Volume 48 — Pennsylvania Superior Court Reports

<p>Ground, rents — Nonpayment for fifty years — Payments and promises to pay — Redeemable and irredeemable ground rents — Acts of April 27,1855, P. L. 868, and June 24,1885, P. L. 161.</p> <p>1. Where no payments were made of a ground rent from the time of its creation in 1849, until 1900, and then the owners of the ground paid the rent from 1900 to 1906, and the ground landlord received the same, and the owners represented that the ground rent was valid and subsisting and that they would thereafter pay the same, and it was purchased by the plaintiff as such, the fact that no payment was made from 1849 to 1900 does not extinguish the original ground rent, and the ground owners who agreed to pay and did pay the rent from 1900 to 1906 and their successors in title cannot enforce a claim to redeem the rent as a redeemable ground rent under the Act of June 24,1885, P. L. 161. Nor can they be heard to say that the ground rent has become extinguished and irrecoverable.</p> <p>2. In such a case even if the irredeemable ground rent had been extinguished by the nonpayment of it for fifty years still the ground owners who made the promises to pay and made the payments and their successors in title are estopped from denying that the ground rent which had been purchased on the strength of the recorded deed creating it and the promises to pay and the payments from 1900 to 1906, was a valid and subsisting irredeemable ground rent.</p> <p>3. Where suit is brought in such a case to enforce the payment of ground rent accruing after such payments made the twenty-one years referred to in the Act of April 27, 1855, P. L. 368, are the twenty-one years next preceding the bringing of the suit.</p>

<p>Appeal, No. 216, Oct. T., 1910, by defendant, from order of C. P. No. 4, Phila. Co., June Term, 1909, No. 2,695, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Joseph Fels and Samuel Fels, Co-partners, trading as Fels & Company, v. Massachusetts Bonding & Insurance Company.</p> <p>Assumpsit on a bond of suretyship.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was order making absolute rule for judgment for want of a sufficient affidavit of defense.</p> <p>Making the overpayment was a material variation from the contract which relieved the surety: Young v. American Bonding Co., 228 Pa. 373; Fitzpatrick v. McAndrews, 2 Pa. Dist. Rep. 713; Calvert v. London Dock Co., 7 L. J. Chancery (N. S.), 90; First Nat. Bank v. Fidelity & Deposit Co., 145 Ala. 335 (40 So. Repr. 415); McNally v. Mercantile Trust Co., 204 Pa. 596; Bessemer Coke Co. v. Gleason, 223 Pa. 84; General Steam Nav. Co. v. Holt, 6 C. B. (N. S.) 550; Prairie State Nat. Bank v. U. S., 164 U. S. 227 (17 Sup. Ct. Repr. 142).</p> <p>There was error in entering judgment for full amount of claim. Bessemer Coke Co. v. Gleason, 223 Pa. 84:</p> <p>-The surety was not discharged by the anticipatory payment: Alexandria Water Co. v. Nat. Surety Co., 225 Pa. 1; Haine v. Dambach, 4 Pa. C. C. R. 633; Warre v. Calvert, 7 Adolph. & Ell. 143; Hand Mfg. Co. v. Marks, 36 Oregon, 523 (52 Pac. Repr. 512; 53 Pac. Repr. 1079; 59 Pac. Repr. 549); Neff’s App., 9 W. & S. 36.</p>

<p>Appeal, No. 13, March T., 1911, by defendant, from judgment of C. P. Cumberland Co., Sept. T., 1909, No. 56, on verdict for plaintiff in case of Rebecca Jamison v. Cumberland County.</p> <p>Case stated to determine liability of county for change of grade of a township road. Before Sadler, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned wás judgment for plaintiff for "$700 on the case stated.</p> <p>No liability was imposed upon the county: East Union Twp. v. Comrey, 100 Pa. 362; Freeze v. Columbia County, 6 W. N. C. 145; Plumcreek Twp. Road, 110 Pa. 544; Wagner v. Salzburg Twp., 132 Pa. 636; Shoe v. Nether Providence Twp., 3 Pa. Superior Ct. 137; Chester County v. Brower, 117 Pa. 647; Miller v. Lehigh County, 181 Pa. 622; Lafean v. York County, 20 Pa. Superior Ct. 573; Lamoreux v. Luzerne County, 116 Pa. 195; Winner v. Graner, 173 Pa. 43; Snively v. Washington Township, 218 Pa. 249.</p> <p>It is well established in Pennsylvania that counties though quasi municipal corporations have no obligations imposed upon them unless expressly directed by statute: Lamoreux v. Luzerne County, 116 Pa. 195; Bucher v. Northumberland County, 209 Pa. 618; Kelley v. Cumberland County, 229 Pa. 289.</p> <p>It has frequently been decided in Pennsylvania that where changes of grade are made, and a method of assessing damages has been provided by legislation that no liability attaches, or no right vests until the actual physical change upon the ground: Odgen v. Philadelphia, 143 Pa. 430; Howley v. Pittsburg, 204 Pa. 428; Plan 166, 143 Pa. 414; Clark v. Philadelphia, 171 Pa. 30; Jones v. Bangor Boro., 144 Pa. 638; Allegheny v. King, 18 Pa. Superior Ct. 182.</p> <p>A county has the right of eminent domain as to open roads: Chester County v. Brower, 117 Pa. 647; Delaware County’s App., 119 Pa. 159; Penna. R. R. Co. v. Marchant, 119 Pa. 541; Miller v. Lehigh County, 181 Pa. 622; Lafean v. York County, 20 Pa. Superior Ct. 573.</p>

Appeal, No. 28, April T., 1911, by W. A. Roberts, from judgment of C. P. No. 3, Allegheny Co., Aug. T., 1905, No. 382, on verdict for plaintiff in case of Hyatt M. Cribbs and Elizabeth A. Cribbs, doing business as John R. Cribbs & Son, v. A. McDowell, doing business as A. McDowell & Company, contractor, and W. A. Roberts, owner or reputed owner. Scire facias sur mechanic’s hen. Before Davis, J. The opinion of the Superior Court states the facts.

Appeal, No. 46, April T., 1911, by defendants, from judgment of C. P. No. 1, Allegheny County, Dec. T., 1909, No. 619, for plaintiffs on case stated in suit of Louise Minick et al. v. Robert Marshall et al. Case stated in ejectment for land in Penn township. Macfarlane, J., filed the following opinion: A case stated should be as brief and clear as possible and in such order that the questions involved become apparent upon reading the facts.

Appeal, No. 90, April T., 1911, by defendant, from judgment of C. P. Washington Co., Feb. T., 1909, No. 127, on verdict for plaintiffs in case of Emma Young and Oscar Hartley, guardian of Harry B. Young, v. The Pennsylvania, Monongahela & Southern Railroad Company. Ejectment for land in the borough of Millsboro. Before McIlvaine and Taylor, JJ., without a jury. The facts are Stated in the opinion of the Superior Court.

Appeal, No. 132, April T., 1911, by plaintiff, from judgment of C. P.. No. 3, Allegheny Co., Feb. T., 1906, No. 445, for defendant n. o. v. in case of Annie Turley v. Charles C. O’Donnell. Trespass to recover damages for personal injuries. Before Kennedy, P. J. The circumstances of the accident are stated in the opinion of the Superior Court. Verdict for plaintiff for $125.

Appeal, No. 146, April T., 1911, by defendant, from judgment of 0. & T. Allegheny Co., Nov. Sessions, 1910, No. 6, on verdict of guilty in case of Commonwealth v. Jacob Mandela. Indictment for felonious rape. • Before Carnahan, J. The opinion of the Superior Court states the case. Verdict of guilty, upon which the prisoner was sentenced to three years in the Allegheny county workhouse.

Appeal, No. 155, April T., 1911, by plaintiff, from judgment of C. P. Lawrence Co., Sept. T., 1908, No. 87, on verdict for defendants in case of John R. Gobey v. Frank W. Wallace et al. Assumpsit to recover the price of a car load of lumber. Before Porter, P. J. The facts are stated in the opinion of the Superior Court.

Appeal, No. 179, April T., 1911, by defendant, from judgment of C. P. Beaver Co., Sept. Term, 1907, No. 399, on verdict for plaintiff in case of Joseph Robino v. North Sewickley Township.

Appeal, No. 26, March T., 1911, by the Commonwealth, from order of Q. S. Luzerne Co., Sept. T., 1909, No. 202, quashing indictment in case of Commonwealth v. Frank Carlucci et al. Indictment for conspiracy. On a motion to quash the indictment Shull, P. J., specially presiding stated the facts to be as follows: 1.

Appeal, No. 66, April T., 1911, by plaintiff, from decree of C. P. Cambria Co., March T., 1906, No. 4, dismissing bill in equity in case of Summerhill Borough v. Cambria County Water Supply Company. Bill in equity for an injunction. Before O’Connor, P. J. The facts are stated in the opinion of the' Superior Court. . Error assigned was decree dismissing the bill.

Appeal, No. 45, April T., 1911, by defendant, from judgment of C. P. No. 4, Allegheny Co., Pirst Term, 1908, No. 957, on verdict for plaintiff in case of Margaret Soles v. The People’s Natural Gas Company. Trespass to recover damages for injuries to a house resulting from an explosion of gas. Before Carnahan,. J. The facts are stated in the opinion of the Superior Court. Verdict and judgment for plaintiff for $533.

Appeal, No. 69, April T., 1911, by defendants, from judgment of C. P. No. 2, Allegheny County, Jan. T., 1907, No. 861, on verdict for plaintiff in case of D. B. Sober v. E. G. Moony, surviving partner of E. G. Moony and L. P. Seeley, copartners doing business as Central Automobile Company, and Edmund W. Mudge, Executor of the last will and testament-of L. P. Seeley, deceased. Assumpsit to recover commissions on sales under a written agreement.

Appeal, No. 8, April T., 1911, by J. H. Johnston, from judgment of C. P. Washington County, Nov. T., 1909, No. 198, on verdict for plaintiff in case of William P. Warne v. J. H. Johnston. Assumpsit to recover commissions on the sale of real estate. Before McIlvaine, P. J. The facts are stated in the opinion of the Superior Court. At the trial the jury returned a verdict for plaintiff for $120 on which judgment was entered.

Appeal, No. 124, April T., 1911, by Frank Bryan, from order of Q. S. Allegheny Co., Sept. Term, 1909, No. 5, dismissing exceptions to report of viewers In re Chartiers Creek Bridge. Exceptions to report of viewers. The exceptions were as follows: 1.

<p>Appeal, No. 131, April T., 1911, by Andrew Hein, from order of Q. S. Allegheny Co., Sept. Term, 1909, No. 5, dismissing exceptions to auditor’s report In re Chartiers Creek Bridge.</p>

Appeal, No. 153, April T., 1911, by defendant, from judgment of C. P. No. 4, Allegheny Co., Second Term, 1908, No. 89, on verdict for plaintiff in case of Pittsburg Bridge & Iron Works v. Frank H. Fulmer. Assumpsit for material furnished. Before Cohen, J. The facts are stated in the opinion of the Superior Court.

Appeal, No. 28, April T., 1910, by defendant, from judgment of C. P. Jefferson Co., Aug. Term, 1906, No. 165, on verdict for plaintiff in case of Edward C. Burns v. Reynoldsville Borough. Appeal from award of jury of view. Before Sav-idge, P. J., specially presiding. The facts are stated in the opinion of the Superior Court.

<p>Appeal, No. 117, April T., 1911, by defendant, from judgment of C. P. No. 3, Allegheny County, Nov. T., 1906, No. 746, on'verdict for plaintiff in case of George McC. Kountz v. O’Hara Street Railway Company and Allegheny Valley Street Railway Company.</p> <p>Ejectment for land in Harmar township. Before Evans, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>At the trial the plaintiff’s counsel made the following offer:</p> <p>I offer in evidence deed from James Taggart, administrator of Hugh Taggart, deceased, to John Barton, dated July 16, 1842, recorded in Deed Book, vol. 16, page 78, and the description of the land in the said deed, conveying a piece of land described as follows:</p> <p>All that certain lot or piece of ground, being lot numbered 28 in Taggart’s plan of lots, in Indiana township aforesaid, containing three-fourths of an acre; together with the right and privilege of running rafts and lumber in the creek adjacent thereto, from the Allegheny river up to said Barton’s sawmill on said lot.</p> <p>Mr. Stone: If your honor please, we desire at this point to object to the offer of this deed last made. It is No. 12 of the abstract, paragraph 12 in plaintiff’s abstract of title. For the reason that it does not show or convey or describe the land, nor embrace nor include the land that is embodied in this suit. And your honor might as well understand, one of the principal defenses in this case is that very point that we raise by this objection. We raise it here now that your honor may understand it and possibly save time. The conveyance from the estate of Hugh Taggart to John Barton does not embrace within its description the land as claimed in this suit. It conveys what is known as lot C or lot 28. •</p> <p>Mr. Petty: Lot 28, not lot C.</p> <p>Mr. Stone: Well, lot C.</p> <p>The Court: Well, Mr. Petty, if there is any objection to this deed we will have to have evidence.</p> <p>Mr. Petty: Your honor will observe there is no description of the land here at all. It simply covers lot 28. We propose to follow that by describing it as a lot upon which the sawmill is erected. We propose to show the lot that was taken possession of in pursuance to this deed, and we propose to show a number of deeds following this, the first one being dated in 1846, by which lot 28 is described by metes and bounds.</p> <p>The Court: Subject to the offer, we will overrule the objection.</p> <p>Mr. Stone: That is, your honor holds that the offer is qualified and made good by the proposal to follow it by the evidence.</p> <p>The Court: It is simply a question of order.</p> <p>Offer read.</p> <p>The Court: There is no specific offer there in that. There is no offer to follow this with evidence to show that the land conveyed in the deed is the land in dispute.</p> <p>Mr. Petty: To be followed by evidence, as your honor suggests, that the land conveyed is the land for which suit is brought in this case.</p> <p>Mr. Stone: We still object to the offer, that he does not propose to show any title whatever to John Barton from any other source than that coming in and by this deed that is offered covering the property involved in this suit.</p> <p>The Court: I understand this deed does not describe anything by metes and bounds, but designates it by number of lot. Now, it is competent to. prove by oral evidence or by other evidence what lot it was. Objection overruled.</p> <p>To which ruling of the court counsel for defendants request an exception.</p> <p>Exception allowed and bill sealed. [1]</p> <p>Mr. Petty: Now, if your honor please, I offer in evidence the deed from John Barton to James and William Barton, dated December 21, 1846, recorded in Deed Book, vol. 75, page 387, conveying lot No. 28, by metes and bounds, as shown upon plan, exhibit No. 1, reciting that it is the same lot conveyed to John Barton by James Taggart, Administrator of Hugh Taggart, together with all the subsequent deeds set forth in the abstract of title in items Nos. 14-25 the subsequent deeds containing the same description of the property.</p> <p>Mr. Stone: Counsel for defendants object to the offer because the deed already offered in evidence from the administrator of Hugh Taggart to John Barton does not include the land in controversy and described in the deed from John Barton to James Barton and William.</p> <p>Second, 'because, conceding the deed from John Barton, to William Barton and James Barton, for the purpose of the situation, to be a claim of title there is no sufficient evidence showing continued, open, adverse and hostile possession under such claim of title in the plaintiff and his grantors as would support a claim of title.</p> <p>Third, because the evidence does not warrant the belief or justify a submission to the jury of the allegation in his previous statement of what he proposes to prove, namely, that the land described in the deed from the administrators of Hugh Taggart to John Barton was the land described and conveyed in the deed from John Barton to his two brothers, William and James.</p> <p>Fourth, the evidence is incompetent, irrelevant and immaterial.</p> <p>Objection overruled.</p> <p>To which ruling of the court counsel for defendants request an exception.</p> <p>Exception allowed and bill sealed. [2]</p> <p>The court refused binding instructions for defendant.</p> <p>Verdict and judgment for plaintiff for the land described in the writ. Defendant appealed.</p> <p>Errors assigned were (1, 2) rulings on evidence quoting the bill of exceptions; (3) in refusing binding instructions for defendant.</p> <p>The plaintiff’s offer was to prove the description of lot No. 28 by parol evidence as against the record proceedings of the orphans’ court of Allegheny county. We contend that such evidence was inadmissible: Kennedy v. Wachsmuth, 12 S. & R. 171; Selin v. Snyder, 7 S. & R. 166; Beeson v. Hutchison, 4 Watts, 442; Hamilton v. Seitz, 25 Pa. 226; Ross v. Dewey, 215 Pa. 526; Cochran v. Sanderson, 151 Pa. 591.</p> <p>It must be remembered that there is no authority given to this administrator to sell lot No. 28, and unless this lot conveyed to John Barton through whom this plaintiff claims, is one of the twenty-eight lots in the order of the orphans’ court at No. 37, December Term, 1841, the administrator of this estate was without authority to convey it, and therefore the plaintiff’s title must fail: Carroll v. Miner, 1 Pa. Superior Ct. 439; Harvey v. Vandegrift, 89 Pa. 346.</p> <p>It has long been the law of this commonwealth that where a plot is referred to in a deed, it is as much a part of the deed as if incorporated in it: Birmingham Boro. v. Anderson, 48 Pa. 253; Robinson v. Myers, 67 Pa. 9; Meyers v. Robinson, 74 Pa. 269; Schenley v. Pittsburg, 104 Pa. 472; Higgins v. Sharon Boro., 5 Pa. Superior Ct. 92; McGhee v. Hoyt, 106 Pa. 516; Province v. Crow, 70 Pa. 199. '</p> <p>The evidence was admissible: Glen v. Glen, 4 S. & R. 488; Carroll v. Miner, 1 Pa. Superior Ct. 439; Sailor v. Hertzogg, 10 Pa. 296; Dawson v. Mills, 32 Pa..302; Province v. Crow, 70 Pa. 199.</p>

<p>Road law — State highways — Acts of May 1, 1905, P. L. 318, and June 8, 1907, P. L. 505 — Appointment of viewers — Irregularity—Appeals.</p> <p>1. On an appeal by a county from an award of a jury of view assessing damages for .the improvement of a state highway, the county cannot object at the trial in the common pleas to the irregular action of the court of quarter sessions in appointing a jury of six viewers instead of a jury of three viewers. Such an irregularity might have been objected to at the time the viewers were appointed, but after they had made their award, and an appeal had been taken from the award, objection to the irregularity will be deemed to have been waived.</p> <p>2. The improvement of a public road by the state highway department, under the provision of the Act of May 1, 1905, P. L. 318, as a “state highway,” leaves the burden of maintaining such highway after it has been improved, precisely where it had before rested; and does not render the road a “work, highway or improvement” of any “municipal or other corporation.” The road, before, during and after the completion of the improvement is a public work of the state; and if land has been taken in making the improvement it was taken by the state by the right of eminent domain. Where proceedings have been instituted in the court of quarter sessions for the appointment of viewers to assess damages for the taking of such land, no appeal lies to the court of common pleas. Proceedings in the quarter sessions in such cases are only subject to review by the proper appellate court.</p>

Appeal, No. 87, April T., 1911, by plaintiff, from order of C. P. Armstrong Co., Dec. T., 1908, No. 89, refusing to take off nonsuit in suit of Frank Maxler and E. H. Wallace v. Freeport Borough. Issued on appeal from award of a jury of view. Before Patton, P. J. The opinion of the Superior Court states the case. Error assigned was order refusing to take off nonsuit.

<p>Appeals — Assignments of error.</p> <p>1. On an appeal in a street case, a general assignment of error to the effect that the court erred in dismissing exceptions to the report of viewers, where there are a large number of exceptions, is irregular and cannot be considered.</p> <p>Road law — Ordinance—Title of ordinance — Benefits.</p> <p>2. An ordinance entitled “An ordinance authorizing the grading, paving and curbing,” of a street named, and providing that “The cost, damages and expenses of the same be assessed against and collected from property specially benefited in accordance with the provisions of the acts of assembly of the commonwealth of Pennsylvania relating thereto and regulating the same,” is sufficiently comprehensive in its title to give notice of an intention to impose assessments for benefits.</p> <p>3. When all the provisions of an ordinance are germane to one general subject which is clearly expressed in the title in a manner which does not tend to mislead, that is all tljat is required by the statute.</p> <p>Municipalities — Municipal contracts — Contract for paving — Advertising — Modification of contract — Ratification.</p> <p>' 4. A municipal corporation may ratify the unauthorized acts and contracts of its agents or officers, which are within the corporate power, and such ratification need not necessarily be by resolution or ordinance, but may be implied from the acceptance of the work and formal assertion in judicial proceedings of a claim founded upon it.</p> <p>5. Where an ordinance provides for the paving of a street without designating the kind of pavement, and the city officials enter into a contract to have it paved with a particular kind of stone, but subsequently without readvertising direct the contractor to use vitrified brick on a small portion of the street on a hillside, and agree' to pay him the increased cost of the brick over the stone, property owners who make no objection to the change at the time, cannot, after the work has been done without fraud and in good faith, claim to be released from all liabilities of assessments because of tKe irregular change in the contract. In such’a case where the city in its petition for the appointment of viewers filed after the work was completed states that it had “accepted the said work or improvement,” the court will deem that the city had ratified the unauthorized act of its agent.</p> <p>Road law — Grading and paving — Frontage—Act of May 16, 1891, P. L. 76.</p> <p>6. Under the Act of May 16, 1891, P. L. 75, a property owner cannot claim to be relieved from assessments, because only a part of his property directly abuts upon the improvement. The statute does not contemplate an assessment based wholly upon frontage. The amount of the frontage is only one element to be considered. The assessments must be based upon the benefit to the entire property.</p> <p>7. Where at the intersection of two streets which cross each other somewhat obliquely there is a small triangle which is a part of one or both of the streets, and neither the triangle nor either of the streets have ever been paved, and the city in paving one of the streets, paves the triangle, an-abutting owner cannot object to being assessed with the cost of paving the triangle, on the ground that he might thereafter be required to pay again when the second street was paved. An owner cannot be required to pay twice for the paving of the same surface.</p> <p>8. Where a city, in paving a street at an intersection with another street, leaves an owner’s property fronting upon a street which remained unpaved and uncurbed, and the property still remains liable to be assessed for the grading and paving of highways upon all sides of it, such property cannot be made subject to an assessment for the grading and paving actually done.</p>

Appeal, No. 115, April T., 1911, by defendants, from judgment of C. P. No. 4, Allegheny Co., First Term, 1908, No. 862, on verdict for plaintiff in case of F. C. Armstrong v. John B. Descalzi et al. Assumpsit to recover the purchase price of a car load of grape fruit. Before Carnahan,' J. The defendants set up as a defense a breach of warranty. The facts relating to this branch of the case are fully set forth in the opinion of the Superior Court.

Appeal, No. 34, April T., 1911, by plaintiff, from judgment of C. P. No. 4, Allegheny Co., Fourth Term, 1907, No. 607, on verdict for defendant in case of Follansbee Brothers Company v. Garrett-Cromwell Engineering Company. Assumpsit to recover for loss alleged to have been caused by the faulty construction of a steel plant.

Appeal, No. 56, April T., 1911, by defendant, from judgment of C. P. Lawrence Co., Mareh T., 1908, No. 25, on verdict for plaintiff in case of Jacob Ewens v. James Gunning. Assumpsit on award of arbitrators.

Appeal, No. 272, Oct. T., 1910, by Gotthold Haug, from order of C. P. No. 4, Phila. Co., Dec. T., 1908, No. 1,985, on case stated for the commonwealth in proceedings to escheat, In re Assigned Estate of Advance Beneficial Order. Petition in escheat.

Appeal, No. 22, March T., 1911, by defendant, from judgment of C. P. York Co., Aug. T., 1910, No. 102, dismissing appeal from summary conviction in case of York City v. Emily Hatterer. Appeal from judgment of the mayor of the city of York. Before Wanner, J. The facts are stated in the opinion of the Superior Court. Error assigned was the judgment dismissing the appeal.

Appeal, No. 81, April T., 1911, by Benjamin H. Thompson, Ancillary Administrator c. t. a. of the Estate of Stephen M. S. Campbell, from decree of O. C. Allegheny Co., June T., 1909, No. 180, directing payment of money in Estate of James Wallace, deceased. Petition for rehearing and for payment of money. The facts are stated in the opinion of the Superior Court. Error assigned was the decree of the court.

<p>Appeal, No. 93, April T., 1911, by defendant, from judgment of C. P. No. 2, Allegheny Co., Oct. T., 1903, No. 584, on verdict for plaintiff in case of James Hay v. Morris Baer.</p> <p>Assumpsit to recover rent. Before Frazier, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $261.56. Defendant appealed.</p> <p>Error assigned was in overruling motion for defendant n. o. v.</p>

<p>Appeal, No. 106, April T., 1911, by defendant, from judgment of C. P. Fayette Co., June T., 1909, No. 597, for plaintiff on case stated in suit of William A. Stone, alias W. A. Stone, v. Retta E. Carter.</p> <p>Case stated to determine why the plaintiff should recover a portion of the purchase money paid under articles of agreement for the sale of land.</p> <p>Van Swearingen, J., filed the following opinion:</p> <p>This matter is before the court on a case stated. On March 26, 1907, the defendant, Retta E. Carter, and her husband, C. C. Carter, entered into an agreement in writing with the plaintiff wherein the defendant agreed to sell to the plaintiff all the undivided one-seventh of a certain tract of land situate in Jefferson township, Fayette county, known as the Eli J. Baily farm, containing about 185 acres, and agreed to convey the same to the plaintiff within sixty days from the date of the agreement by good and lawful deed in fee simple, free of all incumbrances, with covenants of general warranty, together with an abstract of title showing a good and marketable title to the same. According to the conditions of the contract the plaintiff. paid to the defendant $1,000 of the purchase money upon the execution of the agreement. On June 26, 1907, the defendant and her husband executed and tendered to the plaintiff a deed for the undivided one-seventh of said land, which, deed was in due form and sufficient to convey the title in fee, if such title was then vested in the defendant. The defendant at the same time delivered to the plaintiff for examination an abstract of title to said land which correctly exhibited the record title.</p> <p>Title in fee simple to this and other lands was vested previously in Eli J. Baily, who, by his will dated March 20, 1891, and since his death duly proved and of record, made the following devise of this land: “Item second: I give and bequeath to my daughter, Mary Baily English, the Breckenridge farm on which she now lives; also the Alfree farm; also the Worldley farm. . . . And I do now hereby require and I do order that the portion bequeathed to my daughter, Mary Baily English, be and remain for her benefit during her natural life and for the maintenance and education of her children, and after her death and the youngest child becoming twenty-one years of age, they, the said children, may dispose of the said farms as they see proper, but dividing share and share alike.” Mary Baily English died July 27, 1905, intestate, leaving seven children, one of whom is the defendant, and two of whom at the date of the tender of said deed were under twenty-one years of age. The plaintiff refused to accept said deed and to make payment of the amount of the purchase money due upon the delivery of the deed and to execute the mortgage required by the contract to secure the balance of the purchase money, alleging that a good and marketable title was not thereby conveyed to him and could not be conveyed to him during the minority of any of the children of Mary Baily English, deceased, and demanded repayment by the defendant of the $1,000 paid by the plaintiff on the execution of the agreement, which demand was refused by the defendant, and this action was instituted to recover the money so paid by the plaintiff.</p> <p>Some of the other children of Mary Baily English, who were of age, joined in the execution of said agreement and said deed for the sale of.their interests in said land, but that fact has no effect upon the- question now at issue between the plaintiff and defendant in this case.</p> <p>The parties agree that if the court shall be of opinion that a good and marketable title could not be conveyed by the defendant for an undivided one-seventh of said land in fee, free of all incumbrances, during the minority of any of the children of Mary Baily English, deceased, judgment shall be entered for the plaintiff for $1,000, with interest from June 26, 1907; otherwise judgment shall be entered for the defendant.</p> <p>It is urged by the defendant that under this will Mary Baily English took an estate in fee in this land and that her children took title by descent from her, she having died intestate. It is claimed that any of the children who were of age could have conveyed their undivided shares in the land at any time after the death of their mother. This is on the theory that the latter clause of the will above quoted is but an attempted restriction on the alienation of the fee which it is claimed was given to Mary Baily English by the clause of the will first quoted, the rule being that where a will gives property by words which primarily import a fee, but adds restrictions inconsistent therewith, the question to be determined is whether the intent was to give a lesser estate, or to impose restraints upon the estate in fee: Allen v. Hirlinger, 219 Pa. 56. Even on the theory that Mary Baily English took but a life estate in the land it is urged by the defendant that the will gave the children the same rights they would have had if she had owned the land in fee, it being claimed that even if the will be construed as prohibiting an alienation of the land by the children until after the youngest child becomes of age, such restraint of alienation, although but partial, is void, the same as a general restraint is void. It is conceded that in a number of Pennsylvania authorities it has been said that while a general restriction of alienation on an estate in fee is Void upon the principle that a power of alienation is necessarily and inseparably incident to an estate in fee and that conditions repugnant to the estate to which they are annexed bind not, a partial restraint such as of alienation to a particular person or during a limited time is valid because not inconsistent with a reasonable enjoyment of the fee: McWilliams v. Nisly, 2 S. & R. 507; McCullough v. Gilmore, 11 Pa. 370; Jauretche v. Proctor, 48 Pa. 466; Yost v. Insurance Co., 179 Pa. 381. But it is argued by counsel for the defendant that the assertion in the Pennsylvania cases that a partial restraint of alienation is valid is but dictum, because in none of the cases where such assertion is made was the question of the validity of a partial restraint under consideration, and that when the question comes squarely before the Supreme Court for decision it will be held that any restraint of alienation, either general or partial, is void, as held by many authorities outside of this state, citing Foulke on Rules Against Perpetuities, Restraints on Alienation and Restraints on Enjoyment, ch. 9, pp. 107-121. Attention is called by defendant’s counsel to the fact that the will contains no express prohibition against alienation of the land by the children until after the youngest child becomes twenty-one years of age, and it is contended that a partial restraint, even if otherwise valid, cannot exist by implication, citing Sanders v. Mamolen, 213 Pa. 359, where it was said that “as a restraint of alienation on the grant of a fee is against the general rule of law it must be construed strictly,” and insisting that a strict construction of an implied restraint would be anomalous. The question is raised by the plaintiff as to whether the portion of the will quoted does not constitute an executory devise to such of the children of Mary Baily English as may be living “after her death and the youngest child becoming twenty-one years of age.” Plaintiff, in this view of the case, alleges it to be a fair question whether the remainder will have vested in any of the children until the time arrives when Mary Baily English shall be dead and the youngest child shall have become twenty-one years of age. If not, and the defendant should die before the youngest child becomes of age, plaintiff questions whether he would have taken anything under the deed tendered, if it had been accepted, holding in doubt whether the defendant would have been in the class to take under the will. But if so, then it is contended by the plaintiff that the period of vesting.in possession and the right of alienation were postponed until the youngest child shall have become of age, citing Bonaffon’s Estate, 16 Phila. 345. It is doubted by the plaintiff whether he could maintain an action of partition for possession under the deed tendered until after the youngest child becomes twenty-one years of age, partition being an action to obtain possession and not to test title, citing Seiders v. Giles, 141 Pa. 93, and it is contended that if he could not have the possession or beneficial enjoyment of the land he would not be getting a present “estate in fee simple, free of all incumbrances.”</p> <p>It is neither necessary nor advisable in this case that we should decide all or any of these questions. The very presence of such questions determines the case in favor of the plaintiff. The rule of law is that to be marketable a title must be good beyond a reasonable doubt. In Swayne v. Lyon, 67 Pa. 436, it was said by Mr. Justice Shars-wood: “It has been well and wisely settled that under a contract for the sale of real estate, the vendee has the right not merely to have conveyed to him a good but an indubitable title. Only such a title is deemed marketable; for otherwise the purchaser may be buying a lawsuit, which will be a very serious loss to him both in time and money, even if he ultimately succeeds. Hence it has been often held that a title is not marketable where it exposes the party holding it to litigation.” This language has been quoted 'many times in later cases. In Holmes v. Woods, 168 Pa. 530, Mr. Justice McCollum said: “A doubtful title or a title which exposes the holder of it to litigation is not marketable, and the rule in equity is that a purchaser will not be compelled to accept it.” Although this action is in assumpsit the equitable principles involved are the same as though it were a bill in equity by the defendant for specific performance of this contract. “A decree for specific performance is of grace, not of right. It will never be made in favor of a vendor unless he is able to offer a title marketable beyond a reaT sonable doubt:” Mitchell v. Steinmetz, 97 Pa. 251. “A marketable title is one of such character as should assure to the vendee the quiet and peaceable enjoyment of the property, and one which is free from incumbrance:” Barnard v. Brown, 112 Mich. 452 (70 N. W. Repr. 1038; 67 Am. St. Rep. 432). “A doubtful title which a purchaser will not be compelled to accept is not only a title upon which the court entertains doubts, but includes also a title which, although the court has a favorable opinion of it, yet may reasonably and fairly be questioned in the opinion of other competent persons; for the court has no means of binding the question as against adverse claimants, or of indemnifying the purchaser, if its own opinion in favor of the title should turn out not to be well founded:” Street v. French, 147 Ill. 342 (35 N. E. Repr. 814). “A vendee of real estate who is entitled under his contract to receive a marketable title to the premises, is under no obligation to take a title which, even if it might be finally determined to be good, is in a condition to involve him in litigation to establish or secure it:” Srolovitz v. Mar,gulis, 35 Pa. Superior Ct. 252. “The question is not whether the ’title is good, but whether it is clearly so: ” Kostenbader v. Spotts, 80 Pa. 430. “ A marketable title means one that involves no considerable or rational doubt either as to matter of law or fact:” Nicol v. Carr, 35 Pa. 381.</p> <p>We are of opinion that the defendant cannot convey to the plaintiff a good and marketable title to the undivided one-seventh of this land during the minority of any of the children of Mary Baily English, a title that is indubitable, one that is good beyond a reasonable doubt and that will not expose the holder of it to litigation. The questions arising upon the case stated are important and not free from difficulty. They raise such doubts respecting the title as ought to induce a prudent man to hesitate in accepting it. We are firmly convinced that the plaintiff ought not to be compelled to pay for a title so burdened. \</p> <p>And now, November 15, 1910, after argument by counsel, and upon due consideration, and for the reasons set forth in the opinion herewith filed, it is ordered that judgment be entered in favor of the plaintiff and against the. defendant for the sum of $1,000, with interest from June 26, 1907.</p> <p>Error assigned was in entering judgment for plaintiff on case stated.</p> <p>A title by possession is a marketable title, and has been frequently so decided to be: Pratt v. Eby, 67 Pa. 396; Dallmeyer v. Ferguson, 198 Pa. 288; Westfall v. Washlagel, 200 Pa. 181; Dorff v. Schmunk, 197 Pa. 298; Allen v. Hirlinger, 219 Pa. 56; Murray v. Ellis, 112 Pa. 485.</p> <p>Under our act of 1833, the devise to all of the children of Eli J. Baily, vested in them a fee, as effectually as could have been done by the use of the word “heirs.” It would therefore be “exceedingly improper in any court to endeavor to give effect to the restraint upon alienation by changing the character of the estate to a life estate, with a remainder annexed to it, or with an executory devise over: McWilliams v. Nisly, 2 S. & R. 507; Jauretche v. Proctor, 48 Pa. 466; Yost v. Ins. Co., 179 Pa. 381; Sanders v. Mamolen, 213 Pa. 359.</p> <p>To put a strict construction upon an implied restraint would, indeed, be anomalous. In any event the attempt to restrain the alienation of a fee, even partially, is repugnant to the nature of the estate, and cannot with consistency be held. We are mindful of the fact that it has been said in several of our cases that a partial restriction is good, but in all those cases the statement is obiter dicta. In no case has the doctrine been announced where a partial restriction was under consideration: Jauretche v. Proctor, 48 Pa. 466; Yost v. Ins. Co., 179 Pa. 381; McWilliams v. Nisly, 2 S. & R. 507; McCullough v. Gilmore, 11 Pa. 370; Huber v. Hamilton, 211 Pa. 289; Naglee’s App., 33 Pa. 89; McIntyre v. McIntyre, 123 Pa. 329.</p> <p>An action of covenant upon articles of agreement for the sale of land, to recover the purchase money, is in effect an equitable proceeding to compel specific performance of the contract, and is governed by the same equitable principles: Nicol v. Carr, 35 Pa. 381; Swayne v. Lyon, 67 Pa. 436; Holmes v. Woods, 168 Pa. 530.</p> <p>A doubtful title which a purchaser will not be compelled to accept is not only a title upon which the court entertains doubts, but includes also a title which, though -the court has a favorable opinion of it, yet may reasonably and fairly be questioned, in the opinion of other competent persons: Street v. French, 147 Ill. 342 (35 N. E. Repr. 814); Barnard v. Brown, 112 Mich. 452 (70 N. W. Repr. 1038; 67 Am. St. Rep. 432); Gregory v. Christian, 42 Minn. 304 (44 N. W. Repr. 202); Moore v. Williams, 115 N. Y. 586 (22 N. E. Repr. 233); Vought v. Williams, 12Q N. Y. 253 (24 N. R. Repr. 195); Simon v. Vander-veer, 155 N. Y. 377 (49 N. E. Repr. 1043).</p> <p>And a fee which is given in the first part of a will may-prove to be so restrained by subsequent words as to reduce it to a life estate: Urich’s App., 86 Pa. 386; Livezey’s App., 106 Pa. 201; Oyster v. Knull, 137 Pa. 448; Good v. Fichthom, 144 Pa. 287; Allen v. Hirlinger, 219 Pa. 56.</p> <p>The estate of Mary Baily English is distinctly limited for her life. The remainder, if it be such, is to a class, her children: Todd’s Est., 33 Pa. Superior Ct. 117.</p> <p>Without the immediate right of possession, the vendee would not be getting a “good title in fee simple,” what his agreement called for.</p>

<p>Insurance — Fire insurance — Unconditional and sole ownership — Covenants.</p> <p>1. When a policy of fire insurance covering a store building and a stock of goods, contains a covenant that the entire policy shall be void, ‘.‘if the interest of the insured be other than unconditional and sole ownership, or if the subject of insurance be a building upon ground not owned by the insured in fee simple,” and the evidence discloses that the insured’s interest in the building was merely that of a lessee, and not that of unconditional and sole ownership, the contract is an entire one, and is invalid not only as to the store building, but also as to the stock of goods referred to in the policy.</p> <p>2. In such a case the fact that the policy was issued without any application or written request, describing the interest of the insured in the building, does not constitute a waiver on the part of the insurance company of the “unconditional and sole ownership” clause, if there is no evidence that the company or its agent knew the character of the insured’s interest in the building.</p> <p>3. Philadelphia Tool Co. v. Assurance Co., 132 Pa. 236, explained and distinguished.</p>

Appeal, No. 170, Oct. T., 1911, by William H. Nixon, from decree of O. C. Phila. Co., July T., 1889, No. 127, dismissing petition for discharge as executor and trustee in Estate of Martin Nixon, deceased. Petition to be discharged as executor and trustee. Motion to certify the case to the Supreme Court.

<p>Appeal, No. 18, Oct. T., 1911, by plaintiffs, from order of Q. S. Phila. Co., Jan. T., 1911, refusing writ of habeas corpus in case of Commonwealth ex rel. Henrietta F. Ogden et al. v. A. A. Cairns, Chief Medical Inspector of the Bureau of Health, and John B. Taylor, Superintendent of Police.</p> <p>Petition for writ of habeas corpus. Before Staples, P. J., specially presiding.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was order refusing the writ.</p>

Appeal, No. 5, April T., 1912, by defendant, from order of C. P. No. 2, Allegheny Co., July Term, 1911, No. 30, awarding writ of mandamus in case of Leader Publishing Company v. I. K. Campbell et al., County Commissioners. Petition for mandamus to compel the county commissioners to publish the mercantile license list for the year 1911 in the Pittsburg Leader. Before Haymaker, J. Error assigned was in awarding mandamus.

Appeal, No. 90, Oct. T., 1910, by George W. Hyde, Jr., from judgment of C. P. No. 2, Phila. Co., March T., 1904, No. 3,170, M. L. D., on verdict for plaintiff in case of Philadelphia v. George W. Hyde, Jr. Scire facias sur municipal lien. Before Sulzber-ger, P. J. The facts are stated in the opinion of the Superior Court. Verdict and judgment for plaintiff for $122.85.

Appeal, No. 278, Oct. T., 1910, by defendant, from order of C. P. No. 5, Phila. Co., Sept. Term, 1910, No. 1,112, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Baltimore & Ohio Railroad Company v. Frank Samuel and Silas M. Tomlinson, trading as Frank Samuel. Assumpsit to recover freight and demurrage charges. Rule for judgment for want of a sufficient affidavit of defense. The facts are stated in the opinion of the Superior Court.

Appeal, No. 76, April T., 1912, by defendant, from judgment of. Q. S. Indiana Co., March Term, 1911, No. 31, on verdict of guilty in case of Commonwealth v. Peter Yanuty. Indictment for selling liquor without a license. Before Tileord, P. J. The facts are stated in the opinion of the Superior Court. Verdict of guilty, upon which the prisoner was sentenced. Errors assigned were various instructions..■

Appeal, No. 78, Oct. T., 191Í, by plaintiff, from order of C. P. No. 2, Phila. Co., Dec. T., 19.10, No. 5,416, discharging rule for judgment for want of a sufficient affidavit of defense in case of David Lowenstein v. William McPeak. Assumpsit to recover' commissions on sale of real estate'. Rule for judgment for want of a sufficient affidavit of defense. The facts are stated in the opinion of the Superior Court.

Appeal, No. 98, Oct. T., 1911, by defendant, from order of C. P. No. 3, Phila. Co., Sept. Term, 1910, No. 2,173, making absolute rule for judgment as to the portion of plaintiff’s claim as to which affidavit of defense was insufficient in case of J. M. and D. F. Mac-Corkell, to use of P. H. Fairlamb Company, to use of Franklin National Bank v. Thomas J. Whelan. Assumpsit on a non negotiable note. The note in suit was as follows: “750.00-100 Philadelphia, May 19. 1910.

Appeal, No. 153, Oct. T., 1911 by Allen M. Stearne, from decree of O. C. Phila. Co'., Jan.Term, 1910, No. 447, dismissing exceptions to adjudication' in Estate of Edward ' E. Williams, deceased. Exceptions to adjudication. The facts are stated in the opinion of the Superior Court. Error assigned was decree dismissing the exceptions.

Appeal, No. 33, March T., 1911, by plaintiff, from order of C. P. Lackawanna Co., Jan. T., 1910, No. 359, discharging rule for judgment for want of sufficient affidavit of defense in case of William H. Hull v. Mary F. Weaver, executrix of George L. Weaver. Assumpsit on a contract. The facts of the case are stated in the opinion of the Superior Court. Error assigned was the order by Edwards, P. J., discharging rule for judgment for want of a sufficient affidavit of defense.

Appeal, No. 92, April T., 1911, by defendant, from judgment of Q. S. Somerset Co., Sept. Term, 1910, No. 14, on verdict of guilty in case of Commonwealth v. Fred Dennison. Indictment for nuisance. Before Koozer, P. J. The facts are stated in the opinion of the Superior Court.

Appeal, No. 4, Oct. T., 1911, by defendant, from order of C. P. No. 4, Phila. Co., Sept. T., 1910, No. 485, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Estate of Joseph W. Mathers and Frank F. Mathers, trading as J. W. Mathers & Sons, v. Luigi Verna, Sr. Assumpsit on book accounts for coal sold and delivered. The statement of claim showed thirty-three deliveries on various dates for several months of one or two tons each.

Appeal, No. 241, Oct. T., 1910, by defendant, from order of C. P. No. 4, Phila. Co., March Term, 1909, No. 2,274, making absolute rule for judgment for want of a sufficient affidavit of defense in case of William H. Windolph to the use of Leon Weiner and Isaac Garson, trading as Weiner & Garson, v. Adams Express Company. Rule for judgment for want of a sufficient affidavit of defense. Error assigned was the order of the court.

Appeal, No. 83, Oct. T., 1911, by defendant, from judgment of C. P. No. 4, Phila. Co., June T., 1906, No. 1,768, on verdict for plaintiff in case of Atwood B. Hoskins v. Robert J. Peoples et al., copartners, trading as Peoples Brothers. Trespass to recover damages for death of a horse. At the trial W. Horace Hoskins, a witness for the plaintiff, was asked this question: Q. Describe the volume of water; its flow and what you saw?

Appeal, No. 298, Oct. T., 1910, by defendant, from judgment of C. P. Lebanon Co., Sept. Term, 1905, No. 168, on verdict for plaintiff in case of Susan Rhoads (the death of Susan Rhoads suggested on the record before trial and the name of Emanuel C. Ney, Administrator of Susan Rhoads, substituted) v. Cornwall & Lebanon Railroad Company. Trespass to recover damages for personal injuries. Before Henry, P. J. The facts are stated in the opinion of the Superior Court.

Appeal, No. 204, Oct. T., 1911, by defendant, from judgment of C. P. McKean Co., June T., 1910, No. 170, on verdict for plaintiff in case of Maud M. Emerson v. Standard Protective Society. Appeal from justice of the peace. Assumpsit for sick benefits. Before Bouton, J. At the trial the court overruled a motion to dismiss the case for want of jurisdiction on the ground that it could be sued only in the court where was located its principal office, or chief place of business.

<p>Criminal law — Conspiracy—Trial.</p> <p>1. On the trial of an indictment for conspiracy where it appears that there are four defendants indicted, but only three on trial, the jury cannot convict the absent defendant as one of two conspirators, but it may, if the evidence so satisfy it, convict one of the defendants on trial of conspiracy with the absent one, while acquitting the other two.</p> <p>Criminal law — Trial by jury — Jury of eleven — Agreement of counsel.</p> <p>2. Where, during the course of a criminal trial, one of the jurors becomes ill and by agreement of the commonwealth and defendant the trial is continued with eleven jurors only, who return a verdict of guilty, without objection or exception taken at the time, and without any motion in arrest of judgment, the appellate court will not set aside the verdict because it was rendered by eleven jurors instead of twelve.</p>

<p>Appeal, No. 81, Oct. T., 1911, by Albert H. Hawman, from judgment of Q. S. Berks Co., June T., 1910, No. 32, on verdict of guilty in case of Commonwealth v. Albert H. Hawman.</p> <p>Indictment for conspiracy.</p>

<p>Appeal, No. 82, Oct. T., 1911, by Penrose W. Hawman, from judgment of Q. S. Berks Co., June T., 1911, No. 32, on verdict of guilty in case of Commonwealth v. Penrose W. Hawman et al.</p>

<p>Landlord and tenant — Tenancy at will — Failure of lessor to sign lease.</p> <p>1. A leasehold estate is created at the time the lease is executed; not at the time named as the beginning of the term; and this is so where the lease is for a definite time with the option of enlarging the term for a further period, which with the first term would create an interest in the land exceeding three years. If such a lease is signed by the lessee only and not by the lessor, the estate created is, under the Act of March 21,1772, 1 Sm. L. 389, a tenancy at will only.</p> <p>2. Where a lease executed on December 14, 1907, for a term of one year from January 1, with an option for two years more, is signed by the lessee, and not by the lessor, the estate created is a tenancy at will only.</p>

Appeal, No. 42, Oct. T., 1911, by defendant, from order of C. P. No. 4, Phila. Co., Dec. Term, 1910, No. 1,042, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Jacob Ebstein and Isidor Ebstein, trading as Metropolitan Manufacturing Company, v. Philadelphia Knitting Mills Company, Inc. Assumpsit to recover the price of eighteen steel bars.

Appeal, No. 214, Oct. T., 1911, by Wm. T. S. Hoyt et al., from decree of O. C. Clearfield Co., No. 3,250, sustaining exceptions to auditor’s report in Estate of Milo Hoyt. Exceptions to report of H. A. Murray, Esq., auditor. A. 0.

<p>Appeal, No. 218, Oct. T., 1911, by plaintiff, from judgment of Q. S. Phila. Co., March T., 1911, No. 747, on verdict of guilty in case of Comm on - wealth v. Christian Pflaum.</p> <p>Indictment under the pure food act.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was (1) the order quoted in the opinion of the Superior Court.</p> <p>For error in quashing an indictment, arresting judgment after a verdict of guilty, and the like, the commonwealth may remove the record for review without allowance of the proper writ: Com. v. Sober, 15 Pa. Superior Ct. 520; Com. v. Wallace, 114 Pa. 405.</p>

<p>Criminal law — Sentence—Terms of court — New trial.</p> <p>1. Where a person is convicted by a jury before one of the three judges of the court, and he is subsequently sentenced by the three judges sitting together, and thereafter the trial judge makes an order suspending the sentence until the matter should be considered by his associates and himself acting together, and finally the other two judges make an‘order refusing to modify the original sentence, directing the' sentence to be reinstated, and discharging rule for new trial, the trial judge cannot four terms thereafter enter an order arresting and setting aside the judgment and granting the defendant a new trial.</p> <p>2. The entry of a judgment substantially and effectually overrules any pending motion in arrest of judgment or for a new trial.</p> <p>3. The court of quarter sessions has no power in the absence of express statutory authority, to set aside a judgment entered upon a verdict of guilty in a criminal prosecution, after the expiration of the term at which the judgment was entered.</p>

<p>Appeal, No. 282, Oct. T., 1910, 'by defendant, from judgment of C. P. No. 2, Phila. Co., Dec. T., 1907, No. 3,102, on verdict for plaintiff in case of W. Bruce Barrow v. Mahlon W. Newton.</p> <p>Assumpsit to recover commissions upon the sale of real estate. Before Barratt, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Plaintiff presented the following point:</p> <p>1. If the jury believe that the defendant gave the plaintiff the option to rent or sell the property at Tenth-and Market streets, Camden, N. J., from thirty to sixty days from August 3, 1907, and further believe that the plaintiff or his employees within the period of sixty days first brought the attention of the property to A. G. Soistman, an officer of the Excelsior Drum Works, and further believe that the Excelsior Drum Works subsequently purchased the property, then the plaintiff is entitled to recover a commission on the purchase price even though the defendant took up the negotiations directly with Soistman during the said period of sixty days and finally made a sale to the Excelsior Drum Works. Answer: That point I affirm. [1]</p> <p>Verdict and judgment for plaintiff for $1,246. Defendant appealed.</p> <p>Errors assigned were (1, 2) in refusing binding instructions for defendant and in overruling defendant’s motion for judgment n. o. v. and (3) in affirming plaintiff’s point as above.</p> <p>A real estate broker, to entitle himself to a commission, must show that his agency was the efficient, procuring cause of the sale: Earp v. Cummins, 54 Pa. 394; Kifer v. Yoder, 198 Pa. 308; Hartley v. Anderson, 150 Pa. 391.</p> <p>Every case in the books holds that where there is disputed evidence on this point, it must be left to the jury. The courts have held that very slight evidence is sufficient for that purpose: Peters v. Holmes, 45 Pa. Superior Ct. 278; Showaker v. Kelly, 21 Pa. Superior Ct. 390; Keys v. Johnson, 68 Pa. 42; Reed v. Reed, 82 Pa. 420; Clenden'on v. Pancoast, 75 Pa. 213; Gibson’s Est., 161 Pa. 177; McCaffrey v. Page, 20 Pa. Superior Ct. 400; Kifer v. Yoder, 198 Pa. 308.</p>

<p>Appeals, Nos. 31 and 32, Oct. T., 1911, by defendants, from orders of C. P. No. 1, Phila. Co., Sept. T., 1910, Nos. 988 and 989, M. L. D. making absolute rule for judgment for want of a sufficient affidavit of defense in case of Reliance Manufacturing Company v. Peter McCurdy, Owner and Contractor, and Emma B. McCurdy, Present Registered Owner.</p> <p>Rules for judgments for want of sufficient affidavits of defense.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was orders making) absolute rules for judgments.</p> <p>The affidavit of defense denies the truth of the plaintiff’s averments, upon which his right to file a lien is based: Bohem v. Seabury, 141 Pa. 594; Long v. Black, 5 Pa. C. C. Rep. 258.</p> <p>The subcontractor is chargeable with notice of all the terms and stipulations of the contract between the original contractor and the owner: Schroeder v. Galland, 134 Pa. 277; Bevan v. Thackara, 143 Pa. 182; Miller v. Fitz, 41 Pa. Superior Ct. 582; Long v. Black, 5 Pa. C. C. Rep. 258.</p> <p>The affidavit of defense sets up a complete statutory estoppel to claimant’s right to file a lien, The contract filed complies with the act of 1901, and bars the plaintiff’s right to file a lien: Glassport Lumber Co. v. Wolf, 213 Pa. 407; Pennoek v. Locust Realty Co., 224 Pa. 437.</p> <p>The contract was made in good faith and not for the purpose of defrauding subcontractors: Westmoreland Guarantee Building & Loan Assn. v. Connor, 216 Pa. 543.</p> <p>The affidavit of defense shows the lien filed to be fatally defective on its face: Bametzrieder v. Canevin, 44 Pa. Superior Ct. 18; Rosenblatt v. Weiman, 230 Pa. 536.</p>

Appeal, No. 12, March T., 1912, by Ella W. Patterson et al., from decree of O. C. Juniata Co., dismissing exceptions to auditor’s report in Estate of Samuel Watts. Exceptions to auditor’s report. Errors assigned were in dismissing exceptions to auditor’s report.

<p>Appeals — Quashing appeals — Interlocutory decree — Executors and administrators — Party aggrieved.</p> <p>An appeal by an executor from a decree of the orphans’ court awarding to a legatee an indeterminate amount of his legacy from funds in the hands of the accountant, will be quashed because (1) the decree is interlocutory, and (2) the executor is not a person aggrieved within the meaning of the Act of March 29,1832, see. 59, P. L. 190.</p>

<p>Appeal, No. 185, Oct. T., 1911, by directors of the Poor and House of Employment for the County of Berks, from decree of O; C. Berks Co., Feb. T., 1911, No. 17, dismissing, exceptions to adjudication in Estate of Susanna Hains, deceased.</p> <p>Exceptions to adjudication.</p> <p>From the record it appeared that the directors of the poor claimed $1,160.26 from the proceeds of the decedent’s real estate to reimburse the poor district for the maintenance of the decedent as a pauper during her lifetime.</p> <p>The auditing judge disallowed the claim.</p> <p>The court in an opinion by Bland, P. J., sustained the the adjudication.</p> <p>Error assigned was in dismissing exceptions to adjudication.</p> <p>Jester v. Jefferson Twp. Overseers, 11 Pa. -540; Mumma’s App., 127 Pa. 474; Directors of Poor and House of Employment of Montg. County v. Nyce, 161 Pa. 82.</p>

Appeal, No. 222, Oct. T., 1911, by plaintiff, from order of C. P. Lancaster Co., May T., .1892, No. .30, discharging rule to strike off appeal in case of P. F. Sheafer v. A. J. Melcher. Rule to strike off appeal.. The opinion of- the Superior Court states the case. Error assigned was the order of the court. Moore v. Creamer, 3 P. & W. 416; Potts v. Staeger, 12 Pa. 363. Anderson v. McMichael, 6 Pa. Superior Ct. 114; Yost v. Davison, 5 Pa.

<p>Fish law — Criminal law — Summary conviction — Appeals—Evidence— Record — Act of May 1,1909, P. L. S53.</p> <p>On an appeal from a judgment of the court of quarter sessions reversing a summary conviction under the fish law of May 1,1909, P. L. 353, the appellate court cannot consider the evidence taken in the court below, and if the court of quarter sessions kept within the limits of its jurisdiction and proceeded with regularity according to law, its judgment will be affirmed.</p>

Appeal, No. 192, Oct. T., 1911, by Anna M. Rigg, from decree of O. C. Chester Co., refusing to confirm appraisement for widow’s exemption in estate of E. Emerson Rigg, deceased. Exceptions to appraisement for widow’s exemption. Butler, J., filed the following opinion: When this matter was originally heard, the proof presented convinced us that the appraisers had not arrived at their valuations in the exercise of a fair discretion.

Appeal, No. 12, Oct. T., 1911, by Edward J. Mitchell, from order of Q. S. Schuylkill Co., Jan. T., 1911, No. 143, refusing a retail liquor license in East Brunswick Township. Petition for retail liquor license. Shay, P. J., made the following order: This court being well acquainted with local conditions, do not think a license in the place asked for is a necessity. There are sufficient in this locality in comparatively a small radius.

<p>Appeal, No. 106, April T., 1912, by plaintiff, from decree of C. P. No. 2, Allegheny Co., Oct. T., 1911, No. 985, dismissing bill in equity in case of John Rassau v. I. K. Campbell et al., County Commissioners, and Franck Scholl, Constable of the Borough of Brackenridge.</p> <p>Bill in equity for an injunction.</p> <p>Frazer, P. J., filed the following opinion:</p> <p>The purpose of this bill was to restrain defendants from preparing ballots and giving notice of a special election to be‘held in the borough of Brackenridge on the third Tuesday of February, 1912, to vote for or against the granting of licenses to sell liquor in that borough. The bill sets forth that the plaintiff is a taxpayer and resident of the borough of Brackenridge and that defendants are preparing to give notice for the holding of an election in the first ward of that borough on the third Tuesday of February, 1912, for the purpose of determining whether or not licenses to sell liquor in the ward above referred to during the coming three years shall be granted. Defendants demur, alleging that the facts set forth in the bill do not entitle plaintiff to the relief claimed and that no injunction should therefore be granted as prayed for.</p> <p>By an Act of assembly approved April 3,1872, P. L. 804, entitled, “An act to allow the voters of the Townships of West Deer, East Deer, Pine, Richland, Harrison, North Versailles, South Versailles, North Fayette, South Fayette and Kilbuck, in the County of Allegheny, to vote for or against the issuing of licenses to sell intoxicating liquor in said township,” it is provided “that at the next annual municipal election” in the townships named, “and at the annual municipal election held every third year thereafter, it shall be the duty of the inspectors and judges of election in said township to receive tickets, either written or printed, from the legal voters of said township labeled on the outside ‘License’ and on the inside ‘For license’ or ‘Against license.’” These tickets the judges and inspectors are required to count and make return thereof to the court of quarter sessions of the county. The second section makes it the duty of the constables of the several townships named to give due public notice by handbills throughout the township of such special election at least thirty days previous to the time for holding the same. If a majority of the votes cast in any township named is in favor of the sale of intoxicating liquors licenses may be granted in that township; if a majority of the votes cast is against the sale of liquors no licenses shall be granted in that township for a period of three years. By Act of June 8, 1911, P. L. 703, the act of April 3, 1872, was repealed “so far as its provisions relate to the townships of Pine, Harrison, North Versailles, North Fayette and South Fayette.” Subsequent to the passage of the act of 1872 and some time prior to the passage of the repealing act of 1911 the borough of Brackenridge was created out of a portion of Harrison township, and has since its creation been subject to the act of 1872, and elections have been held under its provisions in that borough triennially since its incorporation.</p> <p>The question to be determined here is whether or not the repealing act of 1911 applies to the territory within the limits of the borough of Brackenridge. If it does, no election should be held in February, 1912; if it does not, then an election should be held as heretofore. In Rassau v. Borough of Brackenridge at No. 514, April Term, 1911, we held that the borough of Brackenridge was subject to the provisions of the act of 1872 and that an election should be held in that borough under the provisions of the act in February, 1912, and not in November, 1911. The local option features of the act of 1872, having attached to all the territory embraced in the township of Harrison at the time of the passage of the act, we are of opinion that those features still attach to that territory, and will continue applicable thereto until repealed either directly or by implication, neither of which the act of 1911 in our opinion does in the territory embraced within the borough of Brackenridge. That the repealing act of 1911 was intended to apply to the territory at present embraced in Harrison township, and not to territory included in its limits in 1872, seems clear from the very wording of the statute. The borough of Brackenridge has been a separate municipal division for many years, and if the legislature had intended the repealing act of 1911 to apply to it presumably it would have said so, and not having done so we cannot extend its provisions to a municipality not named in the statute.</p> <p>In a supplemental brief filed the power of the legislature to pass an act repealing part of a local or special act is raised. In support of the contention that the legislature has no such power the case of Blankenburg v. Black, 200 Pa. 629, is cited. That case it seems to us does not rule the question now before us. There an attempt was made to change or alter a part of a local act applicable to but one municipality by repealing a portion of a section of the local act. The repealing act in that case was declared unconstitutional because its provisions amounted to no more than an alteration of the original act and was therefore special legislation regulating the affairs of a county. Here the act of 1872 applies to separate and distinct divisions of the commonwealth, to any one of which the provisions of the act might have been made applicable by independent legislation. Such being the case we see no reason why one or more of the townships cannot be relieved from its provisions by a repealing statute, especially when that can be done without in any manner altering or changing the effect of the original law in the remaining townships.</p> <p>Being of opinion that the act of 1872 still applies to the borough of Brackenridge, the demurrer is sustained and judgment entered thereon for defendants.</p> <p>DECREE.</p> <p>And now, to wit, November 20, 1911, this case came on to be heard at this term, and was argued by counsel and upon consideration thereof it is ordered, adjudged and decreed as follows, viz.:</p> <p>That the bill in this case be and the same is hereby dismissed and the plaintiff is directed to pay the costs.</p> <p>Error assigned was decree dismissing bill in equity.</p>

<p>Attachment under the act of 1869 — Dissolution of attachment — Waiver.</p> <p>1. Where a defendant in an attachment under the Act of March 17, 1869, P. L. 8, as amended by the Act of May 24, 1887, P. L. 197, files an answer denying the allegations of fraud in plaintiff’s affidavit and suggesting that the attachment should be dissolved, he may four months later present a petition for a rule to dissolve the attachment, and such petition will not be refused on the ground that it was presented too late.</p> <p>Appeals — Record—Evidence—Attachment under act of 1869 — Dissolution of attachment.</p> <p>2. An appeal from an order making absolute a rule to dissolve an attachment under the act of 1869, takes up nothing but the record proper, which does not include the evidence upon which the court below acted. Even if the opinion of the lower court be looked into to ascertain the grounds of the decision, the case will not be reversed, if no abuse of discretion is disclosed.</p>

Appeal, No. 28, Oct. T., 1911, by defendant, from order of C. P. No. 4, Phila. Co., June T., 1910, No. 2,019, discharging rule to open judgment in case of Abraham Leibowitz to use v. Thomas L. F. Walker. Rule to open judgment. The facts are stated in the opinion of the Superior Court. Error assigned was order discharging rule to open judgment.

Appeal, No. 287, Oct. T., 1910, by defendant, from judgment of C. P. No. 5, Phila. Co., March T., 1910, No. 3,271, for plaintiff on demurrer in case of The Hartley Silk Manufacturing Company v. David Berg. Demurrer to statement of claim. The facts are set forth in the opinion of the Superior Court. The court overruled the demurrer and subsequently entered judgment for plaintiff for $568.71. Defendant appealed.

Appeal, No. 284, Oct. T., 1910, by defendant, from order of C. P. Delaware Co., Dec. T., 1908, No. 854, overruling demurrer, discharging rule to strike off lien, and allowing judgment to be entered for-want of an affidavit of defense in case of Lansdowne Borough to use of A. P. and H. L. Benner v. Eliza C. Hartel. Rule to strike off lien. Rule to strike off judgment. Demurrer to scire facias.

Appeal, No. 288, Oct. T., 1910, by Daniel McLean, from order of C. P. No. 5, Phila. Co., June T., 1908, No. 243, M. L. D., making absolute rule for judgment for want of a sufficient affidavit of defense in case of William S. Lilly v. Jos. J. Jaggard, owner or reputed owner. Rule for judgment for want of a sufficient affidavit of defense on scire facias sur mechanic’s lien. The opinion of the Superior Court states the case.

Appeal, No. 30, Oct. T., 1911, by defendant, from decree of C. P. No. 1, Phila. Co., June T., 1910, No. 3,648, on bill in equity in suit of Irene D. Cunningham v. Clement Remington H. Cunningham. Bill in equity by a wife against her husband for support. Before Magill, J. The facts are stated in the opinion of the Superior Court. Error assigned was decree allowing plaintiff $100 per month.

<p>Appeal, No. 39, Oct. T., 1911, by defendant, from judgment of C. P. No. 5, Phila. Co., June T., 1909, No. 342, on verdict for plaintiff in case of Theodore Bane et al. v. William Windom Council No. 580 Order of Independent Americans.</p> <p>Assumpsit to recover death benefits. Before Martin, P. J.</p> <p>At the trial the jury returned a verdict for plaintiff for $268.25.</p> <p>On a motion for judgment non obstante veredicto Martin, P. J., filed the following opinion;</p> <p>Plaintiffs allege the illness which caused the death of plaintiffs’ decedent occurred while the deceased was a member in good standing and before the arrearages which were subsequently paid in full had accrued for over three months. This allegation is supported by the evidence. Plaintiffs’ decedent became sick January, 1907, according to the testimony. We assume the decedent was bound by the by-laws of the council and of the order and are considering the case under the by-laws. Assuming he was sick January 1, 1907, he would have been sick 116 days or sixteen weeks and four days on April 26, 1907. On April 26, 1907, the decedent owed $3.05, on which date, or a few days before that, this sum was paid. The decedent, therefore, owed twenty weeks’ dues at fifteen cents per week. Twenty weeks prior to April 26, 1907, would date back to December 7, 1906. Therefore, on March 8,1907, the decedent was thirteen weeks in arrears and would not be entitled to benefits until four weeks after the dues were paid, on or about April 26, 1907. Four weeks from April 26, 1907, would be May 24, 1907. But on January 1, 1907, when the illness began, the decedent was not thirteen weeks in arrears. He remained in good standing until he suffered himself “to become indebted for weekly dues for thirteen weeks or over.” He was therefore in good standing until March 8, 1907, when, being thirteen weeks in arrears for his weekly dues, he lost his good standing. He did not become sick at a time when he was “in arrears to the Council for over three months” dues, for we have shown such a condition did not occur until March, and he was “taken sick” in January, 1907.</p> <p>The proviso of art. Y, sec. 1, does not apply to a member who is not over three months in arrears for dues at the time he is taken sick. At any time in January, 1907, the decedent could not have been more than eight weeks in arrears, dating the first of the twenty weeks from December 7, 1906. The illness of the plaintiffs’ decedent, therefore, did not exclude his right to benefits where it is plain the illness began in advance of the date when he lost his good standing.</p> <p>Under sec. 3 of art. XV, p. 14 of the laws, the decedent was a “beneficial member of this order” when he was taken sick in January, 1907, because he did not become, as we have shown, thirteen weeks in arrears until March 8, 1907.</p> <p>We can find no error in the charge of the learned trial judge. The question of fact was properly submitted to the jury. There is nothing in the case of Tucker v. .George Stuffier Council, Jr., O. U. A. M., 68 Legal Intel-ligencer, 18, which changes the conclusion we have reached.</p> <p>The motion for judgment non obstante veredicto for the defendant is refused and the rule for a new trial is discharged.</p> <p>Errors assigned among others were (1) refusal of judgment for defendant; (8, 9) rulings on evidence referred to in the opinion of the Superior Court.</p>

<p>Appeal, No. 46, Oct. T., 1911, by plaintiff, from decree of C. P. No. 5, Phila. Co., June T., 1910, No. 2,300, dismissing bill in equity in suit of Henry PI. Bonnell v. City of Philadelphia, Murrell Dobbins, City Treasurer et al.</p> <p>Bill in equity for an injunction. Before Ralston, J.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was in dismissing the bill.</p> <p>The department of city treasurer, of the city of Philadelphia is a municipal department, although it is presided over by a county officer: Philadelphia v. McMichael, 208 Pa. 297; Wheeler v. Phila., 77 Pa. 338.</p> <p>The appointment of employees in the department of city treasurer of the city of Philadelphia is governed by the civil service Act of March 5, 1906, P. L. 83.</p> <p>The treasurer’s office is a county office: Com. v. Oellers, 140 Pa. 457; Com. v. Taggart, 102 Pa. 354.</p>

<p>Appeal, No. 51, Oct. T., 1911, by defendant, from judgment of C. P. No. 2, Phila. Co., Sept. T., 1905, No. 907, on verdict for plaintiff in case of Charles McBride, a minor, by his father and next friend, James McBride, and James McBride in his own right v. The William Cramp & Sons Ship & Engine Building Company.</p> <p>Trespass to recover damages for personal injuries. Before Barratt, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for Charles McBride for $1,000, and for James McBride for $50.00. Defendant appealed.</p> <p>Error assigned among others was in refusing binding instructions for defendant. '</p> <p>McGregor v. R. R. Co., 212 Pa. 482; Kilgour v. Steel Co., 56 Pittsburg Leg. J. 320; Studebaker v. Tube Co., 226 Pa. 239; Groves v. McNeil, 226 Pa. 345; Martin v. R. R. Co., 166 ü. S. 399 (17 Sup. Ct. Repr. 603); Miller v. Bridge Co., 216 Pa. 559.</p> <p>Yanesse v. Coal Co., 159 Pa. 403; Durst v. Steel Co., 173 Pa. 162; Lillie v. American Car & Foundry Co., 209 Pa. 161; Mapes v. Provision & Packing Co., 31 Pa. Superior Ct. 453; Potter v. Gas Co., 183 Pa. 575; McCoy v. Gas Co., 213 Pa. 367; Hughes v. Fayette Mfg. Co., 214 Pa. 282.</p>

<p>Bailment — Warehousemen—Storage charges — Principal and agent.</p> <p>Where a bailee of household goods under an installment lease stores the goods in a storage warehouse without the knowledge or consent of the bailor, and the agent of the latter on discovering this fact, takes an assignment of the warehouse receipt, and notifies the warehouseman of the true ownership of the goods, the latter may recover from the bailor the storage charges, at least, from the date of the assignment, and irrespective of any agreement on the part of the bailor’s agent to pay them.</p>

<p>Appeal, No. 64, Oct. T., 1911, by plaintiff, from order of C. P. No. 6, Phila. Co., June T., 1910, No. 2,350, making absolute rule to strike off judgment in case of Blackstaff & Company v. E. I. Du Pont De Nemours Powder Company.</p> <p>Rule to strike off judgment.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was the order making absolute rule to strike off judgment.</p> <p>Book v. Sharpe, 189 Pa. 44; Western Nat. Bank v. Cotton, Oil & Fiber Co., 35 Pa. Superior Ct. 47.</p> <p>Necker v. Sedgwick, 36 Pa. Superior Ct. 593; Com. v. Burns, 14 Pa. Superior Ct. 248; Com. v. Mc-Naught, 28 Pa. Superior Ct. 369.</p>

Appeal, No. 91, Oct. T., 1911, by plaintiff, from judgment of C. P. No. 4, Phila. Co., June T., 1909, No. 2,690, for defendant on case stated in suit of Commonwealth v. Eynon-Evans Manufacturing Company. Case stated to determine liability for mercantile tax. From the record it appeared that the suit was brought to recover a mercantile license tax against the defendant as a wholesale vender.

<p>Replevin — Disputed question of title.</p> <p>In an action of replevin by a husband as executor of his wife, to recover an automobile, it appeared that the defendant had purchased the automobile and given his note therefor. Subsequently the seller having refused to renew the note, the decedent gave him in substitution, her note, and the defendant receipted to her in full for the piu> chase money of the automobile. Held, that as the defendant had acquired a full title to the machine by giving Ms own note therefor, he had a right to make any arrangement with the decedent as to the substitution of her note for Ms own note, and had therefore a right to sell to her the machine.</p> <p>In such a case it is immaterial that the defendant may have paid voluntarily out of his own pocket a portion of the decedent’s note. Such payment did not revest in Mm title to the machine.</p>

<p>Husband and wife — Conversion of wife’s goods by husband — Evidence— Trespass.</p> <p>In an action of trespass brought by a wife against her husband who had deserted her, to recover the value of household goods alleged to have been the property of the wife, but converted by the husband to his own use, a verdict and judgment for the plaintiff will be sustained where there is evidence.tending to show that some of the goods had been purchased by the plaintiff with her own money, that the residue had been purchased by the defendant from time to time and presented ■by him to his wife, and that he had acknowledged in writing that he had given the goods to his wife.</p>

Appeal, No. 103, Oct. T., 1911, by defendant, from judgment of C. P. No. 2, Phila. Co., Sept. T., 1909, No. 3,543, on verdict for plaintiff in case of Joshua M. Johnson >v. Peter Hernig. Assumpsit against an indorser on a promissory note. Before Barratt, J. Defendant presented the following points: 1.

Appeal, No. 109, Oct. T., 1911, by defendant, from judgment of C. P. No. 3, Phila. Co., Dec. T., 1906, Noi 4,028, on verdict for plaintiff in case of Belle M. Rudy, trading as Klondike Ice Cream Company, v. Franklinville Ice & Storage Company. Assumpsit to recover for alleged overcharges for ice. Before Ferguson, J. Defendant presented the following points: 1.

Appeal, No. 127, Oct. T., 1911, by plaintiff, from decree of C. P. No. 5, Phila. Co., Dec. Term, 1910, No. 1,410, refusing divorce in case of Elsa Feder Wile v. Simeon Wile. Libel for divorce. The case was referred to C. Stuart Patterson as master, who recommended a decree in favor of the libelant. Exceptions to the master’s report were sustained, and a decree was entered dismissing the libel. The facts are stated in the opinion of the Superior Court.

Appeal, No. 142, Oct. T., 1911, by defendant, from judgment of C. P. No. 4, Phila. Có., Dec. T., 1908, No. 202, on verdict for plaintiff in case of George Charles Williams, Leon A. Engle and August Stolle, trading as Wallerstein & Company, v. Morris Wenger. Assumpsit for goods sold and delivered. Carr, J., charged as follows: In this case there was a claim made of $85.90.

Appeal, No. 150, Oct. T., 1911, by plaintiff, from judgment of C. P. No. 3, Phila. Co., Dec. T., 1904, No. 4,290, on verdict for defendant in case of United States to use of James Gallagher, managing owner of the steam tug “Ellen MacAvoy,” v. Baltimore Construction Company & National Surety Company. Assumpsit upon a bond. The opinion of the Superior Court states the case. Verdict and judgment for defendant. Plaintiff appealed.

Appeal, No. 158, Oct. T., 1911, by plaintiff, from order of C. P. No. 5, Phila. Co., Dec. T., 1910, No. 1,298, discharging rule for judgment for want of a sufficient affidavit of defense in case of Henry C. Lough-lin, executor of the estate of Alice Plutchinson, deceased, v. Agnes G. Tucker. Assumpsit for consideration money of a deed. Rule for judgment for want of a sufficient affidavit of defense.

Appeal, No. 165, Oct. T., 1911, by defendant, from order of C. P. No. 3, Phila. Co., March Term, 1911, No. 4,177, making absolute rule for judgment for want of a sufficient affidavit of defense in case of William Gardiner v. D. P. S. Nichols Company, Incorporated. Rule for judgment for want of a sufficient affidavit of defense. The facts are stated in the opinion of the Superior Court.

Appeal, No. 166, Oct. T., 1911, by defendant, from judgment of C. P. No. 5, Phila. Co., March T., 1906, No. 1,137, on verdict for plaintiff in case of Warren Wark, by his father and next friend John W. Wark, and John W. Wark v. George M. Dunlap Company. Trespass to recover damages for personal injuries. Before Ralston, J. The facts are stated in the opinion of the Superior Court. Verdict and judgment for plaintiff Warren Wark for $275, and for John W. Wark, $85.00.

Appeal, No. 60, Oct. T., 1911, by defendant, from order of C. P. No. 2, Phila. Co., Dec. T., 1910, No. 3,692, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Penn Clotting Company v. United States Express Company. Assumpsit to recover for loss of goods. Rule for judgment for want of a sufficient affidavit of defense. The facts are stated in the opinion of the Superior Court.

Appeal, No. 137, Oct. T., 1911, by defendant, from judgment of C. P. No. 1, Phila. Co., June T., 1909, No. 4,440, on verdict for plaintiff in case of Commonwealth to use of Harry L. Randall v. Isador M. Gould and The National Surety Company. Assumpsit on an appeal bond.

Appeal, No. 135, Oct. T., 1911, by defendants, from order of C. P. No. 4, Phila. Co.., March T., 1911, No. 1,035, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Watsontown Brick & Clay Products Company v. Robert Y. Bernard and Howard D. Bernard, copartners, trading as Bernard Brothers. Assumpsit for goods sold and delivered. Rule for judgment for want of a sufficient affidavit of defense.

Appeal, No. 90, Oct. T., 1911, by plaintiff, from order of C. P. No. 3, Phila. Co., March Term, 1904, No. 4,650, refusing to take off nonsuit in case of Elizabeth Peacock v. Philadelphia. Appeal from report of jury of view. Before Davis, J. At the trial the court relying on Siddall v. Philadelphia, 225 Pa. 55, entered a judgment of nonsuit which it subse.quently refused to take off. Error assigned was in refusing to take off nonsuit.

Appeal, No. 199, Oct. T., 1911, by defendants, from judgment of C. P. No. 1, Phila. Co., Dec. T., 1909, No. 478, on verdict for plaintiff in case of Agnes G. Tucker v. John McMenamin and Ellen McMen-amin, his wife. Ejectment for a lot of land in the fortieth ward of the city of Philadelphia.

Appeal, No. 169, Oct. T., 1911, by plaintiff, from judgment of C. P. No. 5, Phila. Co., June T., 1911, No. 771, for defendant on case stated in suit of Commonwealth v. William W. Williamson, trading as Purock Water Company. Case stated to determine liability for mercantile license tax. The opinion of the Superior Court states the case. Error assigned was in entering judgment for defendant on case stated.

Appeal, No. 179, Oct. T., 1911, by defendant, from judgment of C. P. No. 5, Phila. Co., Dec. T., 1909, No. 1,956, on verdict for plaintiff in case of Murray Gibson, Trustee under the will of John Gibson, deceased, v. Howard M. Earling. Appeal from judgment of magistrate. Before Martin, P. J. The facts are stated in the opinion of the Superior Court. The court gave binding instructions for the plaintiff. Verdict and judgment for plaintiff for $27.25. Defendant appealed.

Appeal, No. 89, Oct. T., 1911, by defendant, from judgment of C. P. No. 2, Phila. Co., Sept. T., 1909, No. 257, on verdict for plaintiff in case of Henry A. Russell v. Henry C. Patterson Company. Assumpsit for salary. Before Wiltbank, J. The facts are stated in the opinion of the Superior Court. Plaintiff presented the following points: 1.

Appeal, No. 133, Oct. T., 1911, by Charles M. Raspa, administrator of the estate of Mathias Schnepf, from decree of O. C. Phila. Co., Oct. T., 1910, No. 486, dismissing petition for citation in Estate of Mathias Schnepf. Petition for citation for an injunction and an account. The opinion of the Superior Court states the case. The orphans’ court in an opinion by Dallett, P. J., dismissed the petition for want of jurisdiction. Error assigned was decree dismissing the petition.

Appeal, No. 180, Oct. T., 1911, by Rebecca B. Stokes, from decree of O. C. Phila. Co., Jan. T., 1885, No. 215, dismissing exceptions to adjudication in Estate of Anthony Elton, deceased. Exceptions to adjudication. The facts are stated in the opinion of the Superior Court. Errors assigned were in dismissing exceptions to adjudication.

Appeal, No. 40, Oct. T., 1911, by defendant, from judgment of C. P. Wyoming Co., April T., 1910, No. 30, on verdict for plaintiff in case of Vern Lester v. Lemon Township. Trespass to recover damages for personal injuries. Before Terry, P. J. The circumstances of the accident are stated in the opinion of the Superior Court. Verdict and judgment for plaintiff for $947.43. Defendant appealed. Errors assigned were various instructions quoted in the opinion of the Superior Court.

Appeal, No. 211, Oct. T., 1911, by plaintiff, from judgment of C. P. Franklin Co., Feb. T., 1911, No. 30, for defendant on demurrer to statement in case of School District of the Borough of Chambersburg v. Guilford Township School District. Assumpsit to recover money had and received. Demurrer to statement of claim. The court entered judgment for defendant on demurrer.

<p>Practice, C. P. — Affidavit of defense — Set-off—Building contract.</p> <p>1. In an action to recover the balance alleged to be due on a building contract, an affidavit of defense is insufficient which alleges that the defendant had relieved the plaintiff of the performance of a part of his original contract and that “it was understood and agreed that the defendant would be entitled to a credit” for the value thereof which amounted to a sum named which was alleged to be in excess of the balance of the work for which the suit was brought.</p> <p>2. Allegations of set-off in general terms are not to be regarded; the averment must be as specific as those used in the statement. The defendant has the affirmative of the issue and must aver his set-off in terms incapable of being misunderstood, and they must be stated with exactness as to source, character and amount with the same clearness and particularity as are required of a plaintiff in his statement of claim.</p>

<p>Negligence — Automobiles—High speed — Sharp turn — Sluing of machine.</p> <p>Where the driver of an automobile in a city street turned his machine with such speed near the curb as to cause the rear part of the automobile to skid or slue and the top 'of it to project on to a sidewalk so as to strike a boy and kill him, the owner of the automobile will be liable to the parent for damages for the death of the child, if it appears that there were no conditions making it necessary for the driver to make such a short turn under high speed.</p>

<p>Appeal, No. 126, Oct. T., 1911, by defendant, from judgment of C. P. No. 3, Phila. Co., Dec. T., 1908, No. 734, in verdict for plaintiff in case of Mary A. Thompson v. Board of Public Education of the First School District of Pennsylvania.</p> <p>Assumpsit for rent. Before Ferguson, J.</p> <p>The opinion of the Superior Court states the case.</p> <p>Verdict and judgment for plaintiff for $378.30. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions, for defendant.</p>

<p>Promissory notes — Fraud—Proof of consideration — Indorsee.</p> <p>1. In an action by an indorsee of a promissory note against the maker where the plaintiff avers in his statement .of claim that the note was delivered to him for value before maturity without notice of any 'question existing between any of the parties to the note, an affidavit of defense is sufficient which denies such averment and sets up that the note was procured from the maker by the payee through false and fraudulent representations all fully and particularly set out in the affidavit.</p> <p>Practice, C. P. — Affidavit of defense — Information and belief.</p> <p>2. When the facts forming part of a defendant’s case are averred upon information and belief, the defendant must add to such an averment that he expects to prove them, or, in the alternative, set out specifically the sources of his information, or the facts upon which his belief rests.</p> <p>3. In an action upon a promissory note an affidavit of defense sufficiently avers the defendant’s own information and belief, when it says: the defendant, stating his name, “being duly sworn says upon information and belief,” etc.</p>

<p>Pleading — Demurrer—Practice—Gambling contract.</p> <p>Where a demurrer is filed to a statement of claim in an action brought under a statute of New Jersey to recover money paid on a wager, and the plaintiff instead of joining in the demurrer amends his statement by leave of court in such a manner as to enable him to base his claim upon the law of Pennsylvania, rather than the law of New Jersey,' the court cannot thereafter enter judgment for the defendant upon the original demurrer. In such a case the proper course for the plaintiff to pursue is to enter a rule upon the defendant to plead or file an affidavit of defense.</p>

<p>Costs — Stenographer’s compensation — Testimony in divorce and charter cases — Act of May 1,1907, P. L. 185.</p> <p>Under the Act of May 1, 1907, P. L. 135, a duly appointed stenographer of the court of common pleas is entitled to have his fees paid by the county in a divorce case or in a case involving an application for a charter, where the court in the exercise of its discretion has directed that the fees shall be paid by the county.</p>

<p>Appeal, No. 110, Oct. T., 1911, by Mary J. Britton, from decree of O. C. Phila. Co., April T., 1910, No. 423, dismissing exceptions to adjudication in Estate of Jennie R. Pullinger.</p> <p>Exceptions to adjudication of Lamorelle, J.</p> <p>Anderson, J., filed the following opinion:</p> <p>The estate of the testatrix consisted of a small amount of personalty and of a house and lot No. 1519 N. 8th street, in the city of Philadelphia. By her will she provided “In case of my death, the property 1519 N. 8th St. (now mine as sole administratrix of my dear mother, the late Amanda M. Pullinger), must be sold and the bills of the doctor and undertaker paid (also a nurse if I should have one),” and then gave various pecuniary legacies including among her legatees certain charities, and gave the residue of her estate to the Children’s Homeopathic Hospital; she neglected, however, to have her will duly witnessed so that under the terms of the Act of April 26, 1855, P. L. 328, the bequests to charities became void and the residuary bequest also failed, and she therefore died intestate as to her charitable gifts. She left her surviving as her next of kin her half-sister, the daughter of her father, who was not, however, of the blood of the mother from whom this real estate descended, and therefore. not an heir at law with respect thereto. The heirs at law with respect to this property were certain first cousins on her mother’s side. At the audit the balance of the proceeds of this real estate was claimed on behalf of*the half-sister, on the ground that as the testatrix had directed the sale of her real estate, an equitable conversion thereof took place unto personalty, and it therefore descended to her next of kin. The heirs at law, however, contend that as these gifts were inoperative, no conversion of the real estate took place as to them, and that therefore the fund passed to them as real estate, and this contention was sustained by the auditing judge, on the authority of Ackroyd v. Smithson, 1 Bro. C. R. 503, and Painter v. Painter, 220 Pa. 82.</p> <p>In this we think he was entirely right. The doctrine of conversion either equitable or actual is merely for the purpose of carrying out the intent of the testator. As pointed out in Ackroyd v. Smithson when that intent cannot be carried out, the purpose of the doctrine fails and the estate vests as if no such intent had been manifested and this result follows even though the failure is but a partial one and a conversion has actually taken place; that is to say, where there has been a partial failure (as by the lapse of a legacy, for example) though the real estate has been sold in order to carry out the intention of the testator in reference to other gifts, the fund descends as though no sale has been made. In Ackroyd, v. Smithson there was, as in this will, a direction to sell testator’s real estate for the purpose of using the fund together with the personal estate in payment of certain legacies, and the residue, which the testator anticipated as in the present case would be more than the amount of the legacies, was given proportionately to his legatees. Two of these legatees having died in his lifetime their legacies lapsed, and it was held by Lord Thurlow that the fund which would otherwise have gone to them, in so far as it consisted of the proceeds of real estate, vested in the testator’s heirs at law as though no such conversion had been directed, the Lord Chancellor saying that he used to think “when it was necessary for any purpose of the testator’s disposition to convert the land into money, that the undisposed money would be personalty, but the cases fully proved the contrary .... the heir must stand in the place of the residuary legatees who died as to the produce of the real estate.”</p> <p>That this is the doctrine of the law in this state is shown by the decision of the Supreme Court in Painter v. Painter, 220 Pa. 82, in which, while the court divided as to whether such a result would follow in case the failure was the result of something happening subsequent to the death of the testator, both the majority and minority of the court agree that Ackroyd v. Smithson is authority for the doctrine that conversion would not take place as to a fund which was lapsed at the death of the testator. That there is no distinction between lapsed and void legacies was decided in Gray’s Estate, 147 Pa. 67. In Luffberry’s App., 125 Pa. 513, it was held that, where a testator directs his executors to sell his real estate and divide the proceeds among charitable institutions, and the gifts to charities fail, the power to sell being unnecessary was inoperative and the land remained unconverted and descended to the testator’s heirs at law.</p> <p>Moreover, it will be noticed in the case at bar the language of the will shows the testatrix’s direction to sell was not for the purpose of creating a fund to be distributed as personalty, but simply because she anticipated the fact that the real estate would have to be sold in order that her debts might be paid, saying that the property must be sold and the bill of the doctor and undertaker paid, and a nurse if she should have one. A sale for the payment of debts does not work a conversion. Raleigh’s Ést., 206 Pa. 451, and Glentworth’s Est., 221 Pa. 329, decide that when the direction to sell is merely for the convenience of distribution, as conversion never operates except to carry out the intention of the testator, it cannot alter the course of inheritance.</p> <p>The exceptions are dismissed.</p> <p>Error assigned was in dismissing exceptions to adjudication.</p> <p>Ackroyd v. 'Smithson, 1 Brown C. R. 503; Craig v. Leslie, 16 U. S. 563; Morrow v. Brenizer, 2 Rawle, 185; Burr v. Sim, 1 Whart. 252; Evans’ App., 63 Pa. 183; Davis’ App., 83 Pa. 348.</p> <p>Raleigh’s Est., 206 Pa. 451; State to use of Wiltbank v. Bates, 2 Harr. (Del.) 18; State to use of Der-rickson v. Walter, 2 Harr. (Del.) 151; Rizer v. Perry, 58 Md. 112; Read v. Williams, 125 N. Y. 560 (26 N. E. Repr. 730); Fifield v. Van Wyck, 94 Va. 557 (27 S. E. Repr. 446); McHugh v. McCole, 97 Wis. 166 (72 N. W. Repr. 631).</p>

<p>Contract — Printing—Defendant’s supervision of work- — Absence of warranty.</p> <p>1. In an action to recover money alleged to be due for printing, if it appears that the printing was done from plates furnished by the defendant, and that the work was done under the direction and supervision of an authorized representative of the defendant, and according to methods and plans which he approved, then, in- the absence of a warranty, the defendant cannot complain of the quality of the completed work.</p> <p>Practice, C. P. — Pleading—Statement of claim — Contract—Variance.</p> <p>2. Where in an action of assumpsit the plaintiff does not declare expressly on an oral contract, proof produced at the trial that the contract was in writing, does not constitute a variance.</p> <p>3. Where the plaintiff in an action of assumpsit for work done attaches to his statement of claim an exhibit purporting to be a true and accurate copy of the book of original entries, he may produce at the trial, without being charged with a variance, as evidence of the contract, letters, some of which were in his own possession, and others of which were in the possession of the defendant and produced at the trial on call. Under such circumstances the fact that the letters had not been attached to the statement of claim is immaterial.</p>

<p>Account render — Actions—Agency—Insurance companies.</p> <p>1. In order to hold a person liable in an action of account render it must appear that such person has received property of some kind or money, not belonging to himself which he is in duty bound to pay over or account for to the plaintiff. It must be shown that the plaintiff is the owner of the property with respect to which an account is sought, inasmuch as ownership in the plaintiff and possession by the defendant are indispensable to support the action.</p> <p>2. To support an action of account rendered for money received by defendant, it must appear that the money came into possession of the defendant and under his control, and that the defendant did not have the custody of it merely as the agent of the owner.</p> <p>3. An action of account rendered cannot be maintained by an agent of an insurance company against his employer to recover commissions on premiums paid on policies written by the agent, where the presumption from the evidence is that the money paid to the insurance company on account of policies was the property of the company, and not of the agent. The mere fact that the agent’s compensation was fixed on a percentage basis does not invest' the agent with title to the money due the company as premiums on the policies.</p>

<p>Road, law — Paving—Original pavement- — Widened• street.</p> <p>1. Where after a street has been paved, the city widens it by the addition of a number of feet, the abutting property owners are liable to pay for the cost of the new paving of the widened part, and it is immaterial that a portion of the street may be occupied by the tracks of a steam railroad and a street railway if the new paving does not include the part of the street occupied by the rails. If it appears that the property was not rural the assessment upon the abutting property is to be made according to the foot front rule.</p> <p>2. The mere fact that an improvement of a street may be of general benefit to the municipality, does not relieve abutting property from assessment if it be specifically benefited.</p>