Volume 49 — Pennsylvania Superior Court Reports

Appeal, No. 84, Oct. T., 1911, by-defendant, from judgment of C. P. No. 5, Phila. Held: This section imposes upon the city commissioners the duty of furnishing the sheriff with the necessary supplies, subject to the control of councils, who may require the city commissioners to advertise for such supplies, and to give the contract to the lowest bidder if they think it requisite or expedient to do so.” Section 4 of the…

<p>Appeal, No. 69, Oct. T., 1911, by defendant, from judgment of C. P. No. 1, Phila. Co., June T., 1909, No. 391, on verdict for plaintiff in case of George W. Jackson v. Clara W. Jackson.</p> <p>Libel for divorce. Before Brégy, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff. Defendant appealed.</p> <p>Errors assigned were in the following form:</p> <p>1. The learned court erred in sustaining the objection of plaintiff’s counsel to the following question to the plaintiff by defendant’s counsel:</p> <p>Mr. Hunn: While you were living with your wife you confessed that you had a venereal disease, and you showed her the evidences of it, did you not? Objected to by Mr. Bauerle. Objected sustained. Exception for defendant.</p> <p>2. The learned court erred in sustaining the objection of plaintiff’s counsel to the following question to the plaintiff by defendant’s counsel: “Q. You are afflicted with a venereal disease, are you not?” Objected to by Mr. Bauerle. Objection sustained. Exception for defendant.</p> <p>3. The learned court erred in sustaining the objection of plaintiff’s counsel to the following question to the plaintiff by defendant’s counsel: “Q. When you commenced this suit, May 25,1909, were you then afflicted with a venereal disease that was the consequence of your committing adultery?” Objected to by Mr. Bauerle. Objection sustained. Exception for the defendant.</p> <p>4. The learned court erred in sustaining the objection of plaintiff’s counsel to the following question to the plaintiff by defendant’s counsel: “Q. You went to Dr. Wiltbank, did you not, while living with your wife, to be treated for a venereal disease. Is that so?” Objected to by Mr. Bauerle. Objection sustained. Exception for defendant.</p> <p>5. The learned court erred in ruling as follows:</p> <p>I will rule according to the issues found in this case that the only question is as to the guilt of Mrs. Jackson: that the guilt of the libelant or plaintiff, in the same way as it relates to the same party has nothing to do with it, and I will exclude it: and to that ruling, I will give the respondent an exception.</p> <p>Mr. TTnnn: Whether the guilt of the complainant was condoned or not?</p> <p>The Court: Whether condoned or not?</p> <p>Mr. Hunn: And your honor will allow that proposition to cover the time up to the beginning of this suit?</p> <p>The Court: Yes; and give you an exception to the ruling.</p> <p>The ruling is made because of the form of the issues in this case.</p> <p>6. The learned court erred in refusing to permit defendant’s counsel to amend the issues and the answer during the trial by adding the following issues, viz.:</p> <p>Whether or not the plaintiff has been guilty of adultery at any time since he had sexual connection with his wife, and “whether or not the plaintiff has been guilty of adultery since the year 1902, and since he has had sexual connection with his wife,” and adding the following to the answer:</p> <p>“The defendant avers that the plaintiff has been guilty of adultery since she and he had sexual connection with each other.”</p> <p>7. The learned court erred in declining the first point of the defendant, viz.</p> <p>“If the jury believe from the evidence that the plaintiff, George W. Jackson, has been guilty of adultery since he has had sexual connection with his wife, the verdict should be for the defendant.”</p> <p>8. The learned court erred in declining the second point of the defendant, viz.</p> <p>“If the jury believe from the evidence that the plaintiff,</p> <p>George W. Jackson, has been guilty of adultery since the year 1902, and since he has had sexual connection with his wife, the verdict should be for the defendant.”</p> <p>9. The learned court erred in declining the third point of the defendant, viz.</p> <p>“Even if the jury should believe the wife in this case to be guilty, the verdict should be for the defendant, if the husband had been equally guilty.”</p> <p>10. The learned court erred in entering judgment for plaintiff on the verdict of the jury.</p>

<p>Negligence — Death of horses — Veterinary surgeon — Manufacturing chemist.</p> <p>1. In an action against a manufacturing chemist to recover damages for the death of two horses alleged to have been caused by an intravenous injection of a remedy manufactured by the defendant, and prescribed by a veterinary surgeon employed by the plaintiff, a verdict and judgment for the defendant will be sustained where there is nothing more to connect the defendant with the loss than an advertising circular of the remedy in question addressed to veterinarians, and stating that the remedy in question was intended especially for hypodermic use, and referring generally to a magazine article written by a reputable veterinarian describing his use of the preparation intravenously as well as hypodermically.</p> <p>Negligence — Evidence—Change of conditions.</p> <p>2. In a negligence case evidence of the taking of precaution against the future, after an accident, is not to be considered as an admission of responsibility for the past.</p>

<p>Negligence — Railroads — Infant — Trepasser — Boy killed crossing tracks — Question for jury.</p> <p>1. In an action against a railroad company to recover damages for the death of a boy seven years old killed while crossing the tracks of the defendant, the case is for the jury where the issue is whether the boy was struck at a public crossing, or whether he was struck while trespassing on the tracks fifteen to twenty-five feet from the crossing, and the evidence on the subject is conflicting.</p> <p>Damages — Evidence—Wages.</p> <p>2. The fact that a witness who is not an expert is permitted to state from his own personal knowledge the amount of wages usually paid to boys in a particular locality, is not a ground for reversing a judgment, where the facts stated are so generally within the common knowledge of the jurors, that their statement would not have any effect for or against either party to the action.</p>

<p>Appeal, No. 6, Oct. T., 1911, by defendant, from order of C. P. No. 5, Phila. Co., June Term, 1910, No. 2,129, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Charles Goldstein v. Mary Hammell.</p> <p>Assumpsit to recover one-half of rentals of certain real estate.</p> <p>The opinion of the Superior Court states the case.</p> <p>The court in an opinion by Ralston, J., made absolute rule for judgment for want of a sufficient affidavit of defense.</p> <p>Error assigned was the order of the court.</p>

<p>Appeal, No. 274, Oct. T., 1910, by plaintiff, from order of C. P. Potter Co., June T., 1908, No. 108, dismissing petition to determine license fees in case of New York & Pennsylvania Telephone & Telegraph Company, now The Bell Telephone Company of Pennsylvania, v. Coudersport Borough.</p> <p>Petition under the Act of April 17, 1905, P. L. 183, to determine the reasonableness of license fees.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was order dismissing the petition.</p>

Appeal, No. 297, Oct. T., 1911, by defendant, from order of C. P. Bedford Co., Sept. T., 1909, No. 242, overruling motion for judgment n. o. v. in case of John S. Guyer v. Bedford County. Appeal from report of county auditors. Before Woods, P. J. The facts are stated in the opinion of the Superior Court. Verdict and judgment for plaintiff for $293.26. Defendant appealed.

Appeal, No. 156, Oct. T., 1911, by defendant, from order of C. P. Blair Co., Oct. T., 1903, No. 753, striking off judgment on verdict and entering judgment n. o. v. in case of Minerva B. Snyder v. Pennsylvania Railroad Company. Assumpsit for death benefits. The facts are stated in the opinion of the Superior Court. Errors assigned were in striking off the judgment entered on the verdict and in entering judgment for defendant non obstante veredicto.

Appeal, No. 114, Oct. T., 1911, by plaintiff, from judgment of C. P. Huntingdon Co., May T., 1910, No. 17, on verdict for defendant in case of Alex. Fraser, trading as Alex. Fraser & Co., v. Charles Stratford. Assumpsit for price of a tombstone. Before Woods, P. J. The facts are stated in the opinion of the Superior Court. Verdict and judgment for defendant. Plaintiff appealed.

Appeal, No. 184, Oct. T., 1911, by defendant, from order of C. P. Lebanon Co., Sept. T., 1911, No. 43, making absolute rule for judgment for want of a sufficient affidavit of defense in case of William J. Rourke et al., Administrators of Frank E. Meily, deceased, v. Isaac L. Beckley. Assumpsit for counsel fees. Before Henry, P. J. The facts appear by the opinion of the Superior Court.

Appeal, No. 279, Oct. T., 1911, by defendants, from judgment of C. P. Berks Co., Feb. T., 1910, No. 12, on verdict for plaintiff in case of Calvin F. Wentzel v. Sigmund Morris and Edwin Youse. Assumpsit for work done and performed. Before Wagner, J. At the trial it appeared that the plaintiff, a carpenter, was employed by the defendants to rebuild an amusement device known as a “Teaser.” The defendants claimed that the work had not been properly done.

Appeal, No. 13, Oct. T., 1911, by defendants, from decree of C. P. No. 3, Phila. Co., Sept. Term, 1910, No. 2,379, dismissing bill in equity in case of Peter J. Gallagher et al. v. James McAdams et al. Bill in equity for an injunction. Before McMichael, P. J. At the trial the trial judge held that the court had no jurisdiction and dismissed the bill.

Appeal, No. 21, Oct. T., 1911, by defendant, from judgment of C. P. No. 4, Phila. Co., June T., 1908, No. 1,853, on verdict for plaintiff in case of John M. Whelan v. Adam Miller. Trespass to recover damages for malicious abuse of civil process. Before Carr, J. The plaintiff presented the following points: 1.

Appeal, No. 246, Oct. T., 1910, by defendant, from order of C. P. Blair Co., June T., 1910, No. 40J^, striking off appeal from order of viewers in case of Altoona & Logan Valley Electric Railway Company v. Rhoda Miller. Appeal from award of viewers. Before Baldrige, P. J. The facts are stated in the opinion of the Superior Court. Error assigned was the order striking off the appeal.

<p>Negligence — Railroads—“Stop, look and listen” — Contributory negligence.</p> <p>1. The rule that the traveler about to cross a railroad track must stop, look and listen, is an absolute and unbending rule of law founded on public policy for the protection of passengers in railroad trains as much as travelers on the common highway, and such stopping, looking and listening must not be merely nominal or perfunctory, but substantial, careful and performed in good faith, with the accomplishment of the end in view. He must stop and look where he can see, and will not be allowed to say that he did so, when the circumstances make it plain that by the proper using of his common sense he must have seen his danger.</p> <p>2. The whole duty of one about to cross the tracks of a steam road at grade is not in all cases confined to his stopping, looking and listening for the approach of a train, he must stop at a proper place, and when he proceeds he should continue to look and to observe the precautions which the danger of the situation requires. He should stop again if there is another place nearer the tracks, from which he can better discern whether there is danger. But whether the place at which he stopped was the proper place at which to stop, and whether there is a second place at which he should stop, are questions of fact for the jury and not matters of law for the court.</p> <p>3. A person cannot be convicted of contributory negligence as a matter of law in driving a team over a railroad at a highway crossing, where the evidence shows that he stopped his team twenty feet distant from the tracks at a point from which he had a view of the track of from 300 to 400 feet; that this was the usual and proper place to stop; that he looked and listened at this point for an approaching train; that he then started his team at a walk continuing to look in the direction from which a train came, which struck him, and that the train approached the crossing at the rate of thirty or forty miles an hour without giving a signal.</p>

<p>Beneficial associations — Railroads—Institution of suit by widow— Judgment of nonsuit.</p> <p>Where the by-laws of a railroad beneficial association provide that if a member or his legal representative brought suit against the railroad company on account of injury or death of such member, a judgment in such suit shall preclude any claim upon the relief fund, a widow of a member who brings an action of trespass against the railroad company, to recover damages for the death of her husband under the act of April 15,1851, P. L. 669, is the “legal representative” of the member within the meaning of the by-laws; and if such action results in a non-suit, the judgment of nonsuit is a “judgment in such suit,” within the meaning of the by-laws. Thereafter the widow cannot maintain an action against the company for death benefits; and this is the case although she may have, after the nonsuit had been entered, gone through the form of withdrawing her claim in the trespass case and discontinuing that suit.</p>

<p>Appeal, No. 94, Oct. T., 1911, by defendant, from order of C. P. McKean Co., striking off appeal from report of viewers in case of H. J. Correll v. Mount Jewett Borough.</p> <p>Appeal from report of viewers. Before Bouton, P. J.</p> <p>From the record it appeared that the proceeding was under the Act of May 24,1878, P. L. 129, for the appoint-. ment of viewers to assess damages for the change of grade of a sidewalk.</p> <p>The court struck off the appeal because it was not taken within thirty days from the filing of the report.</p> <p>Error assigned was the order of the court.</p>

<p>Appeal, No. 120, Oct. T., 1911, by Arthur B. Bewley, Administrator of William B. Tompkins, deceased, who was administrator of the Estate of Martha J. Kline, deceased, from decree of O. C. Blair Co., Dec. T., 1910, No. 73, dismissing exceptions to adjudication in Estate of Martha J. Kline, deceased.</p> <p>Exceptions to report of Charles Geesey, Esq.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>■ Errors assigned were in dismissing exceptions to auditor’s report.</p>

<p>Appeal, No. 130, Oct. T., 1911, by defendant, from judgment of C. P. Blair Co., Oct. Term, 1910, No. 107, for plaintiff on case stated in suit of Mrs. F. J. Buck, Administratrix of F. J. Buck, deceased, v. Mutual Building and Loan Association of Altoona.</p> <p>Case stated to determine liability on an article of agreement. Before Baldrige, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was in entering judgment for plaintiff for $116.97 on case stated. .</p>

<p>Appeal, No. 57, Oct. T., 1911, by defendant, from decree of C. P. Huntingdon Co., Feb. T., 1909, No. 154, on bill in equity in case of H. C. Chisolm v. W. A. Moore.</p> <p>Bill in equity to set aside a deed. Before Woods, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The court entered the following decree:</p> <p>And now November 10, 1910, this cause came on to be heard at the regular argument court and was argued by counsel. Whereupon it is considered, adjudged and decreed that the deed from Mary Jane Moore to W. S. Moore, dated May 10, 1908, recorded in Huntingdon county, Pennsylvania, December 14, 1908, in Deed Book “K” No. 271, conveying all that certain messuage piece, or parcel of ground situate in West township, said county, being two lots of ground with a two-story brick house thereon in the village of Mooresville, more particularly described and referred to in the bill, be and the same is hereby declared null and void as against the complainant, Dr. H. C. Chisolm; that the said piece or parcel of land in said described deed be and the same is hereby made subject to the payment of said claim to the amount of $201.75 with interest from July 3,1908; that the injunction heretofore issued be made perpetual, unless the defendant, W. S. Moore, within sixty days from filing of this decree shall pay said claim with interest as aforesaid; together with the costs of these proceedings; and in case payment shall not be made within sixty days, that the said house and lot or lots of ground be sold by W. S. Moore, administrator, for that purpose; the proceeds to be applied first, to the payment of the said claim with interest, and then to the costs of this proceeding, and the defendant, W. S. Moore, is further directed to pay the costs of this proceeding, unless same be paid from the said sale.</p> <p>Error assigned was the decree of the court.</p>

<p>Negligence — Borough—Sidewalk—Contributory negligence — Case for jury.</p> <p>In an action against a borough to recover damages for personal injuries caused by stepping off a sidewalk at a point where it was about two feet above the ground and unprotected by a guard rail, the question of plaintiff’s contributory negligence is for the jury where the evidence shows that the night was dark, that the plaintiff was unfamiliar with the place of the accident, and that he walked slowly and with caution, although he had a feeling that something might happen.</p>

<p>Appeal, No. 188, Oct. T., 1911, by plaintiff, from judgment of C. P. Clearfield Co., Dec. Term, 1909, No. 336, on verdict for plaintiff in case of J. L. Bond v. C. W. Cole and W. W. Cole.</p> <p>Issue to determine tbe validity of a judgment entered on a judgment note. Before A. 0. Smith, P. J.</p> <p>At the trial the following offer was made:</p> <p>Mr. Pentz: Counsel for plaintiff at this time in arguing question to the jury proposes to argue on the testimony of George A. Lukehart who was a witness for plaintiff, and on cross-examination he was asked if he had any letters and stated that he had had a letter. “Q. You say you got both those notes at the same time? A. Yes, Jim brought them in and a letter, too. Q. Did he want you to collect them both? A. No, sir.”</p> <p>■ The Court: “You say he brought them in and a letter too? A. Yes, a letter with them.”</p> <p>Mr. Cole: “Q. A letter from who? A. A letter from C. M. Cole. Q. Where is that letter? A. I don’t know. Q. What did that letter have in it? A. It stated he was pleased with the horse. Q. What was the date of it? A. I don’t remember that. It was along about the time these notes were made. Q. The time which note was made? A. Well, there isn’t very much difference between the dates of these notes. It was along about that time. Q. The time of the first note or second note? A. I think it was between when the first note was made and second one probably. Q. What do you say became of that letter? A. What do I say became of it? Q. Yes, where is it? A. I think I turned that letter over to Pentz with the notes. I think I turned it over to him with the notes.” After the reading of the testimony of George A. Lukehart on cross-examination with reference to a letter, the plaintiff’s counsel proposes to argue that fact to the jury, stating what the witness said the letter showed in his argument before the jury in arguing the facts.</p> <p>The Court: The letter being brought out as a voluntary statement by witness, and the cross-examination of counsel for defendant being simply to show where the letter was, we do not think the contents can be argued to the jury by the counsel and so rule. Exception noted for plaintiff. [2]</p> <p>The court charged in part as follows:</p> <p>[That this guarantee has failed and that the horse which he bought and for which this note was given as part payment, was worthless for a stock horse or for any other purposes, and that the consideration therefore failed. This would be a good defense to this note if true, and it is for the jury to ascertain the facts. On the part of the defendant it is alleged that on or about March 3, 1897, C. M. Cole, one of the defendants, went to William C. Bond, who was a dealer in horses at Brockwayville, and looked at this horse, which was in a dark stable, and that he entered into a contract there to purchase this horse and was given a written guarantee that he was a good stock horse.] [3]</p> <p>[There is another defense in this case which is offered and which will be for your consideration. As you will notice, there is written in this note, following the number of dollars, “as part payment on a horse that is not guaranteed,” and it is alleged on part of both of these defendants that when this note was signed by them on March 31, 1897, it did not have those words on it, that they signed it without those words. The law is that if a note is changed, doctored or interfered with in a material matter, that defeats the right of recovery for any part of that note, and if this note was changed and the words inserted, “as part payment for a horse that is not guaranteed,” as alleged by these two defendants, I say to you that the plaintiff cannot recover anything in this case. That, as you can see, is a material part of this note. It would have a tendency to prove that there was no guarantee and hence is material to the note in every way and if you find from the weight of testimony in this case that is true, that this note is not as it was originally given, has been tampered with and altered to the extent alleged, then this plaintiff cannot recover in any amount in this case.] [4]</p> <p>Verdict and judgment for defendants. Plaintiff appealed.</p> <p>Errors assigned were (2) refusal to permit counsel to argue as to the letter above; (3, 4) portions of charge as above, quoting them.</p>

<p>Negligence — Townships—Steam rollers — Repair of roads.</p> <p>1. The Act of June 30,1885, P. L. 251, entitled, “An act to regulate the movement of machinery propelled by steam upon the public roads and highways of this commonwealth,” applies to township authorities using a steam roller in the ordinary construction and repair of the public roads.</p> <p>2. A steam roller constantly traveling up and down a given section of a highway in the work of repairing it, is in every way within the sense and spirit of the statute as fully as if it were on a journey from one end of the township to the other; and the township’s officers and servants in control of the machine are bound to the performance of those duties in such cases prescribed by the statute.</p> <p>Practice, C. P. — Trial—Oversight of judge as to answering a point— Duty of counsel.</p> <p>3. Where a judge writes answers to several points submitted to him, but inadvertently fails to read one of the points and its answer to the jury, it is the duty of counsel to call the judge’s attention to the oversight, and if this is not done, the judgment will not be reversed because of the failure of the judge to read the point and answer.</p>

<p>Appeal, No. 22, Oct. T., 1911, by defendant, from judgment of C. P. No. 1, Phila. Co., Sept. T., 1908, No. 838, on verdict for plaintiff in case of Pasquale Dominco, Administrator of the Estate of Fannie Dominco, deceased, v. The Prudential Insurance Company of America.</p> <p>Assumpsit on a policy of life insurance. Before Brégy, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $184. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for defendant.</p>

<p>Negligenpe — Master and servant — Vice principal — Fellow servant— Act of June 10,1907, P. L. 688.</p> <p>1. In an action by an employee against his employer, the owner of a junk yard, to recover damages for personal injuries, plaintiff is not entitled to recover where the evidence shows that the accident was caused by the negligence of the driver of a team of the defendant; that such driver was foreman of the yard during the defendant’s absence only, but that at the time of the accident the defendant was on the premises and at the immediate place of the accident a few minutes after it occurred. In such a case even if the driver had been the foreman at the time of the accident the plaintiff could not fix liability upon the defendant, if it appears that the negligent act of the driver was an act done in performance of the ordinary work of a fellow servant of the plaintiff.</p> <p>2. ' Where a manager or vice principal undertakes work in simple co-operation with other servants, and upon precisely the same footing with them, he becomes for the time being a mere fellow servant with them acting as such, and if in the performance of such work he negligently injures another servant, the latter cannot recover damages from the master for the injuries sustained.</p> <p>3. The Act of June 10, 1907, P. L. 523, was not intended to impose liability upon an employer except in the case of results happening through the exercise of superintendency. The consequences of the negligence of the persons of the classes named in the act are visited on the employer because such negligence is that of a representative of the employer, the vice principal, as to the particular transaction. The statute does not cover the case of coemployees engaged in the accomplishment of a common object, where the negligence of one results in injury to another.</p>

<p>Appeal, No. 283, Oct. T., 1910, by defendants, from judgment of C. P. Berks Co., March Term, 1909, No. 29, on verdict for plaintiff in case of Paul C. Horine, Trustee in Bankruptcy of the Estate of Wayne J. Yerger, trading as Hercules Brass Foundry, Bankrupt, v. Max Luria, Alexander Luria and Max Silberman, trading as Luria Brothers & Company.</p> <p>Assumpsit by a trustee in bankruptcy against a preferred creditor of the bankrupt. Before Stevens, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Errors assigned were (1) ruling on evidence referred to in the opinion of the Superior Court, and (3) in refusing binding instructions for defendants.</p>

Appeal, No. 295, Oct. T., 1910, by defendant, from judgment of C. P. Berks Co., April T., 1908, No. 122, on verdict for plaintiffs in case of Annie A. Sheetz et al., children of Henry Sheetz, deceased, v. United Traction Company. Trespass to recover damages for death of plaintiffs’ father.

<p>Appeal, No. 54, Oct. T., 1911, by defendant, from judgment of C. P. Berks Co., April T., 1908, No. 15, on verdict for plaintiff in case of Blanche Neumiller v. Acme Motor Car Company.</p> <p>Trespass to recover damages for personal injuries. Before Endlich, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $500. Defendant appealed.</p>

<p>Appeal, No. 111, Oct. T., 1911, by Frederick E. Howell, M. D., from decree of O. C. Berks Co., June T., 1910, No. 26, dismissing exceptions to adjudication in Estate of Robert S. Moyer, deceased.</p> <p>Exceptions to adjudication. Before Bland, P. J.</p> <p>From the record it appeared that at the audit the appellant claimed $148 for professional services in trephining decedent’s skull on March 3, 1909, for treatment thereafter, including a final operation on March 7, two hours before decedent’s death. The operation was performed in a hospital of which the claimant was a visiting surgeon. When the decedent was brought to the hospital he was accompanied by his wife who signed an agreement presented to her by one of the resident physicians by which she agreed to pay Dr. F. E. Howell for services rendered without stating the amount. Mrs. Moyer testified that when she signed the paper she understood that it was for a private room for her husband. The balance of the estate exclusive of Dr. Howell’s claim amounted only to $240.64. The court allowed Dr. Howell $50.00.</p> <p>Exceptions to the adjudication were dismissed. Dr. Howell appealed.</p> <p>Errors assigned were in dismissing exceptions to adjudication.</p>

<p>Trusts and trustees — Removal of trustees — Judgment bond — Attorney at law.</p> <p>1. Where an attorney at law borrows money from a client, and executes to another attorney at law a judgment bond to secure the loan, without naming the cestui que trust, and thereafter on a rule taken to remove the trustee, the cestui que trust testifies that no part of the debt had been repaid to her, and also offers proof tending to show that a satisfaction of the judgment entered by the trustee after the rule had been taken on him was fraudulent, the trustee should be removed so as to permit the cestui que trust to take proper action to guard her own interest.</p> <p>2. A person to whom a judgment has been confessed in trust for creditors should not be continued as a trustee after the confidence of the creditors in him is withdrawn. It is not material that he is innocent of actual misfeasance, his conduct ought to meet the approval of those whose interests are to be promoted, for his whole duty is to them.</p>

<p>Road law — Boroughs—Action of borough council — Widening of street— Change of grade — Appointment of viewers — Act of May 24, 1878, P. L. 129.</p> <p>1. A mere motion adopted at a meeting of a borough council “that the building line” of a street named “be moved two feet west,” without more, furnishes no warrant for application for the appointment of viewers under the Act of May 24, 1878, P. L. 129, or any other act.</p> <p>2. If after the adoption of such a motion, an owner of land on the street voluntarily applies for a permit authorizing her to dig up the street for the purpose of malting a sidewalk along her property, and upon this permit being granted she puts backs her fence and makes her pavement, such action on her part affords no ground for the appoint- ' ment of viewers.</p>

Appeal, No. 38, Oct. T., 1911, by Elizabeth A. Bender, from decree of O. C. Lancaster Co., March T., 1909, No. 16, removing executrix in Estate of Sophia Hartman, deceased. Petition to remove executrix. Before Smith, P. J. The facts are stated in the opinion of*the Superior Court. Error assigned was decree dismissing executrix.

Appeal, No. 178, Oct. T., 1911, by J. W. Baker, from order of C. P. Lancaster Co., Trust Book No. 21, page 440, dismissing exceptions to auditor’s report In re Assigned Estate of Rothsville Knitting Mills. Exceptions to report of J. W. Brown, Esq., auditor. The facts are stated in the opinion of the Superior Court. Errors assigned were in dismissing exceptions to auditor’s report.

Appeal, No. 45, Oct. T., 1911, by Ezra J. Williams et ab, from decree of O. C. Berks Co., Sept. T., 1910, No. 55, dismissing exceptions to adjudication in Estate of John Wilhelm. Exceptions to adjudication. The opinion of the Superior Court sufficiently states the case. Errors assigned were in dismissing exceptions to adjudication.

Appeal, No. 132, Oct. T., 1911, by defendant, from judgment of C. P. No. 2, Phila. Co., Dec. T., 1908, No. 3,928, on verdict for plaintiff in case of Leon Braker, Agent for Fannie Braker, v. Julius N. Deuser. Assumpsit for rent. Before Sulzberger, J. The facts are stated in the opinion of the Superior Court. Verdict and judgment for plaintiff for $83.33. Defendant appealed. jError assigned was in overruling motion to enter judgment for defendant non obstante veredicto.

<p>Railroads — Carriers—Baggage—Warehousemen.</p> <p>1. Where a traveling salesman checks on a mileage book two trunks containing samples belonging to his employer, without stating to the baggage agent the contents or ownership of the trunks, and leaves on the same train with the trunks, departing about six o’clock of a summer evening, and stops over at an intermediate station for the night, and the trunks arrive at their destination at seven o’clock that even- . ing, and not being called for, are placed in the baggage room where they are destroyed at three o’clock in the morning by fire which burned the station, the railroad company will not be liable for the loss because (1) its liability as a carrier ceased when the trunks were placed in the baggage room; (2) because it was not liable for merchandise carried as baggage, and (3) because it was not liable for the loss of property other than that of a passenger.</p> <p>2. In such a case the fact that the salesman paid a small amount for the excess weight of the trunks is immaterial.</p> <p>Practice, C. P. — Judgment n. o. v. — Failure to take exception — Act of April n, 1905, P. L:m.</p> <p>3. Where there is no exception to a judgment non obstante veredicto, and the only assignment of error is to the action of the court in that respect, the appeal may be quashed. The court is not required to grant an exception and place it in the record unless it is asked for by the losing party.</p>

<p>Appeal, No. 273, Oct. T., 1910, by defendants, from order of C. P. No. 5, Phila. Co., Dec. Term, 1909, No. 4,680, making absolute rule for judgment for want of a sufficient affidavit of defense in case, of Hugh Cosgrove and John J. Cosgrove, Copartners, trading as Hugh Cosgrove, v. E. Stockton Woodward and Edward Edmunds, Copartners, trading as E. S. Woodward & Company.</p> <p>Assumpsit for goods sold and delivered.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>The facts are stated in the opinio'n of the Superior Court.</p> <p>Error assigned was order making absolute rule for judgment for want of a sufficient affidavit of defense.</p>

<p>Appeal, No. 76, Oct. T., 1911, by defendant, from order of C. P. No. 2, Phila. Co., June Term, 1910, No. 399, discharging rule for interpleader in case of Frank W. Sargent v. John Hancock Mutual Life Insurance Company.</p> <p>Rule for interpleader.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was order discharging rule for inter-pleader.</p>

<p>Insurance — Life insurance — Payment of first premiums — Payment in notes — Waiver—Act of May S, 1909, P. L. 405.</p> <p>1. The action of the general agent of a life insurance company in delivering a policy to the insured, and accepting his interest bearing notes for the amount of the first premium, constitutes a waiver of the provisions of the policy requiring the payment of the first premium in advance.</p> <p>2. A policy of life insurance provided that “all payment of premiums shall be payable in advance. . . . The failure to pay any of the first three premiums, or installments thereof shall avoid and annul this policy.” The policy stated the amount to be paid in case of the death of the insured thus: “Five thousand dollars less the unpaid balance of the current year’s premium, if any, and any other indebtedness on the policy.” Held, that the latter provision indicated that it was in the contemplation of the parties, that the policy might still be in full force even though the current year’s premium had not been fully paid.</p> <p>3. The Act of May 3, 1909, P. L. 405, was a penal statute, and must be construed strictly. The statute does not enact that all insurance premiums must be paid in cash, nor forbid the extension of credit for premiums due upon the policies. The intention of the act was to make it unlawful for insurance companies to give rebates out of premiums, or to agree to pay under a policy any dividends more than the policy specified, or to give to any assured anything of value not specified in his policy. It did not make it unlawful for an insurance company to accept upon the issuing of the policy the note of the assured for the full amount of the premium with interest from the date thereof at the rate fixed by law, in the absence of any suggestion that the maker of the note was not financially responsible, or of any understanding or agreement that the note should not be paid in full with interest.</p> <p>4. Where an interest bearing note is accepted by an insurance company for the premium upon a policy, the agreement to pay interest is a full legal consideration for the credit extended to the assured for the amount of the premium. The transaction does not vary the terms of the policy, and does not constitute a violation of the first paragraph of the Act of May 3,1909, P. L. 405.</p>

<p>Appeal, No. 201, Oct. T., 1911, by plaintiff, from order of C. P. No. 1, Phila. Co., Dec. T., 1910, No. 1,558, discharging rule for judgment for want of a sufficient affidavit of defense in case of Diehl Manufacturing Company v. The Philadelphia Electric Company.</p> <p>Assumpsit for goods sold and delivered.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was order discharging rule for judgment for want of a sufficient affidavit of defense.</p>

<p>Appeal, No. 41, Oct. T., 1911, by H. W. Cogan, from judgment of C. P. Bedford Co., Sept. T., 1909, No. 244, on verdict for defendant in case of H. W. Cogan v. Bedford County.</p> <p>Appeal from county auditors. Before Woods, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned were (1-3) rulings set forth in the opinion of the Superior Court.</p>

<p>Negligence — Hole in sidewalk — Sidewalk—Delivery of leer.</p> <p>1. In an action against a brewing company to recover damages for personal injuries from a fall through a hole in a sidewalk, a verdict and judgment for plaintiff will be sustained, where the evidence shows that the defendant directed one of their drivers to deliver a barrel of beer to a hotel keeper by placing the same in an ice box in the cellar of the hotel through a coal hole in the sidewalk in front of the hotel, and that the driver opened the coal hole, left it unguarded for about four minutes, and while he was in the cellar storing the beer in the ice box, the plaintiff, a pedestrian, without negligence fell into the hole, and was injured.</p> <p>2. In such a case where the evidence for plaintiff shows that the accident happened about eight o’clock in the evening, that the sidewalk was crowded, and that the immediate locality of the hole was somewhat dark, the question of the plaintiff’s contributory negligence is for the jury. If the evidence is conflicting as to whether the plaintiff was intoxicated or not, this question is also for the jury.</p> <p>3. In such a case the court cannot say as a matter of law that the act of the driver was outside the line of his employment, where it appears from the testimony of one of the defendants that the driver was instructed by his employers to put the beer in the cellar through the hole in the sidewalk.</p>

<p>Appeal, No. 202, Oct. T., 1911, by defendant, from judgment of C. P. Huntingdon Co., Sept. T., 1910, No. 2, on verdict for plaintiff in case of The Grange Trust Company v. Harry Brown.</p> <p>Assumpsit upon a promissory note. Before Woods, P. J.</p> <p>The note was as follows:</p> <p>“ $602.</p> <p>Huntingdon, Pa., Dec. 16, 1909.</p> <p>“ Four (4) months after date I promise to Pay to the order of Henry Kahn, Agent, at the First National Bank of Huntingdon, Pa.</p> <p>Six hundred and two...................00/ooo Dollars, without defalcation for value received.</p> <p>No. 1656, Due Apr. 18 — 10.</p> <p>Harry Brown.</p> <p>Endorsed: Henry Kahn, Agt.</p> <p>Charles B. White, Agt.”</p> <p>The note was admitted in evidence under objection and exception.</p> <p>The defense was that the note had been fraudulently used and negotiated by Henry Kahn, the payee.</p> <p>When C. F. Bell, plaintiff’s treasurer, was on the stand, he was asked this question: “Q. When he indorsed this paper as agent, you knew that he was representing somebody else in the negotiation of the paper?”</p> <p>Mr. Woods: It is objected to as immaterial, irrelevant and inadmissible.</p> <p>The Court: Objection sustained. Evidence rejected. Bill of exceptions sealed for defendant. [7]</p> <p>I propose to ask the witness on the stand whether or not at the time he, as cashier of this bank, purchased this paper indorsed by Charles B. White, as agent, whether he knew that Charles B. White was representing some principal, who then was the true owner of the note.</p> <p>Mr. Woods: It is objected to as immaterial, irrelevant, inadmissible.</p> <p>The Court: Objection sustained. Evidence rejected. Bill of exceptions sealed for the defendant. [8]</p> <p>Mr. Waite: “Q. Did you make any inquiry of White, as to who he was agent for?”</p> <p>Mr. Woods: It is objected to as immaterial, irrelevant, inadmissible and incompetent.</p> <p>The Court: Objection sustained. Evidence rejected. Bill of exceptions sealed for the defendant. [9]</p> <p>Mr. Waite: “ Q. Have you any knowledge at the present time as to whom Charles B. White represented in the negotiation of this paper in your bank?”</p> <p>Mr. Woods: It is objected to that any knowledge that this officer of this trust company has at the present time is utterly immaterial, irrelevant and inadmissible in this issue.</p> <p>The Court: Objection sustained. Evidence rejected. Bill of exceptions sealed for the defendant. [10]</p> <p>“Q. At the time you bought the paper from Charles B. White, agent, did you make any inquiry as to who the real owner of the note was, and whom he was representing in the negotiation of it?”</p> <p>Mr. Woods: I object to that question, as it is utterly immaterial, irrelevant and inadmissible in this case.</p> <p>The Court: Objection sustained. Evidence rejected. Bill of exceptions sealed for the defendant. [11]</p> <p>“Q. What I want to know is at the time you discounted the note for Charles B. White, agent, did you know or make any inquiry as to who the actual owner of the paper was?”</p> <p>Mr. Woods: We object. The question is utterly immaterial, irrelevant and inadmissible.</p> <p>The Court: Objection sustained. Evidence rejected. Bill of exceptions sealed for the defendant. [12]</p> <p>John E. Smucker, witness on the stand: “Q. Did you know that it was Harry Brown’s signature when the note came before you? ”</p> <p>Mr. Woods: I object to that as utterly immaterial.</p> <p>The Court: Objection sustained. Evidence rejected. Bill of exceptions sealed for defendant. [13]</p> <p>Harry Brown, witness on the stand.</p> <p>Mr. Henderson: Counsel for the defendant now proposes to show by the witness upon the stand, who is the defendant in this case, that the defendant, the maker of the note in question, was induced to sign said note by reason of false and fraudulent representations made to him, the said defendant, by the said Henry Kahn, payee in said note.</p> <p>2. That after the said Henry Kahn, agent, payee in the note in question, had fraudulently procured the signature of the said maker to the note, he, the said Henry Kahn, agent, payee in the note, falsely and fraudulently negotiated it.</p> <p>3. The said Henry Kahn, agent, called upon the defendant at his place of business at Huntingdon, Pa., on or before December 16, 1909, and represented to the said defendant that he was an insurance agent for the Pennsylvania Underwriters Company of Pittsburg, Pa., and requested that the said defendant take out life insurance with that company. The said Henry Kahn, agent, told the defendant that he would give him life insurance for $10,000 at $602 for the first premium. This insurance was to be taken within six months from that date, December 16,1909. That is to say, the defendant had an option to either take or not to take up the insurance within six months from on or about December 16, 1909. Said defendant also had the right and option for six months on forty shares of stock of the Pennsylvania Underwriters Company of Pittsburg, Pa., at the rate of $15.00 per share. The said Henry Kahn, agent, by his false and fraudulent representations induced the said defendant to execute and deliver to him said note for the aforesaid premium. The said Henry Kahn, agent, then and there representing to the said defendant that he would hold the said note during the six months’ option, and that he would not get said note discounted, and that if the said defendant decided not to take the insurance within the six months’ option, that he, the said Henry Kahn, agent, would return said note to the said defendant, but that on or about December 16, 1909, the said defendant decided he would not take said life insurance and he immediately so notified the Pennsylvania Underwriters Company to that effect and requested the return of his note. That by reason of these false and fraudulent representations made by the said Henry Kahn, agent, the payee in the note, the defendant was induced to execute the paper in question, and that after the execution and delivery of this paper to Henry Kahn, agent, the said Henry Kahn falsely and fraudulently negotiated it in violation of the agreement which he had with the defendant.</p> <p>Mr. Woods: It is objected to, first, the plaintiff in this case having proven that he was the holder of this ñote for value, before maturity, and also holders in due course, before maturity, and the paper in evidence being a negotiable note, the evidence offered is utterly immaterial, incompetent and inadmissible.</p> <p>The Court: Objection sustained. Evidence rejected. Bill of exceptions sealed for the defendant. [14]</p> <p>The court gave binding instructions for plaintiff.</p> <p>Verdict and judgment for $632.10 for plaintiff. Defendant appealed.</p> <p>Errors assigned were (4) in giving binding instructions for plaintiff; (6-14) rulings on evidence, quoting the bill of exceptions.</p>

<p>Appeal, No. 91, April T., 1912, by defendant, from judgment of Q. S. Cambria Co., Sept. Term, 1911, No. 124, on verdict of guilty in case of Commonwealth v. Henry Wilson Storey.</p> <p>Indictment for libel. Before Shull, P. J., specially presiding.</p> <p>From the indictment it appeared that the libelous publication was as follows:</p> <p>The law authorizes the court and the district attorney to appoint a competent man as county detective, who shall be the confidential officer of the judge and the said district attorney, to discover and prosecute, if necessary, all persons who commit crimes.</p> <p>A few years ago one who shall be known, for present purposes, as “John H. Burroughs,” was commissioned as that confidential officer for the present officials. Within a short period after he began his duties he was accused of demanding and receiving hush money from four unfortunate scarlet women of Johnstown, promising that they could continue their illegal sales of liquor and other crimes without prosecution, and that he would not report the same to the district attorney nor to the court. Under this agreement the women deposited, under the fictitious name of John H. Burroughs, the sum of $75.00 every Monday, to the aggregate sum of $600. This was drawn by him, who the woman testified was the county detective.</p> <p>Complaint was made to Mayor Wilson that certain houses of ill fame were being protected. He investigated the charge, believed it to be well founded, and informed the district attorney, who is a candidate for president judge, whose duty it was to prosecute on behalf of the commonwealth. The district attorney came to Johnstown and made an investigation; he was in conference with the mayor and chief of police and some of the women, who related all that had transpired, exhibiting the card with the name of John H. Burroughs written thereon, and which had been given to one of the women by the man, who, in violation of his trust, made the sinful traffic a source of revenue. After several weeks of newspaper publicity and rumors of all kinds the district attorney caused to be published a personal opinion that his confidential officer and that of the court was innocent of the charge, saying:</p> <p>“ The evidence placed in my hands by Mr. ’s accusers, as well as that presented by him in defense, is such that I cannot in justice to him and to the record of his past services, consider him proven guilty of the charges made against him, so far as I am personally concerned, in fact, the presumption would necessarily be in favor of his innocence.”</p> <p>On the trial it was shown that while the district attorney was publicly proclaiming the good character of his officer, the scarlet women were sending money to the same person by addressing it to his lock box at Ebensburg.</p> <p>Under these circumstances Mayor Wilson and Chief of Police Mulhollen, who are honestly trying to enforce the laws in the city of Johnstown, made.informations against the accused, substantially pharging him with accepting bribes and giving protection to these women. At the December Term, 1908, the grand jury found eleven bills of indictment against Burroughs, who was tried and acquitted, and the costs divided between the mayor and chief of police, and the defendant. Notwithstanding that Mayor Wilson and Chief of Police Mulhollen were faithful public servants doing their duty in protecting the public, after the district attorney had refused to do his duty, the present judge sentenced these officials to pay their portions of the costs, which amounted to more than $200. This they paid.</p> <p>It is probably the first instance where faithful public officers were even sentenced to do such a thing. The law is very clear, that where a public official acts in good faith and has probable cause sufficient to warrant making the charge, that he shall not be called upon to pay the costs, in case of an acquittal. The probable cause seems to have been sufficient for the grand jury as it found eleven bills of indictment, and subsequently Burroughs was found guilty on one of the bills.</p> <p>When these cases were called for trial at the December Term, the district attorney refused to prosecute or tó appear for the commonwealth, because Burroughs, the defendant, threatened to make an exposure of that official if he did appear, and making this plea to the jury he was acquitted. However, at the March Term, 1909, Burroughs was again called to trial and found guilty, and again the district attorney refused to prosecute him.</p> <p>Burroughs had complete control over him, to do or not to do whatever he desired. Is a man like this fit to be judge?</p> <p>During this time the district attorney was a mental and physical wreck, or in a state of collapse. The defendant moved for a new trial, principally upon the ground that a newspaper had been found in the jury room, and the court for the first time in eight years granted a new trial in a criminal case, because the jurors might have been influenced by reading a portion of the testimony which had been printed. It is likely the jurors, as well as every other person about the courthouse, had read it before the jurors retired to consider their verdict.</p> <p>Thus has been the action of the court and district attorney in protecting Burroughs, who has never been called to another trial.</p> <p>Some time after the trial the district attorney admitted that there was no question but that Burroughs was guilty of taking the money as charged, and further said he was the worst man he ever knew, that, in his own words, “he was a devil.”</p> <p>After the present judge and district attorney had announced their candidacies for president judge in the ensuing campaign, and with my knowledge of their conception of administering justice, I did not deem that either was a proper person for that exalted position. I had been a friend of the district attorney for many years, and in March last I believed it was my duty to privately call upon him and go over the situation with him on these grounds, especially as every member of the Cambria bar was familiar with the cause of his collapse in the scarlet women case, and not a single member so far as I could ascertain, was in favor of his nomination. I told him this and we went over the scandal. I called to his attention that when he was in distress that I had offered him any services, as his appearance was lamentable; he needed legal assistance, and I told him that other members of the bar would gladly do anything they could, as we all knew he was in great mental trouble. The first time I tendered my sympathy and services he did not reply to my question: “Tell me what is the trouble; what can I do for you?” He only stared and muttered something which sounded like, “Yes, yes,” and walked away. I was in sorrow for him and did not believe he knew what I had said to him, so after considering his mental condition and still desiring to help him, I went back and said, “Jim, I am your friend. Tell me what I can do?” The same glary stare and the same mutter, and again he left me. He admitted these offers had been made by me.</p> <p>In the March conference he told me that his distress in 1908 was caused by some question of costs which had been raised, and that he feared a prosecution. He also told me what had been alleged as the “woman trouble,” to which explanations I replied, “Why did you not tell me these things when I went to you in your trouble? No, these belated stories will not do; they will not wash; that man Burroughs, or some other man, has or will have control of you. It will not do to have a judge who can be controlled or influenced by any person. In my judgment, neither the present judge, nor you, are a fit person to be judge of our court.” In this conversation he told me that he and Judge O’Connor had gone over the scarlet woman matter, and both had decided that Burroughs was being persecuted. The examination and conclusion he referred to took place before the subject had been submitted to the grand jury.</p> <p>I told him that I had come to him because I felt it to be my duty to do so; that if he insisted on being a candidate, I would certainly let the people know that he was not the right man for the bench. He became angry and called all who were against him on account of the scarlet women, liars, and he said he was going to be a candidate and handed me one of his announcement cards. I then said the conference was not a private one, but that the entire story would be given to the public.</p> <p>In the March conference I also told him that the liquor scandals in our court would have to be eliminated, and that it would not be a whisky court, if I could help it. I then told him of the effort being made at that time, by him and his friends to levy a tribute of $1,000 from a brewer, to be used in his campaign, and that favors were to be granted after the first of January. I said this must stop, and added, “Jim, do you know what word I sent to the brewer? I said, tell him not to be foolish and not waste his money, that I expected to be judge at that time, and he would not need any money, and that he would get his rights, without money and without price.” I also went to his friend and told him that these liquor scandals must cease.</p> <p>It is my judgment that the successor to the present president judge must be one who is absolutely impartial, and who cannot be controlled by any person, and will administer the law as declared by the laws and the appellate courts.</p> <p>The pertinent question is, Is either of these candidates a fit person to be president judge of the courts of Cambria county?</p> <p>' Where is the difference between the court official who lived off the scarlet w'omen, and the two judicial officers who protected him to their everlasting shame?</p> <p>At the trial Charles Troxell was asked this question: “Q. You say you talked with Mr. Storey concerning the judgeship that day or the day after Mr. Storey interviewed Mr. Leech? A. Yes, sir. Q. What did Mr. Storey say at that time about his candidacy for nomination on the republican ticket for judge? A. He said he was a candidate.”</p> <p>Mr. Marrón: We especially object to that as incompetent and immaterial, and ask for an exception.</p> <p>Exception noted by the stenographer. [2]</p> <p>James W. Leech, the prosecutor, being on the stand, under cross-examination was asked the following question: “Q. What became of the indictments against these women for keeping bawdyhouses?”</p> <p>Mr. Rose: Objected to.</p> <p>Mr. Marrón: I want to show by the witness that they were non prossed.</p> <p>' The Court: You can show that by the record. Exception noted by stenographer by request of counsel for defendant. [4]</p> <p>Alex. Wilson, a witness for defendant, being on the stand, counsel for defendant made the following offer:</p> <p>Mr. Marrón: We propose to show by the witness that in April and May, 1908, he was mayor of the city of Johns-town; that in the exercise of his office he caused the arrest of three or four women for the offense of maintaining a bawdyhouse in the city of Johnstown; that on the arrest of these women, and in the course of investigation connected with their arrest and the charges mentioned, they charged they had paid money to the county detective of Cambria county; that he investigated this charge for the purpose of satisfying himself as to whether or not it was true; that he then notified the district attorney of the county and prosecutor in this case that such charge had been made by these women, inviting him to participate in the investigation of the charges; that the prosecutor came to his office, was there confronted with the different witnesses making these charges, and the evidence in possession of the witnesses and in the possession of these different persons connected with this charge, submitted to him; that he refused to make information against James Berkebile, county detective at that time, subordinate to him in his office of district attorney; that he declared that he didn’t believe this evidence; that this witness was compelled by himself and his chief of police to make charges against James Berkebile for extortion from these women and for conspiracy to extort. That on these charges he was held to the court of quarter sessions of Cambria county, 1908, and subsequently bills were found on these charges. To be followed by evidence that the prosecutor, James W. Leech, refused to participate in the prosecution in the office of mayor or upon the informations made against Berkebile as county detective. To be followed by evidence that he refused to participate in the prosecution of any of the bills found by the grand jury of Cambria county. This for the purpose of showing that the statements made in the publication set out in the indictment and allfeged to be libelous in this connection were true, were evident, justified, and raised a reasonable ground of suspicion; that they were true; that the defendant in this case believed them to be true, and that he addressed and distributed the circular set out in the indictment under this belief; and that he exercised his constitutional right of criticising the prosecutor, a man at that time in public capacity, and also discussing the fitness of him as a candidate for the office of judge of Cambria county; and also for the purpose of disproving any malice in this publication. To be followed also by evidence that the facts included in this offer were communicated to Mr. Storey, and that he had reasonable ground for believing them true.</p> <p>Mr. Rose: The offer is undoubtedly good in part and bad in part. It is almost impossible to interpose an objection in general on account of this.</p> <p>The Court: If there is any part of the offer that is objectionable, an objection will be sustained.</p> <p>Mr. Rose: Our objection is to a part of the offer in that it is not permissible to show the result of the investigation by Mayor Wilson of the charges made by these women.</p> <p>We object to the offer as being irrelevant, immaterial and inadmissible as stated.</p> <p>The Court: We sustain the objection and seal a bill.</p> <p>Exception noted by the stenographer at request of counsel for defendant. [5J</p> <p>Verdict of guilty, upon which the defendant was sentenced to pay a fine of $150. Defendant appealed.</p> <p>Errors assigned were (1-37) various rulings as above and instructions sufficiently appearing by the opinion of the Superior Court.</p>

<p>Wills — Trusts and trustees — Vested and contingent interests — Disposition of income — Vesting of income.</p> <p>Where a testatrix directs that certain of her real estate is to be held in trust by the executors “they to collect the rents, etc., and after paying taxes and insurance and necessary repairs, divide the net proceeds annually among all my children, share and share alike, to wit:” naming the children specifically, and further directs that no distribution of principal in the manner directed by the will shall take place until the death of her last surviving daughter, the income is vested in the children, and if one of them dies after the death of the testatrix and before the death of the last surviving daughter, such child’s share of the income will go to his or her legal representatives. In such a case it is immaterial that the testatrix made no provision for the transmission of the share of inconie of a child who might die before the final dis-ti'ibution of her estate.</p>

<p>Public officers — Compensation—County commissioners — Traveling expenses — Meals—Acts of May 7, 1889, P. L. 109, May 18,1889, P. L. 200, and April 14,1905, P. L. 167.</p> <p>1. Under the Acts of May 7, 1889, P. L. 109, May 13, 1889, P. L. 200, and April 14, 1905, P. L. 167, county commissioners cannot in-, elude meals as “traveling expenses necessarily incurred in the discharge of'their official duties.” The statutes limit them to transportation expenses, and nothing more.</p> <p>Statutes — Repeal—Implied repeal.</p> <p>2. An implied repeal of a statute is a question of intention, and the presumption against the intention to repeal is strengthened by the fact that both acts were under consideration by the legislature at the same time.</p>

<p>Appeal, No. 108, Oct. T., 1911, by plaintiff, from judgment of C. P. Delaware Co., March Term, 1910, No. 363, on verdict for defendant in case of George L. Sipps v. Fred Taylor Pusey.</p> <p>Replevin for goods seized for rent. Before Johnson, P. J.</p> <p>The opinion of the Superior Court states the case.</p> <p>Errors assigned were in the following form:</p> <p>1. The learned judge erred in directing a verdict for the defendant.</p> <p>2. The learned court erred in dismissing defendant’s motion for judgment non obstante veredicto and in not entering judgment for the plaintiff.</p>

<p>Appeal, No. 116, Oct. T., 1911, by plaintiff, from judgment of C. P. Chester Co., April T., 1907, No. 20, on verdict for defendant in case of Phoenix-ville Borough v. Calvin R. Eyrich.</p> <p>Appeal from judgment of a burgess. Before Hemp-hill, P. J.</p> <p>The facts appear by Phcenixville Borough v. Eyrich, 42 Pa. Superior Ct. 241, and by the opinion of the Superior Court.</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned were various portions of the charge and (5) answer to plaintiff’s first point, quoted in the opinion of the Superior Court.</p>

<p>Appeal, No. 203, Oct. T., 1911, by defendant, from judgment of C. P. Huntingdon Co., Feb. T., 1911, No. 4, on verdict for plaintiff in case of Edward H. Green v. G. W. Simpson.</p> <p>Ejectment for a strip of land in the borough of Mill-creek. Before Woods, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>At the trial the jury returned a verdict in favor of defendant. Subsequently the court entered judgment for plaintiff non obstante veredicto.</p> <p>Error assigned was in entering judgment for plaintiff non obstante veredicto.</p>

<p>Appeal, No. 24, Oct. T.,1911, by plaintiff, from judgment of C. P. Chester Co., April T., 1909, No. 48, on verdict for defendant in case of Morris Glick v. Patrick Doyle and A. Brown Waters.</p> <p>Replevin to determine the right to a stock of goods. Before Hemphill, P. J.</p> <p>At the trial it appeared that the plaintiff’s goods were levied upon on March 17,1909, for rent alleged to be due;</p> <p>When Benjamin Stern, a witness for the plaintiff, was on the stand, the following offer was made:</p> <p>I offer to prove by this witness that the condition of the house was not tenantable, and that the defendant Waters went down about the premises, and agreed with the plaintiff that if he would stay on another year, that necessary repairs were to be made right after April 1.</p> <p>Mr. Talbot: That is objected to.</p> <p>The Court: Objection sustained. Exception.</p> <p>Verdict and judgment for defendant for $124.23. Plaintiff appealed.</p> <p>Error assigned was above ruling on evidence, quoting the bill of exceptions.</p>

<p>Criminal law — Conspiracy—Evidence—Hearsay—Motion to strike out.</p> <p>1. On the trial of an indictment for conspiracy it is reversible error for the court to admit as substantive evidence of an existing conspiracy, separate and disconnected acts and declarations of persons not defendants, nor shown in any way to have been connected with them, and made in their absence without the knowledge of any of them. Such evidence should not only not be admitted in the first instance, but it should be stricken out without motion, counsel should not be permitted tó comment upon it, and the jury should be directed to 'wholly disregard it.</p> <p>Criminal law — Practice—Special exception — Nunc pro tunc.</p> <p>2. Where the trial judge in a criminal case grants, after the trial, a special exception to parts of the charge, the commonwealth has no right to an exception to such special order of the court.</p> <p>3. Such special exception is within the discretion of the trial judge, and if properly allowed carries the charge up with the record for the consideration of the appellate court. Since the Act of May 11, 1911, P. L. 279, there is statutory authority for allowing the exception after verdict.</p> <p>Criminal law — Reasonable doubt — Charge.</p> <p>4. When a reasonable doubt within the meaning of the law and-under the evidence, exists, it is the property of the defendant, and must result in an acquittal. It is reversible error for the trial judge not to give sufficient and proper instructions in regard to reasonable doubt.</p>

<p>Negligence — Road—Absence of guard rail — Borough.</p> <p>1. In an action by a woman forty-seven years old. against a borough to recover damages for personal injuries sustained while she was driving a buggy on a dark night on a road in the borough, it appeared that at the point of the accident the road was from three to four feet above the adjoining land on one side, from which it was separated by a stone wall, the top of which was on a level with the roadway, and not protected by a guard rail or any barrier. The plaintiff had the reins loosely in her hands, which were lying on her lap. The right wheel scraped against some stones, and the plaintiff called: “Whoa” to the horse, which stopped and began to back. The horse was not frightened and plaintiff made no effort to control him when he began to back, permitting the reins to remain just as they were. He continued to back with the result that the buggy went over the wall, and plaintiff was injured. Held, that the question of plaintiff’s contributory negligence was for the jury, and that a verdict and judgment for plaintiff should be sustained.</p> <p>2. It is only where the facts are such that all reasonable minds must draw the same conclusions from them, that the question of contributory negligence is to be disposed of by the court as a matter of law. It is not the province of the court to weigh the evidence or decide between conflicting statements of witnesses, or to decide what inferences should be drawn from uncontradicted evidence, if different minds could fairly come to different conclusions from it.</p>

Appeal, No. 159, Oct. T., 1911, by defendant, from judgment of C. P. Chester Co., Jan. Term, 1910, No. 108, on verdict for plaintiff in case of Paul Y. Mace v. C. C. Wilson. Assumpsit for the value of certain wheat straw. At the trial the court gave binding instructions for plaintiff. Verdict and judgment for plaintiff for $102.30. Defendant appealed. Error assigned was in giving binding instructions for plaintiff.

Appeal, No. 212, Oct. T., 1911, by defendant, from order of C. P. Bucks Co., Feb. T., 1911, No. 6, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Doylestown & Danborough Turnpike Road Company v. Philadelphia & Easton Electric Railway Company. Assumpsit'for rentals. Rule for judgment for want of a sufficient, affidavit of defense. The opinion of the Superior Court states the case.

Appeal, No. 210, Oct. T., 1911, by defendant, from decree of C. P. Northampton Co., Sept. T., 1910, No. 3, on bill in equity in case of U. S. G. Heil v. South Easton Water Company. Bill in equity for an injunction. Errors assigned were to various findings of fact and law, and to final decree granting an injunction to which no exception was taken.

Appeal, No. 225, Oct. T., 1911, by plaintiff, from order of C. P. No. 5, Phila. Co., June T., 1911,. No. 710, discharging rule for judgment for want of a sufficient affidavit of defense in case of John J. Coyle v. David Schrull and George Kelly. Assumpsit for failure to keep safely an automobile left in storage. The opinion of the Superior Court states the case. Error assigned was order discharging judgment for want of a sufficient affidavit of defense.

Appeal, No. 145, Oct. T., 1911, by defendant, from judgment of Q. S. Northampton Co., Dec. T., 1910, No. 64, on verdict of guilty in case of Commonwealth v. Harris A. Clewell. Indictment for sale of oleomargarine colored to resemble butter.

Appeal, No. 136, Oct. T., 1911, by defendant, from judgment of Q. S. Schuylkill Co., Jan. T., 1911, No. 13, on verdict of guilty in case of Commonwealth v. Alexander T. Ignatavig. Indictment for violation of the Act of May 29, 1901, P. L. 227, in selling oleomargarine colored yellow.

Appeal, No. 258, Oct. T., 1910, by E. H. Flick, from order of C. P. Blair Co., Oct. T., 1900, No. 37, discharging rule on prothonotary to pay over docket fees In re Rule at Instance of E. H. Flick on J. L. Hartman, Prothonotary. Rule on prothonotary to pay over docket fees allowed to attorneys under the Act of April 2, 1868, P. L. 3. Before Baldrige, P. J. The opinion of the Superior Court states the facts. Error assigned was order discharging the rule.

Appeal, No. 104, Oct. T., 1911, by Levi B. Smith, from decree of O. C. Lancaster Co., Óct. T., 1905, No. 235, dismissing petition to make distribution in Estate of Charles W. Metzger, deceased. Petition for distribution. Before Smith, P. J. The opinion of the Superior Court states the case. Error assigned was decree dismissing petition.

Appeal, No. 70, Oct. T., 1911, by W. I. Reed and N. C. Naylor, from order of Q. S. Schuylkill Co., Jan. T., 1911, No. 1,108, granting a liquor license In re Application of the Chas. D. Kaier Company, Limited. Petition for brewer’s license. Before Shay, P. J. The opinion of the Superior Court states the case. Error assigned was order granting the license.

Appeal, No. 47, Oct. T., 1911, by defendant, from judgment of C. P. Northampton Co., July T., 1910, No. 15, on verdict for plaintiff in case of Lorenzo Lopresti and Angela Lopresti v. Louis Sulkin. Assumpsit to recover back the purchase money of real estate.

Appeal, No. 239, Oct. T., 1911, by plaintiff, from judgment of C. P. No. 1, Phila. Co., March T., 1909, No. 2,974, on verdict for plaintiff in case of J. L. Smith v. Elvino Y. Smith. Assumpsit on book accounts. Before Magill, J. From the record it appeared that the defendant, with his plea, gave notice that the special matter set forth in the affidavit of defense would be offered in evidence as a set-off at the trial.

Appeal, No. 177, Oct. T., 1911, by defendant, from order of C. P. No. 5, Phila. Co;, Dec. T., 1906, No. 1,513, dismissing exceptions to adjudication in case of Frederick Bertram v. Frank Petrovsky. Replevin for a lot of clothing. Before Staake, J. The opinion of the Superior Court states the'case. Error assigned was in taking jurisdiction of the ease and in entering judgment for the plaintiff.

Appeal, No. 205, Oct. T., 1911, .by plaintiff, from order of C. P. No. 2, Phila. Co., June T., 1907, No. 2,299, making absolute rule to set aside and open judgment in case of Arthur F. Schneider v. William H. Bates and Mary M.- Dulin. Appeal from judgment of magistrate. The opinion of the Superior Court states the case. Error assigned was in making absolute rule to set aside and open the judgment.

<p>Assignment for benefit of creditors — Individual assets — Special assignment.</p> <p>Where two partners execute an assignment for the benefit of creditors, and a question arises as to whether the assignment covers individual as well as partnership assets, and thereafter it appears that one of the partners individually owned the proceeds of a policy of insurance not as yet paid by the insurance company, and the assignee and the individual partner agree that the proceeds should be paid to the partner’s attorney and divided by him in certain proportions between the assignee and the partner, and the attorney after collecting the insurance money, sends the part agreed upon to the assignee in a letter which indicates that the fund is to be applied by the assignee to the partner’s individual creditors, such letter is to be construed as a special assignment of the fund in question for the individual creditors, however the general assignment may be construed.</p>

Appeal, No. 40, March T., 1912, by plaintiff, from order of C. P. Luzerne Co., Feb. T., 1911, No. 216, discharging rule for judgment for want of a sufficient affidavit of defense in case of the Car Advertising Company v. Rohr McHenry Distilling Company. Assumpsit on a contract. Rule for judgment for want of a sufficient affidavit of defense.

Appeal, No. 7, March T., 1912, by defendant, from judgment of C. P. York Co.,Aug. T., 1909, No. 140, on verdict for plaintiff in case of Harvey Reily, by his mother and next friend, Amelia Reily, and Amelia Reily, in her own right, v. P. H. Glatfelter Company. Trespass to recover damages for personal injuries.

Appeal, No. 232, Oct. T., 1911, by plaintiffs, from decree of C. P. Schuylkill Co., May T., 1911, No. 1, dismissing bill in equity in case of L. F. Mc-Donough et al. v. George W. Gensemer et al., Councilmen of Pinegrove Borough, and the Borough of Pinegrove. Bill in equity for an injunction. Before Shay, P. J. The facts are stated in the opinion of the Superior Court. Error assigned was decree dismissing the bill.

Appeal, No. 53, Oct. T., 1911, by plaintiff, from judgment of C. P. Clearfield Co., Sept. Term, 1909, No. 272, on verdict for defendant in case of New York Central & Hudson River Railroad Company v. Deer Creek Lumber Company. Appeal from judgment of a justice of the peace. Before A. O. Smith, P. J. Tbe facts are stated in the opinion of the Supreme Court.

Appeal, No. 129, Oct. T., 1911, by defendant, from judgment of C. P. Berks Co., Oct. T., 1909, No. 41, on verdict for plaintiff in case of Samuel H. Reber v. Alsace Township. Trespass to recover damages for personal injuries. Before Wagner, J. The circumstances of the accident are stated in the opinion of the Superior Court. Verdict and judgment for plaintiff for $'500. Defendant appealed. Error assigned amongst others was in refxising binding instructions for defendant.

Appeal, No. 206, Oct. T., 1911, by plaintiff, from order of C. P. Berks Co., Feb. T., 1909, No. 22, making absolute rule for new trial nunc pro tunc in case of Henry L. Wickel v. G. Frederick Mertz. Held: “Where a defendant can produce after-discovered evidence tending to prove that any material part of the plaintiff’s testimony was false, he is entitled to have his case submitted to another jury.” Also, in Corrigan et al. v. W. B. & W. Y. T. Co., 14 Luzerne Leg.

Appeal, No. 227, Oct. T., 1911, by plaintiff, from decree of C. P. Berks Co., on bill in equity in case of Thomas D. Fister et al. v. Kutztown Borough et al. Bill in equity for an injunction. Before Endlich, P. J. The facts are stated in the opinion of the Superior Court. Error assigned was the decree of the court.

Appeal, No. 16, Oct. T., 1911, by W. S. Hastings et al., Supervisors of Drumore Township, from order of Q. S. Lancaster Co., Minutes 585, dismissing exceptions to board of viewers In re Vacation of a portion of Drumore Township Road. Exceptions to report of viewers.

Appeal, No. 61, Oct. T., 1911, by defendant, from judgment of C. P. Lancaster Co., Sept. T., 1910, No. 38, on verdict for plaintiff in case of Wayne Seldomridge v. Willis W. Gibble. Appeal from judgment of justice of the peace. Before Landis, P. J. The facts are stated in the opinion of the Superior Court. The court charged in part as follows: [It is undisputed, that Seldomridge put in this tobacco and did the work which was done on it up to the time of the cutting.

Appeal, No. 174, Oct. T., 1911, by plaintiff, from judgment of C. P. Lancaster Co., Feb. Term, 1911, No. 12, on verdict for defendant in case of Paul Heine, now to the use of The Northern Trust & Savings Company, v. Lancaster County Mutual Insurance Company. Assumpsit on a policy of fire insurance. Before Landis, P. J. The opinion of the Superior Court states the case. At the trial the court gave binding instructions for defendant. Verdict and judgment for defendant.

Appeal, No. 226, Oct. T., 1911, by plaintiff, from order of C. P. Lancaster Co., Dec. T., 1910, No. 49, discharging rule for judgment for want of a sufficient affidavit of defense in case of I. N. Diller v. Jacob D. Ranck, defendant, and Martin Ebersole, garnishee. Assumpsit for money had and received. Rule for judgment for want of a sufficient affidavit of defense.

Appeal, No. 36, Oct. T., 1911, by defendant, from order of C. P. Chester Co., Aug. T., 1910, No. 110, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Harrison Hibbard v. R. Francis Wood. Appeal from judgment of justice of the peace. Assumpsit for wages. The facts are stated in the opinion of the Superior Court. Error assigned was rule for judgment for want of a sufficient affidavit of defense.

Appeal, No. 77, Oct. T., 1911, by plaintiff, from order of C. P. Chester Co., Aug. T., 1910, No. Ill, refusing to take off nonsuit in case of Jacob P. Ringwalt v. Atglen Borough. Trespass to recover damages for the flooding of a cellar. Before Butler, J. The facts are stated in the opinion of the Superior Court. Error assigned was refusal to take off nonsuit.

<p>Appeals — Assignments of error — Charge—Evidence.</p> <p>1. Assignments of error are an essential part of the pleadings in the appellate court, and as such should be so complete in themselves as not to require reference to other parts of the record to ascertain the grounds of the appeal.</p> <p>2. An assignment of error which purports to be a quotation from the charge of the court, but which is not, either in form or substance, will not be considered.</p> <p>3. An assignment of error is fatally defective if it incorrectly quotes the evidence to which it refers.</p> <p>4. Where special instructions were not asked for at the trial, and particular error of law or material misstatement of the evidence cannot be pointed out, the court will be reviewed on the general effect of the charge and not upon sentences or paragraphs disconnected with the context which qualifies and explains them; if, as a whole, the charge was calculated to mislead there is error in the record, if not, there is none.</p> <p>Principal and agent — Real estate broker — Commissions.</p> <p>5. An agent employed to secure a purchaser of real estate has earned his commission when he procures a party with whom his principal actually contracts.</p> <p>6. Where an owner of land places his property in the hands of an agent for sale, and there are incumbrances upon the land, the agent has nothing to do with the removal of the incumbrances. He does not lose his right to commissions simply because the owner of the land is unable to procure a release or discharge of such incumbrance.</p>

<p>Appeal, No. 134, Oct. T., 1911, by plaintiff, from judgment of C. P. Northampton Co., April T., 1909, No. 35, for defendant n. o. v. in case of William Leonard v. Nazareth Cement Company.</p> <p>Trespass to recover damages for personal injuries. Before Stewart, J.</p> <p>The facts are fully stated in the opinion of the Superior Court.</p> <p>At the trial the jury returned a verdict for plaintiff for $1,000. Subsequently the court entered judgment for defendant non obstante veredicto.</p> <p>Error assigned was in entering judgment for defendant non obstante veredicto.</p>

Appeal, No. 42, March T., 1912, by plaintiff, from order of C. P. Luzerne Co., Oct. T., 1910, No. 1,296, discharging rule for judgment for want of a sufficient affidavit of defense in case of C. R. Davis and Reese Davis, trading as C. R. Davis & Son, v. Frank Komer. Assumpsit for goods sold and delivered. Error assigned was order discharging rule for judgment for want of a sufficient affidavit of defense.

<p>Justice of the peace — Fees—Act of April 88,1909, P. L. 160.</p> <p>The Act of April 23,1909, P. L. 160, entitled, “An act to regulate and establish the fees to be charged by justices of the peace, aldermen and magistrates in this commonwealth” does not apply to justices of the peace who were elected prior to the date of the approval of the act.</p>

<p>Waters — Diversion of stream — Equity—Injunction.</p> <p>1. Where an upper riparian owner diverts waters from a stream by a ram for the purpose of domestic use, and returns the surface waters to the stream in such a way that they reach the stream below the ram of the next lower riparian owner, so that the latter is deprived of sufficient water for domestic purposes, and a portion of his land is turned into a wet and swampy place, the upper owner will be restrained by injunction from continuing such improper diversion of waters.</p> <p>Appeals — Assignments of error — Exceptions—Equity practice.</p> <p>2. Where, on an appeal from a decree in equity, the record fails to disclose any exceptions taken to the findings of fact, conclusions of law or the final decree, there is nothing before the appellate court to sustain any of the assignments of error.</p>

<p>Road law — Opening road — Vacating road — Act of June IS, 18S6, P. L. 551 — Improvements.</p> <p>1. Combining in one petition a prayer to open a road, and to vacate another that may be thus rendered useless, inconvenient or burdensome, is not improper practice if the statutory requirements relating to opening and vacating roads are observed in other particulars.</p> <p>2. The requirements of the Act of June 13, 1836, sec. 18, P. L. 551, that the road to be vacated shall be useless, inconvenient or burdensome, is in the disjunctive, and it is not necessary that all the elements should be present to justify a vacation. If any one of the three conditions is found to exist to the satisfaction of the court, a sufficient reason in this regard is established.</p> <p>3. A mere allegation in the petition that the road is useless, etc., is sufficient to warrant the appointment of viewers. It is not necessary to state the facts.</p> <p>4. A report of viewers which states that “there are no improvements along the line to be laid out ” is not defective in failing to set out the fact that a railroad was on the ground. A railroad on the ground is not such an improvement as to other landowners as requires mention in the report.</p> <p>Road law — Railroads—Opening road across railroad — Jurisdiction— Act of June 7,1901, P. L. 5S1.</p> <p>5. The fact that the draft accompanying the report of a board of viewers shows that “the new road opened was laid out over the tracks of a railroad company at grade ” does not oust the jurisdiction of the court, where it appears that the only party objecting was the owner of land on each side of the road to be opened; that the county commissioners could not construct a road at grade without the consent of the court, and that the railroad company filed a stipulation to pay all costs and damages and to construct an overhead or underneath crossing as may be required by the court of common pleas.</p>

<p>Appeal, No. 144, Oct. T., 1911, by Upper Darby Township, from decree of Q. S. Delaware Co., Mise. Docket D, page 1, Incorporating Borough of East Lansdowne.</p> <p>Petition for the incorporation of the borough of East Landsowne. Before Broomall, J.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was decree incorporating the borough.</p>

<p>School law — High school — Cost of tuition — Act of May 23, 1907‘ P. L. 202.</p> <p>1. Under the Act of May 23, 1907, P. L. 202, relating to the payment to a school district in which high school pupils resident of another district, are attending, of the pro rata cost of “tuition and school books,” the word “tuition” does not include the cost of fuel, light, janitor’s salary, arid other incidental expenses; nor does it include interest upon bonds of the school district maintaining the high school.</p> <p>Constitutional law — Inequality of taxation — School law.</p> <p>2. The Act of May 23, 1907, P. L. 202, regulating the payment which a school district, not maintaining a high school, shall make to another school district maintaining a high school, for tuition of pupils of the former district in such high school, is not unconstitutional as creating an inequality in taxation; inasmuch as the district maintaining the high school is not compelled by the act to receive pupils from other districts, and can, therefore, always save itself from loss.</p>

<p>Appeal, No. 172, Oct. T., 1911, by defendant, from judgment of C. P. Chester Co., Jan. Term, 1911, No. 43, on verdict for plaintiff in case of Elizabeth Wood Palmer v. Chester County Gas Company.</p> <p>Trespass to recover damages for injuries to a shade tree. Before Butler, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $200. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for defendant.</p>

<p>Appeal, No. 190, Oct. T., 1911, by plaintiff, from decree of C. P. Chester Co., in Equity, No. 525, on bill in equity in case of Samuel H. Murphy v. Percy A. Marvel et al., trading as the Kennett Brick Company.</p> <p>Bill in equity for receiver and accounting between partners. Before Butler, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The court entered the following decree:</p> <p>It is determined and ordered that plaintiff may not make any change or deduction for services rendered to and in respect of the property of the partnership, after December 6, 1909.</p> <p>Error assigned was decree of the court, quoting it.</p>

<p>Appeal, No. 241, Oct. T., 1911, by plaintiff, from order of Q. S. Clearfield Co., May T., 1911, No. 40, arresting judgment in case of Commonwealth of Pennsylvania v. Charles Maloof.</p> <p>Indictment against an unnaturalized foreigner for having in his possession two rifles. Before Holt, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was in sustaining defendant’s motion in arrest of judgment after verdict of guilty.</p>

<p>Appeal, No. 223, Oct. T., 1911, by defendant, from order of C. P. No. 5, Phila. Co., June Term, 1911, No. 5,294, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Federal Glass Company, Incorporated, v. Jacob Lorentz, Jr., trading as Jacob Lorentz.</p> <p>Assumpsit for goods sold and delivered.</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>

Appeal, No. 23, Oct. T., 1911, by plaintiff, from order of C. P. No. 1, Phila. Co., Sept. T., 1908, No. 789, for defendant n. o. v. in case of Margaret Burke v. Louis Keppel. Trespass for slander. The opinion of the Superior Court states the case. Error assigned was order entering judgment for defendant n. o. v.

<p>Insurance — Life insurance — Application—Policy—Evidence.</p> <p>1. Where a policy of life insurance with the application attached is offered in evidence by the plaintiff together with the proofs of death, the policy, the application and the proofs of death become evidence for all purposes in the case both for the plaintiff and the defendant.</p> <p>2. If the proofs of death disclose that the assured had in the application made untrue answers to questions relating to the attendance upon him by physicians and as to whether he had suffered from rheumatism, such statements are evidence against the plaintiff, and will be conclusive against the plaintiff unless they are explained or contradicted by competent evidence.</p>

<p>Appeal, No. 245, Oct. T., 1911, by defendant, from order of C. P. No. 3, Phila. Co., June Term, 1909, No. 1,808, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Maria Rotonti v. Pennsylvania Railroad Company.</p> <p>Assumpsit for death benefits.</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>Appeal, No. 280, Oct. T., 1910, by Vivian Frank Gable, Garnishee, from order of Q. S. Pkila. Co., Sept. Sessions, 1910, No. 1,282, confirming warrant of seizure in case of Department of Public Health & Charities of the City of Philadelphia v. James E. Meredith.</p> <p>Complaint for desertion.</p> <p>From the record it appeared that the magistrate before whom the complaint was made issued a warrant of seizure, which was subsequently confirmed by the court of quarter sessions. Other facts appear by the opinion of the Superior Court.</p> <p>Error assigned among others was in confirming the order of seizure.</p>

<p>Wills — Codicils—Republication—Revocation.</p> <p>1. A will and the codicils thereto are to be read together, and all the parts which are not inconsistent with the latest expression of the testator’s intention are brought down to the date of the last codicils, and are to be given effect.</p> <p>2. A new will revokes a former will, but a codicil ratifies the preceding will, except as to changes expressly indicated. A revocation is not to be presumed in the case of a codicil. It is only when they are irreconcilably contradictory that the dispositions contained in the codicil revoke those made by the will or a preceding codicil.</p> <p>3. A gift once made by a will is not to be cut down by a subsequent codicil unless the intention of the testator to that effect clearly appears, or a necessary implication arises. A codicil should be so construed as to give effect to all the provisions of the will if that can possibly be done.</p> <p>4. It may appear that a clause devising and bequeathing property is a residuary clause, although the technical description is not expressed. The word “residue” is not necessary if the intention of the testator is otherwise made reasonably apparent.</p> <p>5. Where a testatrix by the first codicil to her will gives to a legatee all the money which she had on deposit in any bank or trust company, and by a second codicil gives two pecuniary bequests to servants followed by a gift of all her estate, real, personal and mixed, in trust for certain purposes, and the second codicil refers to the first codicil to the will “hereby republishing and intending to republish the same in every respect except as herein and hereby modified, altered and amended,” the legacy given in the first codicil and the pecuniary bequests to the two servants in the second codicil are not revoked by anything contained in the concluding words of the second codicil.</p>

<p>Appeal, No. 49, Oct. T., 1911, by defendant, from order of C. P. Chester Co., Jan. T., 1911, No. 41, discharging rule to set aside attachment in case of Harvey Darlington v. William H. Watson and Emlen V. Faucett, Garnishee.</p> <p>Rule to set aside attachment. Before Hemphill, P. J.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was order discharging the rule.</p>

<p>Appeal, No. 12, Oct. T., 1912, by defendant, from order of Q. S. Phila. Co., refusing to sustain writ of habeas corpus in case of Commonwealth v. Sadie Divoskein.</p> <p>Writ of habeas corpus. Before Carr, J.</p> <p>From the record it appears that the magistrate’s record was as follows:</p> <p>“Warrant issued on January 12,1912, on oath of Julia Siloski, defendant, charged with assault and battery. Brought up January 12, Julia Siloksi, sworn, Lewis Levit, sworn. After hearing defendant charged with being idle, disorderly person. After hearing, defendant committed to the house of correction for three months. Defendant residing at 537 Garrett street.</p> <p>“Names of witnesses. Julia Siloski, 1254 N. Alder street, and Lewis Levit, 523 Buttonwood street.”</p> <p>The following facts were agreed upon between the district attorney and the counsel for the relator.</p> <p>The relator in this case was arrested on a warrant charging her with assault and battery and was committed by the magistrate, before whom she was brought, for three months to the house of correction, as being an idle and disorderly person. She was brought up on a writ of habeas corpus, which had been allowed by the Honorable W. W. Carr, in the court of quarter sessions of the peace for the county of Philadelphia.</p> <p>At the hearing of the case, it was established that there had been a lockout or strike in progress for a period of about nine weeks at the factory of Flamm, Goldman & Cohen, manufacturers of Ladies’ Silk Suits & Cloaks, N. E. cor. Eleventh & Arch streets, Philadelphia, and that the relator, Sadie Divoskein, was one of those who was locked out or on strike.</p> <p>That she had been arrested twice during the progress of said lockout or strike while picketing in the neighborhood of the factory; on one occasion being held in her own recognizance for court, which case had not yet been determined, and on another occasion being fined $7.50.</p> <p>It was testified by some of the police officers who were on duty there, that they had no trouble with the relator and that they had not seen her going about on the streets from place to place begging, or asking for or subsisting on charity.</p> <p>■ That the charge of assault and battery on which the relator was arraigned before the magistrate, was preferred by one Julia Siloski, who was not in sympathy with those who were locked out or on strike. Julia Siloski testified that the relator in attempting to rescue another girl, who also had been on strike, and whom the said Julia Siloski was holding until the police should come, struck her. This was denied' by other witnesses who testified that the relator w;as not near the said Julia Siloski.</p> <p>That the relator resided at 537 Garrett street, in .the city and county of Philadelphia, which was her fixed place of residence and where she had a good, respectable home. That she had worked continuously for a period of three years up to the period of the lockout or strike. That she was a person of very good habits and of good character and not an idler or disorderly street walker, and that prior to the said lockout or strike had never been in any trouble nor arrested. That she was out of work at the time of the said arrest by reason of the said lockout or strike at the place of her employment.</p> <p>That at the time of her arrest she was not molesting or disturbing anyone.</p> <p>That she did not depend upon anyone for her support; was self-supporting, and that by reason of her thrift and industry she had saved up about $250 which she had on deposit in bank to her account.</p> <p>After hearing on the writ the court remitted the relator to the house of correction, but reduced the sentence to thirty days from date of commitment.</p> <p>Error assigned was in not sustaining writ of habeas corpus and remanding the relator.</p>

<p>Appeal, No. 25, March T., 1912, by defendant, from judgment of Q. S. Lackawanna Co., Oct. T., 1911, No. 330, on verdict of guilty in case of Commonwealth v. Jennie E. Brink.</p> <p>Indictment for keeping a bawdyhouse. Before McClure, P. J., specially presiding.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>Verdict of guilty, upon which the defendant was sentenced to pay a fine of $50.00 and undergo imprisonment in the county jail for one year. Defendant appealed.</p> <p>Errors assigned were (1-57) various rulings on evidence and instructions.</p>

<p>Appeal, No. 29, March T., 1912, by defendant, from judgment of Q. S. Mifflin Co., Jan. T., 1910, No. 3, on verdict of guilty in case of Commonwealth v. J. A. Martin.</p> <p>Indictment for selling liquor without a license. Before Woods, P. J.</p> <p>The opinion of the Superior Court states the case.</p> <p>Verdict of guilty, upon which the defendant was sentenced to pay a fine of $500, and undergo imprisonment in the county jail for six months.</p> <p>Errors assigned were (1-18) various instructions of which the material ones are stated in the opinion of the Superior Court.</p>

<p>Appeal, No. 19, Oct. T., 1912, by defendant, from judgment of Q. S. Lehigh Co., Oct. T., 1911, No. 8, on verdict of guilty in case of Commonwealth v. John McHugh.</p> <p>Indictment for selling liquor without a license. Before Trexler, P. J.</p> <p>The opinion of the Superior Court states the case.</p> <p>Verdict of guilty, upon which judgment of sentence was passed. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for defendant.</p>

<p>Appeals — Assignments of error — Answers to points — Charge—Failure to ash instructions.</p> <p>1. Assignments of error are fatally defective which are in the following form: “1. The learned cburt erred in giving binding instructions to find for the defendant. 2. The learned court erred in directing the jury as to the amount of the verdict. 3. The learned court erred in failing to leave to the determination of the jury the question of fact as to the title of the goods. 4. The learned court erred in failing to leave to the jury the determination of the value of the goods. 5. The learned court erred in failing to give binding instructions to the jury in favor of the plaintiff.”</p> <p>2. Assignments of error are defective which fail to set out the points and answers, or findings of the charge of the court totidem verbis.</p> <p>3. Specifications of error are defective which challenge in general terms the charge of the court in not deciding given questions of law, without reciting the charge, or disclosing specific requests to so charge.</p> <p>4. Error cannot be assigned of what was not said by the judge below without a request to so charge.</p> <p>5. Assignments of error are an essential part of the pleadings, and as such they should be so complete in themselves as to show the judgment or decree of the court without reference to any other part of the record, which is remitted to the court below after the disposal of the appeal.</p> <p>Sale — Transfer of possession — Husband and wife — Interpleader.</p> <p>6. A bill of sale of household furniture by a husband to. his wife executed the day after a verdict was rendered against the husband, but without any removal of the furniture from the dwelling house in which the husband and wife reside, or any other transfer of possession to the wife, will not give the wife title to the furniture as against an execution issued on the judgment entered on the verdict against the husband, although the wife credits the consideration known in the bill of sale on a note of her husband representing an indebtedness to her. The recording of such a bill of sale amounts to nothing.</p> <p>7. In such a case where the wdfe becomes the claimant of the goods on- a sheriff’s interpleader, the trial court cannot be convicted of error in assuming the prices fixed in the bill of sale as sufficient evidence of the value of the goods, where there is no other evidence of such value.</p>

Appeal, No. 129, Oct. T., 1910, by defendant, from judgment of C. P. No. 5, Phila. Co., March T., 1903, No. 2,850, on verdict for plaintiff in case of Elizabeth B. Norris v. Philadelphia. Trespass to recover damages for injuries to real estate. The facts are stated in the opinion of the Superior Court. Verdict and judgment for plaintiff for $1,200. Defendant appealed.

Appeal, No. 15, Oct. T.,' 1912, by plaintiff, from order of Q. S. Phila. Co., remanding relator in case of Commonwealth ex rel. Jacob Melinkoff v. Keeper of County Prison. Petition for habeas corpus. The following facts were agreed upon between the parties as being the record in the case. Jacob Melinkoff, the appellant, was in a restaurant on North Eighth street, Philadelphia, Pa., on January 1, 1912, at about 9 p. m., sitting at a table.