Volume 50 — Pennsylvania Superior Court Reports

Appeal, No. 100, April T., 1912, by defendant, from judgment of O. & T. and Quarter Sessions, Westmoreland Co., May T., 1911, No. 179, on verdict of guilty in case of Commonwealth v. John E. Shields. Indictment for misdemeanor in office, embezzlement and perjury.

Appeal, No. 000, Oct. T., 1912, by defendant, from decree of C. P. Schuylkill Co., May T., 1910, No. 156, refusing divorce in case of J. C. Biddle v. Agnes M. Biddle. Libel for divorce. Before Bechtel, J. The facts are stated in the opinion of the Superior Court. Error assigned was decree refusing divorce.

Appeal, No. 000, Oct. T., 1911, by respondent, from decree of C. P. Schuylkill Co., May T., 1910, No. 156, allowing counsel fees in case of J. C. Biddle v. Agnes M. Biddle. Libel for divorce.

Appeal, No. 28, March -T., 1912, by defendant, from judgment of C. P. York Co., Aug. T., 1911, No. 116, for plaintiff on case stated in suit of Maggie H. S. Bannister v. Spring Garden… Held: that dividends in the hands of an insurance company, payable to the insured, were applicable to the payment of his assessment,, and prevented a forfeiture of his policy for nonpayment of the same. See also Matlack v. Bank, 180 Pa. 360, 388; Murray v. Iron Hall, 9 Pa. Superior Ct. 89.

Appeal, No. 34, Ocfc. T., 1912, by Johanna Pihs, from order of Q. S. Phila. Co., Jan. T., 1912, refusing order for commitment In re Elizabeth Pihs. Petition by Johanna Pihs, sister of Elizabeth Pihs, for an order on the city and county of Philadelphia for the support of the said Elizabeth Pihs, at the State Hospital for the Insane at Norristown. The facts are stated in the opinion of the Superior Court. Error assigned was refusal of the petition.

Appeal, No. 218, Oct. T., 1911, by plaintiff, from judgment of Q. S. Phila. Co., March Sessions, 1911, No. 747, arresting judgment in case of Commonwealth v. Christian Pflaum, Jr. Indictment for violating the Act of May 13, 1909, P. L. 520, in selling fifty candy marshmallow cocoanut pies containing sulphur dioxide. The case turned on the constitutionality of the Act of May 13, 1909, P. L. 520. Error assigned was the order arresting judgment.

Appeal, No. 293, Oct. T., 1910, by plaintiff, from order of C. P. No. 5, Phila. Co., March Term, 1907, No. 4,550, refusing to take off nonsuit in case of Joseph H. Carlitz v. Robert Briggs. Trespass for an alleged wrongful eviction. Before Staake, J. The facts are stated in the opinion of the Superior Court. Error assigned was refusal to take off nonsuit.

<p>Contract — Sale—Kind of goods — Quality.</p> <p>1. In an action to recover the price of goods sold and delivered, where there is evidence that there were three kinds or classes of the goods in question, and that the goods delivered were of the kind or class ordered, although of an inferior quality, and it appears that the purchaser retained the goods, a verdict and judgment in favor of the vendor for the contract price will be sustained. In such a case if the purchaser is dissatisfied with the quality he may return the goods after a reasonable time for inspection; but if he retains them he must pay the contract price. But if they were not of the kind ordered but of a kind less valuable, he is liable only for what they were worth.</p> <p>Practice, C. P. — Pleadings—Rule of court.</p> <p>2. Where in an action of assumpsit the pleadings consisted of a statement,' answer and replication in accordance with a rule of court then in force, but afterwards and before the case is tried, a new rule is adopted providing for the filing of a plea in accordance with the Act of May 25, 1887, P. L. 271, and the case is tried on its merits without the filing of such a plea, the plaintiff cannot thereafter claim that a verdict and judgment against him should be set aside because no plea was filed in accordance with a rule of court.</p>

<p>Appeal, No. 247, Oct. T., 1911, by Clara Huddy Fagan, from decree of O. C. Phila. Co., April T., 1911, No. 629, dismissing exceptions to petition for distribution in Estate of Helen W. F. Moore, deceased.</p> <p>Petition for distribution.</p> <p>The petition of Edwin H. Moore was as follows:</p> <p>1. That the said Helen W. F. Moore died on April 6, 1910, leaving to survive her a husband, the petitioner, and no issue, having first made her last will and testament, dated May 26, 1905, and duly probated in the office of the register of wills of Philadelphia county and letters testamentary duly issued to Eliza Massey Fagan and your petitioner as executors.</p> <p>2. That the deceased left omy personal estate to the' value of as per inventory and appraisement filed amounting to $19,863.48 but no real estate.</p> <p>3. That the said executors of decedent’s will filed their first account and the same was adjudicated before Gtjmmey, J., on July 5,1911, and your petitioner by declaration in writing duly filed in the adjudication of the account of said executors as aforesaid has taken against the will of said decedent. And further that the decedent was a married woman and not engaged in any business and all her debts were paid as will appear by said adjudication.</p> <p>4. That your petitioner as surviving husband of said decedent claims the sum of $5,000 from the personal estate under the Act of April 1, 1909, P. L. 87, and an inventory and appraisement of the personal property so chosen is hereto annexed.</p> <p>Wherefore your petitioner prays that the sum of $5,000 may be set apart to him as the surviving husband out of the said personal estate.</p> <p>The collateral heirs of Mrs. Moore filed the following exceptions to the petition:</p> <p>1. The said Edwin H. Moore, husband of the decedent, has no right to receive the sum of $5,000 under the act of April 1, 1909, because said act applies only to the estates of intestates, and the above decedent died testate. [1]</p> <p>2. The said Edwin H. Moore, husband of the decedent, has no right to receive the sum of $5,000 under the act of April 1, 1909, because the said act does not give to the surviving husband the right to retain the said sum out of the estate of his deceased wife. [2]</p> <p>The court entered the following decree:</p> <p>And now to wit, November 4, 1911, upon presentation of the foregoing petition and due proof of publication on motion of Chas. F. Linde, Esq., attorney for the petitioner, the court orders and decrees that the election by Edwin H. Moore, the surviving husband, to retain the sum of $5,000 from the personal property of the decedent, as enumerated in the inventory attached to the said foregoing petition, is approved and the exceptions filed October 14, 1911, are dismissed. [3]</p> <p>Errors assigned were (1, 2) in dismissing exceptions to the petition, quoting them, and (3) the decree of the court, quoting it.</p>

<p>Contract — Composition agreement — Insolvent corporation — Debtor and creditor.</p> <p>1. A composition agreement between a debtor and Ms creditors is valid and binds all parties thereto. The undertaking of the other compounding creditors to release the debtor from a part of their claims is a consideration which supports the agreement of each creditor. After a creditor has thus agreed to relincfuish part of his claim and induced others to become parties to a composition, it would be a fraud on them to permit him to ignore the agreement and collect the full amount of Ms claim.</p> <p>2. Where a proposition is made to the creditors of a hopelessly insolvent corporation that they accept in lieu of their claims twenty-five per cent in cash and seventy-five per cent in the stock of the company, and all of the creditors accept the proposition, but the acceptance of one of them is coupled with a condition that the stock shall be taken off his hands in two years by two persons' designated by name, and such persons execute an agreement to take such stock in two years, the creditor is bound by the composition agreement and must accept the cash and stock as provided by it.</p>

<p>Appeal, No. 20, March T., 1912, by plaintiff, from judgment of C. P. Adams Co., Aug. T., 1911, No. 43, for defendant on case stated in suit of Gettsyburg School District v. School District of Cumberland Township.</p> <p>Cases stated to determine liability for cost of tuition. Before Swope, P. J.</p> <p>The case turned on the construction of the Act of May 2, 1907, P. L. 158.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was in entering judgment on case stated for defendant.</p>

<p>Appeal, No. 110, April T., 1911, by defendant, from judgment of C. P. Beaver Co., Sept. Term, 1908, No. 199, on verdict for plaintiff in case of W. J. Smith and W. S. Smith v. J. I. Case Threshing Machine Company.</p> <p>Assumpsit for breach of contract. Before Holt, P. J.</p> <p>The facts appear in the opinion of the Superior Court.</p> <p>At the trial the court charged in part as follows:</p> <p>[On the other hand, gentlemen of the jury, the plaintiffs take the position that there was no forfeiture or termination of the contract, but that the process of execution was simply a means of payment; and that on June 9, when the machinery was taken away by the agent of the defendant company, the contract was still in force, and the title to the machinery at the time still in the defendant. The plaintiffs agree that at whatever time this machinery was taken, the title to it was in the defendant company. We say to you, that in view of this admission, the plaintiffs at most would not be entitled to recover anything more than the amount of rental which they had paid prior to the time of the taking of the machinery for default, this lease stipulates that the defendant company had the authority to proceed and collect any rentals due. If the defendant company took this machinery out of the possession of the plaintiffs, and the title at the time it was taken was still in the defendant company, then it could not be said that the defendant company had elected to sue and recover on all of the notes, in view of this admission of the plaintiffs that the contract was still in force at whatever time this machinery was actually taken by the defendant company; so that you will inquire simply how much had been paid as rental prior to the time of the default. It is conceded on both sides that that amount was $596.50, and that it was paid on June 24, 1907.</p> <p>In cases of this character the measure of damages is the amount of rental paid, subject to a deduction for the use of the machinery for the time that it remained in the possession of the lessee. But it is conceded here that the rental that accrued from the time of the delivery of the possession of the machinery down to the time of the taking it away had been paid through this process of execution. But you will take into consideration that it would be some inconvenience and some expense to the defendant company to take this machinery away again to its place of business; and we say that it would be nothing more than right for you to make an equitable allowance for so much as in your opinion, under all of the circumstances of this case, should in good conscience be deducted from the $569.50 for the trouble and expense in taking away the machinery; and in such amount as you find, having made this equitable and just allowance, you would add interest at the rate of six per centum from the date of payment down to the date of the rendition of your verdict. You will take this case, gentlemen, and ascertain what that deduction is.] [2]</p> <p>Verdict and judgment for plaintiff for $570.20. Defendant appealed.</p> <p>Errors assigned were (1) refusal of binding instructions for defendant; (2) portion of charge as above, quoting it, and refusal of judgment for defendant n. o. v.</p>

<p>Deed, — Covenants—Warranty of title and seizin — Damages—Measure of damages — Burden of proof.</p> <p>1. In the absence of fraud, the measure of damages for breach of warranty of title or seizin as to part only of the land conveyed is the “relative value ” which the part bears to the whole, and this is to be estimated with regard to the price fixed by the parties for the whole.</p> <p>2. In such a case it is competent to prove that the part to which the title has failed was of greater or less value than the part actually conveyed, and the correct measure of damages is the value of the part taken in proportion to the value of the part which the vendee gets, the computation being on the basis of the purchase money. Under this rule either party may show peculiar advantages or disadvantages of the part for which the title failed, but this does not permit evidence of the value of the bargain. The burden of proving the relative value of the part to which the title fails rests on the vendee.</p>

<p>Appeal, No. 4, Feb. T., 1912, by defendant, from judgment of C. P. Lycoming Co.,.Sept. Term, 1910, No. 60, on verdict for plaintiff in case of John A. Birkle v. John Coleman.</p> <p>Trespass for trover and conversion of lumber.</p> <p>Omerod, P. J., specially presiding charged as follows:</p> <p>There is very little disputed facts in this case which is material to the determination of the question at issue. It is not disputed that on March 26, 1910, that by contract of sale this lumber in dispute was sold by James G. Shaw to John Birkle, the plaintiff in this case, and that a check of $300 at that time was paid to Mr. Shaw, and that he presented that check afterwards and received the money upon it. That is testified to by Mr. Shaw and the plaintiff in this case, and it is a matter that is beyond controversy in this case. If at the time that contract was made Mr. Shaw was the owner of this property, and had the right as agent of his wife to make this sale, as I understand the law the title passed to Mr. Birkle upon the execution of that contract and the payment of the $300 subject to the further payments which were provided for in the contract. So far as the evidence is concerned you will consider and determine the fact that at that time, if James G. Shaw had authority to sell this lumber, he did sell it and title passed to the plaintiff in this case. Before that title could pass, however, you must find that James G. Shaw was either the owner of this lumber or that he had, as agent of his wife, the right to sell it. There is a principle of law that is well established, and that is this: That where a principal knows that another acting as his or her agent has represented the right of control and disposition of the property of the principal, and the principal after learning of the exercise of that right by the agent does not upon the discovery of it disaffirm what the agent has done, he or she is bound by it. The policy of the law would not permit her to afterwards set up the fact that the person acting as her agent was not her agent. [And I feel constrained to say to you in this case that taking into consideration the testimony that has been offered on the part of the defendant in this case, the testimony of Mrs. Shaw herself that she knew that her husband had sold this lumber to Mr. Birkle and that he had received a check of $300, and her testimony that for a number of days knowing that fact she took no steps to disaffirm the act of Mr. Shaw, that it was a ratification of what he had done; and I say to you as I understand the law, from the uncontradicted evidence in this case, that she having testified that she did know of this transaction and had taken no steps as I say to disaffirm what her husband had done, it was a ratification of what he did and the title passed to Mr. Birkle at that time. It is my duty to say that to you regardless of all of the other evidence in the case tending to show that he did have authority to do what he did at that time.] [14] All the letters that were written set forth the ownership of this property by Mr. Shaw. The letter that was written four days after the purchase of this property by the plaintiff from Mr. Shaw, dated April 30, in which Mr. Shaw notified Mr. Birkle that he must pay in full before he could take that property, contained no notice or statement, or any allegation, that the property was not the property of Mr. Shaw. And outside of the signature of Mrs. Shaw to the contract of writing which avers the statement that the property was Mr. Shaw’s, and the evidence as to her declarations, made by Mr. Shaw and herself, and the evidence of Mr. Corter, there was no evidence in the case to establish this property was the property of Mrs. Shaw. But regardless of all that, the silence of Mrs. Shaw after she knew her husband had taken upon himself the sale of this property to Mr. Birkle, no attempt having been made on her part to communicate his lack of authority to Mr. Birkle, did constitute a ratification and title passed to Mr. Birkle.</p> <p>It is alleged, however, on the part of the defendant, tnar he was an innocent purchaser. The law is well settled, gentlemen, that where one becomes the possessor of certain personal property he must do certain things in order to protect innocent purchasers. The character of this property is confessed to be piles of lumber, and it would be necessary for the plaintiff in this case to protect himself against an innocent purchaser to do everything that he could reasonably do to give notice to the public of his ownership of that property in order that they might be protected from buying it innocently. [But in this case the evidence is uncontradicted, in fact it is testified to by the defendant, Mr. Coleman, that when he went up there on March 29 for the purpose of buying this property he was informed by Mr. Shaw first, that the property was as good as sold, and Mr. Shaw pointed out the parties to whom it had been sold; and he then had a conversation with the plaintiff and Mr. Miller in which he testifies himself that he was informed he was too late and Mr. Birkle had purchased the property.] [11] So I say to you, gentlemen, that it does not lie in the mouth of the defendant in this case to say, after having received that notice, that he was an innocent purchaser. He could not rely upon statements made by anybody else that was interested in this property before he could take the position that he was an innocent purchaser. It was his duty when this property was after-wards attempted to be sold to him to go to Mr. Birkle and find out whether or not Mr. Birkle had the title to it. [So I say to you as a matter of law under the fact in this case that Mr. Coleman was not an innocent purchaser of this property; and as I understand the law, the only question for you to determine in this case is the amount of the verdict which you shall render in favor of the plaintiff.] [10]</p> <p>The evidence upon that subject, first, is the testimony of Mr. Birkle, that this property as it stood there was worth about $1,800. The evidence on that subject, — the other evidence, — is the evidence of Mr. Miller who testified as to the value of the pine, and says he has no knowledge as to the value of the other wood. Then there is the testimony of Mr. Coleman, who testifies the property was not worth more than $1,500. [You are to determine from this evidence what the value of that property was, and find a verdict in favor of the plaintiff, because it would seem to me there is no question to be submitted at all other than that simple question as to what amount your verdict should be.] [12] If you find a verdict in favor of the plaintiff you should find, first, the amount of the value of that property as it was taken by Mr. Coleman and then you should deduct from the value of that property the amount that was due from Mr. Birkle upon the purchase of that, which is $900. So, as I say, in order that you may distinctly understand me, you would have no right to find the value of that property anything less than that testified to by the defendant in this case; and you would have no right to find the value of the property anything more than was testified to by the plaintiff in this case. You must take the evidence and determine what the value of that property was, and when you find that value you should deduct the sum of $900, and find a verdict in favor of the plaintiff for the balance, whatever it is. [I have substantially withdrawn from you any question of fact in this case, except that one question of fact. It is incumbent upon me, as I understand the law, to do this and you must be guided by what I say in that respect.] [13]</p> <p>Verdict and judgment for plaintiff for $936.72. Defendant appealed.</p> <p>Errors assigned among others were (10-14) above instructions, quoting them.</p>

<p>Contract — Sale—Warranty—Implied warranty.</p> <p>In an action to recover the price of a large number of brass rings which the plaintiff manufactured for the defendant from a model furnished by the latter, and from material of. a particular kind which he designated, a finding of a referee for the plaintiff will be sustained where it appears that the defendant retained and used 180,000 rings out of the 200,000 delivered, that the referee allowed for 12,000 defective rings, that the plaintiff did not hold himself out as a manufacturer of rings for the use to which the defendant applied them, and that the kind of the material used was that which the defendant designated. Such a case lacks every feature of an implied warranty.</p>

<p>Constitutional law — Boroughs—Division into wards — Title of act— Amendment of act — Acts of May 14,1874, P- L-159, and March 24,1877, P. L. 4?.</p> <p>1. The Acts of May 14, 1874, P. L. 159, and March 24,1877, P. L. 47, are constitutional, both acts are sufficient in title, and the act of March 24,1877, does not offend against sec. 6 of art. Ill, of the constitution relating to the amendments of acts.</p> <p>Boroughs — Division into wards — Borough officers.</p> <p>2. The appellate court will not be astute in finding reasons for reversing a decree of quarter sessions reducing the number of wards of a borough, where it appears that such decree was reached and made with due care and a manifest desire to subserve the interest and convenience of the inhabitants of the borough in question.</p> <p>3. In such a proceeding it is within the power of the court of quarter sessions to provide in its final decree for the election of new officers in accordance with the new subdivision of the territory of the borough, and if this shall result in some of the old borough officers finding themselves without an office, they are not in a position to complain.</p>

<p>Judgment — Entry of judgment upon warrant twenty years old — Rule of court — Rule on maker of note — Service of rule.</p> <p>1. A rule of court which, provides that if a warrant of attorney to confess judgment be above twenty years old “there must be a rule to show cause and that must be served upon the party if he is to be found within the State,” is a valid rule.</p> <p>2. Where a rule to show cause is taken on a judgment note more than twenty years old, and the party taking it, instead of serving it himself, gives it to the sheriff for service, and the sheriff returns that the defendant cannot be found in the county and that therefore the rule is returned non est inventus, the court will not make a further order directing the sheriff to make further inquiry and examination as to the residence or nonresidence of the defendant in Pennsylvania; nor will the court permit judgment to be entered on a petition that the deponent has no knowledge that the defendant is a resident of Pennsylvania and thinks that he is not and that he is “living in the west as deponent was informed.”</p>

<p>Appeal, No. 56, April T., 1912, by defendant, from order of C. P. Yenango Co., Aug. T., 1911, No. 49, refusing to vacate a judgment in case of William Flaccus Oak Leather Company v. M. P. Heasley.</p> <p>Motion to vacate judgment.</p> <p>Criswell, P. J., filed the following opinion:</p> <p>The judgment entered is regular on its face and the reasons assigned in support of the motion to vacate furnish no basis for so doing.</p> <p>Neither do the facts alleged in the affidavit attached to the motion constitute a sufficient defense to the plaintiff’s claim. It is not stated when or by whom any representations were made as to the quality of the leather to be shipped to the defendant by the plaintiff, nor that any representations were made at the time the items now objected to were contracted. It is stated that the leather charged for under dates April 30 and July 21 and shipped to the defendant was not the leather ordered, but what leather was ordered is not stated, and to say that such leather was worthless and without any value is not sufficient. It is too general and indefinite. Admittedly the goods were received and retained by the defendant and they were probably used by him. This inference is warranted by his failure to aver that he returned or offered to return them to the vendor. No reference appears to be made to the charge for calfskins and deerskins under date of July 21, or the lace leather under date of September 9, while the harness leather charged for under the latter date for which the defendant admits liability, appears to be the same in kind and quality as those charged for under the earlier dates. If the defendant has a defense to any part of the plaintiff’s claim it should be definitely, particularly and fully stated so that it may be shown.</p> <p>The return of the sheriff shows due service of the summons. It imports verity and is conclusively assumed to be true.</p> <p>July 24, 1911. Defendant’s motion to vacate judgment is refused.</p> <p>Error assigned was the order refusing to vacate judgment.</p>

Appeal, No. 52, April T., 1912, by plaintiff, from judgment of C. P. No. 3, Allegheny Co., Aug. T., 1905, No. 352, on verdict for defendant in case of Adolph Klein v. J. Levenson. Assumpsit by an indorsee against an indorser of a promissory note. Before Evans, J. The note was as follows: “Pittsburg,- November 7, 1904.

<p>Appeal, No. 194, Oct. T., 1911, by defendants, from judgment of C. P. No. 4, Phila. Co., Dec. T., 1909, No. 4,307, on verdict for plaintiff in case of Louis Shaffer v. Nicholas Lauria et al.</p> <p>Ejectment for a strip of land in the city of Philadelphia. Before Atidenbied, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>At the trial the defendant made the following offer:</p> <p>Mr. Gorman: I offer in evidence the affidavit of James Benton Young, being affidavit filed in support of motion to dissolve injunction, in C. P. No. 2, June Term, 1883, No. 522. In that case the plaintiff was Michael McCarron and the defendant John H. Gehner, Michael McCarron being the predecessor in title of the plaintiff in this case, and John H. Gehner being the predecessor in title of the defendant.</p> <p>Mr. Smyth: I object to the offer. Ruling reserved.</p> <p>Mr. Gorman: I now renew the offer of the affidavit of J. Benton Young, made yesterday, and add to the offer that it is for the purpose of showing adverse possession of the premises in dispute in John Henry Gehner, the predecessor in title to the present defendant.</p> <p>Objected to. Objection sustained and offer overruled. Exception noted for defendant by direction of the court. [3]</p> <p>Defendant presented these points:</p> <p>1. If the jury believe from the evidence that defendants for a period of over twenty-one years last past have been in the exclusive, notorious, open and adverse possession by themselves and their tenants and their predecessors in title to the same to the exclusion of the plaintiff, Louis Shaffer, and his predecessor in title, the verdict should be for the defendant. Answer: Refused. [5]</p> <p>2. If the possession of the defendants with their predecessors in title, viz., Gehner, of the land in dispute was actual, open, continuous, exclusive and hostile for a period of over twenty-one years, the verdict should be for the defendant. Answer: Refused. [6]</p> <p>3. If Gehner (the predecessor in title of defendants and from whom they purchased) was in possession of the land in dispute at the time of the purchase by the defendant Shaffer his title under the statute of limitations had ripened into an absolute title in the fee of the land in controversy against McCarron, his predecessor in title, and the transfer of the land in dispute by McCarron to plaintiff, Shaffer, vested no title in plaintiff to that land, and the verdict should be for defendants. Answer: Refused. [7]</p> <p>4. Under the facts in this case the possession must follow the deed, and where no possession is given as in the transfer by deed from McCarron to plaintiff, no title vested in plaintiff to the ground in dispute. Answer: Refused. [8]</p> <p>5. If an owner of real estate remains passive while the boundaries of his land are invaded by an adverse claimant who asserted title thereto and therein, he is held to acquiesce, and the adverse claimant being the defendants and their predecessors in this case ripened in a title by possession by virtue of the statute. Answer: Refused. [9]</p> <p>6. It is immaterial whether the possession is held for the entire period of twenty-one years by defendants if the possession was continued from their predecessor and interrupted, when there is privity of estate by occupation and title between the successive holders. Answer: Refused. [10]</p> <p>7. The possession of Genner and complainants with their tenants, like the possession of an ancestor and his heirs, may be tacked one to the other to complete the twenty-one years and the statute will apply and protect such an estate. Answer: Refused. [11]</p> <p>8. If defendants were put in possession by Gehner, former owner, who was himself in possession of the land in dispute, and they entered and actually occupied the land in dispute, and remained in possession and occupying under a claim of title, whether such claim be by deed or otherwise, this constituted a valid, adverse possession by defendants and their predecessors in title the verdict should be for defendants. Answer: Refused. [12]</p> <p>Verdict and judgment for plaintiff. Defendants appealed.</p> <p>Errors assigned among others were (3) ruling on evidence, quoting the bill of exceptions; (4) in giving binding, directions for plaintiff; (5-12) above instructions, quoting them.</p>

<p>Deeds — Descriptions—Boundaries—Reference to plan of lots — River as boundary.</p> <p>Where a plan of lots indicates-the west boundary of the lots as a river, and a re-plot of the plan indicates the west boundary as a road, the western line of which was the east line of the river, and subsequent deeds by the owner called for a street as. the west boundary, and it appears that the high water line of the river overlapped the street until-a navigation dam was washed away many years after the making of the plan of lots, and after all the lots had been sold, the owner and his heirs can make no claim to the space left open by the permanent recession of the river due to the abandonment of the dam, but the same will be presumed to have been dedicated to the use of the lot owners and the public.</p>

<p>Appeal, No. 26, March T., 1912, by plaintiff, from judgment of O. & T. Dauphin Co., Sept. Term, 1911, No. 116, on verdict of guilty in case of Commonwealth v. Jacob G. Feist.</p> <p>Indictment for statutory rape. Before Gillan, J.</p> <p>The defendant presented, inter alia, the following points:</p> <p>1. If the jury believe that the woman alleged to have been forcibly raped made no outcry, where it was possible to have been heard, this is a circumstance which would justify an inference that her testimony is false. Answer: That point I refuse. I have said as much to you before, that that is not the law as I understand it. The best evidence of what the law is, is what you get from me. I may be mistaken, but you are to take the law from me and if I am wrong, it will be righted. [1]</p> <p>2. If the jury believe that the woman alleged to have been forcibly raped, made no present complaint, but concealed the matter for a considerable time after she had an opportunity to complain, this is a circumstance which would justify an inference that her testimony is false. Answer: This point is refused. That is not the law. [2]</p> <p>3. If the testimony indicated to the minds of the jury that whatever, if anything, was done to the woman charging rape, was with her consent, even though she was under the age of sixteen, then she was an accomplice and her evidence must be treated as such, and the court is bound to instruct you that while you may convict on her uncorroborated testimony, you ought not to do so. Answer: That point is refused. It is not the law in either one or the other particular. [3]</p> <p>5. It is the duty of the jury to reconcile the testimony in the case with the innocence of the defendant if it is possible so to do, and it is only when it is impossible to do this that the jury may convict. Answer: We answer that point as follows: It is the duty of the jury to carefully analyze and scrutinize the testimony and if that testimony leaves a reasonable doubt of the guilt of the defendant to acquit him. [4]</p> <p>6. When it is impossible for the jury to reconcile the testimony it becomes their duty to determine who tells the truth and in this connection it is proper for them to recall the old maxim of law, “False in one, false in all,” and the rule with regard to its application that if they believe that a witness has willfully and corruptly sworn falsely to a material fact, they are at liberty to disregard his or her testimony entirely. Answer: This is affirmed as a general proposition of law. As applied to this case, however, if it is to be applied to the testimony of Margaret Douglass, who testified that she resisted, you must consider it carefully. If the witness, Margaret Douglass, did all she said she did at the time the occurrence took place, she did not make a very vigorous resistance, but no resistance is necessary to be shown in order to show that a crime was committed. If the defendant had carnal knowledge of her person, even with her consent, he is guilty. Therefore, if you find that she is not telling the exact truth when she says, if she does say, that the carnal knowledge was forcible and against her will, that would not justify you on that account to disregard her testimony. [5]</p> <p>Verdict of guilty, on which the defendant was sentenced to the penitentiary for not more than five years and not less than two years, and pay a fine of $500. Defendant appealed.</p> <p>Errors assigned were (1-5) above instructions, quoting them; and (6) the character of the entire charge.</p>

<p>Divorce — Desertion—Evidence—Separation.</p> <p>1. Where a boy seventeen years old clandestinely marries a servant in his mother’s household and takes her to his mother’s home and subsequently, when the mother discovers the marriage and expresses her indignation, the wife leaves the house without any remark or conduct on her part tending to show that she intended to desert, or permanently separate herself from her husband, and thereafter the husband never offers to provide a place where they could live together, and the whole course of the conduct of the parties shows that the wife was no more responsible than the husband for the separation, the court will not sustain a libel by the husband for divorce on the ground of his wife’s desertion.</p> <p>2. Separation is not desertion. Desertion is an actual abandonment of matrimonial cohabitation, with an intent to desert, willfully and maliciously persisted in without cause for two years.</p> <p>3. The guilty intent to desert is rebutted where the separation is encouraged by the other party or by mutual consent.</p> <p>4. The rule generally applicable to proceedings before a master or an auditor, that a finding of fact will not be disturbed except for manifest error is not applicable in an appeal from a decree granting a divorce. In such a case it is the duty of the appellate court to consider the whole case and review the evidence at length.</p>

Appeal, No. 167, April T., 1912, by plaintiff, from judgment of C. P. Erie Co., Sept. T., 1907, No. 196, for defendant in case tried by the court without a jury in suit of United States Horse Shoe Company v. Erie, Reed Park & Lakeside Railway Company, The Erie City Passenger Railway Company, The Erie Electric Motor Company, and The Buffalo & Lake Erie Traction Co. Ejectment for land in Mill Creek township.

Appeal, No. 78, April T., 1912, by Josephine Bialbloca, from order of C. P. No. 2, Allegheny Co., April T., 1910, No. 164, directing respondent to pay over money In re Petition of Josephine Bialbloca, for rule on I. Leonard Aronson.

Appeal, No. 89, April T., 1912, by defendant, from order of C. P. No. 2, Allegheny Co., April T., 1911, No. 44, discharging rule to set aside execution in case of The Realty Company v. Pasquale Gioshio. Rule to set aside execution. Before Shaper, J. The facts are stated in the opinion of the Superior Court. Error assigned was order discharging rule to set aside execution.

Appeal, No. 166, April T., 1912, by defendant, from judgment of C. P. No. 4, Allegheny Co., Third Term, 1909, on verdict for plaintiff in case of A. R. Jewell v. M. K. Frank. Appeal from judgment of justice of the peace. Before Carnahan, J. Verdict and judgment for plaintiff for $189.28. Defendant appealed. Errors assigned were as follows: 1. That the verdict was against the weight of the evidence. 2. That the verdict was contrary to the law and the evidence in the case. 3.

<p>Appeal No. 101, April T., 1912, by defendant, from judgment of O. and T. and Quarter Sessions, Westmoreland Co., Aug. T., 1911, No. 276, on verdict of guilty in case of Commonwealth v. John E. Shields.</p> <p>Indictment for malefeasance in office in permitting prisoners to escape. Before McConnell, J.</p> <p>From the record it appeared that the defendant was indicted for permitting the escape of certain persons who had been summarily convicted before a justice of the peace for trespassing upon the posted private property of the Penn. Gas Coal Company in violation of the Act of April 14, 1905, P. L. 169. The record showed that the prisoners had been fined $5.00 each and in default of payment had been committed to the county jail for a period of five days.</p> <p>Other facts appear by the opinion.</p> <p>At the trial the defendant presented the following point:</p> <p>1. There can be no conviction of the defendant upon the first count contained in the indictment, it clearly appearing by the testimony of the commonwealth’s witnesses, that the alleged offenders, whom the defendant is charged with having voluntarily permitted or suffered to escape and go at large, were neither convicted nor accused of any crime, the offense of which they were accused and convicted being a mere trespass only. Answer: We have read to you the views of a judge of the Superior Court, that this act of assembly made this offense something else than a mere trespass, as it had been prior to the passage of that act. It made it a public offense — an offense to be prosecuted by and in behalf -of the commonwealth of Pennsylvania as a crime. So that we cannot say to you that there can be no conviction on this count because the offense of which they were accused and convicted was a mere trespass only. It was more than that; it was a public crime, and the conviction was conviction for a public offense. That point is, therefore, refused. [1]</p> <p>The court charged in part as follows:</p> <p>[If it is a criminal case that was conducted before the justice, then there is no dispute in the evidence; there was a conviction, there was a sentence, there was a commitment, and the prisoners were delivered to the custody of the county jail, in the one case to the sheriff personally, who is the keeper of the county jail, and in another case to the jailer, who is a subordinate officer; and in both cases there is evidence that the sheriff voluntarily released the persons so committed — that is, if you believe the evidence of the constable as to the declaration of the sheriff in regard to that matter. There is not much difficulty in the way of the commonwealth showing an escape, if they can show, in a criminal case, that the defendants committed were committed for a definite time, and that they were at large within that time. There is a presumption of negligence from those facts. There is ample evidence also to show that it was more than simply a negligent act, on the part of the officer. It can be shown by evidence that it was a willful act — an intentional act on the part of the keeper of the jail, and there is evidence of that kind.] [5]</p> <p>[The defense that is urged in this case is not one of fact, but one of law, it being alleged that the things tried before the justice were not criminal offenses in which the justice had the right to render summary and final judgment, but that the statute under which he proceeded only authorized a suit before him for a penalty.] [6]</p> <p>[The voluntary permitting and suffering of such prisoners to escape and go at large is the offense described in the first count in this indictment, and is an offense that the evidence in this case sustained.] [7]</p> <p>[In these cases, the prisoners that were committed by the magistrate in both cases were released before the term of their imprisonment had expired. The defendant was the keeper of the jail. Those prisoners were either voluntarily or negligently released. In either case, their release would constitute a criminal offense. The case for which the defendant is being tried is that of voluntarily releasing them, and the evidence introduced by the commonwealth, if believed, would show that the defendant intentionally released the prisoners. If so, that constitutes the offense described in these first counts of the bills of indictment.] [8]</p> <p>[There are two other counts in these bills of indictment,' and the second counts are substantially the same, and as we explained to you, the nature and character of the offense charged is “unlawfully, culpably, negligently, willfully and contemptuously suffering and permitting the prisoners to go at large, without any discharge or release by due process of law. That, as we understand it, is the offense at the common law. They were not discharged nor released by any due process of law. In the one case, the prisoners were committed to the bailiff in charge of the jail, and they were subsequently released, and that not by any process of law, but by arbitrary and contemptuous action on the part of the keeper of the jail. That would be an offense at the common law, such as is described here. But in the other indictment, the prisoners were given over into the personal care of the sheriff himself, along with the commitment accompanying them.] [9]</p> <p>Verdict of guilty, upon which the following sentence was passed:</p> <p>“It is the sentence of the court that you, John E. Shields, here present in open court, at No. 276, August Sessions, 1911, pay a fine of One Dollar to the commonwealth for the use of the county; that you undergo an imprisonment in the Western Penitentiary, situate in the County of Allegheny, by separate or solitary confinement at labor for a period of one year and one calendar month, to be computed from this date; that you be dismissed from your office as Sheriff of Westmoreland County; that you pay the costs of prosecution, and stand committed until this sentence is complied with.”</p> <p>Errors assigned among others were (1, 5-9) above instructions, quoting them, and (10) the sentence of the court.</p>

<p>Negligence — Railroads—Passenger—Defective station.</p> <p>1. In an action against a railroad company by a passenger to recover damages for personal injuries, a verdict and judgment for plaintiff will be sustained where the testimony of the plaintiff shows that she was walking on the platform of a station to take her train for which she had bought a ticket, when a plank gave way causing her injuries; and other testimony in the case although contradicted tended to show that a subsequent examination of the platform disclosed a rotten and broken-down plank where the plaintiff was supposed to have fallen, and that the boards were all worn and rotted by the weather.</p> <p>Railroads — Tickets—Joint ticket — Passengers.</p> <p>2. Where a person purchases a joint excursion ticket from the first of two railroads whose names are printed on the ticket, and it appears that the passenger purchasing the ticket embarked on a train made up of the first company’s locomotive and cars and operated by its employees, and the ticket was signed by its passenger agent, the first company cannot claim that it is not liable for injuries to the passenger resulting from the negligent maintenance of a station on the second company’s line; and this is especially so where it appears that the passenger had no notice that the second line was not under control of the first company, and it also appears that the ticket was for a continuous trip to the destination, and that the first company had advertised a time-table for such continuous trips.</p>

<p>Appeal No. 19, March T., 1912, by defendant, from judgment of C. P. Cumberland Co., Sept. T., 1911, No. 2, on verdict for defendant in case of Amanda Kinert v. David Kapp.</p> <p>■ Appeal from judgment of a justice of the peace.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>At the trial the defendant presented the following points:</p> <p>1. That where one boards in a family consisting of husband and wife, the money due for boarding furnished belongs primarily to the husband. Answer: This is true as an abstract legal proposition. But this would not be so if it is found by a jury that the wife is the owner of the property used in the farming operations; was entitled to all the proceeds, and further that the boarder agreed to pay her personally the amount due by him for his boarding. [7]</p> <p>2. That where one boards in a family consisting of husband and wife, the money for the boarding belongs primarily to the husband, and the wife has no right under the law to bring suit in her name therefor. Answer: This again is true as an abstract legal proposition. But it would not be so if a jury should find that the wife is the owner of the property used in the farming operations, and received and was entitled to all the proceeds, and further, that the boader promised to pay her personally the amount due by him for his boarding. [8]</p> <p>3. Where a contract for boarding is made solely with the husband, the wife has no right of action for boarding furnished by the family. Answer: This is the law if you should so find. [9]</p> <p>4. When an agreement is made by the husband to furnish boarding for another in consideration that the boarder shall work and labor for the husband, and the labor agreed upon is performed by such boarder, no action lies for the boarding furnished. Answer: This would be true, if the facts justified that conclusion. [10]</p> <p>5. Under all the testimony, the verdict should be for the defendant. Answer: Refused. [11]</p> <p>The court charged, inter alia, as follows:</p> <p>It appears that Kapp is the owner of a farm; that the plaintiff came to reside on the same on March 20, 1910, and on the following day he took up his residence with them, and they boarded, washed and lodged him from that time until about the time of this alleged settlement in February, 1911.</p> <p>Mrs. Kinert was called upon the stand, and testified that she is the owner of the property used in the farming operations, and was entitled to and received the proceeds. She states that Kapp remained there evidently without any understanding — at least no testimony is given by her showing any understanding as to her boarding him or the price to be paid, until February 20, 1911. At that time they met, that is, her husband, with her, and Mr. Kapp. They went over their accounts; agreed upon the price at which the board should be fixed, to wit: $15.00 a month, which he then agreed to; that his wages were then fixed; that he was allowed credit for certain provisions and other materials which he furnished the Kinerts in their farming operations, and that when a balance was struck there was $110.14 due to Mrs. Kinert; that he then paid $20.14, and promised he would pay the other $90.00 within a short time, stating he would get the money from some other point. [I should state at that time copies were made of these statements, first, of the amount of credits to which Kapp was entitled, and the amount of debits claimed by Kinert, a balance was struck, and that copies of both of these accounts were given to Kapp, or at least read to him, and Kapp took notes of what credits were allowed, and also of the debits claimed, and that he then, as we said before, promised to pay her the remaining $90.00.] [12]</p> <p>Verdict and judgment for plaintiff for $90.00. Defendant appealed.</p> <p>Errors assigned were (1-6) various rulings on evidence sufficiently set forth in the opinion of the Superior Court; (8-12) above instructions, quoting them; (13) the charge as a whole; and (14) in entering judgment on the verdict.</p>

Appeal, No. 168, April T., 1912, by defendant, from judgment of C. P. Allegheny Co., March T., 1910, No. 51, on verdict for plaintiff in case of Price S. McPherson v. Pittsburg Railways Company. Trespass to recover damages for personal injuries. Before Evans, J. The case turned on the allowance of the payment of interest as compensation for delay. The plaintiff claimed $20,000 damages in his statement.

<p>Practice, C. P, — Judgment for defendant n. o. v. — Reservation of question of law — Appeals—Act of April 28,1905, P. L. 286.</p> <p>Where on an appeal the record does not show that there was a point submitted by the defendants for binding directions, or that a question of law was reserved, the case is hot within the Act of April 22, 1905, P. L. 286, or any other act authorizing the entry of judgment in favor of the defendant non obstante veredicto, but in such a case the appellate court in reversing the judgment cannot direct a judgment on the verdict, if the record fails to show that the defendants’ rule, so far as it related to a new trial had been disposed of.</p>

<p>Appeal, No. 183, April T., 1912, by plaintiff, from judgment of C. P. Allegheny Co., April T., 1912, No. 1,483, for plaintiff on case stated in suit of M. A. Zahloot v. Adams Express Company.</p> <p>Assumpsit to recover the value of a shipment of oriental rugs.</p> <p>Shaper, J., stated the facts to be as follows;</p> <p>The action is assumpsit in which the parties have agreed upon a case stated in the nature of a special verdict, from which it appears that the plaintiff is a dealer in oriental rugs in Pittsburg, and that in September, 1911, he desired to ship certain rugs to a consignee in New York city; that an employee of the defendant came to his place of business for the purpose of receiving the shipment, and received the goods and gave the plaintiff a bill of lading in the ordinary form used by the company, a copy of which is made part of the case stated, writing on it “Value not given.” The charges were to be collected from the consignee. The regular rate of transportation for carrying rugs such as those shipped by the plaintiff was sixty cents if their value was $50.00 and under, and $1.10 if their value was $545, these rates being part-of the schedule filed with the interstate commerce commission in accordance with the statutes of the United States, the plaintiff however having no actual knowledge of the schedule of rates and no knowledge that the express charges were based on the value; and he had before that time shipped rugs by the defendant company, in which case the value was marked on the bill of lading. The bill of lading contains an agreement limiting the liability of the express company to $50.00 for a shipment of 100 pounds or less. It is further agreed that the package was never delivered to the consignee, but through the negligence of defendant was lost in the city of New York, and that the value of the package was $545 and its weight fifteen pounds. It is also agreed that the clause in the bill of lading limiting the liability to $50.00 unless a greater amount is declared is held by the courts of Pennsylvania to be invalid, and on the other hand is valid and enforcible under the laws of the state of New York, and that a tender of $50.00 was duly made to the plaintiff by the defendant. It is then agreed that if the court is of opinion that the plaintiff is entitled to receive the full amount of the value of the rugs, judgment shall be entered in his favor for $545 and costs; if not, judgment shall be entered for $50.00 without costs.</p> <p>The trial judges entered judgment for plaintiff for $50.00 without costs on case stated.</p> <p>Error assigned was in entering judgment for plaintiff on case stated,</p>

<p>Contract — Vendor and, vendee — Covenant—Breach of covenant — Statute of frauds — Partnership.</p> <p>1. In an action of assumpsit against an individual and an administrator for breach of a covenant made, when the plaintiff bought a dwelling house, that a foundry located on adjoining land owned by the defendants should be removed within two years, a verdict and judgment against both defendants will bé sustained where the individual defendant in his testimony admits that the dwelling house in question was built by him and the administrator’s decedent with other houses as a partnership transaction, and it appears that the individual defendant made the oral covenant for the breach of which the suit was brought. Such covenant is not within the statute of frauds.</p> <p>Practice, C. P. — Premature action — Pleading—Plea of abatement.</p> <p>2. Where an action is brought to recover damages for a breach of a covenant to remove a foundry within two years from a lot adjoining a dwelling house bought by the plaintiff from the defendants, the defendants cannot, at the trial, set up as a defense that the suit had been brought prematurely before the expiration of the two years, if it appears that they filed no plea in abatement, but pleaded the general issue, and it also appears from the testimony produced at the trial that they had executed a lease of the foundry, which put it out of their power to comply with the agreement to remove it within two years.</p> <p>Contract — Covenant—Breach of covenant — Damages—Vendor and vendee.</p> <p>3. In an action for a breach of covenant to remove a foundry within two years from a lot adjoining a dwelling house bought by the plaintiff from the defendants, where the case does not come on for trial until after the expiration of the two years and until after the foundry has been in fact removed, the measure of damages is the loss which the plaintiff sustained by reason of the operation of the foundry during the period of the continuance of the breach of the contract. In such a case the jury may take into consideration any physical injury to the property by sulphur fumes, smoke and ashes, as well upon the rental value of the property; but it is error to permit the jury to measure the damages by taking into consideration the difference between the market value of the property with the foundry in operation and with it removed.</p>

<p>Appeal, No. 17, Oct. T., 1911, by defendant, from judgment of C. P. Lancaster Co., June T., 1910, No. 64, on verdict for plaintiff in case of H. J. Weiler v. The Lancaster County Mutual Insurance Company.</p> <p>Assumpsit on a policy of fire insurance. Before Landis, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $924.08. Defendant appealed.</p> <p>Error assigned was in refusing to enter judgment for defendant n. o. v.</p>

<p>Appeal, No. 219, Oct. T., 1910, by defendants, from judgment of C. P. No. 5, Phila. Co., Sept. T., 1908, No. 408, on verdict for plaintiff in case of Pennsylvania Company for Insurance on Lives and Granting Annuities, Trustee under the will of Maria Carlton, deceased, v. The Subcommittee of Management of the Grand United Order of Odd Fellows in America.</p> <p>Assumpsit for use of party wall. Before Martin, P. J.</p> <p>At the trial the court admitted under objection and exception on the part of the defendants the plans and specifications in accordance with which the steel frame buildings of the defendants had been erected.</p> <p>The court charged in part as follows:</p> <p>[In connection with the verbal testimony, including, of course, the depositions which were read to you, the plans are in evidence and you may look at these plans and consider them in connection with the testimony, in arriving at your conclusion as to whether or not the defendants used the wall.] [3]</p> <p>[As has been said to you, the defendants were required to build a wall of a certain thickness; otherwise the building inspectors would not have permitted them to erect the building. One provision was that there should be a certain amount of space beyond these steel columns. Now, if you find from an inspection of the plans — and it is admitted that the building was built according to the plans and specifications — and if you -find from the verbal testimony and the depositions which were read to you, the cross-examination as well as the direct — if you find from all that testimony that as a matter of fact the defendants did make use of the plaintiff’s wall, then the defendants must pay for it.] [4]</p> <p>Defendants presented this point:</p> <p>3. If by reason of the close proximity of the plaintiff’s party wall and the lateral protection afforded thereby, the defendants were enabled to build their wall of less thickness than would be required by the building inspectors if the building stood alone, that did not constitute such a use of the party wall as to make the adjoining owner liable to contribute to the cost thereof, and the verdict should be for the defendants. Answer: Refused. [5]</p> <p>Verdict and judgment for plaintiff for 1323.80. Defendants appealed.</p> <p>Errors assigned were (1) ruling on evidence, quoting the bill of exceptions; (2) refusal of nonsuit; (3-5) above instructions, quoting them.</p>

<p>Appeal, No. 224, Oct. T., 1911, by defendant, from decree of C. P. No. 3, Phila. Co., Dec. T., 1911, No. 4,094, on bill in equity in case of Philadelphia v. Bonwitt, Teller & Company.</p> <p>Bill in equity for an injunction. Before Feeguson, J.</p> <p>The trial judge found, inter alia, the following facts:</p> <p>1. The defendant has erected on the south side of Chestnut street, between the Delaware and Schuylkill rivers, to wit, west of the corner of Thirteenth street, an awning, marquee or canopy, composed of glass and iron, and extending for the distance of seven feet from the building line over the sidewalk, at a height of eight feet four inches, and being eighteen feet six inches in length, which structure was erected without a permit from the bureau of highways, and which is not supported by wrought-iron stretchers or posts, for which no plans and specifications were furnished the bureau of highways, and for which no permit fee was paid the receiver of taxes.</p> <p>2. Supported upon the said structure and fastened thereto is a sign about four feet by seven feet in length and breadth, and about two inches in thickness, extending at right angles from the front wall of the building abutting on Chestnut street, to which wall the said sign is attached by bolts, and between which sign and the said awning, canopy or marquee, there is no necessary or essential connection, the said awning, canopy or marquee not being required for the support of the sign.</p> <p>3. During the progress of the erection of said awning, canopy or marquee the defendant was duly notified by the bureau of highways of the city to desist therefrom.</p> <p>An ordinance of the city of Philadelphia approved March 22, 1900, was in part as follows:</p> <p>“Sec. 1. That it shall and may be lawful for any person or persons to erect and construct or have erected and constructed and maintain iron awnings with metal or glass roof, without wings, over the sidewalks of their premises, the said awnings to be not less than ten feet in the clear head room; no signs to be displayed thereon except the names of the owners or tenants of the premises to which such awning is attached, and the nature of the business conducted therein, and the said awnings to be supported by wrought-iron stretchers and posts: Provided, That no such awnings shall be erected nor constructed without permit from the Chief of the Bureau of Highways.</p> <p>“Sec. 2. The Chief of the Bureau of Highways is authorized, empowered and directed to grant permits for the erection and construction of iron awnings above specified whenever the said awnings do not interfere with the adjoining properties nor injure the properties in the square in which it is proposed to place such awning or awnings: Provided, That the plans and specifications thereof shall be submitted to the Chief of the Bureau of Highways for his approval, and the said permits shall be issued in all cases when the plans and specifications are approved: Provided, further, That nothing in this ordinance contained shall authorize the construction of iron awnings or sheds over the sidewalks in that part of the city, viz.: South side of Chestnut street, from Delaware river to the Schuylkill river, and both sides of Fifteenth street, from Market to Walnut streets, except in front of railroad stations.”</p> <p>The court awarded an injunction restraining the defendant from the continuous maintenance of the awning.</p> <p>Error assigned was the decree of the court.</p>

<p>Poor law — Criminal lunatics — Maintenance—Liability of poor district — Acts of April 14, 1845, P. L. 440, March 87, 1878, P. L. 54, May 8, 1888, P. L. 81, June 85, 1895, P. L. 870, and June 86, 1895, P. L. 888.</p> <p>1. The Act of June 26,1895, P. L. 388, entitled, “An Act to provide for the more immediate relief, care and support of indigent insane persons committed on criminal charges less than felony,” and providing that the insane person shall be maintained at the expense of the’ county from which he is removed “until the proper legal settlement of such insane person can be ascertained and determined,” is to be read in connection with the Act of June 25, 1895, P. L. 270, and earlier acts on the subject prescribing the mode of ascertaining and determining the legal settlement of the pauper and fixing the ultimate liability for his maintenance.</p> <p>2. Under the act of June 26,1895, the removal of an insane criminal to the state hospital with the approval of the court is a “commitment” within the meaning of the Act of June 25, 1895, P. L. 270, and the earlier laws on the subject.</p> <p>3. An order of the court of quarter sessions under the act of June 26, 1895, placing an indigent insane criminal in a state hospital for the insane is not rendered nugatory by the fact that the court appointed two physicians to make an examination of the prisoner and certify as to his condition, and that the approval of the removal was expressed in the technical form of a commitment, so as to comply with the requirements of sec. 29 of the Act of May 8, 1883, P. L. 21.</p> <p>4. An order under the act of June 26, 1895, removing an indigent insane person prior to his trial, to a state hospital for the insane, is not invalid because the proceeding for his removal was initiated by the petition of the district attorney without the apparent participation in it of the county commissioners. In such a case the acquiescence and ratification of the county commissioners will be presumed if they subsequently file a petition to determine the legal settlement of the pauper.</p> <p>5. Under the Acts of April 14,1845, P. L. 440, March 27, 1873, P. L. 54, and June 25,1895, P. L. 270, the court of quarter sessions has power to ascertain and determine the place of legal settlement of an indigent insane person committed to the state hospital for the insane at Danville under the Act of June 26, 1895, P. L. 388. The court of quarter sessions also has power, after having ascertained the poor district in which the insane pauper had a legal settlement, to order such district to reimburse Montour county for the amount expended upon the pauper and to direct and enforce the payment of such an amount. Davidson Township’s App., 68 Pa. 312, followed.</p> <p>Appeals — Interlocutory order — Poor law — Indigent insane criminal.</p> <p>6. It seems that an order of the court of quarter sessions fixing the legal settlement of an indigent insane criminal who has been committed to a state hospital for the insane, and further directing the poor district of the settlement to reimburse the expenditures of Montour county incurred on behalf of the pauper, after the amount thereof has been approved by the court, is an interlocutory order from which an appeal should not be taken.</p>

<p>Appeal, No. 12, March T., 1912, by defendant, from judgment of Q. S. Montour Co., Jan. Sessions, 1910, No. 5, in case of Montour County v. Directors of the Poor of Danville & Mahoning Poor District.</p> <p>Proceedings to compel Danville and Mahoning Poor District to reimburse Montour county for the expenses incurred in supporting William Silcox, a criminal lunatic, in a state hospital for the insane from April-15, 1899, to January 26, 1912. Before Evans, J.</p> <p>The opinion of the Superior Court states the case.</p> <p>The court made the following order:</p> <p>1. And now, April 8, 1911, rule absolute, and it is adjudged and decreed that the place of legal settlement of William Silcox at the time of his commitment ■ to the hospital was in the Danville and Mahoning Poor District.</p> <p>2. And it is further ordered, adjudged and decreed' that the Danville and Mahoning Poor District reimburse the county of Montour for all lawful costs, charges and expenditures incurred on behalf of said Silcox which accrued within six years immediately prior to the filing of the petition in this proceeding. Payment thereof to be made after an itemized memorandum of the same shall have been approved by the court with notice to the respondent poor district.</p> <p>Error assigned was the order of the court.</p>

<p>Appeal, No. 13, March T., 1912, by defendant, from judgment of Q. S. Montour Co., Jan. Sessions, 1910, No. 6, in case of Montour County v. Directors of the Poor of Danville & Mahoning Poor District.</p> <p>Proceedings to determine liability of Danville Mahoning Poor District to reimburse Montour county for expenses incurred in the support of Caroline Pillinger, a criminal lunatic. Before Evans, 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 in petition, answer and agreement of council.</p>

<p>Appeal, No. 9, March T., 1912, by plaintiff, from order of C. P. Susquehanna Co., April Term, 1908, No. 22, refusing to take off nonsuit in case of F. W. Dean v. Delaware, Lackawanna & Western Railroad Company.</p> <p>Appeal from judgment of justice of the peace.</p> <p>The court entered a compulsory nonsuit which it subsequently refused to take off.</p> <p>Errors assigned were in the following form:</p> <p>First. The court erred in overruling plaintiff’s motion to strike off appeal. The motion is as follows:</p> <p>1. There is no appeal on the part of defendant, the Delaware, Lackawanna & Western Railroad Company, or by their agent or attorney.</p> <p>2. The affidavit of appeal is defective, in that it does not set forth that J. H. Oliver, the affiant, is either agent, attorney or executive officer of the company, or that he had any authority to act for the company.</p> <p>3. The affidavit of appeal is defective in that it does not set forth that the appellant or affiant verily believes that injustice has been done, as required by the act of assembly.</p> <p>4. (a) The recognizance of bail for costs is defective in that it does not show that the defendant company, its agent or attorney, joined in the bail.</p> <p>(b) Said bail piece is not drawn to cover all costs that shall hereafter accrue in the case.</p> <p>(c) Said J. H. Oliver is not a member or executive officer of the company, and is not a real estate owner in Susquehanna county.</p> <p>5. The record and transcript filed does not show that any affidavit in writing was filed by or on behalf of defendant at the time the appeal was taken before the justice of the peace. Rule to strike off appeal discharged.</p> <p>Second. The court erred in allowing defendant to amend the appeal and file an affidavit of appeal nunc pro tunc.</p> <p>Third. The court erred in entering judgment of non-suit, viz.:</p> <p>Mr. Oliver: We move for a compulsory nonsuit for the following reasons:</p> <p>1. The plaintiff has shown no breach of contract on the part of the defendant.</p> <p>2. The plaintiff has not shown any loss or damage due to any breach of contract or negligence on the part of the defendant, for which the defendant is answerable in the case. %</p> <p>3. The plaintiff has not shown any loss or damage.</p> <p>Mr. Ainey: We add to our motion for a nonsuit:</p> <p>1. That the plaintiff has failed to establish any overcharge on the part of the defendant company, or any overpayment made by plaintiff to defendant, out of which any liability would rest upon the defendant company.</p> <p>2. Under all the evidence in the case the plaintiff is not entitled to recover.</p> <p>The Court: I am clearly of the opinion that it is the duty of the court, under the evidence, to enter a compulsory nonsuit, and therefore the compulsory nonsuit is granted, as prayed for by the defendant.</p> <p>Fourth. The court erred in refusing to strike off compulsory nonsuit. The entire motion is as follows:</p> <p>1. The court erred in entering compulsory nonsuit in favor of defendant.</p> <p>2. The court erred in rejecting evidence offered by plaintiff, and in refusing to allow the plaintiff to testify as to his knowledge of and payment of freight charges and of loss and damage on goods shipped.</p> <p>3. The court erred in not entering judgment for plaintiff under the evidence admitted and proven.</p> <p>Motion denied.</p> <p>Fifth. The court erred in not sustaining plaintiff’s third reason for striking off nonsuit, viz.:</p> <p>3. The court erred in not entering judgment for plaintiff under the evidence admitted and proven.</p>

<p>Malicious prosecution — Debtor and creditor — Probable cause — Malice.</p> <p>1. In an action for malicious prosecution, a verdict and judgment for the plaintiff will be sustained where a constable testifies that he was instructed by the defendant to arrest the plaintiff on a warrant charging the latter with obtaining goods by false representations, but that if the plaintiff paid the amount of the debt which defendant claimed the constable was “to let it go at that.”</p> <p>2. Where one commences a criminal prosecution for the purpose of compelling his debtor to pay a just debt, it is prima facie evidence of want of probable cause and malice, and shifts the burden of showing it was not so on to the defendant.</p> <p>Practice, C. P — Judgment n. o. ¶. — Appeals—Review—Act of April 22, 1905, P. L. 286.</p> <p>3. In determining as to the correctness of a judgment n. o. v. under the Act of April 22, 1905, P. L. 286, the test is whether binding directions for the defendant would have been proper at the conclusion of the trial. In applying the test the plaintiff must be given the benefit of every fact and inference of fact pertinent to the issue, which the jury could legitimately find from the evidence before them.</p>

<p>Appeal, No. 1,163, March T., 1912, by defendant, from order of C. P. Lackawanna Co., March T., 1908, No. 1,163, dismissing exceptions to report of referee in case of M. Finkelstein & Sons v. Harry Spatt.</p> <p>Exceptions to report of C. B. Gardner, Esq., referee. Before O’Neill, J.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was in dismissing exceptions to report of referee.</p>

Appeal, No. 10, March Term, 1912, by defendant, from judgment of C. P. York Co., Jan T., 1909, No. 42, on verdict for plaintiff in case of John E. Chronister and Myrtle L. Chronister, parents of John Elden Chronister, a minor, now deceased, v. York Railways Company. Trespass to recover damages for personal injuries.

<p>Appeal, No. 35, March T., 1912, by plaintiff, from decree of C. P. Lackawanna Co., Jan. Term, 1910, No. 5, dismissing bill in equity in case of Frank Hollenback v. A. E. Tiffany.</p> <p>Bill in equity for an injunction to restrain the maintenance of a fence. Before Edwards, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was the decree of the court dismissing the bill.</p>

<p>Common carriers — Contract—Limitation of the amount of liability— Negligence — Conflict of laws.</p> <p>1. Where a contract of a common carrier containing a stipulation limiting liability for negligence is made in one state, but with a view to its performance by transportation through or into one or more other states, the contract is to be construed in accordance with the law of the state where an injury, arising from negligence, occurs.</p> <p>2. Where a shipping contract for a horse executed in Ohio, limits the liability of the carrier to an amount stated, and the horse is killed in the state of West Virginia, through the negligence of the carrier, which was not gross, wanton or willful, the contract will be construed in accordance with the law of West Virginia, where such a limitation is valid provided the negligence which causes the loss be not gross, wanton or willful.</p> <p>3. A common carrier cannot be charged with gross, wanton or willful negligence in transporting a horse in a car the door of which was insecurely fastened, where it appears that the agent of the carrier endeavored to make the door secure by driving three twenty penny nails about halfway into it and bending them over, and that he did this in the presence of the owner of the horse, without objection on the latter’s part to this method of fastening.</p> <p>4. Where a carrier schedules a minimum rate for horses not exceeding $100 in value, and a shipper values a horse at $100, and the rate of transportation is fixed accordingly, the carrier cannot after the horse has been lost, and the shipper has sued for an amount in excess of that stated in the contract, claim that the shipper was not entitled to recover anything because of his undervaluation of the horse. In such a case the courts will construe the liability of the carrier according to the agreed value of the property.</p>

Appeal, No. 277, Oct. T., 1910, by plaintiff, from decree of C. P. Clearfield Co., Dec. T., 1906, No. 1, on bill in equity in case of S. C. Bond v. Cordie H. Barrett. Bill in equity for an injunction.

Appeal, No. 216, Oct. T., 1911, by plaintiff, from judgment of C. P. Carbon Co., April T., 1911, No. 13, for defendant on case stated in suit of R. W. Taylor, trading as Luzerne Engineering Company, v. Middle Coal Field Poor District. Case stated to determine liability on a contract.

Appeal, No. 14, Oct. T., 1911, by defendant, from judgment of C. P. No. 5, Phila. Co., March T., 1908, No. 4,944, on verdict for plaintiff in case of Bertha M. Zercher v. Philadelphia Rapid Transit Company. Trespass to recover damages for personal injuries. Before Ralston, J. The facts are stated in the opinion of the Superior Court. Verdict for plaintiff for $1,400, upon which, judgment was entered for $1,000, all above that amount having been remitted. Defendant appealed.

Appeal, No. 15, March T., 1912, by defendant, from judgment of C. P. Lackawanna Co., Nov. T., 1907, No. 641, on verdict for plaintiff in case of Mary E. Jifkins v. Eugene Schimpff. Assumpsit to recover back money had and received. Before O’Neill, J. At the trial it appeared that plaintiff claimed the sum of $1,000 which he had paid for ten shares of the stock of a corporation capitalized at $10,000, but which shares he had never received.

<p>Railroads — Eminent domain — Acquisition to title of right of way.</p> <p>1. The right of way of a railroad company may be acquired through the exercise of the right of eminent domain, although no proceeding has been resorted to in the court of common pleas for the purpose of ascertaining the damages caused by the taking or injury to the property. If after the location of the right of way by appropriate action of the directors upon the preliminary surveys of the engineers, the company and the owner of the land agree as to the damages, and the company pays such damages, an absolute title to the right way of vests in the railroad company, and it is not necessary that the agreement and the payment of the money shall be evidenced by a deed duly recorded.</p> <p>2. Where a railroad company locates its right of way over the lands of an intestate decedent, and the administrator of the decedent authorized under the Act of April 2, 1853, P. L. 285, to sell the real estate with the assent of the widow and guardian of the minor children of the decedent, files a petition in the orphans’ court asking leave to settle with the railroad for a right of way sixty feet wide for a sum stated, and such leave is granted by the court, and it appears from the subsequent records of the court that the money was actually paid to the administrator by the company, receipted for by him with an agreement to execute a release to the company, and that the money was subsequently distributed to the parties in interest, the company has acquired an absolute title to the right of way; and a person who has acquired title through mesne conveyances to the lands of the decedent cannot, fifty years thereafter, assert a title to a portion of the right of way because there is no evidence that the administrator ever actually executed a release to the railroad company for the right of way.</p> <p>3. In such a case where it appears that the company maintained upon the right of way thus acquired one or more railroad tracks, it has done all that was necessary to assert its right to the entire width of sixty feet. It is not bound to cover its entire right of way with tracks, and its failure to do so does not expose it to the danger of losing a part of its right of way because of mere nonuser. It has the right to provide within the limits prescribed by law for future needs. An intruder cannot by any length of adverse use acquire a title as against the public right, for the railroad is by statute, a public highway.</p> <p>4. An agreement by which a railroad company gives a coal company the right to use certain side tracks without excluding the railroad company from the use of such tracks, does not constitute an abandonment by the railroad company of a part of its right of way for railroad purposes.</p>

Appeal, No. 24, March T., 1912, by defendant, from judgment of Q. S. Luzerne Co., Nov. T., 1911, No. 235, on verdict of guilty in case of Commonwealth v. Edward Degnan et al. Indictment for violation of the primary election laws. The opinion of the Superior Court states the case. Error assigned among others was in refusing to grant the indictment.

Appeal, No. 30, March T., 1912, by defendant, from order of C. P. Lackawanna Co., No. 3,991, of Mechanics’ Liens, 1909, refusing amendment of mechanic’s lien in case of Patrick F. May, Assigned to Stephen S. Spruks, v. Mary Mora. Petition to amend mechanic’s lien.

Appeal, No. 25, March T., 1912, by defendant, from order of Q. S. Mifflin Co., Oct. Sessions, No. 15, affirming summary conviction in case of Commonwealth v. William Moller. Appeal from summary conviction.

Appeal, No. 236, Oct. T., 1911, by J. P. Lewis Company, from order of C. P. No. 1, Pbila. Co., Dec. T., 1910, No. 5,087, discharging rule for citation in Estate of Guy R. Bulifant, trading as Milkmen’s Supply Company. Rule for citation. Before Magill, J. The opinion of the Superior Court states the case. Error assigned was the order of the court discharging rule and dismissing petition.

Appeal, No. 79, April T., 1912, by plaintiff, from order of C. P. Erie Co., Nov. T., 1907, No. 181, refusing to take off nonsuit in case of City of Erie v. C. J. Englehart et al. Assumpsit on a bond. Before Walling, P. J. The facts are stated in the opinion of the Superior Court. Error assigned was refusal to take off nonsuit.

Appeal, No. 7, April T., 19Í2, by defendant, from order of C. P. No. 2, Allegheny Co., Oct. T., 1910, No. 847, making absolute rule for judgment for want of a sufficient affidavit of defense in case of C. N. Reed et al. v. Philadelphia Life Insurance Company. Assumpsit to recover back premiums paid for life insurance. The facts are stated in the opinion of the Superior Court.

Appeal, No. 32, April T., 1912, by defendant, from order of C. P. No. 3, Allegheny Co., May T., 1911, No. 137, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Kelly-Wood Real Estate Company v. S. H. Lloyd. Assumpsit on a promissory note.

Appeal, No. 4, April T., 1912, by defendant, from judgment of C. P. No. 3, Allegheny Co., Feb. T., 1908, No. 471, on verdict for plaintiff in case of C. EL Hardy Auto Company, for use of Harry Thomas v. C. W. Posey. Replevin to recover an automobile.

Appeal, No. 1, Feb. T., 1912, by plaintiff, from judgment of C. P. Clinton Co., July T., 1910, No. 124, for defendant in case of Commonwealth to use of Joseph B. Strunk v. Empire State Surety Company. Assumpsit on a bond.

<p>Appeal, No. 22, March T., 1912, by Thomas Williams, from decree of O. C. Lackawanna Co., No. 63, Year 1910, dismissing exceptions to executor’s account in Estate of Elizabeth. Lewis, deceased.</p> <p>Exceptions to executor’s account.</p> <p>The opinion of the Superior Court states the facts.</p> <p>Error assigned was in dismissing the exceptions.</p>

<p>Appeal, No. 7, Feb. T., 1912, by plaintiffs, from judgment of C. P. Lycoming Co., March T., 1909, No. 164, on verdict for defendant in case of Josephine Whitney et al. v. Joseph W. Welshans.</p> <p>Trespass to recover damages for the maintenance of a house in a dedicated but unopened street. Before Hart, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for defendant. Plaintiffs appealed.</p>

<p>Appeal, No. 18, March T., 1912, by defendant, from judgment of C. P. Montour Co., Jan. T., 1908, No. 38, on verdict for plaintiff in case of Sophie G. Eckman v. Lehigh & Wilkes-Barre Coal Company.</p> <p>Trespass to recover damages for injuries to land. Before Evans, P. J.</p> <p>The opinion of the Superior Court states the facts.</p> <p>. Verdict and judgment for plaintiff for $1,417.11.</p> <p>Errors assigned were (1) refusal of binding instructions for defendant; (2) refusal of defendant’s motion for judgment n. o. v.</p>

<p>Vendor and, vendee — Case stated — Res adjudicata — Hand money.</p> <p>1. Where a vendor brings an action of assumpsit against the vendee to recover a balance of purchase money of land, and the vendee defends on the ground that the vendor was unable to convey a marketable title, a judgment for the vendee is res adjudicata as to the non-marketable title of the real estate in a later action brought by the vendee to recover the hand money which he had paid to the vendor; and in such a case it is immaterial that the judgment in the earlier case was based upon a case stated; but the earlier case is not conclusive as to the vendee’s right to recover the hand money, where there is nothing to show that in making up the ease stated any provision had been made or agreed upon for the entry of a judgment for any sum in favor of the vendee.</p> <p>2. Whatever is not distinctly and expressly agreed upon in a case stated will be taken not to exist, and it is error to base a judgment on facts not set forth in the case stated.</p>

<p>Equity — Jurisdiction—Discovery in aid of action at law.</p> <p>1. Discovery in aid of a suit or defense at law is much favored in equity. It is important to the just- determination of issues, that all material facts should be submitted to the consideration of the tribunal which is ultimately to pass upon the case. Where a party appeals to the conscience of his opponent to discover facts lying within his knowledge, it must be some strong equity, or stringent rule of policy that should form a bar to the discovery.</p> <p>2. It is not competent for the defendant in a bill of discovery in aid of an issue at law, to deny the truth of the principal fact upon which is based the plaintiff’s right to recover, and to decline answering as to matters which tend to prove the truth of the fact so denied; he must make discovery as to all matters which tend to prove the plaintiff’s case in the issue at law.</p> <p>3. The remedy of a bill in equity for discovery in aid of a suit or defense at law has not been displaced by the Act of February 27, 1798, 3 Sm. L. 303, which gives to the common-law courts a power to compel by rule the production on the trial of books, papers, documents, etc.</p>

<p>Contract — Purchase of stock of goods — Agreement to pay debts — Statute of frauds — Act of April 86,1855, P. L. 808.</p> <p>1. When one buys out the stock of a tradesman and agrees, as the consideration for the purchase, to take the place, fill the contracts, and pay the debts of the vendor, a creditor of the vendor has a right of action to compel payment in accordance with the terms of the agreement; in such a case the Act of April 26, 1855, P. L. 308, requiring an agreement to answer for the debt or default of another to be in writing, has no application.</p> <p>2. In an action by a creditor of a corporation against the president of the corporation to compel him individually to pay the debts of the company, the case is for the jury, and a verdict and judgment for plaintiff will be sustained where the testimony of two witnesses for the plaintiff although contradicted, tends to show declarations by the defendant to the effect that he had bought the whole stock of goods of the company in consideration of an agreement on his part to pay all of the company’s debts.</p>

Appeal, No. 62, April T., 1912, by Martha Dixon, from decree of O. C. Fayette Co., Dec. T., 1910, No. 57, dismissing exceptions to adjudication in Estate of Elias Hatfield, deceased. Exceptions to adjudication.

<p>Husband and wife — Estate by entireties — Divorce.</p> <p>A husband cannot maintain an action of assumpsit against his divorced wife for rents and profits, accruing after divorce, of real estate and personalty acquired during coverture and held by them as tenants by entireties. An absolute divorce does not change the nature of such an estate.</p>

<p>Deceit — Fraud—Contract to sell real estate — Tying up valuable property — Case for jury — -Damages—Exemplary damages.</p> <p>1. In an action of trespass for deceit the case is for the jury, and a verdict and judgment for plaintiff will be sustained, where there is evidence from which the jury can find that the defendant’s conduct was deceitful and fraudulent, that he thereby secured a contract from plaintiff tying up valuable real estate for a considerable time, and that he subjected the plaintiff to annoyance, anxiety and considerable expense by holding the contract and refusing to surrender it while he well knew that he and his associates had obtained it by fraud and deceit.</p> <p>2. In such a case the jury may award an amount sufficient to compensate the plaintiff in a reasonable measure for his trouble, vexation and annoyance, with an added amount by way of punishment to the defendant.</p>

<p>Banks and banking — Negligence—Fraud of agent — Collecting moneys from foreign lands.</p> <p>Where a bank, in order to secure the patronage of a foreign non-English speaking people in the community, establishes a department in charge of an employee who is able to converse with such people in their own language, and who is authorized by the bank to collect moneys from foreign lands, the bank will be liable to a man and wife who turned over to the head of this department the evidence of their ownership of a fund in a foreign bank, if it appears that the fund in question was actually paid over by the foreign bank to the bank in question, and that the employee of the latter, through his position, and his ability alone to talk with the owners of the money, and through fraudulent combination with a confederate, secured the payment of the money to himself, and embezzled it.</p>

<p>Negligence — Street railways — Passenger—Presumption—Evidence.</p> <p>1. In an action against a street railway company to recover damages for personal injuries plaintiff charged in his statement of claim that while in the act of boarding a car he received a shock of electricity from the step or handles of the car, and that such shock broke his leg. At the trial he offered no evidence whatever showing or tending to show that the car was out of order or defective, except the evidence that he placed his foot upon the step of the car and felt a shock of electricity and found that his leg was broken. Evidence for the defendant tended to show that other persons used the steps at the time and were not injured, that the car was examined immediately after the accident and found not to be charged with electricity, and that no accident happened to the ear at the time. There was also evidence that the plaintiff and his family were afflicted with what is known as “brittle bone” and had suffered frequently from broken bones. Held, (1) that no presumption of negligence arose against the company arising out of the injury to the plaintiff; and (2) that the defendant was only required to satisfy the jury that it was not guilty of negligence which caused the injury.</p> <p>2. In such a case it is improper to admit in evidence the testimony of a witness for the plaintiff as to a somewhat similar accident which had happened on another car twelve years prior to the accident to the plaintiff. Such evidence is entirely too remote to prove or tend to prove that the car on which the plaintiff was injured was defective.</p>

P. No. 4, Phila. Co., March T., 1911, No. 5,291, granting a charter to a corporation of the first class. From the record it appeared that the appellee filed with the prothonotary of the Superior Court an objection to the jurisdiction of the court in accordance with sec. 11 of the Act of May 5,1899, P. L. 248.

Appeal, No. 26, April T., 1912, by plaintiff, from judgment of C. P. Westmoreland Co., Nov. T., 1909, No. 412, on verdict for defendant in case of American Soda Fountain Company v. C. W. Stenger and Thomas Flynn. Replevin for a soda water fountain. Before Doty, P. J. Verdict and judgment for defendant for $500. Plaintiff appealed. Error assigned was in refusing binding instructions for plaintiff.

<p>Appeal, No. 49, April T., 1912, by defendant, from judgment of C. P. Allegheny Co., Feb. T., 1907, No. 219, on verdict for plaintiff in case of W. J. Smith, Executor of the estate of Robert M. Kennedy, deceased, v. Zedill Timmons, with notice to Lizzie A. Marsh et al., heirs of Sarah Colbert, deceased, terre-tenants, Colonial Trust Co. Guardian ad litem.</p> <p>Scire facias sur mortgage. Before Kennedy, P. J.</p> <p>The opinion of the Superior Court states the case.</p> <p>Verdict and judgment for plaintiff for $805.61. ' Defendant appealed.</p> <p>Error assigned was in giving binding instructions for plaintiff.</p>

Appeal, No. 87, Oet. T., 1911, by defendants, from judgment of C. P. Schuylkill Co., Sept. T., 1909, No. 279, on verdict for plaintiff in case of The Elm City Lumber Company v. David E. Haupt et ah, doing business under the firm name of D. F. Haupt. Before Rice, P. J., Henderson, Morrison, Head, Beaver and Porter, JJ. Assumpsit upon a book account.

<p>Appeal, No. 39, March T., 1912, by defendant, from order of C. P. Luzerne Co., Feb. T., 1912, No. 373, refusing to quash appeal in case of Jonathan R. Davis, President of the Board for Assessment and Revision of Taxes for Luzerne County, v. J. J. Moore et al., Commissioners of Luzerne County, and Fuller R. Hendershot, Controller of Luzerne County, Members of the Salary Board of Luzerne County.</p> <p>Motion to quash appeal from decision of salary board. Before Fuller, P. J.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was the order of the court refusing to quash the appeal.</p>

<p>Waters — Diversion of waters — Water company — Trespass—Eminent domain.</p> <p>An owner of a gristmill may maintain an action of trespass against a water company to recover damages for the impairment of the water supply to the mill, where it appears that the diversion of the water occurred only during four months of the year, was not a diversion of all of the water, and not of a permanent character, and that the defendant had instituted no proceedings to condemn the water. In such a ease the fact that the defendant laid its pipes before the plaintiff acquired title does not defeat plaintiffs right of action.</p>

<p>Negligence — Master and servant — Obedience to orders — Contributory negligence — Act of June 10, 1907, P. L. 528.</p> <p>1. An employee is not required to set up his own judgment against an employer or a foreman having charge of the particular work. Even where he may question the safety of the undertaking, he may rely on the advice of his superior and is justified in acting on the order of the latter. Where the act to be performed is not imminently dangerous the workman’s dependent position permits him to follow the positive orders given him by the person in charge of the work even where there are conditions of peril.</p> <p>2. In an action by an employee against his employer to recover damages for personal injuries the question of the defendant’s negligence and plaintiff’s contributory negligence is for the jury, where the evidence tends to show that the plaintiff was injured while engaged in setting a molding machine in place; that plaintiff was a,carpenter unfamiliar with the machine; that he was ordered to help in moving the machine by defendant’s foreman who had entire charge of this particular work; that the foreman raised the cap or head of the mar chine about eighteen inches or two feet, and afterwards ordered the plaintiff to go between the machine and the wall in a space eighteen inches or two feet wide and spring the machine over a fraction of an inch with a crowbar; that plaintiff while engaged in the work supported himself with his right hand on the machine; and while he was in this position the cap which had not been securely fastened dropped on his hand and injured it. Such case is within the terms of the Act of June 10, 1907, P. L. 523, making an employer liable for the negligence of any person in charge of or directing the particular work in which an employee was engaged at the time of the injury.</p>

<p>Banks and banking — Checks—Forged checks — Statutes—Repeal—Acis of April 5,1849, P. L- 4®4, awd dFLay 16,1901, P. L. 194-</p> <p>The Act of April 5,1849, P. L. 424, which gives to a bank or anyone who has paid a forged check the right to recover the money from the person to whom it has been paid if prompt notice is given, is not repealed either expressly by the Act of May 16, 1901, P. L. 194, or by implication by sec. 62 of the act of 1901, which provides that the acceptor by accepting the instrument, engages that he will pay according to the tenor of his acceptance. The mere payment of the forged check is not an acceptance within the meaning of sec. 62, inasmuch as see. 132 of the act states that an acceptance within the meaning of the statute is an acceptance in writing.</p>

<p>Appeal, No. 53, April T., 1912, by defendant, from judgment of C. P. No. 2, Allegheny Co., Jan. T., 1906, No. 1,183, on verdict for plaintiff in case of John F. Moore v. Frank Russo.</p> <p>Assumpsit on a building contract. Before Frazer, P. J.</p> <p>The opinion of the Superior Court states the case.</p> <p>The defendant presented the following points:</p> <p>1. There being a material variance between the allegata and probata the verdict should be for the defendant. Answer: Refused. [1]</p> <p>2. That under all the evidence and pleadings in the case, the verdict should be for the defendant. Answer: Refused. [2]</p> <p>Verdict and judgment for plaintiff for $648.50.</p> <p>Errors assigned were (1, 2) above instructions, quoting them.</p>

<p>Road law — Paving—Borough streets — Petition of property owners — Act of April 88, 1889, P. L. J,Jh</p> <p>1. Under the Act of April 23, 1889, P. L. 44, relating to the paving of borough streets, the consent of the owners must be evidenced by the petition of two-thirds of the persons to be taxed who also own two-thirds in number of feet of the property fronting or abutting on the street. If any of the signers are parties, and at the same time acting as agents for other persons who are parties, such agency must be disclosed on the face of the paper; it.cannot be shown by parol evidence.</p> <p>2. Where a lot is owned by several tenants in common the signature of only one of the tenants in common, will in itself not establish the consent of the other tenants in common. The petition itself must show that the one who signed, did so not only for himself, but as agent of his cotenants.</p>

<p>Negligence — Street railway — Automobile—Collision between car and machine — Contributory negligence.</p> <p>1. In an action against an electric street railway company to recover damages for personal injuries sustained in a right angle collision between one of defendant’s cars and an automobile which the plaintiff was driving, no recovery can be had where the evidence shows that the accident happened on a dark night; that the electric lights within the car and the headlight in front were burning; that the side windows of the car were open; that the ear made considerable noise; that the plaintiff had seen the headlight a few seconds before the accident at two different points but had not stopped; and that when the automobile was crossing, it bore so much to the right that the right hand wheels ran off the planks at the crossing.</p> <p>2. In such a case it was the duty of the plaintiff to stop, look and listen when he reached the crossing, and having failed to do so he was guilty of contributory negligence. The fact that the car was running at the time from twenty-five to thirty miles an hour is immaterial, and does not relieve the plaintiff of the charge of contributory negligence.</p>

<p>Appeal, No. 14, April T., 1912, by defendant, from judgment of C. P. Westmoreland Co., Nov. T., 1909, No. 582, on verdict for plaintiff in case of J. H. Farquhar v. Webster, Monessen, Bellevernon & Fayette City Street Railway Company.</p> <p>Trespass to recover damages for death of plaintiff’s wife and injuries to his children. Before Doty, P. J.</p> <p>■ The facts appear by the opinion of the Superior Court, and by the report of Odbert v. Webster, Monessen, Bellevemon & Fayette City Street Railway Company, ante, p. 525.</p> <p>The court refused binding instructions for defendant.</p> <p>Verdict and judgment for plaintiff for $1,437.57. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for defendant.</p>

<p>Negligence — Boroughs—Defective sidewalk — Contributory negligence.</p> <p>In an action by a woman against a borough to recover damages for personal injuries sustained by a fall on an alleged defective sidewalk, a verdict and judgment for plaintiff cannot be sustained, where the evidence shows that several weeks before the accident a section of a boardwalk which covered the sidewalk had been removed; that the plaintiff had been over the place five times before; that the accident happened in broad daylight on a sunshiny afternoon; that plaintiff’s view was unobstructed; that on the morning of the accident the ice and snow which had previously covered the ground had thawed, rendering the ground slippery; but that the place was not essentially and continuously dangerous. In such a case, the plaintiff’s contributory negligence prevents her recovery.</p>

<p>Appeal, No. 1, Oct. T., 1911, by defendant, from judgment of C. P. No. 1, Pbila. Co., June T., 1907, No. 3,503, on verdict for plaintiff in case of Mary Jane Robinson v. Michael J. Heverin.</p> <p>Trespass to recover damages for personal injuries. Before Brégy, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for the plaintiff for $350. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for the defendant.</p>

<p>Appeal, No. 148, April T., 1912, by plaintiff, from judgment of C. P. Indiana Co., June T., 1910, No. 366, for defendants non obstante veredicto in case of McCrum-Howell Company v. Edward Empfield and Indiana Real Estate and Investment Company, owners or reputed owners, and Pennsylvania Supply Company, contractor.</p> <p>Scire facias sur mechanic’s lien. Before Teleord, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>At the trial the jury returned a verdict for plaintiff for $1,489.51. On motion the court entered judgment for defendants non obstante veredicto.</p> <p>Error assigned was in entering judgment for defendants non obstante veredicto.</p>

<p>Contracts — Construction—Course of dealing — Acfs of parties — Ambiguous terms — Abrogation.</p> <p>1. In the ease of an executory contract the practical interpretation of it by the parties is entitled to great if not controlling influence in its construction by the courts; but it would be an unwarrantable expansion of this principle to imply from acts of the parties an irrevocable abrogation or alteration of an unambiguous term in a contract unless those acts clearly show that the parties intended such irrevocable abrogation or alteration, or they furnish ground for equitable estoppel.</p> <p>Contract — Sale—Delivery—Passing of title — Marking logs.</p> <p>2. As between seller and buyer there may be such delivery as will vest the property in the latter though by the terms of the contract there may be something to be done afterwards to ascertain the exact quantity to be paid for at the price fixed by the contract.</p> <p>3. The actual delivery to the vendee or his agent which puts an end to the transitas or state of passage may be at the vendee’s own warehouse, or at a place which he uses as his own though belonging to another, for the deposit of goods, .or at a place where he means the goods to remain until a fresh destination is communicated to them by orders from himself.</p> <p>4. Where goods are sold and delivered to be paid for on the happening of a certain event, the vendor will not be deprived of his right to recover merely because the event on which payment is to be made has, by accident, become impossible. Upon the same principle when the quantity is to be ascertained by measurement at a particular time or place, or in a particular manner, if such measurement becomes impossible, nevertheless the quantity may be ascertained in some other manner.</p> <p>5. In an action to recover for logs alleged to have been sold and delivered it appeared that there was a written agreement by which the plaintiffs agreed to sell to the defendant, and the latter agreed to buy at a certain rate per 1,000 feet all of the logs on certain lands which the plaintiffs “may see fit to deliver” to a certain railroad named. Settlements were to be made on the first of the month for the logs delivered the previous month. The logs were to be scaled by two men appointed by the plaintiffs and one appointed by the defendant, or if defendant failed to send a scaler, plaintiffs were to scale and mark the number of feet, on the end of each log as scaled, and make due report thereof to defendant. The defendant never furnished a scaler. Certain of the logs were duly scaled by plaintiffs, and it appeared that either the defendant or defendant’s agent then loaded them on the cars, and these logs were paid for. Certain other logs, however, which were delivered at the railroad by the plaintiffs were burned before they were scaled and marked. Held (1) that title to the logs passed from the plaintiffs to the defendant when they were delivered at the railroad, and that the fact that they had not been scaled and marked at the time of the fire was immaterial as affecting the question of title; (2) that the course of dealing of the parties as to logs previously paid for did not warrant an inference that the parties interpreted the unambiguous terms of the contract to mean delivery on board the cars and shipped.</p>

<p>Slander — Innuendo—Meaning of words — Evidence—Case for jury— Damages — Special damages.</p> <p>1. In an action for slander plaintiff charged that defendant uttered these defamatory words: '“H. buys and sells No. 2 hams,’ thereby meaning and intending to charge that the said H. sold hams that were inferior in quality, sour and unfit to eat, unmarketable, and which have to be sold contrary to the meat inspection law; and the said term No. 2 hams is generally so understood among the trade.” The evidence as to the meaning attributed to No. 2 hams by the innuendo was conflicting. Held, that the question of the meaning of the word was for the jury.</p> <p>2. In such a case where it is alleged that the words were spoken of one engaged in the meat business, and in the hearing of a dealer in meats, it is peculiarly for the jury to determine if they had the meaning peculiar to the meat trade ascribed to them in the innuendo.</p> <p>3. Parol evidence is always receivable to define and explain words which are purely technical and local, that is, which are not of universal use, but are familiarly known and employed either in a particular district, or in a particular science or trade, among those who use them.</p> <p>4. Where words are spoken with special reference to a particular trade or business, and charge an indictable offense involving moral turpitude, and punishable by fine and imprisonment, the averment of special damage is not essential to the maintenance of the action, and the recovery of general damages.</p>

Appeal, No. 33, April T., 1912, by plaintiff, from order of C. P. No. 4, Allegheny Co., Second Term, 1911, No. 69, discharging rule for judgment for want of a sufficient affidavit of defense in case of Commonwealth to use of Retta Foltz. Assumpsit on a bond. Rule for judgment for want of a sufficient affidavit of defense. The opinion of the Superior Court states the facts. Error assigned was order discharging rule for judgment for want of a sufficient affidavit of defense.

Appeal, No. 12, April T., 1912, by defendant, from judgment of C. P. Westmoreland Co., Feb. T., 1910, No. 402, on verdict for plaintiff in case of Arthur Renney v. Webster, Monessen, Bellevernon & Fayette City Street Railway Company. Trespass to recover damages for personal injuries. Before Doty, P. J. At the trial it appeared that the plaintiff was injured on August 15,1908, while riding as a passenger on one of defendant’s cars between Monessen and Bellevernon.

Appeal, No. 22, April T., 1912, by defendant, from judgment of C. P. No. 3, Allegheny Co., Aug. T., 1904, No. 114, on verdict for plaintiff in case of G. W. Stewart and Elizabeth Stewart v. Pitts-burg, Cincinnati, Chicago & St. Louis Railway Company. Trespass to recover damages for personal injuries. Before Evans, J. At the trial it appeared that plaintiff was injured on May 12, 1902, while drawing water from a pump in her own house.

Appeal, No. 111, April T., 1912, by defendant, from judgment of C. P. No. 3, Allegheny Co., Aug. T., 1908, No. 484, on verdict for plaintiff in case of Frederick Ley and Violet Ley, his wife, v. D. F. Henry. Trespass to recover damages for personal injuries to a married woman. Before Kennedy, P. J. At the trial it appeared that plaintiff was injured on September 27, 1907, on tbe Sixth street bridge in Pitts-burg, by an automobile which ran her down.

Appeal, No. 16, March T., 1912, by defendant, from judgment of C. P. York Co., Oct. T., 1909, No. 20, on verdict for plaintiff in case of John W. Spahr v. York Railways Company. Trespass to recover damages to a horse and wagon. Before Bittenger, P. J. The facts relating to the accident are stated in the opinion of the Superior Court. Verdict and judgment for plaintiff for $500. Defendant appealed. Error assigned among others was in refusing binding instructions for defendant.

Appeal, No. 158, April T., 1912, by defendant, from judgment of C. P. No. 4, Allegheny Co., Fourth Term, 1907, No. 416, on verdict for plaintiff in case of R. H. Cunningham v. Pennsylvania Railroad Company. Assumpsit for the value of a car of cement. Before Carnahan, J. The facts are stated in the opinion of the Superior Court, and in the report of the case in 40 Pa. Superior Ct. 212. Verdict and judgment for plaintiff for $275. Defendant appealed.

Appeal, No. 118, April T., 1912, by G. G. Stage, Executor, from decree of O. C. Mercer ■ Co., April T., 1910, No. 10, sustaining exceptions to auditor’s report in Estate of A. L. Wick, deceased. Exceptions to auditor’s report. The case on its merits turned on the question of fact. Error assigned was the decree of the court.

Appeal, No. 61, April T., 1912, by defendant, from judgment of C. P. Allegheny Co., Feb. T., 1909, No. 546, on verdict for plaintiff in case of C. C. Hunter et al., doing business as Happy Medium Card Company, v. Challinor-Dunker Company. Appeal from judgment of a justice of the peace. Before Kennedy, P. J. The opinion of the Superior Court states the case. The court gave binding instructions for plaintiff. Verdict and judgment for plaintiff for $92.09. Defendant appealed.

Appeal, No. 63, April T., 1912, by Robert F. Clever, from order of Q. S. Allegheny Co., Feb. T., 1910, No. 1, dismissing exceptions to report of viewers in re Petition for Public Road in the Township of Kennedy. Exceptions to report of viewers. ■ The material exceptions were as follows: 1. The petition does not give the termini of the road prayed for according to law. 6.

Appeal, No. 66, April T., 1912, by exceptants, from order of Q. S. Cambria Co., March T., 1910, No. 7, dismissing exceptions to report of viewers In re petition for Public Road in Portage Township. Exceptions to report of viewers. The opinion of the Superior Court states the case. Error assigned amongst others was in dismissing an exception to the effect that the petition did not properly set out the termini of the road.

Appeal, No. 107, April T., 1912, by defendant, from judgment of C. P. No. 4, Allegheny Co., Fourth Term, 1908, No. 932, on verdict for plaintiff in case of Matthew J. Conner v. Pittsburg Railways Company. Trespass to recover damages for personal injuries. Before Swearingen, P. J. The facts are stated in the opinion of the Superior Court. Verdict and judgment for plaintiff for $500. Defendant appealed. Error assigned was in refusing binding instructions for defendant.

Appeal, No. 135, April T., 1912, by defendant, from order of C. P. No. 4, Allegheny Co., Third Term, 1911, No. 537, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Enterprise Contracting Company v. Ontatio Coal & Supply Company. Assumpsit on an engineer’s final estimate. Rule for judgment for want of a sufficient affidavit of defense. Cohen, J., filed the following opinion.

Appeal, No. 86, April T., 1912, by defendants, from judgment of C. P. Indiana Co., June T., 1910, No. 358, on verdict for plaintiff in case of Clymer Opera Company to use of Savings & Trust Company v. Birmingham Fire Insurance Company. Assumpsit on a policy of fire insurance.

<p>Appeal, No. 87, April T., 1912, by defendant, from judgment of C. P. Indiana Co., June T., 1910, No. 359, on verdict for plaintiff in ease of Clymer Opera Company to use of Savings & Trust Company of Indiana v. India Mutual Insurance Company.</p>

Appeal, No. 152, April T., 1912, by plaintiff, from judgment of C. P. Indiana Co., June T., 1910, No. 360, for defendant non obstante veredicto in case of Clymer Opera Company to use of Savings & Trust Company of Indiana v. The Rural Valley Mutual Fire Insurance Company. Assumpsit on a policy of fire insurance. Before Tel-ford, P. J. The facts are stated in the opinion of the Superior Court. At the trial the jury returned a verdict for plaintiff for $1,078.82.

<p>Appeal, No. 88, April T., 1912, by defendant, from judgment of C. P. Indiana Co., June T., 1910, No. 362, on verdict for plaintiff in case of Clymer Opera Company to use of Savings & Trust Company of Indiana v. The Safety Mutual Fire Insurance Company.</p>