Volume 51 — Pennsylvania Superior Court Reports

Appeal, No. 116, April T., 1912, by defendant, from judgment of C. P. No. 3, Allegheny Co., Feb. T., 1912, No. 191, on verdict for plaintiff in case of Harry H. Willock v. C. C. Hamilton. Assumpsit for money had and received. Before Evans,. J. The facts are stated in the opinion of the Superior Court. Verdict and judgment for plaintiff for $605. Defendant appealed. Errors assigned were various instructions and rulings on evidence.

Appeal, No. 67, April T., 1912, by P. J. Dorian, Executor, from decree of O. C. Cambria Co., No. 8,606, dismissing exceptions to report of auditor in Estate of Frank Szovak. Exceptions to auditor’s report. The opinion of the Superior Court states the facts. Error assigned was in dismissing exceptions to auditor’s report.

Appeal, No. 32, April T., 1912, by defendant, from judgment of C. P. No. 2, Allegheny Co., Oct. T., 1909, No. 1,232, on verdict for plaintiff in case of Frederick W. Winter v. Iron City Stamping Company. Assumpsit by an attorney at law for professional services in procuring trade-marks.

<p>Appeal, No. 77, April T., 1912, by defendant, from order of C. P. Armstrong Co., Sept. T., 1910, No. 150, making absolute rule to open judgment in part in case of Josiah C. Stoddard, Receiver of the Washington National Building & Loan Association of Washington, D. C., v. Peter H. Kline.</p> <p>Rule to open judgment.</p> <p>Patton, P. J., filed the following opinion:</p> <p>This is a judgment bond given by Peter H. Kline, to the Washington National Building & Loan Association, of Washington, D. C., on October 1, 1907, in the sum of $1,800, for that amount of money advanced to him “for the redemption of 18 shares of half stock of the 55th series therein, now owned by the said Peter H. Kline, to be paid as follows:</p> <p>“1st. As dues, 30 cents per share, monthly, on each share of stock;</p> <p>“2d. Interest, 50 cents per share, monthly, on each share of stock;</p> <p>“3d. Premium, 50 cents per share, monthly, on each share of stock.</p> <p>“Each year the monthly premium to be reduced 10 per cent. That no payment on account of stock or premium should be made for a longer period than 144 months, and if the stock failed, to mature at that time, then the obligor to pay six per cent per annum on the original amount advanced until the said stock shall mature.” This association became insolvent and went into the hands of a receiver on August 14, 1909, before the time of maturity of the stock had arrived, and it is no violent presumption that the stock will ever mature.</p> <p>So that if the contract was settled, as contended for by the defendant, by applying the payment of the dues on the debt, the obligor had paid up in full on the debt for 144 months, he would have paid the interest and the premium, and 144 payments of thirty cents dues on each of the eighteen shares of stock, in all $777.60, leaving still due on the principal, $1,022.40, and under the terms of his contract he would still be required to pay six per cent on the original amount advanced ($1,800) — $108 per annum, until the said stock would mature.</p> <p>But in this case the uncontradicated fact is that the association became insolvent, and went into the hands of a receiver on August 14, 1909.</p> <p>This dissolved the ordinary contract relations of membership, and the liability of Kline as a borrowing stockholder is to be measured by the usual rules enforced between creditor and debtor: Strohen v. Franklin Sav. Fund & Loan Assn., 115 Pa. 273.</p> <p>Turning to the bond and mortgage, we find the express agreement of the obligor that the payment of dues, interest and premium was to be made upon the stock. True it is that before the insolvency of the association he could have elected and directed the association to apply the payments on the debt. But it is not'alleged that he did so, or that they were so applied by the association.</p> <p>After the insolvency it is too late to make the application, for that would be rank injustice to the nonborrowing stockholders, for it would cast the burden of all the losses upon them.</p> <p>Our attention has been called to the fact that the assignment of the stock in this case was unconditional and not as collateral security, and it is earnestly contended that the present controversy does not fall within the line of cases decided by the courts when the stock is assigned as collateral. No authority has been cited to sustain this position, and we have not been able to find any. The express contract is to make the payment on the stock. It is his duty to do so. If these payments are to be considered direct payments the result is that he pays nothing on his stock, notwithstanding his obligation to do so. The association is not bound to satisfy the mortgage until the stock matures, and if the payments were not made on the stock, then the value of the stock would never equal the loan, and if the payments were not applied to the stock, its assignment would add nothing to the security. It is not reasonable to believe that the association would take an assignment of the stock and Kline would agree that the dues would be applied to the stock, if the agreement was only made to be broken and the payment of dues applied to the debt.</p> <p>But there is an allegation that there was no competitive bidding. Such being the case, the association would not be entitled to collect any premiums: Klein v. Penna. Sav. Fund & Loan Assn., 216 Pa. 516.</p> <p>In the settlement of the affairs of an insolvent building and loan association, a borrowing stockholder should only be charged with the sum actually received, with interest for the same, and credited with all actual payments of interest: Strohen v. Franklin Sav. Fund & Loan Assn., 115 Pa. 273.</p> <p>When the association becomes insolvent and is unable to perform its part of the contract, it is entitled to the amount it has in fact loaned, with interest thereon, less the amount paid by the mortgagor on the mortgage, whether it be in the nature of interest or premiums. The installments on stock and fines go with the stock: Twin Cities Nat. Bldg. & Loan Assn. v. Lepore, 17 Pa. C. C. Rep. 426.</p> <p>In accordance with the above rule, the amount to be paid by the defendant is assessed as follows: The 141 payments of $5.40 dues each — $761.40—is to be credited upon the stock.</p> <p>SETTLEMENT ON BOND</p> <p>Loan................................. $1,800.00</p> <p>Int. from Oct. 1,1897, to August 14,1909.. 1,281.90</p> <p>$3,081.90</p> <p>CR.</p> <p>Payments of interest and premium as shown by loan card attached to plaintiff’s affidavit of default, 141 payments........... $1,860.30</p> <p>Bal. due at date of Insolvency, on bond... $1,221.60 Int. from August 14, 1909,</p> <p>Attorney Com. $61.05.</p> <p>Upon the former argument of the case there was no evidence to show that there was not competitive bidding. Since that evidence has been taken to show there was not. To this the plaintiff replies that it is not a Pennsylvania corporation, that the contract is not a Pennsylvania contract, and hence it can charge usurious interest. Plaintiff cites People’s Bldg. Loan & Sav. Assn. v. Berlin, 201 Pa. 1; Swing v. Munson, 191 Pa. 582; Bennett v. Bldg. & Loan Assn., 177 Pa. 233, and other authorities to sustain this position, but we are of the opinion that they do not apply. These cases are either where the attempt was to collect back the usurious interest due on promissory notes, or where the mortgage had been stricken off because the association had no authority to do business in Pennsylvania.</p> <p>We think the present case is ruled by Land, Title & Trust Company v. Fulmer, 24 Pa. Superior Ct. 256, and Beso v. Eastern B. & L. Assn., 16 Pa. Superior Ct. 222. In the former case it is said: “Powers and immunities granted to building and loan associations under the Act of April 29, 1874, P. L. 73, sec. 37, and the supplements thereto, do not extend to corporations not chartered under that legislation, and managed and controlled in accordance with its provisions.” A foreign corporation not so incorporated can only secure the amount actually loaned, with legal interest. The latter case draws a distinction between when the usurious debt is secured by a promissory note, and when secured by a lien on land in Pennsylvania, The former is the contract of the foreign state, the later must be governed by the laws of Pennsylvania.</p> <p>We might further say in this case the by-laws authorized the formation of local boards in Pennsylvania, and the payment of money to them in Pennsylvania, and it was paid to their agent in Pennsylvania.</p> <p>And now, August 18, 1911, the writ is stayed and the judgment is opened as to all amounts in excess of $1,282.65.</p> <p>Rule discharged as to the amount under $1,282.65, with interest from August 14, 1909, and costs of suit.</p> <p>Error assigned was the order of the court.</p> <p>— The obligor is bound for the payment of $1,800, and as long as he pays that $1,800 to the parties and for the purposes which the bond specifically sets forth, he is entitled to a credit upon that bond to the amount of the last dollar that he so pays, and by the very terms of the bond he cannot be charged interest upon the $1,800 or any part of it: Beso v. Eastern Bldg. & Loan Assn., 16 Pa. Superior Ct. 222; Land, Title & Trust Co. v. Fulmer, 24 Pa. Superior Ct. 256.</p> <p>The assignment is an absolute and unconditional sale of the stock to the association. The association has redeemed the stock and no one excepting the association has any right, title, claim or interest whatever in the stock: Moeser v. Schneider, 159 Pa. 412; Hanna v. Holton, 78 Pa. 334; Beale v. Bank, 5 Watts, 529; York Trust Real Estate & Deposit Co. v. Gallatin, 186 Pa. 150; Hemperley v. Tyson, 170 Pa. 385.</p> <p>The right claimed by. the defendant in the case at bar is not one of credit by appropriation, but is one of credit, because he paid the money, and paid it upon a contract to pay it: Erthal v. Glueck, 10 Pa. Superior Ct. 402; Kurtz v. Campbell, 31 Pa. Superior Ct. 516; Strohen v. Sav. Fund & Loan Assn., 115 Pa. 273.</p> <p>— The appellant, after the insolvency, attempts to appropriate the value of the shares of his stock to the mortgage debt. He seeks to apply payments upon his stock, assigned as collateral security, as credits on the mortgage and bond, in the payment of the principal and interest. This the appellate courts have decided cannot be done, and the case relied upon by the learned court below is pertinent: Strohen v. Sav. Fund & Loan Assn., 115 Pa. 273; Haskel v. Moffitt, 32 Pa. Superior Ct. 344.</p>

Appeal, No. 99, April T., 1912, by plaintiff, from order of C. P. Armstrong Co., Sept. T., 1910, No. 150, making absolute rule to open judgment in part in case of Josiah C. Stoddard, Receiver of the Washington National Building and Loan Association, D. C., v. Peter H. Kline. Rule to open judgment. The facts appear by the report of Stoddard v. Kline, No. 1, ante, p. 16. Error assigned was in reducing the judgment on the ground that it included usurious interest.

Appeal, No. 155, April T., 1912, by defendant, from judgment of C. P. Beaver Co., Dec. T., 1908, No. 412, on verdict for plaintiff in case of B. D. Douds and Iola A. Douds, his wife, in right of the said Iola A. Douds, and B. D. Douds, in his own right, v. Beaver Valley Traction Company, Trespass to recover damages for personal injuries.

<p>Appeal, No. 110, April T., 1912, by defendant, from judgment of C. P. No. 3, Allegheny Co., May T., 1904, No. 597, on verdict for plaintiff in case of Seeler Elevator Company v. Backus Water Motor Company.</p> <p>Assumpsit for breach of a contract to furnish a gas engine. Before Kennedy, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $457.02. Defendant appealed.</p> <p>Error assigned was in giving binding instructions for plaintiff for the full amount of its claim.</p>

Appeal, No. 154, April T., 1912, by defendant, from judgment of C. P. Lawrence Co., June T., 1909, No. 36, on verdict for plaintiffs in case of Thomas G. Christie, sole surviving Trustee of the Table Rock Stone & Manufacturing Company, and Thomas G. Christie, C. G. Christie and Joseph L. Kirk, being the Table Rock Stone and Manufacturing Company, v. Pitts-burg, Harmony, Butler & New Castle Railway Company.

Appeal, No. 15, Oct. T., 1911, by plaintiff, from judgment of C. P. Lancaster Co., Feb. T., 1910, No. 46, on verdict for defendant in case of Hymon Ehrhart v. Ivan S. Bear. Trespass from crim. con. At the trial it appeared that the plaintiff had been divorced from his wife, and that in the divorce proceedings the wife had been charged with adultery with the defendant and others. The defendant was a witness in the divorce proceedings.

Appeal, No. 69, April T., 1912, by defendants, from order of C. P. Butler Co., March T., 1911, Miscellanous Docket, No. 13 dismissing exceptions to report of viewers in re Petition of Butler Borough for Viewers to Assess the Costs, Benefits and Damages of Paving and Grading Washington Street from Mill Street to Wayne Street. Exceptions to report of viewers. Before Galbreath, P. J. The opinion of the Superior Court states the facts.

Appeal, No. 138, April T., 1912, by defendant, from judgment of C. P. No. 2, Allegheny Co., April T., 1908, No. 366, on verdict for plaintiff in case of D. E. Stonecipher and Emma Stonecipher v. Booth & Flinn, Ltd. Trespass to recover damages for personal injuries. At the trial it appeared that the plaintiff, Emma Stone-cipher, was injured on June 28,1907, while driving a buggy along the Frankfort road.

Appeal, No. 67, Oct. T., 1912, by defendant, from judgment of Q. S. Phila. Co., August Sessions, 1911, No. 11, on verdict of guilty in case of Commonwealth v. Frank Emery. Indictment for statutory rape; Before Carr, J. At the trial the defendant'presented the following point: The proof of age being insufficient under the fourth count of Bill No. 11, August Sessions, 1911, charging rape, etc., the verdict of the jury must be “not guilty” on this count. Answer: Refused.

<p>Taxation — Moving picture place — Theatrical or operatic entertainment.</p> <p>A moving picture place cannot be taxed as a theatrical or operatic entertainment where it appears that the place is not equipped with any stage or facilities for vaudeville, and the entertainment consists only of moving pictures and illustrated songs.</p>

Appeal, No. 275, Oct. T., 1911, by plaintiff, from judgment of C. P. No. 5, Phila. Co., June T., 1911, No. 4,960, for defendant on case stated in suit of Commonwealth v. John W. Donnelly and M. J. Collins, Individually and trading as Donnelly & Collins. Case stated to determine whether a moving picture place should be taxed as a theatrical or operatic entertainment. The facts are stated in the opinion of the Superior Court.

Appeal, No. 46, April T., 1912, by defendant, from order of C. P. Clarion Co., Dec. T., 1911, No. 180, discharging rule to open judgment in case of Margaret Wolfgang v. John S. Shirley. Held: and in addition to that in making the assignment of part of the judgment I personally guaranteed the same by writing on the docket.

Appeal, No. 149, April T., 1912, by plaintiff, from decree of C. P. No. 4, Allegheny Co., Fourth Term, 1910, No. 432, dismissing bill in equity in case of Harry H. Willock v. Charles F. C. Arensberg. Bill in equity for an injunction. Before Cohen, J. The facts are stated in the opinion of the Superior Court. The appellant’s paper-book contained a photograph of the defendant’s house, which is here reproduced.

Appeal, No. 169, April T., 1912, by plaintiff, from order of C. P. Armstrong Co., Dec. T., 1911, No. 67, refusing an issue to quiet title in case of Annie H. Mildren et al. v. Nellie A. Nye and William Nye. Petition for an issue to quiet title. Before Pat-ton, P. J. The opinion of the Superior Court states the case.

Appeal, No. 181, April T., 1912, by plaintiff, from order of C. P. Beaver Co., Sept. T., 1911, No. 176, making absolute rule to strike off mechanic’s lien in case of A. G. Breitwieser Lumber Company v. Emalie Wyss-Thalman and Vincent Wyss-Thalman, her husband, Owners or Reputed Owners, and J. Albert Schadel, Terre-Tenant, and Gothard Wyss, Contractor. Rule to strike off mechanic’s lien. Before Holt, P. J. The facts are stated in the opinion of the Superior Court.

Appeal, No. 38, March T., 1912, by defendant, from order of C. P. Lackawanna Co., May T., 1903, No. 432, dismissing exceptions to report of referee in case of United Shoe Machinery Company v. A. D. Dean. Exceptions to report of referee. The facts are stated in the opinion of the Superior Court. Error assigned was in dismissing exceptions to report of referee.

Appeal, No. 1, April T., 1912, by defendant, from judgment of C. P. Erie Co., May T., 1908, No. 80, on verdict for plaintiff in case of Andrew P. Weschler v. Buffalo & Lake Erie Traction Company. Assumpsit to recover back money had and received. Before Walling, P. J. The facts are stated in the opinion of the Superior Court. At the trial the court admitted under objection and exception the contract upon which the suit was based.

Appeal, No. 90, April T., 1912, by defendant, from judgment of C. P. No. 2, Allegheny Co., Jan. T., 1907, No. 530, on verdict for plaintiff in case of Thomas E. Plunkett v. T. Lea Hamnett. Assumpsit for money had ■ and received. Before Shaper, J. The opinion of the Superior Court states the case. Verdict and judgment for plaintiff for $639.92. Defendant appealed.

Appeal, No. 34, March T., 1912, by defendants, from judgment of C. P. Lackawanna Co., Jan. T., 1909, on verdict for plaintiff in case of Fred R. Benjamin v. M. H. Holgate et al. Assumpsit to recover back money had and received. Before Savidge, P. J., specially presiding.

Appeal, No. 68, April T., 1912, by plaintiff, from order of C. P. Cambria Co., Sept. T., 1910, No. 243, making absolute rule to strike off judgment in case of P. J. Dorian, Executor, v. First Catholic Slovak Union of the United States of America. Rule to strike off judgment.

Appeal, No. 95, April T., 1912, by William M. Daugherty, from order of C. P. Indiana Co., Dee. T., 1910, No. 241, discharging rule to fence right. of way in Petition of William M. Daugherty to have the Indiana County Street Railway Company fence its right of way over his land. Rule on the Indiana County Street Railway Company to show cause why it should not fence its right of way over the lands of William M. Daugherty.

Appeal, No. 139, April T., 1912, by defendant, from judgment of C. P. Somerset Co., Dec. T., 1909, No. 31, on verdict for plaintiff in case of-Seth Weighley v. George C. Muller. Trespass for wrongful eviction. Before Koozer, P. J. At the trial it appeared that the plaintiff claimed that the landlord’s conduct towards him was such that he was deprived of the beneficial enjoyment of the leased premises, and that his further stay thereon was a continuing physical danger.

Appeal, No. 160, April T., 1912, by plaintiffs, from judgment of C. P. Somerset Co., Dec. T., 1908, No. 174, on verdict for defendants in case of S. EL Darrah et al., Heirs of Daniel Weyand, deceased, v.Ellen L. Kadison. Trespass to recover damages for cutting timber. Before Telford, P. J., specially presiding. The facts appear by the opinion of the Superior Court. Verdict and judgment for defendants. Plaintiffs appealed.

Appeal, No. 163, April T., 1912, by defendant, from judgment of C. P. Somerset Co., Sept. T., 1909, No. 278, on verdict for plaintiff in case of A. G. Hull v. Solomon Middleman. Assumpsit for balance alleged to be due in installing a heating apparatus.

Appeal, No. 187, April T., 1912, by defendant, from judgment of C. P. No. 2, Allegheny Co., Jan. T., 1909, No. 712, on verdict for plaintiff in case .of J. J. Buchanan v. William Flinn. Trespass to recover damages for injuries to an automobile, sustained in a collision between plaintiff’s and defendant’s automobile on July 21, 1908. Before Ormerod, P. J., specially presiding.

Appeal, No. 72, April T., 1912, by defendant, from judgment of C. P. Armstrong Co., Sept. T., 1911, No. 157, for plaintiff on case stated in case of Applewold Borough v. John M. Dosch. Cases stated to determine the validity of an ordinance of the borough of Applewold, dated April 24, 1900, in so far as it imposed or purported to impose a license tax of $4.00 each on motor vehicles.

Appeal, No. 6, April T., 1912, by defendant, from judgment of C. P. Butler Co., June T., 1910, No. 61, on verdict for plaintiff on appeal from tax assessment in case of T. W. Phillips Gas & Oil Company v. Butler County. Appeal from tax assessment. Before Galbreath, P. J. The facts are stated in the opinion of the Superior Court, Error assigned was in sustaining appeal from tax settlement. cited: Penna.

Appeal, No. 157, April T., 1912, by defendant, from judgment of C. P. Butler Co., Maxell T., 1912, No. 146, on verdict for plaintiff in case of Sophia Michalsky v. H. E. J. Putney. Trespass to recover damages for death of plaintiff’s husband. Before Galbreath, P. J. The facts are stated in the opinion of the Superior Court. Verdict and judgment for plaintiff for $1,500. Defendant appealed. — The deceased was guilty of contributory negligence: Scowden v. R. R. Co., 26 Pa.

Appeal, No. 26, Oct. T., 1912, by plaintiff, from judgment of C. P. No. 2, Phila. Co., June T., 1911, No. 2,271, for defendant on case stated in suit of Commonwealth v. Philadelphia Auction Company. Case stated to determine the amount due by the defendant as a license tax. The facts are stated in the opinion of the Superior Court. The court entered judgment for defendant on the case stated.

Appeal, No. 207, Oct. T., 1911, by defendant, from judgment of C. P. Huntingdon Co., Sept. T., 1909, No. 34, on verdict for plaintiff in case of Pittsburg Hunting Club v. H. C. Snyder. Ejectment for land in West township. Before Woons, P. J. At the trial the plaintiff presented the following points: 1.

Appeal, No. 16, March T., 1912, by defendant,, from order of C. P. Luzerne Co., Oct. T., 1910, No. 411, discharging rule to open judgment in case of Anthony Norbet v. Joseph Witkowski. Rule to open judgment. The opinion of the Superior Court states the case. Error assigned was in discharging rule to open judgment. The paper cannot go into the balance against the defendant: Kaier v. O’Brien, 202 Pa. 153; Thornton v. Meyers, 30 Pa.

Appeal, No. 294, Oct. T., 1911, by plaintiff, from decree of C. P. Chester Co., In Equity, No. 533, dismissing bill in equity in case of Valley Township v. Coatesville Borough. Bill in equity for adjustment of indebtedness of township. Before Butler, J. The facts are stated in the opinion of the Superior Court. Error assigned was decree dismissing bill. — The court had jurisdiction to adjust the indebtedness: Kingston Twp. v. Luzerne Borough, 5 Kulp, 49; Pottstown Boro.

Appeal, No. 264, Oct. T., 1911, by defendant, from judgment of O. & T. Pbila. Co., Nov. Sessions, 1911, No. 82, on verdict of guilty in case of Commonwealth v. George W. Sutton. Indictment for assault and battery, etc. Before AudenRIED, J. The facts are stated in the opinion of the Superior Court. Verdict and judgment of guilty, upon which sentence was passed.

Appeal, No. 26, March T., 1912, by plaintiff, from order of C. P. Susquehanna Co., April T., 1911, No. 77, making absolute rule to open judgment in case of Robert A. Parce v. C. H. Ely and Lucy E. Ely. Rule to open judgment. The opinion of the Superior Court states the case.

Appeal, No. 21, March T., 1912, by plaintiff, from order of C. P. Wayne Co., March T., 1910, No. 89, making absolute rule to strike off judgment in case of Emil Herbeck v. M. J. Kelly and Frank Stein-man, doing business under the firm name of Kelly & Steinman. Rule to strike off judgment. The opinion of the Superior Court states the facts.

Appeal, No. 196, Oct. T., 1911, by defendant, from judgment of C. P. No. 2, Pbila. Co., June T., 1910, No. 362, on verdict for plaintiff in case of Thomas Fern v. Adams Express Company. Case stated to determine the liability of an express company, for the loss of goods.

Appeal, No. 27, March T., 1912, by defendant, from judgment of C. P. Luzerne Co., Oct. T., 1908, No. 246, on verdict for plaintiff in case of James Smith v. Peter Koziolek. Trespass to recover damages for malicious prosecution. Before Trexler, P. J., specially presiding. At the trial the plaintiff offered in evidence the information made by defendant upon which plaintiff was arrested for arson.

Appeal, No. 93, April T., 1912, by William P. Dunbar, from decree of O. C. Crawford Co., Nov. T., 1911, Nov. 13, dismissing petition for specific performance in Estate of Martha G. Dunbar, deceased. Petition for specific performance. Before Prather, P. J. The facts are stated in the opinion of the Superior Court. Error assigned was decree dismissing the petition.

Appeal, No. 31, April T., 1912, by W. H. H. Smyers, from order of C. P. Indiana Co., Sept. T., 1910, No. 26, entering judgment against respondent in proceedings to bring ejectment in Petition of Andrew Foster for Rule on W. H. FI. Smyers. Rule to bring ejectment.

Appeal, No. 29, March T., 1912, by defendant, from judgment of C. P. Luzerne Co., Oct. T., 1907, No. 1,442, on verdict for plaintiff in case of John Dougherty v. John H. Davis. Trespass to recover damages for personal injuries. Before Jones, J. The opinion of the Superior Court states the case. Verdict and judgment for plaintiff for $1,100. Defendant appealed.

Appeal, No. 102, Oct. T., 1911, by defendants, from judgment of C. P. Delaware Co., Dec. T., 1907, No. 878, on verdict for plaintiffs in case of Charles F. Felin, William L. Ludascher and Amos Y. Lesher, trading as Charles F. Felin & Company, v. Charles E. Futcher, owner or reputed owner, and the Delaware County Trust, Safe Deposit and Title Insurance Company. Scire facias sur mechanic’s lien. Before Johnson, P. J. The facts appear by the opinion of the Superior Court.

Appeal, No. 268, Oct. T., 1910, by plaintiffs, from judgment of C. P. Delaware Co., March Term, 1909, No. 250, on verdict for defendant in case of Arthur Hanby and Louisa Hanby, his wife, v. Joshua P. Bailey. Ejectment for a lot of land in Upper Chichester town-. ship. Before Broomall, J. At the trial, under direction of the court, the jury returned a verdict for defendant upon which judgment was entered.

Appeals, Nos. 7 and 10, March Term, 1912, by plaintiff and defendants, from order of C. P. Lackawanna Co., Oct. T., 1910, No. 356, making absolute rule for judgment for plaintiff for one-half the debt in suit in case of A. H. Horvitch, Assignee of A. II.

Appeal, No. 45, Sept. T., 1911, by defendants, from judgment of C. P. Berks Co., Aug. T., 1911, No. 119, for plaintiff on case stated in suit of Margaret J. Palm v. William H. Palm et al. Case stated to determine ownership of rentals. Before Wagner, J. The opinion of the Superior Court states the case.

<p>Partition — Widow’s dower — Charge on land — Judgment—Acis of March 29,1882, P. L. 190, and June 12,1878, P. L. 206.</p> <p>1. Under the Act of March 29, 1832, sec. 43, P. L. 190, providing that in partition proceedings the share of the widow “shall remain in the hands of the purchaser during the natural life of the widow, and the interest thereof shall be annually and regularly paid to her by the purchaser, his heirs and assigns,” an assign is personally liable for the annual interest accruing to the widow during his ownership of the land, if such accrued rent cannot be realized out of a sale of the land.</p> <p>2. The provision of the act that such interest shall “be recovered by distress or otherwise as rents are recoverable in this commonwealth,” is broad enough to sustain a personal action and judgment. A judgment in favor of the widow must, therefore, not be entered de terris.</p> <p>3. A purchaser in partition proceedings instituted under the Act of March 29, 1832, P. L. 190, is bound to take notice of sec. 43 of the act and is not warranted in presuming from anything contained in or omitted in the record, that the widow was estopped either in pais or by the record, from pursuing the remedies that the statute gave her.</p> <p>4. The right of the widow to the annual interest on her share charged on land in partition proceedings under the Act of March 29,1832, P. L. 190, is not an incumbrance, within the meaning of the Act of June 12, 1878, P. L. 205, so as to relieve a purchaser, because he assumed no express obligation to pay it.</p>

Appeal, No. 28, March T., 1912, by P. W. McKeown, from order of Q. S. Luzerne Co., Nov. Sessions, 1911, No. 300, directing county commissioners to enter into a road contract. Petition to compel township commissioners to enter into a road contract. On February 24, 1911, the commissioners of Luzerne county proclaimed Hanover township a township of the first class.

<p>Appeal, No. 71, April T., 1912, by defendant, from judgment of C. P. Cambria Co., March T., 1910, No. 592, on verdict for plaintiff in case of E. P. Shoemaker v. Adams Express Company.</p> <p>Trespass for injuries to a horse. Before O’Connor, P. J.</p> <p>At the trial counsel for plaintiff proposed to prove by a witness on the stand that he was in the car with the horses shipped from Carrolltown on September 11, 1909, among which was the mare known as Alta W., owned by the plaintiff in this case, — E. P. Shoemaker; that he was seated in the car between the heads of the horses at one end of the car; that he saw the mare, Alta W., become excited after leaving Carrolltown Road Station; that her excited condition was caused as a result of her being swung against the side of the car where the bare steam pipes were exposed; that as the mare touched the steam pipes she jumped to the side in an excited condition and at each time that the car swung the mare was thrown against the pipes and she would jump back again, becoming excited, and finally as a result of this excitement threw herself and was injured; that as the mare stepped toward the steam pipes a noise as of escaping steam was heard, and he observed vapor or steam where the pipes were located; that the floor in the stall became wet; that between stops made by the train on the trip, something was done by the trainmen and as a result of which the car seemed to cool and the mare quieted, and that she rode from there to Cresson in a quiet condition where she was removed; that the injuries that resulted to the mare in the car were caused by her becoming excited when thrown against the side of the car by the swinging of the train and that she threw herself in her excitement and was injured. This is offered for the purpose of showing the negligence on the part of the express company in permitting heat or steam in the car in which the horses were being shipped, and in rebuttal of the testimony on part of the defendant company that it was not negligent.</p> <p>Defendant’s counsel objects to the proposition of the plaintiff for the reason that under the pleadings in this case, it should have been introduced in chief and is therefore not rebuttal; that the offer does not contain any proposition which would show that defendant was negligent in any manner.</p> <p>The Court: Under the authority of Nemcof v. B. & O. R. R. Co., 39 Pa. Superior Ct. 542, we hold that after property is received by a common carrier the burden is on the defendant to prove that it was not injured while in its custody. We therefore overrule the objection, note an exception, and seal a bill for the defendant company. [1]</p> <p>E. P. Shoemaker was offered as a witness.</p> <p>Counsel for the defendant company requests that the purpose of the offer be stated.</p> <p>Mr. Evans: We propose to prove by the witness that he talked with a representative of the express company as to a settlement of this claim and was advised that the claim would be settled if it were not for one thing; that they investigated it and that the result of that investigation showed no heat to be in the car; if it were not for that fact they would settle the claim.</p> <p>Defendant’s counsel objects to the proposed testimony for the reason that the contract under which the plaintiff shipped his horse expressly states that the conditions of shipment in regard to giving notice cannot be waived except in writing, and it being clear and unambiguous it would be waived improper to permit the introduction of testimony to change the terms of the contract.</p> <p>The Court: Objection overruled, an exception noted and bill sealed for the defendant company. [2]</p> <p>A. M. Shoemaker, attorney for plaintiff, was asked this question:</p> <p>“Q. What did you ask them for at the Adams Express Company’s office here (Ebensburg)?”</p> <p>Mr. Storey for defendant objected for the reason that the express office at Ebensburg would not have the contract and would not know what the contract was made at Carrolltown and further objected to as being immaterial and irrelevant.</p> <p>Mr. Evans: We propose to follow the question by showing by the witness that he was assured by the Adams Express Company that this was the only form of contract which they used, therefore, it would be material.</p> <p>Mr. Storey: It is further objected as improper and inadmissible for the reason that the contract itself expresses clearly and without ambiguity what the contract was.</p> <p>The Court: Objection overruled, an exception noted and bill sealed for the defendant company. [3]</p> <p>Mr. Evans: “Q. The copy of form of shipping contract received by you from the express company stated that notice of claim should be made within ninety days. State whether or not notice of this claim was made within ninety days?”</p> <p>Mr. Storey: It is objected for the reason that this is an attempt to change the terms of the contract made between the parties and is incompetent and inadmissible.</p> <p>The Court: For the present we will overrule the objection until we come to consider the question.</p> <p>“A. I served two written notices within ninety days on the express company. Q. Where at? A. The first one at Johnstown and the second one at Carrolltown. After serving the notice at Johnstown and thinking it wouldn’t possibly be sufficient under the terms of the contract, I served written notice within ninety days at Carrolltown because the contract stated that the notice of claim ‘shall be presented to it in writing at this office.’ ”</p> <p>Offer in evidence copy of form of contract identified by the witness and furnished him by the agent of the express company.</p> <p>Mr. Storey: Objected to as being inadmissible for the reason that it is changing the terms of the contract between the parties, which contract is now in evidence.</p> <p>The Court: For the present we will overrule the objection and consider the matter all together, note an exception and seal a bill for the defendant company. [4] Motion to continue by Mr. Storey: Counsel for defendant company moves the court to withdraw a juror and continue the cause, for the reason that the counsel for the plaintiff, in this closing address to the jury, in describing the question of notice, said that it was customary for corporations to insert some things into their contracts that the law will not permit, which is entirely unjustified and improper.</p> <p>Mr. Evans: In answer to the statement of counsel we say that we stated to the jury that common carriers do insert in their contracts provisions which the court will not sustain, which is in evidence in this case.</p> <p>The Court: We are not of the opinion that the remark of counsel is calculated to prejudice the defendant to the extent of warranting a continuance of the case; we decline to withdraw a juror and continue the case. We note an exception and seal a bill for the defendant company. [5] Defendant presented this point:</p> <p>5. That there is not sufficient evidence that there was any steam turned into this car to submit to the jury, and the verdict must be for the defendant. Answer: We deny the point and submit that question to the jury. [9]</p> <p>Verdict and judgment for plaintiff for $504.50. Defendant appealed.</p> <p>Errors assigned were (1-5) rulings on evidence, quoting the bill of exceptions; (9) above instructions, quoting them.</p> <p>— Plaintiff must prove all the material points of his case before defendant’s testimony is put in, and he cannot introduce proof of such points afterward in rebuttal: Kohler v. Wells, Fargo Co., 26 Cal. 606; Fitzpatrick v. Papa, 89 Ind. 17; Manning v. Ry. Co., 64 Iowa, 240 (20 N. W. Repr. 169); Shearer v. Middleton, 88 Mich. 621 (50 N. W. Repr. 737).</p> <p>A case should not be submitted to the jury where the evidence is so insufficient that the court ought not to sustain the verdict: Gardner v. McLallen, 4 W. N. C. 435; Angier v. Eaton, Cole & Burnham Co., 11W. N. C. 146.</p> <p>— The maimer of introducing testimony will not be reviewed by the appellate court'unless there is a very gross abuse of discretion by the court below: Dosch v. Diem, 176 Pa. 603; Leh v. R. R. Co., 30 Pa. Superior Ct. 396; Howard v. American Express Co., 47 Pa. Superior Ct. 416; Eckert v. Penna. R. R. Co., 211 Pa. 267.</p> <p>Appellate court will not reverse on account of improper remarks of counsel when verdict is not excessive and the jury is instructed to disregard statements: Moore v. Neubert, 21 Pa. Superior Ct. 144; Shaffer v. Coleman, 35 Pa. Superior Ct. 386; Behrens v. Mountz, 37 Pa. Superior Ct. 326.</p>

<p>Appeal, No. 161, Oct. T., 1911, by defendant, from judgment of C. P. No. 1, Phila. Co., March T., 1908, No. 1,399, on verdict for plaintiff in case of Joseph Ready v. Smith & Furbush Machine Company.</p> <p>Trespass to recover damages for personal injuries. Before Magill, J.</p> <p>At the trial it appeared that on October 4, 1907, plaintiff was injured while operating a machine with a tool called a drift in defendant’s hat factory. The evidence showed that the plaintiff had been furnished with the drift by defendant’s repair boss in charge of the department in which plaintiff worked. The drift, which was defective, was used in lieu of part of a machine, that had been lost or mislaid. The plaintiff in operating the drift struck a splinter from it which struck and destroyed one of his eyes.</p> <p>Other facts appear by the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $1,427. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for defendant.</p> <p>The negligence of Ivins, the room foreman, in furnishing plaintiff with the defective tool, was not attributable to defendant, because the authority to furnish such tools had to the knowledge of plaintiff not been expressly or impliedly delegated to Ivins: Amburg v. Paper Co., 54 Atl. Repr. 765; Groves v. McNeil, 226 Pa. 345; Carr v. Fire Extinguisher Co., 224 Pa. 346.</p> <p>The jury was not justified in finding from the evidence that the negligent act of Ivins even if imputable to defendant, was the proximate cause of the injury: Pittsburg Southern Railway Co. v. Taylor, 104 Pa. 306.</p> <p>The plaintiff assumed the risk of using the defective tool supplied him, and assumed the risk of its use by Zoble, the machinist: Jones v. Burnham, 217 Pa. 286; Vaughn v. Longmead Iron Works, 220 Pa. 347; Lehman v. Carbon Steel Co., 204 Pa. 612.</p> <p>— The duty of defendant to furnish a proper tool was absolute: Lewis v. Seifert, 116 Pa. 628; Carr v. General Fire Ext. Co., 224 Pa. 346; Ricks v. Flynn, 196 Pa. 263; King v. McClure, 222 Pa. 625; Finnerty v. Burnham, 205 Pa. 305.</p>

Appeal, No. 242, Oct. T., 1910, by plaintiff, from judgment of C. P. Blair Co., Jan. T., 1907, No. 92, on verdict for defendant in case of Leonard Horner, Jr., v. John W. Thompson. Ejectment for land in Logan township. Before Baldbidge, P. J. The facts are set forth in the opinion of the Superior Court. \ The court charged in part as follows : [But the defendant, Thompson, gives a different version of it.

<p>Appeal, No. 228, Oct. T., 1911,</p> <p>by defendant, from decree of C. P. Berks Co., Equity Docket 1910, No. 1,025, dismissing bill in equity in case of Daniel K. Youse v. Henry A. McCarthy and Tuscarora Oil Co., Ltd.</p> <p>Bill in equity for an injunction. Endlich, P. J., filed the following finding of facts:</p> <p>1. The plaintiff, being the owner in fee of a certain farm in Washington township, Berks county, of about 100 acres, on August 5, 1907, conveyed the same, together with his personal property, in trust for benefit of creditors, to Francis S. Janson, who on August 21,1907, transferred an undivided interest in the same to Randolph Stauffer, Esq., selected additional assignee by creditors; both conveyances being duly recorded.</p> <p>2. The inventory and appraisement filed under the assignment showed the value of the personalty to be $2,505.83, and that of the realty $5,060. The schedule of debts filed enumerated unsecured liabilities to the amount of $730.83, a mortgage debt of $1,000, and a dower charge of $3,333.33 payable upon the death of the dowress.</p> <p>3. The management of the assigned estate, and the collection and disbursement of the funds belonging to it remained exclusively in the hands of Janson, and by June 1, 1908, all the debts due and owing by the plaintiff (except the dower charge) were fully paid and satisfied out of moneys received by him from the sale of the personalty.</p> <p>4. With the assent of the plaintiff the realty continued in the hands of the assignees, its reconveyance to the plaintiff being deferred at his instance, until March 8, 1909, when it was made. In the meanwhile the farm was in possession of a tenant on shares, put there by Janson.</p> <p>5. On August 11, 1908, Janson, without previous knowledge or assent on the part of the plaintiff or of the coassignee, and without the joinder of either, entered into a written agreement with the defendant McCarthy granting to him, his heirs and assigns, the right to lay, maintain and operate pipe lines, and to set along the fences and operate a telegraph line, over and through the land conveyed by plaintiff to Janson in trust as above stated by the deed of August 5, 1907, and of ingress and egress to and from the same; the grantee to pay any damage done to crops and fences, and also to pay to Janson for the right granted the consideration of $32.50 and a further like sum for each additional line of pipe beyond the first. The agreement is in form the act of Janson individually, not as assignee, speaks of the lands affected by it as his lands without mentioning plaintiff in connection therewith, and is signed by him without describing him as assignee. It was recorded October 12, 1908, and assigned November 20, 1908, to one Bedford, and on May 10, 1910, to the Tuscarora Oil Co., Ltd., defendant. At the time of the negotiations between McCarthy and Janson leading to the making of the agreement, McCarthy’s agent, acting for him, had actual notice of the fact that the land involved was not the property of Janson individually.</p> <p>6. Shortly after the making of the agreement of August 11, 1908, the grantee (after settling with the tenant for his loss of crops) entered upon the land for the purpose of staking off the line to be followed in laying the pipe. The fine as then staked off was subsequently altered by the grantee and new stakes driven accordingly. After October 5,1908, he paid to Janson $65.00, the stipulated consideration for the right to lay two lines of pipe, and proceeded to lay these lines (about 1,600 feet in length upon the land in question), as well as to erect telegraph poles and string them with wires. In the course of the former work there was injury to growing crops, in that of the latter to fruit •trees upon the property; which injuries have not been compensated for. Since then the pipe and telegraph lines have been maintained and operated by the grantee or his assignees, defendants in this suit, and the Tuscarora Oil Co., Ltd., intends to continue to maintain and operate the said lines.</p> <p>7. Before the laying of pipes and the erection of poles the plaintiff had knowledge of McCarthy’s purpose to lay and erect them and of the fact that Janson had undertaken to grant him the right to do so. Plaintiff also saw the stakes that had been driven to mark the course of the pipe line upon the ground. He took no steps to prevent the consummation of that purpose, nor made any protest against it until after the lines had been laid and the poles erected, nor at any time to McCarthy himself, or those acting in his behalf or as his assignees.</p> <p>8. About the time of the reconveyance to plaintiff of the farm, a settlement was made between him and Jan-son of the accounts beginning from the assignment of August 5, 1907, covering and including as a charge against Janson the sum of $65.00 received by him from McCarthy as above stated, and exhibiting a balance of $18.53 as due to the plaintiff; which amount was paid to and accepted by the latter with knowledge of the fact that the settlement included said sum of $65.00. No account has been filed by the assignees.</p> <p>Error assigned was decree dismissing the bill.</p> <p>— The plaintiff’s right is clear, and he is entitled to relief without resorting to an action at law; and, therefore, the fact that the bill was filed a year and a half after he secured possession of his farm does not constitute a waiver of his right to proceed in a court of equity: Stewart’s App., 56 Pa. 413; McCandless’ App., 70 Pa. 210; Goodson v. Richardson, L. R. 9 Ch. 221; Del., L. &> W. R. R. Co. v. Breckenridge, 41 Atl. Repr. 966; Baugh v. Bergdoll, 227 Pa. 420; Woods v. Greensboro Nat. Gas Co., 204 Pa. 606; McConahy v. R. R. Co., 31 Pa. Superior Ct. 215; Bussier v. Weekey, 4 Pa. Superior Ct. 69; Keppel v. Lehigh Coal & Nav. Co., 200 Pa. 649.</p> <p>The question of laches must be decided upon the facts of each case. Mere delay short of the period fixed by the statute of limitations does not usually deprive one of his right to restrain an invasion: Mellish’s Est., 2 Parson’s Equity, 482; O’Brien v. Wheelock, 184 U. S. 450 (22 Sup. Ct. Repr. 354); Carr v. Wallace, 7 Watts, 394; Glidden v. Strupler, 52 Pa. 400; Penn. Mut. Life Ins. Co. v. Austin, 168 U. S. 685 (18 Sup. Ct. Repr. 223); Platt v. Platt, 58 N. Y. 646.</p> <p>If one knowingly receives the purchase money of land sold he affirms the sale and he cannot claim against it whether void or only voidable: Adlum v. Yard, 1 Rawle, 163; Stroble v. Smith, 8 Watts, 280; Crowell v. Meconkey, 5 Pa. 168; Smith v. Warden, 19 Pa. 424; Maple v. Kussart, 53 Pa. 348; Jacoby v. McMahon, 174 Pa. 133.</p>

Appeal, No. 271, Oct. T., 1910, by plaintiff, from judgment of C. P. Chester Co., Oct. T., 1909, No. 1, on verdict for defendant in case of E. A. Strout Company v. Warwick C. Hoopes. Assumpsit to recover real estate broker’s commissions.

<p>Appeal, No. 246, Oct. T., 1911, by defendants, from judgment of C. P. Schuylkill Co., July T., 1910, No. 316, on verdict for plaintiff in case of Julia Keating v. James Nolan et al.</p> <p>Ejectment for an undivided interest in a lot of land in Mahanoy city.</p> <p>The opinion of the Superior Cotirt states the facts.</p> <p>When James Nolan, one of the defendants, was on the stand he was asked this question:</p> <p>“ Q. When did your mother die? A. Seventy-one; 1871.”</p> <p>Mr. Reilly: I do not understand that the court has ruled-</p> <p>Mr. Whalen: This is not before her death. She was dead in 1871, and I am asking when she died.</p> <p>Mr. Reilly: That is adverse. He is attacking the title.</p> <p>The Court: This is a question of fact.</p> <p>Mr. Reilly: They may prove that fact, but the question is as to this witness to prove it.</p> <p>The Court: We think we will sustain the objection to the witness testifying to that, because on that hinges the title. It goes to the very gist of this question here; consequently we will sustain the objection and seal a bill.'</p> <p>Verdict and judgment for plaintiff. Defendant appealed.</p> <p>Error assigned was ruling on evidence as above, quoting the bill of exceptions.</p> <p>James Nolan was competent to testify as to the date of death: Paschall v. Fels, 207 Pa. 71; McClelland v. West, 70 Pa. 183; Anderson v. Hopkins, 22 Pitts. Leg. J. 74; White’s Est., 2 Pa. Dist. Rep. 808; Allen’s Est., 207 Pa. 325; Meredith v. Thomas, 4 Kulp, 505.</p> <p>cited: Arthurs v. King, 84 Pa. 525; Rudolph v. Rudolph, 17 Pa. Superior Ct. 558; Sutherland v. Ross, 140 Pa. 379; Shultz v. Boehme, 1 Monaghan (Pa.), 245; Lahey v. Heenan, 81 Pa. 185.</p>

Appeal, No. 245, Oct. T., 1910, by defendant, from order of C. P. Centre Co., May T., 1907, No. 32, dismissing petition for rule to open judgment in case of International Harvester Company of America v. Mollie Miller. Petition for rule to open judgment.

<p>Appeal, No. 31, March T., 1912, by defendant, from order of Q. S. Luzerne Co., Jan. Term, 1888, No. 42, committing defendant to jail, in case of Commonwealth v. William Bowman.</p> <p>Proceedings for desertion. Before Garman, J.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was the order committing the defendant to jail.</p> <p>— The order of discharge was sufficient: Texas’s Case, 1 Ashmead, 175; Davis’s Appeal, 90 Pa. 131; Com. v. James, 142 Pa. 32; Com. v. Dee, 14 Pa. Superior Ct. 640.</p> <p>cited: Davis’s App., 7 W. N. C. 286.</p>

Appeal, No. 260, Oct. T., 1911, by defendant, from judgment of Q. S. Schuylkill Co., May Sessions 1911, No. 430, on verdict of guilty in case of Commonwealth v. C. E. Bingaman and T. C. Fegley. Indictment for abortion.

<p>Appeal, No. 30, April T., 1912, by defendant, from order of C. P. No. 1, Allegheny Co., Dec. T., 1905, No. 805, entering judgment for plaintiff non obstante veredicto in case of Mount Oliver Borough v. The First German Evangelical Lutheran St. Paul’s Congregation of East Birmingham.</p> <p>Scire facias sur municipal claim for paving street.</p> <p>At the trial the jury returned a verdict for defendant.</p> <p>Subsequently on motion to enter judgment for plaintiff non obstante veredicto Macfarlane, J., filed the following opinion:</p> <p>There was no contradiction in the testimony offered in this case, nevertheless it was submitted to the jury who found it to be true. They were instructed that if the testimony were true the defendant did not hold or use its cemetery for private or corporate profit. Under the point asking for binding instructions and the motion for judgment non obstante we have presented the question .whether this cemetery is held or used for profit. The church, bought the ground for a cemetery for the purpose of burying the members of the church and congregation and their families, sales of lots being made to such persons, except in the case of poverty, when they were buried in a portion of the cemetery without cost. There have been a few instances of burial of persons who have been attendants but not members of the church. The property cost $18,000 and there was expended upon it in grading, etc., about $7,000. The purchase money has been paid, but the congregation is still in debt upon notes amounting to $16,000. The proceeds of sales of lots are not separate from the funds of the church, but are put into the church treasury, where they are blended with the church moneys. The interest on money borrowed for the pin-chase and expenses for maintenance exceed the revenue, and the cemetery is an expense to the church. Seventy-five per cent of the lots have been sold and the sale of the remainder will not bring the church out of debt. There never has been a balance of profit to the church; on the contrary, as has already been said, there is a loss, and it is plain that the cemetery can never pay for itself.</p> <p>The Act of June 4, 1901, P. L. 364, following the language of the constitution of 1874, exempts “places of burial not used or held for private or corporate profit” from tax claim or municipal claims. This claim is for the grading and curbing of the roadway, and that portion of the act was declared constitutional in Pittsburg v. Cemetery Association, 44 Pa. Superior Ct. 289.</p> <p>It was argued by counsel for the plaintiff that the cemetery is not within the exemption, under the authority of Brown v. Pittsburg, 1 Monaghan (Pa.), 8. There the facts were that the real estate was purchased by the church. It was paid for by notes given by the church, which are being paid off from time to time out of the sales of the lots, all of the proceeds of which go into the church treasury, and this is the sole revenue, and has not paid expenses and interest on the notes and the church is compelled to make up the deficiency in the receipts necessary to pay the expenses of the church and cemetery, the whole income going into the church treasury and out of it all improvements being paid so far as it will reach. The sales of lots are to members of the church and no one can be buried in the cemetery until a lot or grave has been purchased for him. This court (Stowe, P. J.) said, “It is urged by defendant’s counsel that there.can be no profit within the meaning of the act unless the revenues exceed the expenses. In other words, that, until it appears the income derived from a place of burial is greater than the expenses incident to its improvement, it cannot be taxed. But this is confounding profit in its enlarged sense, with net profits, or the difference between expenses and income. I do not think it was intended to allow the church corporation to escape taxation of its property not used for church purposes, by continually making, improvements, equaling its income, thus continually increasing its value. The result of the defendant’s position, if carried out, would be to allow all expenses of a church to be paid out of the profit of its cemetery property which would be free from taxation. Every dollar realized by the church after paying the expenses of carrying on the cemetery as such, is for corporate profit.” The Supreme Court said that the cemetery in question was held for profit, that while “it may be true that it is not at present profitable, and may never be so, but as it seems to have been bought as an investment for the church, and, as revenues derived from it are for the use of the church, and by it may be appropriated to any purpose which to the said church may seem fit, it is obvious that it is not embraced within the statutory provision above mentioned.” This decision was in 18.88, prior to the passage of this act, but that does not affect it. We can see no substantial difference between the two cases. The question is not whether profit has actually been made or can be made under the circumstances. The money received from the cemetery may be put to some other use by the corporation and it is not necessary that it .shpuld be expended upon tbe cemetery, as is tbe case in many cemetery corporations. We are not unmindful that it has been the policy of this commonwealth to treat burial grounds as sacred places, not subject to levy or sale either by individual creditors or by the taxing authorities, Uniondale Cemetery's Appeal, 227 Pa. 1, but we think the Brown case is controlling.</p> <p>We are of opinion, therefore, that judgment should be entered in favor of the plaintiff and against the defendant non obstante veredicto for the amount of its claim, and counsel may present an order containing the amount.</p> <p>Error assigned was in entering judgment for plaintiff non obstante veredicto.</p>

<p>Ejectment — Evidence—Oral testimony — Charge of court — Priority of agreements.</p> <p>In an action of ejectment where the plaintiff and defendant claim title from the same grantor, the plaintiff under an earlier deed, and the defendant presents oral evidence which, though contradicted, tends to show that he bought the land in dispute which was a portion of that covered by the deed of the plaintiff, by an earlier agreement with the grantor than that of the plaintiff, and that the plaintiff had full knowledge of such agreement, it is reversible error for the court to charge in such a way that the jury might reasonably assume that the court was construing the writings and deciding as a matter of law that the date of the papers was controlling, without regard to the oral proofs as to notice, knowledge and possession.</p>

Appeal, No. 37, March T., 1912, by defendant, from judgment of C. P. Luzerne Co., Oct. T., 1909, No. 51, on. verdict for plaintiff in… Held: “That where an agreement to arbitrate does not provide for submitting matters in dispute to- any particular person or tribunal named, but to one or more persons to be eventually chosen by the parties, it is revocable by either party, and the fact that two arbitrators had been chosen, and having failed to agree, .... the bringing of…

<p>Malicious prosecution — Probable cause — Jurisdiction—Conflict of laws.</p> <p>In an action for malicious prosecution where the plaintiff shows that he was arrested at the instance of the defendant for larceny, and the bill of indictment was ignored by the grand jury the defendant in order to establish probable cause, may show that he had a reasonable right to believe that plaintiff had stolen defendant's mule team and wagon in Maryland and, at the time of the arrest was bringing them clandestinely by night into Pennsylvania. In such a case the defendant was not obliged to determine before he caused the arrest whether or not the courts of Pennsylvania had jurisdiction over the offense.</p>

Appeal, No. 132, April T., 1912, by defendant, from judgment of C. P. Westmoreland Co., Feb. T., 1911, No. 197, on verdict for plaintiffs in case of William Hutton and Angeline Hutton, his wife, v. The Carnegie Natural Gas Company. Assumpsit for the recovery of six quarterly installments due under a written grant of oil and gas. Before McConnell, J. The opinion of the Superior Court states the facts. At the trial the defendant presented the following points: 1.

Appeal, No. 59, April T., 1912, by defendant, from judgment of C. P. No. 1, Allegheny Co., March T., 1908, No. 49, on verdict for plaintiff in case of Louisa T. Ford v. Charles W. Campbell. Trespass against constable for wrongful levy and sale. Before Macfarland, J. The facts are stated in the opinion of the Superior Court. Verdict for plaintiff for $1,500, on which judgment was entered for $1,000, all above that amount having been remitted.

<p>Appeal, No. 108, April T., 1912, by defendant, from order of C. P. No. 3, Allegheny Co., Aug.. T., 1906, No. 753, striking off judgment of non-pros in case of Annie Mazer and Marcus Mazer v. Pittsburg Railways Company.</p> <p>Trespass to recover damages for injuries to a wife. Before Davis, J.</p> <p>From the record it appeared that a judgment of non-pros had been entered for failure to file a statement of claim within three months in accordance with the rules of court. The court subsequently struck off the non-pros and the case went to trial with a resulting verdict for plaintiffs.</p> <p>Error assigned was the order striking off the judgment of non-pros.</p>

Appeal, No. 50, Oct. T., 1911, by defendant, from judgment of C. P. Lancaster Co., June T., 1909, No. 27, on verdict for plaintiff in case of Harry A. Breneman v. Aldus C. Mylin. Assumpsit to recover damages for breach of contract. Before Hassler, J. At the trial it appeared that the plaintiff on July 9, 1908, leased to the plaintiff a dwelling house in the village of Willow Street.

Appeal, No. 186, Oct. T., 1911, by defendant, from judgment of C. P. Bradford Co., Sept. T., 1906, No. 319, on verdict for plaintiff in case of William H. Grace v. Standing Stone Township. Trespass to recover damages for injuries to a horse alleged to have been caused by a defective stone in a culvert. Before Fanning, P. J. At the trial it appeared that plaintiff’s horse was injured in March, 1906, by breaking through a culvert on one of the township roads.

Appeal, No. 155, Oct. T., 1911, by plaintiff, from order of C. P. Delaware Co., March T., 1911, No. 4, discharging rule for judgment for want of a sufficient affidavit of defense in case of W. Roger Fronefield, Executor of the last Will and Testament of William L. Mathues, deceased, v. Edward S. Fry. Assumpsit for money loaned. The affidavit of defense was as follows: 1.

Appeal, No. 251, Oct. T., 1911, by defendant, from order of C. P. No. 1, Phila. Co., March Term, 1911, No. 528, M. 'L. D., making absolute rule for judgment for want of a sufficient affidavit of defense in ease of Jesse T. Hoekstra v. Chambers-Wylie Memorial Presbyterian Church. Scire facias sur mechanic’s lien. Rule for judgment for want of a sufficient affidavit of defense.

Appeal, No. 119, April T., 1912, by defendant, from judgment of Q. S. Venango Co., Sessions Docket No. 6, Aug. T., 1911, on verdict of… Held: so far as I have any knowledge of the law on the subject, that any organization of men organized for a proper and legitimate purpose, adopting rules for their government and providing machinery by which the purpose of their organization shall be given effect, — it has never been held that such an organization meeting once a week or…

Appeal, No, 140, April T., 1912, by defendant, from judgment of C. P. Washington Co., Aug. T., 1911, No. 327, on verdict for plaintiff in case of G. H. Hays v. Eldora Amusement Company. Trespass to recover damages for personal injuries. Before McIlvaine, P. J. The facts are stated in the opinion of the Superior Court. Verdict and judgment for plaintiff for $400. Defendant appealed. Error assigned among others was in refusing binding instructions for defendant.

<p>Appeal, No. 164, Oct. T., 1911, by defendant, from judgment of C. P. Lancaster Co., May T., 1909, No. 38, on verdict for plaintiff in case of George G. Sahm v. Aaron L. Long.</p> <p>Assumpsit to recover upon the covenants of an oral lease. Before Landis, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The court charged in part as follows:</p> <p>[It is the settled law, as laid down by our courts, that an illegal act cannot be the consideration of a contract, If, then, the plaintiff, Sahm, knew that Long was illegally attempting to hold the farm against Mrs. Sheaffer, and he, with this knowledge, was aiding and abetting Long to hold it, and thus remained in possession, then, when he was put out, he was himself responsible, and he cannot make any claim against Long for damages. Such an agreement is against public policy, and cannot be enforced. But, if the illegal act was not the consideration of the contract, but was entirely disconnected with it, then the contract is valid, although the occasion for making it arose out of the existence of an illegal act. Then, too, where the act against the consequences of which indemnity was given, though actually illegal, is performed under a claim of right and a belief on the part of the party indemnified that it was a legal act, as, for instance, an apparently legal act which turns out to be a trespass, then the indemnity is good. Therefore, if Sahm did not know that Long was wrongfully attempting to hold this property, if he was told by Long that he (Long) had the right to rent the property to him (Sahm), and he believed Long, and remained on the farm, under a promise that he should be protected against all damages, then the contract of indemnity would be good, and Sahm could recover the amount of any loss which he sustained thereby.] [12]</p> <p>Defendants presented these points:</p> <p>2. There can be no recovery on this suit upon the alleged promise of the defendant, Long, to pay the plaintiff for damages alleged to have been sustained by his eviction from the premises, because the same was not in writing, and, therefore, not within the statute of frauds. Answer: Refused. [2]</p> <p>6. Under the law and the evidence in this case, the verdict of the jury should be in favor of the defendant. Answer: Refused. [1]</p> <p>Verdict and judgment for plaintiff for $635.25. Defendant appealed.</p> <p>Errors assigned were (1, 2, 12) above instructions, quoting them.</p> <p>— -The contract was illegal: Coventry v. Barton, 17 Johnson (N. Y.), 142; Trustees of Newburgh v. Galatian, 4 Cowen (N. Y.), 340; Babcock v. Terry, 97 Mass. 482; Buffendeau v. Brooks, 28 Cal, 641; Cumpston v. Lambert, 18 Ohio Rep. 81; Wright v. Gardner, 98 Ky. 454 (33 S. W. Repr. 622; 35 S. W. Repr. 1116); Atkins v. Johnson, 43 Yt. 78; Harrington v. Crawford, 35 L. R. A. 477.</p> <p>The action here against the appellant is to recover against him for the debt or default of another and not for any debt, default or act of his own and not for anything in which he has an interest: Riland v. Schaeffer, 45 Pa. Superior Ct. 636; Riegelman v. Focht, 141 Pa. 380; Armstrong County v. Clarion County, 66 Pa. 218; Moore v. Eisaman, 201 Pa. 190.</p> <p>The court could not submit to the jury the question of alteration when there was no evidence thereof as it stated itself: Bowers v. Jewell, 2 N. H. 543; Pullen v. Hutchinson, 25 Me. 249; Juniata Bldg. & Loan Assn. v. Hetzel, 103 Pa. 507.</p> <p>— The promise of the appellant was not to pay the debt of another: Nugent v. Wolf, 111 Pa. 471; Taylor v. Preston, 79 Pa. 436.</p> <p>A promise to indemnify against an act not known at the time to be unlawful is valid: Armstrong County v. Clarion County, 66 Pa. 218; Babcock v. Terry, 97 Mass. 482.</p> <p>A receipt is, like any other parol admission by the party, open to contradiction, explanation or correction: Gregory v. Huslander, 227 Pa. 607; Russell v. Presbyterian Church, 65 Pa. 9; Muldowney v. Tualin, 38 Pa. C. C. Rep. 49.</p>

Appeal, No. 85, April T., 1912, by Emma K. Lindsay, Executrix, from order of C. P. No. 3, Allegheny Co., Aug. T., 1911, No. 258, making absolute rule to strike off bond in case of M. H. Pickering Company v. Y. M. Yates and Emma K. Lindsay, Executrix of the Estate of Homer J. Lindsay, deceased. Rule to strike off claim property bond.

<p>Appeal, No. 243, Oct. T., 1911, by defendant, from judgment of C. P. Carbon Co;, Jan. T., 1909, No. 21, on verdict for plaintiffs in case of Robert H. Bauchspies and Theresa Bauchspies v. John A. Obert.</p> <p>Trespass to recover damages for personal injuries resulting from an alleged assault and battery. Before Heydt, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Defendant presented these points:</p> <p>2. The evidence showing that Theresa Bauchspies during the ten days she remained in bed after August 5, 1908, had no marks or bruises upon her body and failing to show that the extreme nervousness, pains in the back, side and leg were the direct result of any physical injury received at the hands of defendant on August 5, 1908, she cannot recover damages for such suffering and pain. Answer: Not read, and refused.</p> <p>3. The evidence in the case showing that there is nothing more than a conjecture to sustain an inference that the conditions from which the plaintiff Theresa Bauchspies suffered were caused wholly or partially by physical violence, this is not sufficient to warrant submission of the case to the jury with permission to draw that inference. Answer: Refused and not read.</p> <p>Verdict and judgment for Robert H. Bauchspies for $819.30 and for Theresa Bauchspies for $1,423. Defendant appealed.</p> <p>Errors assigned were (1)- “the court erred in submitting to the jury the question of contributory negligence on the paft of plaintiff, Theresa Bauchspies;” (2, 3) above instructions, quoting them; (4) refusal of binding instructions for defendant, and (5) in refusing judgment for defendant non obstante veredicto.</p> <p>I</p> <p>— The law in relation to negligence and contributory negligence is applicable to cases such as . the present, and, even before the act of 1887, the action by a husband to recover for loss of services by reason of injury to the person of his wife, was case not trespass: Drew v. Peer, 93 Pa. 234; Fox v. Borkey, 126 Pa. 164; R. It. Co. v. Norton, 24 Pa. 465; Beatty v. Gilmore, 16 Pa. 463; Del., Lacka. & West. It. It. Co. v. Cadow, 120 Pa. 559; Erie v. Magill, 101 Pa. 616; Lehigh Valley It. It. Co. v. Greiner, 113 Pa. 600; Long v. Milford Twp., 137 Pa. 122; Monongahela City v. Fischer, 111 Pa. 9; Oil City Fuel Supply Co. v. Boundy, 122 Pa. 449; Mattimore v. Erie, 144 Pa. 14; Drake v. Keily, 93 Pa. 492; Brown v. Kendall, 60 Mass. 292; First Nat. Bank v. W. U. Tel. Co., 34 Pa. Superior Ct. 488; Lewin v. Pauli, 19 Pa. Superior Ct. 447; Huey v. Gahlenbeck, 121 Pa. 238.</p> <p>— Contributory negligence was not a defense: Butler v. Stockdale, 19 Pa. Superior Ct. 98; MeKnight v. Ratcliff, 44 Pa. 156; Ruter v. Foy, 46 Iowa, 132; Steinmetz v. Kelly, 72 Indiana, 442; Carter v. Louisville, etc., Ry. Co., 98 Ind. 552.</p>

Appeal, No. 47, April T., 1912, by defendant, from order of C. P. No. 4, Allegheny Co., Fourth T., 1910, No. 385, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Jacob I. Rubenstein v. Dixie Fire Insurance Company of Greensboro. Assumpsit on a policy of fire insurance. Rule for judgment for want of a sufficient affidavit of defense.

Appeal, No. 153, April T., 1912, by defendant, from judgment of C. P. Westmoreland Co., Nov. T., 1910, No. 752, for plaintiff in a proceeding under the Act of April 17, 1905, P. L. 183, in suit of Monessen Borough v. Central District & Printing Telegraph Company. Petition to determine amount of license fee. Exceptions to report of Alexander Eicher, Esq., commissioner. The facts are stated in the opinion of the Superior Court.

<p>Dower — Partition—Charge on land — Title in widow — Sale of coal by widow — Covenant against incumbrances — Successive conveyances — Inverse order.</p> <p>1. Where a widow’s dower has been charged on land in partition proceedings, and subsequently the widow acquired a fee in a portion of the land and thereafter conveys by a general warranty deed with covenant against incumbrances the coal under such portion, the grantee of the coal after the death of the widow cannot be called upon to contribute to the portion of the dower fund charged upon the land to which the widow had acquired a fee, until the surface which had passed to devisees under the widow’s will, has been exhausted.</p> <p>2. Where there have been successive conveyances of land incumbered by a common lien, the lands are chargeable in the hands of the grantees in the inverse order of the conveyances.</p>

Appeal, No. .4, March T., 1911, by plaintiffs, from decree of C. P. Lackawanna Co., June T., 1910, No. 1, sustaining demurrer to bill in equity in case of A. L. Conrad et al. v. Patrick'O’Boyle and Martin O’Boyle,. doing business as O’Boyle Brothers, and the Borough of Dunmore. Bill in equity for an injunction. Newcomb, J., filed the following opinion: A firm of contractors and the borough of Dunmore are sued jointly.

<p>Insurance — Fire insurance — Proofs of loss — Time within which to bring suit — Waiver—Estoppel—Offer of compromise.</p> <p>1. In an action on a policy of fire insurance containing conditions requiring proof of loss to be filed within sixty days after the fire and suit to be brought within twelve months after the fire, where it appears that there was a total destruction of the building insured by fire resulting from sparks from a locomotive, it is proper to submit the question of waiver to the jury, if there is proof that the general agent of the company visited the premises shortly after the fire and told the insured that he had nothing further to do, and that a correspondence ensued between the parties extending for over a year after the fire relating to efforts on the part of the insurance company to have the insured look to the railroad company for compensation for the loss.</p> <p>2. In such a case the jury may also consider in connection with the other facts in the case as bearing on the question of waiver offers of compromise made by the company after the expiration of a year from the date of the fire.</p>

Appeal, No. 24, March T., 1912, by defendant, from judgment of C. P. Dauphin Co., Jan. T., 1911, No. 428, making absolute rule for judgment for want of a sufficient affidavit of defense in case of H. C. Dodge v. Adams Express Company. Assumpsit for loss of goods. Rule for judgment for want of a sufficient affidavit of defónse. The opinion of the Superior Court states the case.

<p>Appeal, No. 112, Oct. T., 1911, by defendant, from order of C. P. No. 3, Phila. Co., June T., 1907, No. 5,593, entering judgment n. o. v. for defendant in case of James Gallagher, Incorporated, v. Philadelphia Rapid Transit Company.</p> <p>Trespass for injuries to a horse. Before Davis, J.</p> <p>At the trial the case turned on the duty of the defendant to repair the portion of a street covered by its right of way. It was shown that the company was incorporated under the Act of March 22, 1887, P. L. 8. Plaintiff offered in evidence ordinances of the city of Philadelphia of July 7, 1857, April 1,1859, October 16,1860, and October 5,1862.</p> <p>Verdict and judgment for plaintiff for $350. Plaintiff appealed.</p> <p>Error assigned was in granting defendant’s motion for judgment non obstante veredicto.</p> <p>— Appellee, at the time of this accident, was bound to keep that portion of Callowhill street between its rails in repair: Reading v. Traction Co., 215 Pa. 250; Reading v. Traction Co., 202 Pa. 571'; Harrisburg v. Pass. Ry. Co., 1 Pearson, 298; Phcenixville v. Iron Co., 45 Pa. 135; Railway Co. v. State, 87 Tenn. 746 (11 S. W. Repr. 946); Sanford v. Union Pass. Ry. Co., 16 Pa. Superior Ct. 393.</p> <p>Almost universal is the rule that a street railroad company is liable for injuries caused by its failure to keep in repair its right of way: McLaughlin v. Traction Co., 175 Pa. 565; Gates v. Penna. R. R. Co., 150 Pa. 50; Citizens’ Pass. Ry. Co. v. Ketcham, 122 Pa. 228; Mayberry v. Ry. Co., 5 Phila. 253; Phila. v. Weller, 4 Brewster, 24; Oakland Ry. Co. v. Fielding, 48 Pa. 320; Cumberland Valley Railroad Co. v. Hughes, 11 Pa. 141; Worster v. Forty-second St., etc., R. R. Co., 50 N. Y. 203; Cline v. Railway Co., 43 La. 327 (9 So. Repr. 122).</p> <p>— A street railway company owes no duty to the public, irrespective of statute or contract with the city, to keep the surface of the street in repair. By the terms of the ordinances under which the company operates it is relieved from any duty to repair the surface except after notice from the city to do so: Norristown v. Railway Co., 148 Pa. 87; Philadelphia v. Ry. Co., 143 Pa. 444.</p>

Appeal, No. 54, April T., 1912, by defendant, from judgment of C. P. Crawford Co., Sept. Term, 1910, No. 91, for plaintiff on case stated in suit of Beaver Township School District v. Edgar Burdick. Case stated in ejectment for a lot of land in Beaver township.

Appeal, No. 25,- April T., 1912, by plaintiff, from decree of C. P. No. 2, Allegheny Co., Oct. T., 1910, No. 169, certifying case to the law side of-the court in suit of H. C. Freseman v. Oliver B. Purvis, Bill in equity for an injunction.

Appeal, No. 55, April T., 1912, by Theodore Hawkins, Claimant of the fund, from order of C. P. No. 2, Allegheny Co., Oct. T., 1910, No. 120, dismissing petition to auditor’s report in case of Reynold Busse v. Elizabeth Canter, Owner or late owner, and M. Scott, Contractor. Exceptions to report of R. B. Petty, Jr., Esq., auditor. The opinion of the Superior Court states the facts.

Appeal, No. 43, April T., 1912, by defendant, from order of C. P. No. 1, Allegheny Co., March T., 1911, No. 75, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Henry Mollenauer et al. v. Harvey H. Smith. Assumpsit on a recognizance for a stay of execution. .

<p>Appeal, No. 103, April T., 1912, by defendant, from order of C. P. No. 4, Allegheny Co., March T., 1911, No. 270, awarding mandamus in case of William C. Doverspike v. William A. Magee, Mayor, and Eustace S. Morrow, Controller of the City of Pitts-burg.</p> <p>Petition for mandamus. Before Carnahan, J.</p> <p>The court below found the facts to be as follows;</p> <p>The petitioner was a patrolman of the city of Pittsburg, being an employee of the city in the bureau of police. On October 14,1907, being in such employ, he was summoned before the trial board, under the Act of March 7, 1901, P. L. 20, to answer certain charges preferred against him by one or more superior officers. A hearing upon the charges was had resulting in his dismissal from the service. He appealed to the civil service commission of the city, which sustained the appeal, deciding that the trial was irregular and the proceeding before the trial board void. He was given a rehearing before the trial board, on February 17, 1908, and was again found guilty of the charges preferred. The mayor approved this finding, and had approved the previous finding; this second approval being on April 1,1908. Thereupon the petitioner was again dismissed from the service.</p> <p>Claiming that he was off duty and without pay, from January 1, 1908, until April 1, 1908, because of the illegal action of the trial board, the petitioner presented his claim for compensation for this period of time to the councils of the city of Pittsburg, and councils duly passed a resolution, authorizing and directing the mayor to issue, and the controller to countersign, a warrant in his favor for $273, the compensation to which he would have been entitled for ninety-one days’ service, which he was prevented from performing, by reason of the illegal action of the trial board. This resolution became efféctive on October 26, 1909.</p> <p>Having made demand upon the respondents to comply with the direction of councils, by issuing, countersigning and delivering such warrant, and they having refused to so comply, the petitioner now asks that a writ of mandamus be issued to compel compliance with the order of councils.</p> <p>The respondents answer that the civil service commission had no authority to interfere with the action of the trial board in October, 1907; that the petitioner was duly dismissed from the service at that time, and that the resolution of the councils is not valid and binding, because, as appears from the recitals in its preamble, it is based upon the assumption that the civil service commission was empowered to review the finding of the trial court, which assumption was wrong. Therefore, it is claimed the resolution is simply an illegal appropriation of public money.</p> <p>Error assigned was order awarding mandamus.</p> <p>— There was no jurisdiction in civil service commission. Mandamus was not the appropriate remedy: Birmingham Fire Ins. Co. v. Com., 92 Pa. 72; Com. v. Philadelphia, 13 Pa. Dist. Rep. 318; Com. v. Risser, 3 Pa. Superior Ct. 196; Com. v. Sellers, 7 Pa. Dist. Rep. 665.</p> <p>— The power of removal is inherent in the power to appoint: Truitt v. Philadelphia, 221 Pa. 331; Houseman v. Com., 100 Pa. 222; People v. State Comptroller, 20 Wend. 595; People v. Fire Commissioners, 73 N. Y. 437.</p> <p>Mandamus is the proper remedy: Com. v. Pittsburg Councils, 88 Pa. 66; Com. v. Cochran, 5 Binney, 87; Com. v. McLaughlin, 120 Pa. 518; Myers v. Com., 110 Pa. 217; Com. v. Lyter, 162 Pa. 50.</p>

Appeal, No. 125, April T., 1912, by defendant, from judgment of C. P. No. 4, Allegheny Co., Second Term, 1909, No. 68, on verdict for plaintiff in case of William Crider and Robert S. Lyons, Administrators of the Estate of James Swan, deceased, v. John Moorhead, Jr. Trespass to recover damages for personal injuries. Before Carnahan, J. The opinion of the Superior Court states the case. Verdict and judgment for plaintiff for $819.15. Defendant appealed.

Appeal, No. 127, April T., 1912, by plaintiff, from judgment of C. P. No. 4, Allegheny Co., Fourth Term, 1907, No. 930, on verdict for defendant in case of Margaret Murdock v. Joseph Groves. Assumpsit for rent. Before Carnahan, J. The facts are stated in the opinion of the Superior Court.

Appeal, No. 146, April T., 1912, by defendant, from judgment of C. P. No. 2, Allegheny Co., July T., 1905, No. 772, on verdict for plaintiff in case of Ira H. Edmundson, Agent for F. C. Kohne, v. Singer Sewing Machine Company. Assumpsit for rent. Shaper, J., found the facts to be as follows: The action is founded upon a lease at the rental of $20.00 per month expiring April 1, 1905, the plaintiff being the landlord and the defendant the tenant.

Appeal, No. 129, April T., 1912, by defendant, from judgment of C. P. Jefferson Co., Nov. T., 1907, No. 107, on verdict for plaintiff in case of J. S. Langan v. Punxsutawney Borough. Trespass to recover damages for alleged flooding of premises from a sewer. At the trial the jury returned a verdict for $100 for plaintiff on which judgment was entered.

Appeal, No. 136, April T., 1912, by plaintiff, from judgment of C. P. Clarion Co., Feb. T., 1911, No. 16, on certificate for defendant in case of Hawthorn Bottle Company v. John Cribbs. Assumpsit on a stock subscription. Before Wilson, P. J. The opinion of the Superior Court states the case. Certificate for defendant for $187.50, on which judgment was entered.

Appeal, No. 161, April T., 1912, by defendant, from judgment of C. P. Indiana Co., Dec. T., 1911, No. 262, for plaintiff on case stated in suit of D A. Buchanan v. William Corson et al. Case stated in ejectment for land in Montgomery township. Before Telford, P. J. From the record it appeared that on July 26, 1890, Mary E. Buchanan conveyed the land in question to her husband, David A. Buchanan, the plaintiff, by a deed in which she was named as the sole grantor.

Appeal, No. 8, Oct. T., 1911, by plaintiff, from decree of C. P. No. 5, Philadelphia Co., Dec. T., 1909, No. 2,048, dismissing libel in case of Sarah Batty Schofield v. Charles S. Schofield. Libel for divorce. The opinion of the Superior Court states the facts.

Appeals, Nos. 95 and 96, Oct. T., 1911, by plaintiff, from order of C. P. No. 5, Philadelphia, Co. Dec. T., 1909, No. 2,048, refusing alimony, costs, expenses and counsel fee in case of Sarah Batty Schofield v. Charles S. Schofield. Petition for alimony and for payment of costs, expenses and counsel fee. The opinion of the Superior Court states the case.

<p>Appeal, No. 131, April T., 1912, by defendant, from judgment of C. P. No. 4, Fourth Term, 1908, No. 589, on verdict, for plaintiff in case of Franklinville Canning Company v. Pittsburg Bakers & Confectioners' Supply Company.</p> <p>Assumpsit for apples sold and delivered. Before SWEARINGER, P. J.</p> <p>Defense presented this'point:</p> <p>That the evidence in the case fails to show a completed contract between the plaintiff and defendant at any time prior to November 2, 1907, such as is claimed in this case, and that the defendant having on that date notified the plaintiff, in effect, not to send the apples sued for, the plaintiff cannot recover in this case, and, generally, that under all the evidence the verdict must be for the defendant. Answer: Refused.</p> <p>Verdict and judgment for plaintiff for $715.60. Defendant appealed.</p> <p>Errors assigned were refusal of point above, and refusal of motion for judgment for defendant n. o. v.</p>

Appeal, No. 15, April T., 1912, by defendant, from- judgment of C. P, .Washington Co,, Nov. T., 1910, No. 162, on verdict for plaintiff in- case of John Míngale v. Vesta Coal Company. Trespass to recover damages for personal injuries.

<p>Appeal, No. 170, April T., 1912, by defendants, from judgment of C. P. Allegheny Co., April T., 1909, No. 986, on verdict for plaintiffs in case of Peter Schmidt et al. v. Christian Lieberum et al.</p> <p>Ejectment for land in Versailles township. .Before Shafer, J.</p> <p>■' The facts 'are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiffs. Defendants appealed.</p> <p>.. Errors assigned were in directing a. verdict for plaintiffs -and in refusing a new trial.- ■_ ....</p> <p>— The petitioners for the rule, appellants herein, to bring an action of ejectment were within their legal rights in joining the appellees: White v. Pickering, 12 S. & R. 435.</p> <p>But the converse of this rule does not follow, for it is easily discerned from the case at bar, that each of the appellees recovered by the judgment of the court below an undivided interest to a tract of land, while they claimed they were entitled to separate and distinct pieces therein by deeds of conveyances made in proper form and duly recorded: Mobley v. Bruner, 59 Pa. 481.</p> <p>Appellants contend that the case, as presented, took the same out of the operation of the statute of frauds: Ross v. Baker, 72 Pa. 186; Webb v. Dean, 21 Pa. 29; Richards v. Elwell, 48 Pa. 361.</p> <p>— Appellees contend that in the case at bar the defendants had notice for over two years and seven months that the plaintiffs were joined in this action and yet took no steps whatsoever to raise an objection until the trial of this case, when they should have done so at an earlier stage, either by demurrer or by a plea in abatement: Schwartz’s Est., 14 Pa. 42; White v. Pickering, 12 S. & R. 435; Jones v. Hartley, 3 Wharton (Pa.), 178; Helfenstein v. Leonard, 50 Pa. 461.</p> <p>There was not sufficient evidence of a parol sale to take it out of the statute of frauds: Hart v. Carroll, 85 Pa. 508; Dougan v. Blocher, 24 Pa. 28; Matthews v. Matthews, 11 Pa. Superior Ct. 381; Derr v. Ackerman, 182 Pa. 591; Shaffer’s Est., 205 Pa. 145.</p>

Appeal, No. 176, April T., 1912, by plaintiff, from judgment of C. P. No. 4, Allegheny Co., First T., 1908, No. 598, for debt on case statéd in suit of Leila A. Cooper v. Bellevue Borough. Case stated to determine liability for street improvement.

<p>Appeal, No. 137, April T., 1912, by defendant, from judgment of C. P. No. 1, Allegheny Co., Sept. T., 1909, No. 319, on verdict for libelant in case of Henry W. Kelly v. Pauline Kelly.</p> <p>Libel for divorce.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>At the trial the libelant on cross-examination, was asked this question:</p> <p>“Q. On the 23d day of June, 1907, you told one of Mrs. Kelly’s daughters to bring your child and your wife’s child, Henrietta, down to your office, didn’t you? A. I don’t understand that question.”</p> <p>Mr. Langfitt: We object, not so particularly to this one question, but to the line of examination which is proceeding, if it is a cause or reason at all, along the line of showing cruel treatment. If it is not that it is nothing. That has been adjudicated, and this is immaterial.</p> <p>Mr. Marshall: It is not offered for the purpose of showing cruel treatment, but for the purpose of contradicting the witness, first, wherein he stated he had no idea she intended to leave, and, in the second place, it is for the purpose of showing he connivéd at her leaving, and it was not a desertion, but at most a separation which he connived at.</p> <p>The‘Court: If I have Mr. Kelly’s testimony correctly, all he said that could possibly open the door for this was, that he did not know of her intention to leave, and she had not told him. Then the question is, did he know it? It may be cross-examination, but it seems to me it is purposeless for the reason that it does not bear upon anything set up in the answer. As it stands, the objection is sustained, and a bill of exception noted to the defendant. [1]</p> <p>• Defendant’s counsel proposes to ask the libelant, who is now on the stand, as to his conduct toward and treatment of his wife, immediately after the time she left their home on July 8, 1907. This for the purpose of showing that the alleged desertion was not a desertion, but libelant connived at, and his conduct encouraged the respondent to continue her absence from his home.</p> <p>Plaintiff’s counsel object to the offer, first, because, if true, it does not constitute a defense; second, as incompetent under the evidence in the case and the pleadings, showing that the matters and things alleged and offered to be proven have been passed upon and adjudicated by the court, as appears at No. 800, January Term, 1908, the record of which is in evidence. It is objected to generally as incompetent and irrelevant.</p> <p>The Court: The objection is sustained, and bill of exception noted to the defendant. [2]</p> <p>£<Q. In the spring or summer of 1907 did you have a talk with Mj. Harris, a neighbor of yours? A. I was talking to Mr. Harris more or less during the summer. Q. Did you have a talk with him at his house, prior to the time your wife left your home? A. I had several talks with him. Q. At one of those talks, just shortly before she left your home, didn’t you tell him that you would get a divorce on some ground, that your wife was too delicate a woman for you, and that you would prove her crazy if necessary? ”</p> <p>Objected to by plaintiff’s counsel as not cross-examination. Second, as incompetent under the pleadings and the rulings of the court.</p> <p>The Court: The objection is sustained and bill of exception noted to the defendant. [3]</p> <p>Mr. Marshall: I now propose to prove by the witness,' and other witnesses, the manner in which Dr. Kelly treated his wife continuously for years prior to her withdrawal from his home. This for the purpose of showing his connivance at her withdrawal and alleged desertion.</p> <p>Objected to by plaintiff’s counsel as incompetent, irrelevant and immaterial under the pleadings and rulings of the court.</p> <p>The objection is sustained and bill of exception noted to the defendant. I do not mean by that that there might not be something that you could show. I do not mean that you could not show they were living together perfectly harmoniously and peacefully, and all that. [4]</p> <p>Verdict and judgment for libelant. Respondent appealed.</p> <p>Errors assigned were (1-4) rulings on evidence, quoting the bill of exceptions.</p> <p>cited: Olson v. Olson, 27 Pa. Superior Ct. 128; King v. King, 36 Pa. Superior Ct. 33.</p> <p>cited: Lewis v. Lewis, 106 Mass. 309; Roth v. Roth, 15 Pa. Superior Ct. 192; Schwan v. Kelly, 173 Pa. 65; Allen v. Book Co., 201 Pa. 579; Bell v. Aliegheny County, 184 Pa. 296; Marsh v. Pier, 4 Rawle, 273; Eshbach v. Eshbach, 23 Pa. 343; Gordon v. Gordon, 48 Pa. 226; Mendenhall v. Mendenhall, 12 Pa. Superior Ct. 290.</p>

Appeal, No. 74, Oct. T., 1912, by defendant, from order of C. P. No. 5, Phila. Co., June T., 1911, No. 1,363, making absolute rule to amend libel in case of Lizzie Wenger v. Morris Wenger. Libel in divorce. Motion to quash appeal. Error assigned was the order of the court.

<p>Negligence — Electric light company — Presumption—Res ipsa loquitur —Evidence.</p> <p>In an action against an electric lighting company to recover damages for the breaking of a plate glass window by reason of a metal transr forming box falling on the window from the top of a pole on the edge of a sidewalk, the rule of res ipsa loquitur applies, where the evidence shows that at the time of the accident the defendant’s employees were in the act of removing the box from the pole to the ground, but does not show how the box happened to fall.</p>

Appeal, No. 159, April T., 1912, by plaintiff, from judgment of C. P. Jefferson Co., Aug. T., 1910, No. 171, on verdict for plaintiff in case of American Manufacturing Company v. L. A. Brady and Walter Richards, trading as Brady & Richards. Assumpsit for goods sold and delivered. Before Reed, P. J. The facts are stated in the opinion of the Superior Court. Verdict and judgment for defendants. Plaintiff appealed. Errors assigned were in the following form: 1.

<p>Appeal, No. 174, April T., 1912, by Charles W. Wangler, from decree of O. C. Fifth District, First Monday of May, 1912, dismissing exceptions to adjudication in Estate of Charles S. Wangler, deceased.</p> <p>Exceptions to adjudication.</p> <p>Hawkins, P. J., filed the following opinion:</p> <p>The question in this case is whether or not the gift to Charles W. Wangler is chargeable with the partnership debts of himself and testator. The facts are these:</p> <p>By the first clause of the will testator directs “all ” his debts and funeral expenses to be paid “out of the amount of cash I may have on hand or in bank;” by the second clause the balance of this money was given his daughters Cezelia and Stella; and by the fourth “the building or works situated and known as No. 628 Third Street, Pittsburgh, N. S., and all profit, income and advantage that may result therefrom with the understanding that he is to pay to each of my daughters Cezelia and Stella the sum of three hundred dollars a piece,” was given to his son Charles W. The devisee says that the premises consisted of a Schenley leasehold and machinery attached, and were occupied by him and his father as partners under the firm name of C. S. Wangler & Son in the wagon making business; and that the assets of the firm consisted of tools, stock (lumber, • etc.) ■ on hand, and bills receivable. It is claimed by exceptants that the gift to Charles of “the building and works ” embraced the business of C. S. Wangler & Son and was therefore subject to the partnership debts. If it was not, decedent died intestate as to his interest in the firm. It is suggested in this connection that assuming the construction doubtful, equalization must turn the scale in favor of exceptants. Restricting Charles’ gift to building and machinery its value would be</p> <p>(less charge).............................$2,900.0,0</p> <p>Mrs. Moeller’s devise, (less charge)........ 1,400.00</p> <p>Cezelia’s legacy about................... 1,200.00</p> <p>Stella’s legacy about.................... 1,200.00</p> <p>If exceptants’ theory be correct, their shares will be proportionately increased, and Charles diminished.</p> <p>The assets and liabilities of the firm are these:</p> <p>Assets:</p> <p>Tools and stock......•................... $300.00</p> <p>Bills receivable........................... 583.66</p> <p>$883.66</p> <p>Liabilities:</p> <p>Debts (paid)...........................$1,732.68</p> <p>Deficit............................. $849.02</p> <p>For one-half of which decedent is liable____$424.51</p> <p>But accountant claims credit by mistake for $433.08, being excessive credit of $8.57.</p> <p>Among the liabilities assumed by the firm was the ground rent on the leasehold.</p> <p>If the gift to Charles had been simply of the building and machinery attached his theory of construction must be conceded; but reading the whole dispositive clause it seems clear that testator had in mind a going concern. His own definition of the word “building,” is “works,” which, as explained by extrinsic evidence, meant that for which it had been used and therefore the wagon works; and the direction following in the same sentence that he shall have “all the profit, income and advantage that may result therefrom,” necessarily implied the means of realizing “profit, income and advantage,” and therefore a gift of the business itself. Machinery, though not mentioned, is admittedly embraced in the gift as being a necessary part of the wagon works. The tools in use and stock on hand would be equally necessary parts of the res mota; and how could there result “profits, income or advantage” without the means of continuing the business? Everything necessary to perfect the establishment and fit it for the use designed is a part of it: Patterson v. Delaware County, 70 Pa. 381-384. Nothing is said in the will about closing out the firm business. No disposition is made of firm assets other than the gift to testator’s son. The fact that Mr. Wangler undertook to make a will implied an intent to make a complete disposition of his estate; and the inclusion of firm assets in the gift to the son, is the only construction which will prevent intestacy. The gift then embracing everything used in carrying on the business of wagon making, the donee must, in qrnking his election, take the whole or nothing under the will; he might not select the good, and reject’the worthless, ánd his acceptance therefore settled.the extent of ownership. ........</p> <p>The question of liability for payment of firm debts remains. When Mr. Wangler gave direction that his “debts and funeral expenses” should be paid out of his “cash on hand and in bank” it must of course be conceded that he meant payment out of his individual cash, for that was the only cash presently available; the firm assets must pass into the surviving partner’s hands and be the subject of separate settlement. Individual source of payment implies individual liabilities; and the association of the direction to pay his debts, with that of payment of his funeral expenses points to the same purpose. When therefore he had given his two daughters “the balance of cash on hand and in bank” he had made a complete disposition of that fund. On the other hand, the firm business is made a distinct subject of disposition. It was given to his son and surviving partner with its good will to make the best out of it. Having been bequeathed as a going concern, he took it with all its incidents and therefore with its burthens. Who accepts a benefit must bear its incidental burthens is axiomatic: Broom’s</p> <p>Maxims, *680. No one will question that this donee must pay the ground rent charged on the leasehold; and the same reason exists for holding him liable for payment of firm debts. They were both incidents to the nature of the thing bequeathed and both paid, so far as paid, out of firm.assets: Bothamley v. Sherson, L. It. 20 Eq. 304-315. They were thus treated by the firm, and therefore by Mr. Wangler as belonging to the same class. The son having accepted the business subject to these charges it is natural to conclude that he meant to take them on himself; and the law may very well imply a promise to perform what he has so assumed: Broom’s Maxims, *681. He had no reason to complain of this construction, for with all deductions, including firm debts, the value of his share will be nearly double those of his sisters. This is not a question of charging debts against the value of tools, stock and bills receivable alone, but against the business bequeathed, which included everything that was used by the firm for this purpose,' and therefore the building and machinery, as well as these assets. The whole was bequeathed for this purpose, and the whole is chargeable. The probability is that the very contingency of firm liabilities was taken into consideration in determining the scope of the gift; for there is no apparent reason for discrimination as between the son and hjs sisters. What the firm liabilities would be was necessarily an uncertain element against which testator may be assumed to have intended to provide; and fortunately for Charles the turn was in his favor. If the firm settlement had resulted the other way, his sisters, on his theory of construction, would have shared in the surplus, and a nearer approach to the equity of equality have been made.</p> <p>No case has been found on all fours with the present: but Farquhar v. Hadden, L. R. 7 Ch. App. 1, is strikingly like it in one aspect of this case. Testator gave certain leasehold premises in which his “business” was “carried on” and all his share of the office furniture, books and other office and household fixtures therein, to his partner “for his own absolute use and benefit.” What was contended by the legatee was that the bequest was “not merely a gift of the interest of the testator in the property but a gift of that interest with an additional gift of so much of his residuary personal estate as should be required to free this--property from its ordinary liability to pay partnership debts,” but the court. (James and Mellish, JJ.) held that the gift embraced only such interest as the executors could have claimed from the surviving partner, had there been no bequest. ;</p> <p>Objection is made that because .testator expressly charged this gift with specified sums of money, there arose an'implied exoneration from any further charge and therefore from firm debts. The obvious purpose in making these charges was to promote, the equity of equalization, but it does not necessarily follow that payment of firm debts in addition was inconsistent with that purpose. The element of uncertainty in the character of the gift was no doubt taken into consideration. Having presumably the law of liability of firm assets for firm debts in mind it is fair to assume that if he had intended to exonerate his gift from these debts he would have said so. Testator says this legatee shall pay certain charges and the law says he shall pay certain debts; and the two are entirely consistent: Hoover v. Hoover, 5 Pa. 351. Testator had no power to take away the right of firm creditors to payment out of firm assets, and more than the mere charge of a sum of money would seem to be necessary to exonerate the legatee. The principle is thoroughly established that a legatee is liable for charges incident to the nature of the thing given, as leasehold rent and calls on railway shares; and liability of firm assets for firm debts is clearly within the reason of the principle. There is nothing in the terms of this will which necessarily implies an intent to make so radical a change as that suggested. No reference is made to firm debts; and there is nothing to justify an implication of exoneration from payment of them. The testamentary charge in this_case is not incident to the nature of the thing given, but a special creation of Mr. Wangler, and falls under a different principle. The testator must therefore be supposed to have given this property as it was, subject to the operation of the law of partnership: Bothamley v. Sherson, L. R. 20 Eq. 304. When the son saw fit to accept the legacy, he did so with full knowledge of the facts. He admits the operation of the partnership law by in fact applying the value of the movable firm assets toward liquidation of firm debts; and is estopped from denying liability of the leasehold and machinery attached by having in fact treated them as firm assets while a member of the firm.</p> <p>It will thus be seen that the testator’s general intent was to promote the equity of equalization as between his children. Absolute equality was in the circumstances hardly to be expected; and the parties must abide the logic of the facts.</p> <p>Error assigned was decree of court.</p> <p>A bequest of a partner’s interest in an insolvent firm fails: Farquhar v. Hadden, L. R. 7 Ch. App. 1; Staats v. Bristow, 73 N. Y. 264.</p> <p>There is no presumption that a leasehold standing in the name of one of several partners constitutes partnership assets, notwithstanding the partnership business is carried on upon the leased premises. The presumption is otherr wise: Chamberlin v. Chamberlin, 44 N. Y. Super. Ct. 116.</p> <p>A bequest of a going business does not impose on the legatee the duty of paying the existing debts of the business: Stewart v. Denton, 4 Dough 219; Mulligan’s Est., 157 Pa. 98; Simon’s Est., 50 Pitts. Leg. J. 125; Smith’s Est., 11 Pa. Dist. Rep. 375; Fleming’s Est., 184 Pa. 188.</p> <p>— The law favors a construction of the will which will produce equality in accordance with the intestate laws of the state of Pennsylvania, and whoever claims against the laws of descent must show some satisfactory written evidence of title on which to base his claim: Lewis’s App., 89 Pa. 509; Snyder’s Est., 3 Pa. Dist. Rep. 382; Malone v. Dobbins, 23 Pa. 296; Lipman’s App., 30 Pa. 180.</p> <p>The son took the bequest with the burden of the debts: Earp’s Will, 1 Pars. Sel. Eq. Cas. 453; Flanagan’s Est., 52 Pitts. Leg. J. 204; Farquhar v. Hadden, L. R. 7 'Ch. App. 1; Nave v. Sturges, 5 Mo. App. 557.</p>

Appeal, No. 102, April T., 1912, by plaintiffs, from order of C. P. Armstrong Co., June T., 1907, No. 204, refusing to take off nonsuit in case of S. Y. Thompson, Harry H. Hunter and C. E. Frankenberry, trading as S. V. Thompson Company, v. D. A. Goldman.

<p>Appeal, No. 113, April T., 1912, by defendant, from judgment of C. P. No. 3, Allegheny Co., Nov. T., 1908, No. 137, on verdict for plaintiff, in case of Jacob McCollum and Matilda McCollum, his wife, v. Pittsburg Railways Company.</p> <p>Trespass to recover damages for personal injuries. Before Evans, J.</p> <p>At the trial it appeared that Matilda McCollum was injured while alighting from one of the cars of defendant about eleven o’clock on September 10, 1907. The night was dark and it was raining at the time. The evidence of the plaintiff and her witnesses tended to show that the car was not stopped at the crossing for which the plaintiff signaled, but was run beyond the crossing and stopped near a pile of stones on which plaintiff' fell as she alighted from the car.</p> <p>The court charged in part as follows:</p> <p>If the motorman in charge of that car, in the exercise of a reasonable judgment, determined that the ordinary place for stopping the car was not a safe place for passengers to alight, because of the sudden emergency of this rain, and he proceeded to another place, and he exercised reasonable care in the selection of the place where he stopped, then there would be no negligence in his act of passing the place where he ordinarily would have stopped, and passing on to the place where he did stop. It is a question of the exercise of ordinary care when some emergency arises, which necessitates a man doing something which under ordinary circumstances he would not do. [Now, under all the circumstances, did this conductor, in passing the ordinary place where this car would have stopped under ordinary circumstances, exercise the ordinary care which the law requires him to exercise in passing that place and in selecting another place to stop for passengers to alight? It was his duty to do that.] [3]</p> <p>It was his duty to exercise the ordinary care which an ordinary prudent man would exercise under the circumstances. That becomes an important question in this case, whether he did exercise that care in choosing the place where he would stop. And as I stated to you before, it becomes important for you to find the fact, because that ■fact is disputed under the evidence as to the way in which these stones were piled at the place where the car stopped.</p> <p>Judgment and verdict for Jacob McCollumfor $1,000 and for Matilda McCollum for $1,500. Defendant appealed.</p> <p>Errors assigned were (9) in refusing binding instructions for defendant, and (3) portion of charge as above, quoting it.</p> <p>cited: Scanlon v. Rapid Transit Co., 208 Pa. 195; Bland v. Ry. Co., 13 Pa. Superior Ct. 93; Bernhardt v. R. R. Co., 159 Pa. 380; Green v. R. R. Co., 214 Pa. 240; Alexander v. Water Co., 201 Pa. 252; Ziegler v. Simplex Foundation Co., 228 Pa. 64; Salerno v. Phila.. & Reading Ry. Co., 46 Pa. Superior Ct. 243.</p> <p>cited: Strader v. Monroe County, 202 Pa. 626; Ely v. Ry. Co., 158 Pa. 233; Mieitzner v. B. & O. R. R. Co., 224 Pa. 352; Danko v. Rys. Co., . 230 Pa. 295; Creachen v. Carpet Co., 209 Pa. 6; Smith v. Jackson Twp., 26 Pa. Superior Ct. 234.</p>

Appeal, No. 165, April T., 1912, by defendant, from judgment of C. P. Allegheny Co., Oct. T., 1909, No. 557, on verdict for plaintiff in case of Joseph G. Barnett v. George R. Cain. Assumpsit against a justice of the peace for penalties for taking illegal fees. Before Swearingen, P. J. The facts are stated in the opinion of the Superior Court. Verdict and judgment for plaintiff for $300. Defendant appealed.

Appeal, No. 128, April T., 1912, by defendant, from decree of C. P. No. 3, Allegheny Co., Nov. T., 1910, No. 616, on bill in equity in case of Central District & Printing Telegraph Company v. Clair-ton Borough. Bill in equity for an injunction to restrain the defendant from interfering with the plaintiff’s purpose in locating telephone poles on Park avenue.