. American Express Company. Trespass to recover for loss of goods. Before McIl-VAINE, P. J. The facts are stated in the opinion of the Superior Court. Verdict and judgment for plaintiff for $307. Defendant appealed. Error assigned was in refusing defendant’s motion for judgment n. o. v.

Appeal, No. 123, April T., 1911, by defendant, from judgment of C. P. No. 4, Allegheny Co., First T., 1908, No. 370, on verdict for plaintiff in case of K. Solomon & Company v. Adams Express Company. Trespass to recover for the loss of goods. Before Swearingen, J.

Appeal, No. 116, April T., 1911, by defendant, Richard Thompson, from judgment of C. P. No. 3, Allegheny Co., Nov. T., 1907, No. 453, on verdict for plaintiff in case of Robert Hastings v. Richard Thompson, owner or reputed owner and George Doherty. Scire facias sur mechanic’s lien. Before Davis, J. The opinion of the Superior Court states the case. Verdict and judgment for plaintiff for $231.16. Defendant appealed.

Appeal, No. 94, April T., 1911, by William C. Hamilton, from decree of O. C. Allegheny Co., June T., 1909, No. 184, sustaining exceptions to adjudication in Estate of Samuel Hamilton, deceased. Exceptions to adjudication. The opinion of the Superior Court states the facts of the case. Error assigned was in sustaining exceptions to adjudication.

Appeal, No. 136, April T., 1911, by plaintiff, from order of C. P. No. 4, Allegheny Co., First Term, 1911, No. 262, setting aside judgment in case of Otto Heeren et al. v. E. P. Remington. Rule to set aside judgment. Before Cohen, J. The opinion of the Superior Court states the case. Error assigned was the order of the court setting aside the judgment.

Appeal, No. 125, April T., 1911, by plaintiff, from judgment of C. P. No. 2, Allegheny Co., Jan. T., 1908, No. 447, on verdict for defendant in case of Joseph A. Hays v. John Newton Stewart, also called J, N. Stewart. Assumpsit to recover hand money. Before Shafer, J. The facts are stated in the opinion of the Superior Court. Verdict and judgment for defendant. Plaintiff appealed. Error assigned among others was in refusing binding instructions for plaintiff.

Appeal, No. 140, April T., 1911, by plaintiff, from judgment of C. P. No. 2, Allegheny Co., Jan. T., 1911, No. 311, for defendant in case of T. L. Davis v. Homestead Borough. Case stated to determine plaintiff’s right to certain fees and costs. Before Frazer, P. J. The opinion of the Superior Court states the case. Error assigned was in entering judgment for defendant on case stated.

Appeal, No. 142, April T., 1911, by plaintiffs from decree of C. P. No. 2, Allegheny Co., Oct. T., 1908, No. 941, dismissing bill in equity in case of Edward J. Mcllvaine and S. B. Goucher v. Arthur L. Wallace and Sharpsburg Sand Company.

<p>Appeal, No. 36, April T., 1911, by plaintiff, from judgment of C. P. Cambria Co., June T., 1910, No. 35, affirming judgment of justice of the peace in case of Home Protective Association of Canton, Pa., v. James W. Reese, Administrator of Falb Edwards alias Edward Farby Abati, deceased.</p> <p>Certiorari to judgment of a justice of the peace.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was in affirming judgment of justice of the peace.</p>

Appeal, No. 40, April T., 1911, by Northern Cambria Street Railway Company, from judgment of C. P. Cambria Co., Sept. T., 1908, No. 361, on verdict for plaintiff in case of Russell Slavin, a minor, by his parents and next friends, Frank F. and Margaret Slavin and Frank F. and Margaret Slavin, his parents, in their own right, v. Northern Cambria Street Railway Company. Trespass to recover damages for injuries to a child two years old.

Appeal, No. 58, April T., 1911, by defendant from judgment of C. P. Cambria Co., Dec. Term, 1908, No. 534, on verdict for plaintiffs in case of John Woy et al., trading as Johnstown Planing Mill Company v. George B. McCann, owner. Scire facias sur mechanic’s lien. Before O’Connor, P. J. The opinion of the Superior Court states the case. Verdict and judgment for plaintiffs for $1,067.32. Defendant appealed.

Appeal, No. 103, April T., 1911, by the plaintiff from decree of C. P. Cambria Co., Sept. Term, 1910, No. 376, dismissing petition under Act of April 17, 1905, P. L. 183, in case of Johnstown Telephone Co. v. Ferndale Borough. Petition under the Act of April 17, 1905, P. L. 183, to have determined the reasonableness of a license tax. Before O’Connor, P. J. The facts are stated in the opinion of the Superior Court. Error assigned was in discharging the petition.

Appeal, No. 104, April T. 1911, by plaintiff, of C. P. Cambria Co., Sept. T., 1910, dismissing petition filed under the Act of April 17,1905, P. L. 183, in case of Johnstown Telephone Co. v. Southport Boro, et al. Petition under Act of April 17, 1905, P. L. 183, to have determined the reasonableness of a license tax. Before O'Connor, P. J. The facts are stated in the opinion of the Superior Court. Error assigned was decree dismissing the petition.

Appeal, No. 105, April T., 1911, by appellant from decree of C. P. Cambria Co., Sept. T., 1911, No. 280, dismissing petition filed under the Act of April 17, 1905, P. L. 183 in case of Windber Telephone Co. v. Scalp Level Borough et al. Petition under Act of April 17, 1905, P. L. 183, to have determined the reasonableness of a license tax. Before O’Connoe, P. J. • The facts are stated in the opinion of the Superior Court. Error assigned was in dismissing the decree.

<p>Appeal, No. 126, April T., Í911, by plaintiff, from order of Q. S. Cambria Co., Dec. T., 1910, No. 49, quashing indictment in case of Commonwealth v. Isaac Robertson.</p> <p>Indictment for keeping a disorderly house, etc. Before O’Connor, P. J..</p> <p>.From the record it appeared that Isaac Robertson, the defendant in this case, was arrested on an information charging “keeping a bawdyhouse and place of prostitution and gambling,” was given a preliminary hearing on that day, committed in default of bail, escaped, was rearrested and finally gave bail in the sum of $300 for his appearance at the December Term of the court of quarter sessions to answer the charge. An indictment was drawn against him in two counts, one for keeping a bawdyhouse and the other for keeping'a disorderly house. On December 6, 1910, the grand jury returned a true bill as to said indictment. The cause was reached on December 15,1910, but before the jury was sworn counsel for the defendant moved, orally, to quash the bill of indictment on the ground that the offense was not sufficiently alleged in the information on which the bill of indictment was predicated. The court sustained the motion.</p> <p>Error assigned was the order of the court quashing the indictment.</p>

<p>Appeal, No. 141, April T., 1911, by plaintiff, from judgment of C. P. No. 2, Allegheny Co., July T., 1910, No. 980, for defendant on demurrer in case of. City of Pittsburg v. Pittsburg Railways Company.</p> <p>Appeal from judgment of alderman.</p> <p>On a demurrer to plaintiff’s statement Frazer, J., filed the following opinion:</p> <p>Plaintiff’s claim is to recover the sum of $100, penalty provided for in an ordinance of the city of Pittsburg, approved June 17, 1910, entitled:</p> <p>“An Ordinance, requiring the issue of transfers to passengers on street railway cars in the City of Pittsburg, in certain cases and upon certain conditions therein specified; providing regulations as to the use of said transfers, and prescribing penalties for violations thereof.”</p> <p>The first section provides: “That from and after the passage of this ordinance every passenger in any street railway passenger car operated in said city, traveling from a point within said city, having paid his fare, may demand, and upon such demand shall receive from the conductor of said car, or from some authorized agent of the company or corporation operating said car, a transfer. Said transfer shall entitle such passenger to ride to any other point within said city upon any other line of street railway operated by the company issuing the transfer which connects with, crosses, intersects, or goes within a distance of 250 feet of the line of said street railway upon which the passenger first took passage and paid his fare.”</p> <p>Sections 2, 3, 4/5 and 6 relate to the use of such transfers, and sec. 7 provides a penalty for violations, of not less then $25.00 nor more than $100 to be recovered by an action before any alderman or police magistrate.</p> <p>The statement alleges a violation of the provisions of the ordinance by a conductor of defendant company on June 18, 1910, .in refusing a transfer to a person, who, having become a passenger and paid his fare upon one of defendant’s cars at a point in the city of Pittsburg, made request for a transfer at a point within the city to another point, also within the city, which request was refused. This action was thereupon brought, before an alderman, to recover the penalty of $100 for refusal upon the part of the railway company’s employee to issue a transfer in accordance with the requirements of the ordinance. Upon judgment being entered for plaintiff by the magistrate, an appeal was allowed defendant, and upon its statement of claim being filed, alleging the facts in substance above stated, defendant demurred, assigning the following reasons:</p> <p>1. That the ordinance on which this action is based is invalid, illegal, unconstitutional and void.</p> <p>2. That the city of Pittsburg has no power under the legislature of this state to pass any such ordinance.</p> <p>3. That the said ordinance is unreasonable and shows upon its face that it was passed without any consideration or investigation of the conditions or circumstances determining the question of reasonableness.</p> <p>4. That the said ordinance cannot confer upon the city of Pittsburg the right to recover this penalty in its name or for its use.</p> <p>Defendant is a corporation duly created under the laws of this commonwealth, and has since the year 1902 been operating a street passenger railway over and upon the streets of the city of Pittsburg and adjacent territory. At the time the railways company was granted a franchise to use the streets of the city of Pittsburg councils of the municipality, under á provision of the constitution, might have imposed upon the company conditions similar to those contained in the ordinance referred to: Allegheny v. Railway Co., 159 Pa. 411. Not having done so, however, the question now before us is its right to do so at this time. All corporations, municipal as well as private, are restricted to the powers conferred upon them by the statute under which they exist. “Of every municipal corporation, the statute by which it is created is its organic act. Neither the corporation nor its officers can do any act or make any contract, or incur any liability not authorized thereby, or by some legislative act applicable thereto.' All acts beyond the scope of the powers granted are void:” Dillon on Municipal Corporations (4th ed.), sec. 89. In Commonwealth v. Railroad Company, 27 Pa. 339, our Supreme Court says: “If you assert that a corporation had certain privileges show us the words of the legislature conferring them. Failing in this you must give up your claim, for nothing else can possibly avail you. A doubtful charter does not exist, because whatever is doubtful is decisively certain against the corporation.” This principle of law has been universally followed by both the lower and appellate courts of this commonwealth. The burden, therefore, is upon the plaintiff to show its authority for enacting the ordinance upon which this action is based. To that end we have been referred to clause 24, of sec. 3, of art. 19, of the charter Act of 1901, P. L. 20, which is as follows:</p> <p>“XXIV. To establish stands for coaches, cabs, omnibuses, carriages, wagons and other vehicles for hire, and to enforce the observance and use thereof, and to fix the rates and prices for the transportation of persons and property from one part óf the city to another.”</p> <p>While there was existing legislation at the time of the passage of the act of 1901, relating to the power of the city to regulate vehicles, that legislation was repealed or superseded by the clause above quoted. If the ordinance is not within the purview of that clause, its provisions are void, unless within the city's general police power. In other words, is that language sufficiently broad to include street passenger railways, • and especially to authorize and empower the municipality to regulate the fare to be charged by such companies, both of which the ordinance is intended to do. At the time of the passage of the act of 1901, corporations created to operate street cars were in existence throughout the commonwealth,' which fact was undoubtedly known to the members of the general assembly. We might, therefore, assume, because of such knowledge, an intention on the part of the legislature to exclude such companies from the provisions of the clause quoted, by failing to either specifically name them or use language clearly indicating an intention to embrace them. It is also contended by counsel who were heard in behalf of persons claiming an interest in the controversy as citizens, that in addition to the authority contained in the act of 1901, the city has power under its general police power to enact the ordinance of June 17, 1910.</p> <p>The contention of the city that the words “and other vehicles for hire,” include street-railway cars is not in accordance with the construction placed upon such general words by our appellate courts when used in other statutes. In all acts of assembly where general words are employed* following the enumeration of particular objects, the rule in this state is that the general words relate to the objects specified in the legislation, and not to objects of a similar kind. A case in point is that of the Monongahela Bridge Co. v. Pittsburg & Birmingham Railway Co., 114 Pa. 478. In that case the charter of the company provided, inter alia, as follows: “For each carriage, wagon, buggy, or other wheeled vehicle of whatever description, and for each sleigh or sled, drawn by a single horse, the sum of ten cents, and for each additional horse the sum of five cents,” shall be charged as toll for crossing the bridge. Subsequent to the passage of, the act containing the words quoted the bridge was used by the railway company’s cars, and in a proceeding to fix and determine the rates of toll to be paid by the railway company, it was claimed by the bridge company that the words “or other wheeled vehicles of whatever description” were broad enough to embrace street cars, and that the company, by reason of those words in its charter had a right to charge tolls upon them at the rate named. The Supreme Court held otherwise, and said: “We are of opinion that it was not the legislative intention to embrace railway cars in the provisions of that act, and that the designation “ other wheeled vehicles of whatever description” must be restrained to the same kind or general class of vehicles as those particularized.</p> <p>In Pardee’s App., 100 Pa. 408, it was held that an act of assembly to secure the payment of money due employees “from any person or persons or chartered company employing clerks, miners, mechanics or laborers, either as owners, lessees, contractors or underworkers of any works, mines, manufactory or other business where clerks, miners or mechanics are employed” must be restricted to the particular classes named, and that the words “other business” did not enlarge the statute so as to include an employee of a lumber company. To the same effect is Allen’s App., 81 *Pa. 302.</p> <p>The question raised here has been before the courts of other states and the rule laid down by our Supreme Court followed in those states. In Old Colony Trust Co. v. Atlanta, 83 Fed. Repr. 39, the United States circuit court for the northern district of Georgia in a case wherein the city of Atlanta by an ordinance based upon legislative authority contained in its charter “to pass all by-laws concerning .... carriages, wagons, carts, drays, etc., and every by-law ordinance and regulation that it may-deem proper for the peace, health, order or good government of the city,” attempted to regulate the rate of fare to be charged by the Atlanta Street Railway Company and require transfers to.be given passengers, the court, afterwards affirmed by the circuit court of appeals, 88 Fed. Repr. 859, held that the charter clause referred to did not confer authority, to regulate the fares to be charged by street railway companies, and declared the ordinance invalid and inoperative. ' See also Keefe v. L. & B. Street Railway, 185 Mass. 183 (70 N. E. Repr. 37).</p> <p>In the Easton v. Easton Transit Co., 17 Pa. Dist. Rep. 711, the city, by ordinance based upon a clause in the act for the government of cities of the third class, identical in language with that relied upon here by plaintiff, attempted to regulate the fares to be charged by street railway companies in that city. The court in'an elaborate opinion held that the clause relied upon did not confer the authority claimed by the municipality, and' declared the ordinance void. Other cases might be cited to the same effect.</p> <p>Applying the rule laid down in the cases cited to this, no other conclusion can be reached than that the words “other vehicles for hire” refer and must be restricted to the general class of vehicles named in the clause of the act of 1901 above quoted, and consequently do not comprehend street railway cars. That such was the intention of the legislature seems apparent from the fact that no reference whatever to either street railway companies or their cars is made in the statute, when at the time of its enactment such companies' were operating cars in all cities of the commonwealth under laws enacted by the legislature.</p> <p>That the legislature has the power to regulate the raters of fare to be charged by street railway companies is clear, and that it may delegate that power to cities and other municipal corporations is also clear. Without such delegation, however, the authority does not exist in such corporations : Allegheny v. Railway Co., 159 Pa. 411. Neither is the regulation of fares within the general police powers of municipalities, which confer upon them authority to enact ordinances for the protection of the health and safety of the public.</p> <p>The cases cited and relied upon by plaintiff do not, in our opinion, apply here. In Chicago Union Traction Co. v. Chicago, 199 111. 484 (65 N. E. Repr. 451) the controversy was over the right of the city to require street railways to give transfers from one line to another. The court there held the requirement as to transfer tickets to be a mere incident to the power to fix a maximum rate of fare, and as “the charter of the city gives its common council power to prescribe the compensation of persons pursuing the occupation of operating street railways” that power necessarily included the right to require transfers.</p> <p>In Frankford & Phila. Passenger Railway Co. v. Philadelphia, 58 Pa. 119, the question was the right of the city to require the railway company to number its cars and pay a license fee for each car, provided for by an ordinance of the city. The court held the ordinance to be valid as a police regulation, which is quite different from an ordinance fixing the rate of fares to be charged. Our impression is that an ordinance is now in force in the city of Pittsburg providing for a car license similar to that held to be valid in the case cited.</p> <p>As neither clause XXIV, of sec. 3, of art. XIX, of the charter act of 1901, nor the clause conferring upon the municipality general police powers, confer upon the city of Pittsburg authority to regulate and fix fares to be charged by street passenger railway companies operating cars within its limits, the ordinance upon which plaintiff’s claim in this case is based is void, and plaintiff cannot recover. The demurrer must, therefore, be sustained, and judgment entered thereon for defendant.</p> <p>And now, to wit, October 13, 1910, the demurrer is sustained and judgment entered for defendant.</p> <p>Error assigned was in sustaining demurrer to statement.</p>

<p>Appeal, No. 37, April T., 1911, by defendant, from order of C. P. Clarion Co., Dec. T., 1909, No. 136, making absolute rule for judgment for want of a sufficient affidavit of defense in case of The Everett Consolidated Shingle Co. v. J. M. McLaughlin & Co.</p> <p>Assumpsit for goods sold and delivered.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>The affidavit of defense was as follows:</p> <p>That affiant avers that the shingles furnished and delivered to defendants as averred in plaintiff’s statement, were not the kind ordered.</p> <p>The item 206-1-4 M. shingles were not extra clear red shingles as set forth in plaintiff’s statement, but a different grade and marked upright clears, being an inferior grade of shingles.</p> <p>Your affiant avers that the shingles sent were not of uniform grade and a part of them of a very poor quality, and poorly manufactured, not any better than shingles of the common and poorer grade offered in the market. The item in plaintiff’s statement, marked “60 M. Clear Red Cedar Shingles,” were not branded or marked, and nothing to indicate what brand they belonged to. That instead of being “10 clear,” a great many were defective the entire length, and not fit for any purpose.</p> <p>That your affiant paid the freight on the car credited in said statement, and unloaded the shingles and found them to be a poor and inferior quality. Your affiant notified plaintiff of this fact, who wrote defendants to hold the shingles intact, and not dispose of them until they would send an inspector to examine the same.</p> <p>■ That in compliance with this request, defendants held the shingles until June 17, 1909, when they wrote plaintiff requesting them to send on their inspector to examine and adjust the price.</p> <p>That plaintiff refused to send the inspector, or to adjust the price and demanded the sum claimed in their statement. That your affiant avers that the defendants have 'not been able to sell the shingles as No. 1 shingles, and still have on hand about 90,000 of them undisposed of by reason of their inferior quality, and in several instances had to take back shingles sold, on account of the poor quality.</p> <p>Your affiant avers that defendants have always been ready to adjust the price of the shingles according to their value, and pay for the same.</p> <p>Your affiant therefore tenders a judgment in the sum of $290.79, with interest from May 10, 1909, and cost of suit up to this date, which said sum affiant avers is all the shingles are worth at a market value.</p> <p>Error assigned was order making absolute rule for judgment for want of a sufficient affidavit of defense.</p>

Appeal, No. 159, April T., 1911, by plaintiff, from decree of- C. P. No. 2, Allegheny Co., April T., 1911, No. 514, awarding injunction in case of John Rassau v. I. K. Campbell et al., Commissioners of Allegheny County et al. Bill in equity for an injunction.

Appeal, No. 43, April T., 1911, by plaintiff, from judgment of C. P. No. 3, Allegheny Co., Feb. T., 1907, No. 82, on verdict for defendant in case of William J. Lageman v. City of Pittsburg. Appeal from report of viewers.

Appeal, No. 74, April T., 1911, by plaintiff, from order of C. P. No. 1, Allegheny Co., March T., 1907, No. 252, refusing to take off nonsuit in case of Homestead Borough v. Homestead Lumber Company. Trespass to recover the amount of a judgment which the plaintiff had been compelled to pay. Before MacFarlane, J. The opinion of the Superior Court states the facts of the case. Error assigned was order refusing to take off nonsuit.

Appeal, No. 89, April T., 1911, by EL D. Gamble et al., from decree of O. C. Allegheny Co., March T., 1909, No. 3, dismissing exceptions to adjudication in Estate of James Torrence, deceased. Exceptions to adjudication. At the audit the following offer was made: Mr. Finley: We offer in evidence the record in the divorce proceeding at No. , November Term, 1857, of Peoria county, Illinois.

Appeal, No. 76, April T., 1911, by Max Book, from decree of O. C. Allegheny Co., Dec. T., 1909, No. 82, dismissing exceptions to adjudication in Estate of Mayer Buck, deceased. Exceptions to adjudications. The opinion of the Superior Court states the case. Error assigned was in dismissing exceptions to adjudication.

Appeal, No. 158, April T., 1911, by defendant, from order of C. P. Cambria Co., Sept. T., 1910, No. 517, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Lambert E. George v. Pennsylvania Railroad Company. Assumpsit to recover balance of purchase money of real estate. Before O’Connor, P. J. The facts are stated in the opinion of the Superior Court.

Appeal, No. 27, April T., 1911, by defendant, from order of C. P. Somerset Co., Dec. T., 1904, No. 248, discharging rule to open judgment in case of David Shaff’s widow and heirs v. Henry Bearl. Rule to open judgment. The opinion of the Superior Court states the case. Error assigned was order discharging rule to open judgment.

Appeal, No. 127, April T., 1911, by defendant, from judgment of C. P. No. 3, Allegheny Co., Feb. T., 1906, No. 734, on verdict for plaintiff in case of Sarah O’Malley v. Metropolitan Life Insurance Company. Assumpsit on a policy of life insurance.

Appeal, No. 164, April T., 1911, by defendant from order of C. P. Mercer Co., Oct T., 1909, No. 308, discharging rule to open judgment in case of N. M. Powers v. Charles J. Sellors. Rule to open judgment. Before Williams, P. J. The opinion of the Superior Court states the case. Error assigned was the .order of the court discharging rule to Open judgment.

<p>Appeal, No. 150, April T., 1911, by defendant, from judgment of Q. S. Armstrong Co., June T., 1910, No. 54, affirming a summary conviction in suit of Kittanning Borough v. George H. Burns.</p> <p>Appeal from summary conviction before the burgess of the borough of Kittanning.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was in affirming the conviction.</p>

Appeal, No. 75, April T., 1911, by libelant, from decree of C. P. Beaver Co., March T., 1908, No. 305, refusing divorce in suit of Marian Hinchcliff v. Felger Hinchcliff. Libel for divorce. Before Holt, P. J. The facts are stated in the opinion of the Superior Court. Error assigned was in refusing divorce.

<p>Appeal, No. 163, April T., 1911, by applicant, from order of Q. S. Lawrence Co., March T., 1911, No. 37, refusing liquor license In re Application of the Empire Brewing Company for brewer’s license.</p> <p>Petition for brewer’s license. Before Porter, J.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was order refusing the license.</p>

<p>Liquor laws — Refusal of retail license — General remonstrance — Discretion of court.</p> <p>An order refusing a retail liquor license will not be reversed because a general remonstrance against all liquor licenses was filed, where it does not appear that such remonstrance was filed with the sanction of the court or that the court considered it, and the order shows that the refusal of the license was made after a full hearing of all parties both petitioners and remonstrants after due and careful consideration of the case “taking into consideration the number and character of both the petitioners for and the remonstrants against.”</p>

<p>Vendor and, vendee — Marketable title — Hand money — Affidavit of defense.</p> <p>In an action against a husband and wife to recover hand money-paid on a sale of real estate, where it appears that two years prior to the sale, the husband had copveyed the land in question to his wife, that thereafter two judgments had been recovered against the husband and subsequently an involuntary petition in bankruptcy had been filed against the husband, but dismissed, an affidavit of defense is sufficient which denies the insolvency of the husband, avers that the judgments were not liens against the real estate in question, that he owned other real estate amply sufficient to satisfy such judgments, and that in point of fact both judgments had been paid.</p>

<p>Attorney and client — Principal and agent — Checks—Forgery.</p> <p>1. Where an attorney at law collects money for a client, and deposits the same in his own bank account, and thereafter draws a check to the order of his client, and incloses it in an envelope addressed to his client in care of a person to whose address he had been instructed by his client to send the money, and the person to whose address the envelope was sent, opens it, forges the client’s name as indorser, and collects and appropriates the proceeds of the check to his own use, the attorney will still be liable to his client for the amount of the check, inasmuch as he or his bank can recover it from the bank which paid out the money on the forged indorsement.</p> <p>2. In sucli a case the person to whose care the envelope was addressed is not the agent of the client with authority to open the envelope and collect the check, and the client is not bound by any such action of the person to whose address he merely directed that money should be sent.</p>

<p>Negligence — Failure to furnish lateral support — Personal injuries.</p> <p>Where an adjoining owner seeks to recover damages for personal injuries sustained by reason of the taking away of lateral support, no recovery can be had unless there is actual negligence in the performance of the work by th^ person taking away such support, and the burden of proof rests upon the plaintiff to prove actual negligence. If no negligence is shown in the manner in which the support was removed, no recovery can be had.</p>

<p>Appeal, No. 67, April T., 1911, by plaintiff, from judgment of C. P. Butler Co., March T., 1910, No. 84, for defendant on case stated in suit of Susan A. McCormick v. T. W. Phillips Manufacturing Company.</p> <p>Case stated to determine liability for costs.</p> <p>Galbreath, P. J., filed the following opinion:</p> <p>The defendant company recovered a judgment on suit brought before George Huselton, a justice of the peace of Millerstown borough, this county, against W. A. McCormick, B. B. Sybert, and James S. Shakely for $132.53. The present plaintiff, who was the wife of W. A. McCormick, one of the defendants in said judgment, paid to Clarence Walker, Esq., the attorney for the T. W. Phillips Company, the amount of said judgment and took an assignment thereof. Subsequent to said assignment, W. H. Hite, an employee of said company, being in the office of Justice Huselton, was informed by said justice that the said company had received the amount of said judgment, whereupon said Hite, at the suggestion of the justice receipted said judgment on the record without the knowledge of said company. Neither the justice nor Hite had any knowledge at that time' of the assignment of said judgment, but seem to have assumed that inasmuch as the plaintiff company had received the amount of said judgment, it was therefore paid. The receipt thus placed on the record of the justice was wholly an inadvertence, and after learning the facts said Hite sought to rescind his action by means of a statement of the facts upon the docket of said justice. In the meantime, however, the wife of McCormick to whom said judgment was assigned, brought suit against said company to recover back, with interest, the amount paid for said judgment but without tendering a reassignment of said judgment.</p> <p>On the trial of the case, the court sustained the position that the plaintiff was not entitled to recover without tendering a reassignment of the judgment, on the ground that she could not retain the judgment, and, at the same time, recover the price paid for it. The receipt inadvertently placed on the docket of the justice was in law a nullity and could not have availed as a defense for the defendants therein. The court of the justice, not being one of record, the receipt placed thereon was no more conclusive than a loose receipt , to the same effect. The judgment still had life and substance, and presumably value, and the plaintiff therein, as we take it, was not in position to recover the price of said judgment so long as she.still retained it. She was the actor and it devolved upon her to take this necessary step before or at the inception of her suit. This, however, she did not do until in the progress of the case its necessity became apparent. Thereupon the defendant accepted the tendered reassignment of the judgment and paid to said plaintiff the amount thereof, with interest from date of the assignment.</p> <p>As the question of liability for costs could not be agreed upon by the parties, it was agreed that the same should be determined by the court as upon a case stated on the facts as they appeared of record in the case. We think that under the facts as above outlined, the plaintiff was bound to place the defendant in statu quo before she was in position to recover, and, as this was not done until she tendered the reassignment of the judgment at the time of trial, it would seem that she cannot recover costs up to that time and as the tender was at once accepted, no further costs accrued. Judgment in favor of the defendant and against the plaintiff for the amount of the costs is therefore directed to be entered on the case stated.</p> <p>Error assigned was the judgment of the court.</p>

<p>Road law — Grading—Waiver of damages.</p> <p>Although, a petitioner for the grading and paving of a street may have waived damages, yet if the borough making the improvement changes the grade of a sidewalk, to the damage of the petitioner’s property, the latter may recover for the injuries, notwithstanding the waiver; but in such a case it must appear that the change of grade of the sidewalk was something more than the mere change necessary to set the curb properly.</p>

<p>Election law — Contest—Expenses—Act of April É8,1899, P. L. 118.</p> <p>The petitioners in an election contest which has proven unsuccessful cannot be charged with costs for collecting old ballot boxes and furnishing new ones, for stenographer’s fees, and for the fees of various court officers, such as cryers, tipstaves and pages.</p>

<p>Appeal, No. 65, Oct. T., 1911, by defendant, from judgment of Q. S. Phila. Co., Dec. T., 1910, No. 397, on verdict of guilty in case of Commonwealth v. Harry S. Weiserth.</p> <p>Indictment for violation of the election laws. Before Staples, P. J., specially presiding.</p> <p>The opinion of the Superior Court states the facts.</p> <p>Verdict of guilty upon which the defendant was sen- •, tenced to pay a fine of $50.00.</p> <p>Errors assigned were various instructions.</p>

<p>Election law — Judge of election — Rejection of voter — Act of July 2, 1839, P. L. 519.</p> <p>A judge of an election cannot be convicted under sec. 103, of the Act of July 2, 1839, P. L. 519, on an indictment charging him with having “unlawfully, willfully and knowingly” rejected the vote of a qualified citizen, if the proof shows that the vote was rejected by two inspectors who did not disagree; and it is immaterial that the judge may have agreed with the inspectors and expressed his assent openly. A judge of an election has no power to reject a vote, except when the inspectors disagree. The official act of rejection is the act of the inspectors, and not of the judge.</p>

<p>Appeal, No. 130, April T., 1911, by defendant, from judgment of C. P. Armstrong Co., Dec. T., 1908, No. 230, for defendant non obstante veredicto in case of Theophilus Lemmon v. Emma Lemmon.</p> <p>Ejectment for four lots of ground in Parker City. Before Patton, P. J.</p> <p>The facts are stated in, the opinion of the Superior Court.</p> <p>At the trial the jury returned a verdict for the plaintiff. Subsequently the court entered judgment for defendant non obstante veredicto.</p> <p>Error assigned was in entering judgment for defendant non obstante veredicto.</p>

<p>Railroads — Eminent domain — Condemnation proceedings — Evidence.</p> <p>1. On the trial of an issue to determine the damages for the taking of land for the purpose of a branch railroad where the evidence showed that the damages suffered were chiefly from the operation of the railroad, and that the chief business of the branch was the transportation of coal from lands in the vicinity, it is proper to admit evidence showing the physical extent of the coal vein, that it was small in area and would be soon exhausted.</p> <p>'2. In such a proceeding, where the plaintiff shows that he owned and operated an oil well near the branch line, it is proper to permit the defendant to show that the quantity of oil produced from the well was steadily diminishing.</p> <p>3. In a proceeding to assess damages for land condemned for the use of a branch railroad, it is improper to permit a witness for the railroad company to express an opinion that the right to use the land for railroad purposes will soon be abandoned.</p> <p>4. In such a proceeding where it appears that the plaintiff had sold the coal under his land, it is reversible error to compel him upon cross-examination and against the objection of his counsel to testify that he had sold his coal, and had obtained for it a larger price than that received by some of his neighbors.</p>

<p>Justice of the peace — Appeals—Service—Waiver of defects.</p> <p>1. By taking an appeal and entering the same in the common pleas, the defendant in a judgment of a justice of the peace, appears in propria persona and waives all defects of service and comes into the common pleas by his own voluntary act.</p> <p>2.. Where the defendant in a judgment of a justice of the peace takes an appeal, and the plaintiff in the action files a declaration in the common pleas showing a good cause of action, the defendant cannot thereafter claim to have the appeal dismissed because the justice’s record did not show the nature, character and amount of the plaintiff’s claim, so that it would affirmatively appear that the justice had jurisdiction of the cause of action; nor can he claim that the suit should be dismissed because it was commenced by a long summons against the defendant who was a nonresident.</p>

<p>School law — School directors — -Borrowing money — Judgment.</p> <p>1. A judgment entered against a school'district upon a bond, with warrant of attorney executed by certain persons who are described in the body of the bond as “directors of Tuscarora Twp. school board,” in favor of one of their number, cannot be sustained as an obligation against the district on mere proof that the district was-indebted to certain of the teachers, that there was no money to pay this indebtedness, and that in order to keep the school open during a winter specified it was necessary for the district to borrow money to pay the teachers and t'o repair schoolhouses. In such a case it is necessary for the plaintiff to show what taxes were laid or outstanding, what year the salaries of teachers were unpaid, what repairs were to be made to the schoolhouses, and why the district had no available funds. The plaintiff must show with precision how the alleged emergency arose which justified the borrowing of the money.</p> <p>2. In such a case the fact that the bond was entered in December, 1904, that interest upon it was paid up to December, 1907, and that the petition to open the judgment was not presented until April, 1909, will not preclude the defendant from questioning either the debt or the judgment.</p>

Appeal, No. 15, March T., 1911, by defendant, from judgment of C. P. Cumberland Co., May T., 1909, No. 119, on verdict for plaintiff in case of Carlisle Borough v. Oron Long and O. N. Long, individually and trading as Long & Company. Scire facias sur municipal lien. Before Sadler, P. J. At the trial it appeared that the action was brought to recover the cost of laying a sidewalk on Metzger street in the borough of Carlisle.

<p>Carriers — Common carriers — Railroads.</p> <p>In an action against a railroad company, a terminal carrier, to recover for the loss of household goods, it appeared that a storage company, in Portland, Oregon, gave to the plaintiff a receipt for certain packages of household goods, and agreed that they should be “forwarded in a collective carload of household goods,” to a freight company in Chicago. Plaintiff knew nothing of the condition of the four boxes and two barrels in which the goods were packed at the time they were shipped to Chicago. The receipt which the plaintiff received also stated that the contents and condition of packages were unknown, except that they were in apparent good order. When the goods were received in Chicago they were delivered by the freight company to a railroad company as an initial carrier to be delivered by the defendant, a terminal carrier, in Philadelphia. The plaintiff produced no evidence whatever that the goods alleged to have been lost ever came into the possession of the initial railroad company at Chicago. Held, that the plaintiff was not entitled to recover.</p>

<p>Practice, C. P. — Judgment n. o. v. — Rights of plaintiff — Act of April 22, 1905, P. L. 286.</p> <p>1. In determining as to the correctness of a judgment n. o. v. under the Act of April 22,1905, P. L. 286, the test is whether binding direction for the defendant would have been proper at the close of the trial. In applying the test, the plaintiff must be given the benefit of every fact and inference of fact pertinent to the issue, which the jury could legitimately find from the evidence before them.</p> <p>Contract — Sales—Special knowledge of vendor — Warranty.</p> <p>2. Where a general dealer holds himself out to the public as a vendor of veterinary supplies, and his clerk when asked for raw linseed oil as medicine for a horse, draws boiled linseed oil, a poisonous substance, from a can standing next to that containing raw linseed oil, - and the purchaser has no means of knowing from inspection that he has been delivered the wrong article, the transaction involves an implied warranty on the part of the vendor that the oil delivered was of the kind ordered, or at least, that it was not of a different kind vrhich would be poisonous if administered as a veterinary remedy. In such a case the rule of caveat emptor does not apply as in ordinary cases of sale by inspection.</p>