Volume 54 — Pennsylvania Superior Court Reports

Appeal, No. 247, Oct. T., 1912, by plaintiff, from order of C. P. No. 2, Phila. Co., June Term, 1910, No. 280, refusing to take off nonsuit in case of the Sloss-Sheffield Steel and Iron Company v. Tacony Iron Company. Assumpsit for goods sold and delivered. Before Barratt, J. The facts are stated in the opinion of the Superior Court. At the trial the court entered a compulsory nonsuit which it subsequently refused to take off. Error assigned was refusal to take off nonsuit.

Appeal, No. 100, Oct. T., 1912, by Ella C. Booth et ah, from decree of O. C. Montgomery Co., Sept. T., 1911, No. 17, dismissing exceptions to adjudication in Estate of Charles C. Slifer, deceased. Exceptions to adjudication. Before Solly, P. J. The facts are stated in the opinion of the Superior Court. Errors assigned were in dismissing exceptions to adjudication.

Appeal, No. 145, Oct. T., 1912, by plaintiff, from judgment of C. P. Montgomery Co., Dec. T., 1911, No. 76, on case stated in suit of William M. Hagginbotham, Treasurer of Montgomery County, v. Montgomery County. Case stated to determine liability of a county to county treasurer for postage. The court entered judgment for defendant on case stated. Error assigned was in entering judgment for defendant on the case stated.

Appeal, No. 34, March T., 1913, by defendant, from order of Q. S. Wayne Co., Jan. T., 1912, No. 17, -affirming order of removal in case of Canaan Township Overseers v. Covington Township Overseers. Petition for order of removal. Searle, P. J., filed the following opinion: This case comes before the court upon a petition for an order of removal and answer thereto. The facts are not in dispute.

<p>Appeals, Nos. 198, 199, 200 and 201, from judgments of C. P. No. 2, Phila. Co., June T., 1911, Nos. 2,540, 2,541, 2,542 and 2,543, on verdicts for plaintiffs in cases of Mary Sproson, Blanche G. Mentzenheimer, Louis Grotz and Frederika Bern-hard v. Philadelphia & Reading Railway Company.</p> <p>Trespass to recover damages for injuries to residential properties. Before Sulzberger, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdicts and judgments in each case for plaintiffs for 1100. Defendant appealed.</p> <p>Errors assigned in each case were in refusing binding instructions for defendant.</p>

Appeal, No. 31, March T., 1913, by plaintiff, from order of C. P. Susquehanna Co., Jan. T., 1877, No. 347, revived to Nov. T., 1911, No. 97, opening judgments in case of James McPherson to use of George I. Cole v. Annie Cole, Administratrix of the Estate of Henry Cole, deceased. Rule to open judgment.

Appeal, No. 12, March T., 1913, by plaintiff, from judgment of C. P. Luzerne. Co., Feb. T., 1912, No. 340, for defendant on case stated in suit of George J. Evans v. Luzerne County. Case stated to determine liability of county for salary of a public officer. The opinion of the Superior Court states the case. Error assigned was the judgment of the court in favor of the defendant.

<p>Wills — Trusts and trustees — Income—Estate-pur autre me — Survivor-ship.</p> <p>Testatrix left her residuary estate in trust to a trustee to pay one-third of the income thereof to her daughter Mary Jane during all the term of her natural life, one-third to her daughter Merian during all the term of the natural life of Mary Jane, and the remaining one-third to her daughter Annie, during all the term of the natural life of Mary Jane. After the death of Mary Jane she gave the residuary estate to the issue of Mary Jane, should she leave any surviving, and unto her daughters Merian and Annie, their heirs, executors and administrators for ever in equal shares. She further directed that if Mary Jane left no issue surviving, that the share which such issue would have taken should pass to and become vested in her daughters Merian and Annie in equal parts, but should either Merian, or Annie, be deceased at the time of the death of Mary Jane “then the survivor of them the said Merian and Annie, their heirs and executors, shall succeed to and be invested with the entire property.” She further directed that in default of surviving issue of Mary Jane, and in the event of her daughters Merian and Annie both dying intestate and without children them surviving previous to the death of Mary Jane, then on the death of Mary Jane all the residuary estate was to go to testatrix’s heirs as though she had died intestate. After testatrix’s death Annie died intestate and without issue her surviving. Subsequently Merian died ■without issue her surviving, but leaving a will. Held, (1) that the estates in Annie and Merian were vested estates pur autre vie; (2) that there was a survivorship between Annie and Merian; (3) that the share of income paid to Merian in her lifetime was payable after her death to her executor during the life of Mary Jane; (4) that the share of income payable to Annie during her lifetime passed to Mierian, and was payable after the latter’s death to her executor during the life of Mary Jane.</p>

<p>Appeal, No. 265, Oct. T., 1912, by plaintiff, from judgment of C. P. Schuylkill Co., Nov. T., 1911, No. 257, for defendant n. o. v. in case of Elizabeth R. Parkin, Administratrix d. b. n., v. Safe Deposit Bank.</p> <p>Assumpsit to recover interest on a deposit. Before Brum, J.</p> <p>At the trial it appeared that George W. Johns died intestate on December 22, 1908. Letters of administration on his estate were granted to Charles W. Parkin. The latter as administrator deposited with the safe deposit bank, the defendant, sums of money aggregating $173,131.05. The bank paid interest on checking accounts at the rate of two per cent and credited this account with interest at various times down to June 1, 1910, but did not allow interest from February 4, 1910, until March 1, 1910. It refused to pay for this period because it alleged that it did not pay interest for broken months. Charles W. Parkin died on January 17, 1910, and his administratrix, Elizabeth R. Parkin, filed an account in the estate of George W. Johns, deceased. This account was settled and distribution made. It was subsequently discovered that the bank had not allowed interest from February 4 to March 1, 1910, and Elizabeth R. Parkin then took out letters of administration d. b. n. on the estate of John W. Johns, and brought the present suit.</p> <p>The jury returned a verdict for the plaintiff. Subsequently the court entered judgment for defendant non obstante veredicto.</p> <p>Errors assigned were various instructions and rulings.</p>

Appeal, No. 177, Oct. T., 1912, by defendant, from order of C. P. No. 2, Phila. Co., March T., 1912, No. 4,289, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Bankerd & Outerson Company v. Historical Publishing Company. Assumpsit for goods sold and delivered. The opinion of the Superior Court states the case. Error assigned was in making absolute rule for judgment for want of a sufficient affidavit of defense.

<p>Appeal, No. 4, Feb. T., 1913, by defendant, from order of Q. S. Lycoming Co., Sept. Term, 1912, No. 17, directing removal of pauper in case of Williamsport Overseers of the Poor v. Eldred Township Overseers of the Poor.</p> <p>Petition for order of removal. Before Whitehead, P. J.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was the order of the court.</p>

<p>Contract — Building contract — Payments—Accounting.</p> <p>In an action by a contractor for a balance alleged to be due under a building contract, it appeared that by the terms of the contract the plaintiff was to obtain bids for material and labor, and submit them to the defendant who was to award the subcontracts. The work not covered by the subcontracts was to be done by the plaintiff, who also undertook to superintend the erection and construction of the building. It was further stipulated that the plaintiff was to employ a watchman. The plaintiff was to receive for his compensation an amount equal to ten per cent of the total cost of the erection of the building, payable in three installments, the last within thirty days after the building had been completed. Two payments were made during the course of the construction of the building. The defendant claimed that plaintiff charged him for the wages of a watchman, and for the wages of two foremen who did the work which plaintiff agreed to do himself. When one of the payments was made on account defendant noted on the bill a deduction for the watchman’s wages, and further stated that the foreman’s wages were to be deducted at the time of final settlement. Plaintiff beneath this statement wrote the letters “O. K.” and signed his name. Held, (1) that the cost of the building on which plaintiff’s commission was to be calculated was to be determined on final settlement; (2) that the partial payments did not estop defendant to have the question of the commissions determined after completion of the building; (3) that the agreement as to the deduction of the foreman’s wages was a compromise, and as such binding as a contract; and (4) that the deductions claimed by the defendant were not matters of set-off requiring notice, but matters of defense which could be properly shown under the plea of payment.</p>

<p>Appeal, No. 14, March T., 1913, by defendant, from judgment of C. P. Luzerne Co., Oct. T., 1907, No. 1,250, on verdict for plaintiff in case of Kate Haas v. White Haven Borough.</p> <p>Trespass to recover damages for personal injuries. Before Fuller, P. J.</p> <p>From the record it appeared that the following petition for non-pros was filed:</p> <p>The borough of White Haven, defendant above named, by its attorneys, John R. Halsey and Thomas F. Farrell, respectfully prays your honorable court to enter a non-pros in the above-entitled case because of laches on the part of the plaintiff, in prosecuting her case..</p> <p>The injury for which this action is brought is alleged to have occurred on October 18, 1906.</p> <p>The suit was filed September 14, 1907.</p> <p>The plea of the general issue was improvidently entered on August 30, 1909, before declaration filed, by C. E. Keck, Esq., the then attorney for defendant borough.</p> <p>Plaintiff’s statement was not filed until October 16, 1911, five years after the injury for which suit was brought, and over four years after the institution of the suit.</p> <p>Under this state of facts, in the light of the decisions and in analogy of the statute of limitations, defendant respectfully submits that the plaintiff has been guilty of inexcusable delay and laches for which a judgment of non-pros should be entered by the court.</p> <p>On the petition the court filed the following opinion:</p> <p>The facts of this case as established for the purpose of this rule by the petition and answer, are peculiar, and without undertaking to recite them at length, we think they demonstrate an impression in the minds of counsel for both parties that the plaintiff’s statement had been filed. Acting under this impression, a plea was entered and the case was put upon the trial list at three terms. This being so, the presumption of abandonment, which is the basis of the present application, is not established either expressly or by constructive inference from delay, and accordingly the rule is discharged.</p> <p>At the trial it appeared that on October 18, 1906, plaintiff’s husband, Andrew Haas, was killed while in the employ of the borough on the demolition of a bridge within the borough limits. The evidence tended to show that the work of demolition was done in a negligent way by the persons employed by the borough to superintend the work.</p> <p>When Peter Clarke, a witness for the plaintiff, was on the stand, he was asked this question:</p> <p>“Q. Mr. Clarke, assuming that the defendant borough was engaged in the erection of a new stone. bridge to take the place of an old arch bridge, that the foundation of the new bridge was outside the foundations of the old arch bridge, distance of about three feet on each side, that the earth was removed by the defendant’s servants from around the old arch, leaving it in a stripped condition, that it stood that way for two days, and then collapsed.”</p> <p>The Court: Wait. Right in there add as you saw it that. day when' you passed.</p> <p>“Q. That it stood in that exposed condition for two days as you saw it the morning on which you passed, and. that shortly after you saw it, it collapsed, at a time when the plaintiff’s husband was engaged in making an excavation for the foundation of the new bridge outside of the arch of the old bridge, as I have detailed the circumstances, that the old arch was composed of stone and cement.”</p> <p>The Court: Very light stone and cement.</p> <p>“Q. The maximum stone being about forty pounds in weight, and the stone being light, that it had been erected nine years previously, that it was from eight to ten feet wide, and from eight to ten feet high from the water level, what in your judgment was the cause of the collapse of the old arch?”</p> <p>Mr. Farrell: We object, because the witness has not shown any familiarity as an expert with, concerning the bridge, under the conditions that existed such as described in this case, namely, where a large arch bridge was to be built upon the site of a smaller arch bridge. Secondly, that he is not qualified to testify as an expert as to the cause of this bridge’s collapse or fall, because under the circumstances, considering the witness’s knowledge and the imperfect situation as incorporated in the question, the matter is too speculative upon which to base an answer of reasonable certainty or probability.</p> <p>The Court: Objection overruled, exception noted for defendant.</p> <p>Mr. Valentine: Answer the question, Mr. Clarke.</p> <p>"A. The cause of the collapse was taking the support, from the outside, that is, the wing walls and the haunch. [3]</p> <p>Verdict and judgment for plaintiff for $650. Defendant appealed.</p> <p>Errors assigned were (1) refusal of binding instructions for defendant; (3) ruling on evidence, quoting the bill of exceptions, and (4) refusal of non-pros.</p>

Appeal, No. 36, March T., 1913, by defendant, from judgment of C. P. Luzerne Co., March T., 1909, No. 563, on verdict for plaintiff in case of E. Swavely v. Marion B. Eno. Assumpsit to recover tuition fee. Before Garman, J. The facts are stated in the opinion of the Superior Court.

<p>Appeal, No. 39, March T., 1913, by Robert J. Blair, Trustee, from decree of O. C. Luzerne Co., No. 330, of 1908, surcharging trustee in Estate of Anthony Ritz.</p> <p>Petition to open decree sustaining exception to trustee’s account.</p> <p>Freas, P. J., filed the following opinion:</p> <p>The facts are as follows: The petition of Josephine Ritz, administratrix of the estate of Anthony Ritz, deceased, for the public sale of the real estate of decedent for payment of his debts, was presented October 12, 1908, to the court by J. R. Scouton, attorney for petitioner.</p> <p>The petition recited the indebtedness as follows:</p> <p>Expenses of administration, $100; judgment No. 121, December Term, 1903, in favor of the Robbins Milling Company for $206.95, with interest from October 15, 1903, and costs, $269.39; judgment No. 122, December Term, 1903, in favor of A. R. Bonn for $85.20, with interest from October 15, 1903, and costs, $113.55; total, $482.94.</p> <p>The order of sale was made and upon the petition of the administratrix stating that she was unable to procure a bond, and requesting the appointment of R. J. Blair as trustee to make the sale, he was so appointed. After the property was sold for $2,058, the administratrix petitioned the court to have the sale set aside, alleging that Mr. Scouton was attorney for the creditors and that she had signed the papers under a misapprehension and that it was not her wish to have the property sold; that the estate did not owe the amounts set forth in the petition; that the costs of this proceeding are in excess of the debts actually owed by the decedent, and that the price bid for the property is inadequate. Upon the filing of a bond agreeing to bid $2,500, the court ordered a resale of the property, when it was sold for $2,800. In his account the trustee claimed a credit of $125 for “cash paid J. R. Scouton, attorney for estate.” We sustained the exception to this item and it is the matter we are now reconsidering.</p> <p>The continuance dockets of the court of common pleas show the appearance of J. R. Scouton as attorney for the plaintiffs whose claims appear in the petition for sale of decedent’s real estate. The attorney also admits that Mrs. Ritz made payments up to January 24, 1907, at which time he received $35.00, which was retained by the attorney for fees and costs due from the creditors of the estate. But Mr. Scouton contends that he ceased to represent these creditors in October, 1908, and in this he is corroborated by the creditors. In other words, he ceased to be the attorney of the creditors just prior to his filing the petition for sale of the real estate. He, however, represented the administratrix when she took out letters and he and the subsequent trustee became her sureties, on June 17, 1908, at which time he also represented the creditors. It is significant also that the creditors mentioned in the petition for sale became the sureties on the bond of t&e trustee. The claim of A. R. Bonn was given in the petition for sale as $113.55; it was settled by the attorneys who succeeded Mr. Scouton for $64.28. The claim of Robbins Milling Company was given as $269.39; it was settled for $153.89. At the second sale the property brought $742, or thirty-six per cent more than at the first sale. We think these facts demonstrate beyond question that Mr. Scdúton throughout these proceedings represented the creditors rather than the estate. As their interests were conflicting, it was impossible to represent both sides.</p> <p>Assuming that Mr. Scouton did cease to represent the creditors in October, 1908, we contend that he could not thereafter act for the estate. In a proceeding in the orphans’ court for the sale of a decedent’s real estate for the payment of his debts, the matter is largely ex parte and the court is compelled to rely in a large measure upon the good faith of counsel who represents the estate. It would present the matter in an entirely different light if counsel presenting the petition were to inform the court that he had up to that time represented the creditors but was now counsel for the estate. Nor would the court with knowledge of that fact, approve of the appointment of a clerk of counsel to act as trustee. When we also bear in mind that counsel and his clerk were sureties on the bond of the administratrix and the creditors were sureties on the bond of the clerk acting as trustee, it is apparent that counsel controlled the situation in a manner not contemplated by law. Gauged by results, the wisdom of the law is clear; for suspicion, dissatisfaction and loss have resulted.</p> <p>The conclusion we have reached is not affected by the good faith of counsel, or the knowledge of the administratrix, or otherwise, for she acted in a representative-capacity and could not so imperil the best interests of the estate.</p> <p>Wé therefore find that J. It. Scouton, Esq., is not entitled to counsel fees from this estate and we accordingly- affirm our previous finding.</p> <p>Error assigned was the decree of the court.</p>

<p>Appeal, No. 35, March T., 1913, by defendant, from judgment of C. P. Lackawanna Co., Jan. T., 1910, No. 760, on verdict for plaintiff in case of Annie Lynch, by her father and next friend, Joseph Lynch, and Joseph Lynch v. Winton Borough.</p> <p>Trespass to recover damages for personal injuries to a child. Before Newcomb, J.</p> <p>At the trial the jury returned a verdict for plaintiff Annie Lynch, for $750, and for Joseph Lynch $1,469.</p> <p>On a rule for judgment n. o. v., and for a new trial, Newcomb, J., filed the following opinion:</p> <p>These rules may be considered together. There was a verdict for plaintiffs, being parent and minor child, for injuries sustained by the child as a result of falling into an open box adjacent to the sidewalk of a public street in the borough. The date of the accident was October 3, 1909. February 12, 1912, pending demurrer to the declaration, an amendment was allowed and the demurrer thereupon overruled. To this exception was taken on the same ground afterwards set up by plea of the statute of limitations, and now urged on the motion for judgment for defendant. The objection is that the amended statement varied the cause of action after the two years had run.</p> <p>The point made is that the original statement was so far defective that it disclosed no liability of the borough, and thus an amendment admittedly showing a valid cause of action was necessarily a variance.</p> <p>This is more specious than sound. In the first instance it fairly appeared that the injury was occasioned by the proximity of an open coal box or bin which had remained uncovered for some time, not stated, on private property alongside the walk; in consequence of which the girl, who was lawfully traveling on the street in the darkness, “unavoidably slipped and fell into said hole or opening,” etc. This was coupled with a general averment of the borough’s duty, and the neglect thereof, to use such proper precautions as were necessary to keep the street in reasonably safe condition for the lawful use of travelers.</p> <p>While the statement could have been criticised for some lack of precision, the substantial ground of action was unmistakable.</p> <p>As amended it avers more specifically the following: (1) The fact of notice to the borough of the alleged dangerous pitfall; (2) its duty thus arising to provide against a probable accident of this kind either by maintaining a barrier, rail, light or other adequate safeguard; and (3) its neglect so to do. But the elements of that very cause were certainly present in the original statement. If it is varied in substance we are unable to see it; and defendant’s theory to the contrary is believed to be erroneous.</p> <p>The same is true of the other reason assigned for judgment, viz.: a variance as between the pleadings and proofs. This is based on the averment that the girl “slipped and fell,” etc. The evidence was that being unaware of the danger, which in the darkness was not apparent, she turned aside to avoid a group of men standing on the walk and thus unconsciously stepped or stumbled into the open box. Hence, it is contended by the learned counsel, had she proved her case as alleged she would have been out of court because in that event the proximate cause would have been the “slipping on the walk.”</p> <p>Having conceded that a valid cause of action was alleged in the amended statement, this contention is not at all consistent. If there is any trouble with the proximate cause it appears on the face of the pleadings. But there is none. It only need be noted that in itself the surface of the walk is the subject of no complaint. It was not alleged to be in any way defective. The statement bears no such suggestion. The . slipping alleged is incapable of being understood as implying anything of the kind. With its context it can only be understood to mean a misstep or loss of footing; which is within the definition of the term.</p> <p>We see nothing, therefore, to support the motion for judgment, as a careful review of the case leaves no room for doubt that it was for the jury. It is believed to have been fairly tried and submitted without any material error to warrant a retrial. It involved only familiar principles without special features meriting discussion. In amount the damages awarded were entirely reasonable and the verdict should not be disturbed.</p> <p>Both rules are discharged, with exception to defendant as required by the act of 1905 relating to the motion for judgment.</p> <p>Error assigned among others was in refusing judgment for defendant n. o. v.</p>

<p>Appeal, No. 272, Oct. T., T912, by defendant, from decree of C. P. No. 2, Phila. Co., Dec. T., 1911, No. 1,245, on bill in equity in case of Mary E. Asbury et al., Trustees under the will of T. Henry Asbury, deceased, and Charles W. Asbury v. William G. Carroll.</p> <p>Bill in equity to compel the removal of a garage.</p> <p>At the trial it appeared that on March 20, 1893, T. Henry Asbury granted and conveyed to William G. Carroll two lots of ground. The deed contained the following restrictions:</p> <p>"That no carpenter, blacksmith, currier or machine shop, livery stable, piggery, slaughter house, or factory of any kind, nor any building for the sale of malt or spirituous liquors, or for any offensive occupation or use, shall at any time be erected on said lot of ground.</p> <p>"And, also, that no more than one mansion or dwelling house, with the necessary appendages, shall be erected, and shall set back at least fifty feet from the middle line of said Lakeside Avenue. Said building to be constructed of stone to the second floor, and shall cost not less than $5,000. And, further, that the stable, if one should be erected, shall be placed on the northwest corner of said lot of ground and shall not cost less than $800.</p> <p>"That all cesspools, waterclosets or privy wells erected or sunk thereon shall not be nearer than twenty feet to the line of the adjoining lot, and no drains or sewer for refuse or cesspool water shall be discharged on any adjoining lot or into or upon the said Lakeside Avenue.”</p> <p>Shortly thereafter, the defendant built a dwelling house on the lot, but no stable. The lot purchased by him was one of a number of lots or parcels of ground which, in the year 1889, T. Henry Asbury had plotted and marked out on a plan referred to in the deeds, in order to sell the same for the exclusive purpose of erecting suburban dwellings thereon, lots being located near to Oak Lane and Melrose Stations on the North Pennsylvania Railroad, a suburban section lying partly in the city of Philadelphia and partly in Montgomery county.</p> <p>On or about August 23, 1911, Carroll commenced the erection of a garage for the purpose of storing therein an electric motor car. The building was finished on September 18, 1911. The bill was filed on October 5, 1911.</p> <p>The court entered the following decree:</p> <p>And now, October 18, 1912, this cause having been heard by the court. upon bill, answer and proofs .and argument of counsel, upon consideration it is ordered, adjudged and decreed, as follows:</p> <p>1. That the erection by defendant of the building for storage therein of an electric motor car, on the southeast corner of his lot of ground consisting of two parcels of land conveyed to him by T. Henry Asbury, by deed dated May 20, 1893, and deed dated October 30, 1893, constituted a violation of the restrictions of the covenants of said deeds.</p> <p>2. That defendant remove or cause to be removed the said building within thirty days from the date of this decree.</p> <p>3. That a writ of injunction issue commanding and directing the defendant to remove or' cause to be removed said building within thirty days from the date of this decree.</p> <p>4. That defendant pay the costs of this proceeding.</p>

<p>Appeal, No. 22, March T.,' 1913, by defendant, from judgment of C. P. Luzerne Co., Dec. T., 1910, No. 590, on verdict for plaintiff in case of Archie Hudson v. Lehigh Valley Railroad Company.</p> <p>Trespass to recover damages for personal injuries. Before Garman, J.</p> <p>At the trial it appeared that the plaintiff was injured on October 8, 1909. The circumstances of the accident are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $1,400. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for defendant.</p>

<p>Appeal, No. 16, March T., 1913, by plaintiff, from judgment of C. P. Lackawanna Co., Jan. T., 1912, No. 309, on verdict for defendant in case of A. Blau v. W. P. Bernagozzi.</p> <p>Sheriff’s interpleader to determine the ownership of certain personal property. ' Before O’Neill, J.</p> <p>The facts are stated in the opinion , of the Superior Court. •</p> <p>Verdict and judgment for defendant for 1479, by direction of the court. Plaintiff appealed.</p> <p>Error assigned was in giving binding instructions for defendant.</p>

<p>Will — Conditional legacy — Duty to educate and maintain minor— Discretion of orphans’ court. .</p> <p>Where a testator has given the bulk of his estate t.o one of his sons with an obligation “to educate and maintain” any other of the testator’s children until they reach their majority, and the orphans’ court fixes the amount of the annual allowance for the education and maintenance of one of the testator’s minor sons, the appellate court will not review the discretion of the lower court, if it appears that the latter court in making its decree took into consideration all of the conditions and circumstances of the testator’s estate, and was not guilty of any manifest abuse of discretion.</p>

Appeal, No. 13, March T., 1913, by John S. Niles, from decree of O. C. Lackawanna Co., No. 452, of 1,908, dismissing exceptions to account in Estate of Margaret Barrett, deceased. Exceptions to account filed after distribution. Before Sandó, P. J. The opinion of the Superior Court states the facts of the case. The claim of Dr. Niles was $147. The whole estate amounted to $249.90. Error assigned was in dismissing exceptions to the account.

Appeal, No. 13, March T., 1913, by defendants, from judgment of C. P. York Co., Aug. T., 1910, No. 178, on verdict for plaintiffs in case of George G. Goodling and William H. Smyser, co-partners, doing business under the name of York Pattern Works, v. Martin Simon and John J. Taylor. Assumpsit for promise to pay the debt of a corporation. Before Ross, J. The opinion of the Superior Court states the case. Verdict and judgment for plaintiffs for $150.34. Defendants appealed.

Appeal, No. 147, April T., 1913, by defendant, from judgment of C. P. Erie Co., Nov. T., 1911, No. 92, on verdict for plaintiff in case of C. W. Bowen v. Buffalo & Lake Erie Traction Company. Trespass to recover damages for personal injuries. Before Benson, P. J. The facts are stated in the opinion of the Superior Court. Verdict and judgment for plaintiff for $325. Defendant appealed. Errors assigned were in refusing binding instructions for defendant.

Appeal, No. 19, April T., 1913, by plaintiff, from judgment of C. P. Crawford Co., Nov. T., 1911, No. 45, for defendant non obstante veredicto in case of Samuel J. Gibson v. Erie Railroad Company. Trespass to recover damages for personal injuries. Before Prather, P. J. At the trial the jury returned a verdict for plaintiff for $500. Subsequently the court entered judgment for defendant n. o. v. Error assigned was in entering judgment for defendant n. o. v.

Appeal, No. 14, April T., 1913, by defendant, from judgment of C. P. Warren Co., Sept. T., 1909, No. 2, on verdict for plaintiffs in case of Hubert E. Cousins and Harriet M. Cousins v. Burgess and Town Council of Warren Borough. Trespass to recover damages for personal injuries. Before Hinckley, P. J. The circumstances of the accident are stated in the opinion of the Superior Court. Verdict and judgment for plaintiffs for $1,500 each. Defendant appealed.

Appeal, No. 158, April T., 1913, by plaintiff, from judgment of C. P. Crawford Co., Sept. T., 1909, No. 118, on verdict for defendant in case of Gaylord Smith v. Vernon Township. Assumpsit to recover the costs of repairing a public road. Before Prather, P. J. The facts are stated in the opinion of the Superior Court. Errors assigned were various rulings on evidence and instructions.

Appeal, No. 165, April T., 1913, by defendant, from decree of C. P. Crawford Co., Sept. T., 1911, No. 3, on bill in equity in case of Florence W. Lenheim and L. H. Lenheim v. Ernest R. Smith et al., Committee of Rose Minium. Bill in equity to reform a deed. Prather, P. J., found the following facts: . 1. Plaintiffs were the owners of a certain tract of land, situate in the township of West Mead, containing 61.1 acres. 2.

Appeal, No. 52, April T., 1913, by defendant, from judgment of C. P. No. 3, Allegheny Co., Feb. T., 1912, No. 341, making absolute' rule for judgment for want of a sufficient affidavit of defense in case of Gilbert N. McMillan v. Harry Davis. Assumpsit on a promissory note. Rule for judgment for want of a sufficient affidavit of defense.

Appeal, No. 57, April T., 1913, by defendant, from order of C. P. Allegheny Co., April T., 1912, No. 712, dismissing exception to sheriff’s sale in case of Herman G. A. Kauffeld v. Harriett Cornelia M. Tinstman and A. A. 0. Tinstman, her husband. Exceptions to sheriff’s sale. The opinion of the Superior Court states the case. Error assigned was order dismissing exceptions to sheriff’s sale.

Appeal, No. 9, April T., 1913, by defendant, from order of C. P., No. 4, Allegheny Co., Fourth Term, 1911, No. 194, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Standard Automobile Company v. Leon Thurston. Rule for judgment for want of a sufficient affidavit of defense. The material averments of the affidavit of defense are set forth in the opinion of the Superior Court.

Appeal, No. 31, April T., 1913, by plaintiff, from decree of C. P. No. 1, Allegheny Co., March T., 1911, No. 318, dismissing libel in divorce in case of Margaret Ehrhardt v. John Ehrhardt. Libel for divorce. Before Shaper, and Ford, JJ. The opinion of the Superior Court states the case. Error assigned was decree dismissing libel.

Appeal, No. 1, April T., 1913, by Mary L..Moorhead, from decree of O. C. Fayette Co., Dec. T., 1911, No. 16, dismissing exceptions to adjudication in Estate of William C. Martin, deceased. Exceptions to adjudication.. Before Work, J.. The facts are stated in the opinion of the Superior Court. Errors assigned were in dismissing exceptions to adjudication.

<p>Negligence — Infant—Duty to guard infant — Damages.</p> <p>1. Where a man invites or permits a boy of five and one-half years old to follow him into a dimly lighted barn owned by himself, and the boy falls into an open cistern in the floor of the barn and is drowned, the owner will be liable in damages for the death of the boy.</p> <p>2. In estimating the value of the life of a young boy and consequent damage by his death, much must be left to the sound discretion of the jury. They may properly take into consideration the age and health of the child, the cost of his maintenance and the occupation and circumstances of the parents.</p>

Appeals, Nos. 34 and 35, April T., 1913, by defendant, from judgment of C. P., No. 3, Allegheny Co., Feb. T., 1910, No. 727, on verdict for plaintiffs in case of John Finnegan and Mary Finnegan, his wife, v. Monongahela Water Company. Trespass to recover damages for personal injuries. Before Davis, J. Verdict and judgment for John Finnegan for $200 and for Mary Finnegan for $1,000. Defendant appealed. Error assigned was in refusing binding instructions for defendant.

<p>Appeal, No. 55, April T., 1913, by defendant, from judgment of C. P. Allegheny Co., Fourth. Term, 1909, No. 139, on verdict, for plaintiff in case of S. C. Switzer v. City of Pittsburg.</p> <p>Trespass to recover damages for personal injuries. Before Carnahan, J.</p> <p>The opinion of the Superior Court states the circumstances of the accident.</p> <p>Verdict and judgment for plaintiff for $1,000. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for defendant.</p>

<p>Insurance — Fire insurance — Executory contract — Evidence.</p> <p>1. An executory contract of fire insurance in the future may be valid and binding, but the testimony to establish it must show clearly the subject-matter of the insurance, the amount and elements of the risk, including its duration in point of time, and extent in point of hazard assumed, the rate of premium, and generally all the circumstances which are peculiar to the contract and distinguish it from every other, so that nothing remains to be done but to fill up the policy and deliver it, on the one hand, and pay the premium, on the other.</p> <p>2. Where a person takes out a policy of fire insurance for five years, and asks the agent to renew the policy when it falls due, and keep the insurance alive, and the agent promised to do so, but fails to perform his promise, and nothing is said at the time as to the length, or term of the new insurance, or the rate or amount to be paid, or the property covered, the insurance company cannot be held as on a binding contract.</p>

<p>Appeal, No. 29, April T., 1913, by plaintiff, from decree of C. P. Allegheny Co., Nov. T., 1911, No. 323, refusing divorce in case of Max W. Kurniker v. Annie N. Kurniker.</p> <p>Libel for divorce. Before Reid, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was decree refusing divorce.</p>

<p>Appeal, No. 54, April T., 1913, by defendant, from order of C. P. No. 1, Allegheny Co., Dec. T., 1911, No. 823, making absolute rule for judgment for want of a sufficient affidavit of defense in ease of Mary Leves v. National Slavonic Society of the United States of America.</p> <p>Assumpsit to recover death benefits.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>Error assigned was order making absolute rule for judgment for want of a sufficient affidavit of defense.</p>

Appeal, No. 26, April T., 1913, by defendant, from judgment of C. P. Allegheny Co., Jan. T., 1910, No. 754, on verdict for plaintiff in case of Harry Hollihan v. Pittsburg Railways Company. Trespass to recover damages for personal injuries. Before Swearingen, P. J. The facts relating to the accident are stated in the opinion of the Superior Court. Verdict and judgment for plaintiff for $1,500. Defendant appealed.

<p>Appeal, No. 145, April T., 1913, by plaintiff, from judgment of C. P. Fayette Co., Dec. T., 1910, No. 250, on verdict for defendant in case of American Warming & Ventilating Company v. Fayette Lumber Company, Ltd.</p> <p>..Assumpsit on an alleged balance due on an account. Before Umbel, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>„ Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Error assigned was in refusing binding instructions for plaintiff.</p>

<p>Appeal, No. 39, April T., 1913, by defendant, from decree of C. P. No. 3, Allegheny Co., Aug. T., 1909, No. 80, awarding divorce in case of Annie M. Welfer v. John G. Welfer.</p> <p>Libel for divorce. Before Cohen, J.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was decree awarding divorce.</p>

Appeal, No. 24, April T., 1913, by defendant, from judgment of C. P. Washington Co., May T., 1911, No. 383, on verdict for plaintiff in case of Franklin Railway Supply Company v. Pittsburg Railways Company. Assumpsit to recover license fees on a patented article. Before McIlvaine, P. J. The facts are stated in the opinion of the Superior Court.

Appeal, No. 97, April T., 1913, by defendant, from judgment of C. P. No. 4, Allegheny Co., Second Term, 1909, No. 866, on verdict for plaintiff in case of Morley Auto Company v. Pitts-burg Machine Tool Company. Assumpsit to recover a hand payment of $900, made on account of an automobile truck which was to be delivered to plaintiff.

Appeal, No. 79, April T., 1913, by defendant, from judgment of C. P. Allegheny Co., March T., 1909, No. 220, oir verdict for plaintiff in case of Everitt R. Cornell v. Pittsburg Railways Company. Trespass to recover damages for personal injuries. Before Haymaker, J. The facts are stated in the opinion of the Superior Court. Verdict and judgment for plaintiff for $1,250. Defendant appealed. Errors assigned were in refusing binding instructions for defendant.

Appeal, No. 121, April T., 1913, by plaintiff, from order of C. P. Allegheny Co., July T., 1912, No. 373, making absolute rule to open judgment in case of Annie E. Larkin v. Nathan Schwitzer. Rule to open judgment. The facts are stated in the opinion of the Superior Court. Error assigned was order making absolute rule to open judgment.

<p>Sewers — Assessment for benefits — Report of viewers.</p> <p>1. Where a viewers’ report shows that assessments for a sewer were based on special benefits to several properties, and there is nothing in the record from which the appellate court could find that the assessment exceeded the proper limits, the order confirming the report will not be reversed.</p> <p>2. The findings of viewers on questions of fact, approved by the court, will not be disturbed, except for clear error.</p> <p>3. Every presumption is in favor of the award, and unless errors in proceedings, or findings, are pointed out, the report should be confirmed.</p> <p>4. A property owner cannot be assessed with the cost of a main sewer where it appears that a smaller local sewer would have been sufficient to give the property all the benefit it derives from the main sewer.</p>

Appeal, No. 199, April T., 1913, by defendant, from decree of C. P. Allegheny Co., April T., 1912, No. 905, on bill in equity in case of Equitable Gas Company v. Katie A. Limegrover, and George Limegrover. Bill in equity for an injunction. Swearingen, P. J., found the facts to be as follows: 1. The Equitable Gas Company is a corporation under the laws of Pennsylvania, having its principal office in the city of Pittsburg, Allegheny county, Pennsylvania.

Appeals, Nos. 274 and 284, Oct. T., 1912, by plaintiff and defendant, from decree of C. P. No. 2, Phila. Co., March T., 1908, No. 2,920, on bill in equity in case of Alexander Mackay-Smith and Charles C. Binney v. City of Philadelphia, John M. Walton, Controller of the County of Philadelphia, and Thomas Nihill. Bill in equity for an injunction and to declare the appointment of a policeman invalid. Before Sulzberger, P. J. The facts appear in the opinion of the Superior Court.

Appeal, No. 109, April T., 1913, by plaintiff, from decree of C. P. Cambria Co., Sept. T., 1912, No. 7, dismissing bill in equity in case of… Held: among other things, “that the order of liability for taxes is first the personal property on the premises, secondly, demand on the owner individually, and lastly the land itself, and that it is only on the failure to collect by either of the first two methods that resort can be had to the third and the land be legally sold or…

<p>Appeal, No. 183, April T., 1913, by defendant, from order of C. P. Cambria Co., Dec. T., 1912, No. 86, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Cambria Auto Company v. F. W. Frischkorn.</p> <p>Assumpsit on a bond.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was order making absolute rule for judgment for want of a sufficient affidavit of defense.</p>

<p>Appeal, No. 126, April T., 1912, by D. N. Postlewaite, from decree of O. C. Jefferson Co., April T., 1912, No. 37, removing executor in Estate of Silas Clark Henry, deceased.</p> <p>Petition for removal of executor.</p> <p>Reed, P. J., filed the following opinion:</p> <p>This is an application under the Act of May 1, 1861, P. L. 680, to vacate letters testamentary granted to a nonresident of the state and to remove the executor to whom such letters were granted. There has been no answer filed to this petition, and the questions for determination have been submitted on the facts therein stated, and on a motion made by the executor to quash the citation awarded requiring him to answer to charges preferred against him in the petition and to dismiss said petition for the reason that the “orphans’ court has no jurisdiction in the premises.”</p> <p>It is contended that the facts set out in the petition for the vacation of the letters testamentary, etc., are insufficient to warrant the removal of the executor. But, as I understand from the brief of counsel, the principal thing relied on to defeat this application is want of jurisdiction in the orphans’ court to take cognizance of the same. The contention made is that the orphans’ court exercises only an appellate jurisdiction, and that the application to vacate letters heretofore granted, and to remove the executor, should be made to the register of wills, and that his action thereon can only be reviewed by the orphans’ court on appeal. In other words, that the orphans’ court has no original jurisdiction of such application. The conclusive answer to this contention is found in the second paragraph of sec. 19 of the Act of June 16, 1836, P. L. 784, which provides that the jurisdiction of the orphans’ court shall extend to “the removal and discharge of executors and administrators deriving their authority from the register, of the respective county and the settlement of their accounts,” and sec: 1 of the Act of May 1, 1861, P. L. 680, which reads as follows: “Whenever it shall be made to appear to the proper court having jurisdiction of the accounts of any executor, administrator, guardian, committee of a lunatic or of an habitual drunkard, or other trustee, on the oath or affirmation of any person interested that such executor .... is wasting or mismanaging the property or estate under his charge, or that, for any reason, the interests of the estate or property are likely to be jeopardized by the continuance of any such executor .... then, and in every such case, it shall and may be lawful for such court, or for the said president judge, to issue a citation to such executor .... requiring him to appear on a day certain, to answer the charge preferred as aforesaid .... and if, on the hearing, the said court, or the said president judge and one associate judge, in vacation, shall be satisfied of the truth of the matters charged, the said court, or the said judges in vacation, if the case shall require dispatch, may .... vacate the letters of administration or testamentary .... and remove such administrator, executor and award new letters to be granted by the register or by the court, and shall moreover order and compel such executor to deliver over and pay to his successor all and every the goods, chattels and property, money, estate or effects in his hands as aforesaid.”</p> <p>From the petition filed it appears that Silas Clark Henry by his last will and testament, after directing that his just debts be first paid, gave, devised and bequeathed all the rest, residue and remainder of his estate, real, personal and mixed, to James A. Brown (the petitioner), his heirs, and assigns, forever. It further appears that the register of wills of this county, May 20, 1911, granted letters testamentary on the estate of the testator to D. N. Postlewaite, the executor named in the will, who is a nonresident of the state of Pennsylvania, without the consent of the court and without requiring him to give security as provided by the Act of May 17, 1871, P. L. 269. It was stated on the argument that since the granting of said letters the executor had given the security required by law.</p> <p>The petitioner, however, avers that the individual interests of this executor are hostile and antagonistic to the estate and to the trust reposed in him; that in a petition filed by him in this court for an order to sell the testator’s real estate for payment of debts he has included in the schedule of debts a personal claim of $1,500 for professional services and other personal claims aggregating $377.23, making his individual claim against the estate about two-thirds of the entire indebtedness. The petitioner not only denies the liability of the estate for the payment of the personal claims of the executor as made, but also challenges the correctness of a large portion of the remaining one-third of this alleged indebtedness, and avers that notwithstanding he is the sole beneficiary of the testator’s bounty, and therefore entitled to the fullest knowledge concerning the estate and the claims made upon it, the executor has ignored him and has persistently refused to give him any specific information about the claims presented against the estate whereby he could determine whether it would be to his interest or not to pay the just debts of the testator and thus avoid the necessity of a sale of the real estate to pay the same.</p> <p>The executor, in the petition filed by him for an order to sell the real estate for payment of debts, states the amount of the personal estate to be $708.88, the value of the real estate to be $2,700, and the indebtedness to be $2,873.12. As heretofore stated approximately two-thirds of this indebtedness is made up of the personal claims of the executor, the validity of the greater portion of which is denied by the sole legatee and devisee of the estate. He also denies the validity of a large portion of the remaining claims which the executor has included in the schedule of indebtedness attached to the petition to sell the real estate, for payment of debts. In the petition to have the letters testamentary vacated and the executor removed, the petitioner avers that the executor is indifferent to his interest in the estate; is indisposed to protect the estate against unfounded claims, and has manifested a disposition to wrongfully sell and absorb the same for his own use and benefit. Furthermore that he has not shown any disposition or inclination to act in harmony and conjointly with him in conserving the interests of the estate.</p> <p>The undisputed facts show that the executor and the legatee and devisee have conflicting interests; that the claims of the one are hostile and antagonistic to the interests of the other, and that these conflicting interests involve practically the entire value of the estate. In these circumstances the estate should be administered by one who stands indifferent between these hostile and antagonistic claimants. It is against the policy of the law to grant letters of administration to a nonresident of the estate: Frick’s App., 114 Pa. 29. Conceding that letters testamentary may be granted to a nonresident, such grant of letters is void if made without security and without consent of the court: Act of May 17, 1871, P. L. 269; Coleman’s Est., 18 Pa. Dist. Rep. 205. But it is not necessary to decide in this case that the letters granted to Mr. Postlewaite are void because they were granted to a nonresident of the state without the consent of the court; nor is it necessary to decide that he has either wasted or mismanaged the estate so far as he has administered the same. It is sufficient that he holds the larger portion of the indebtedness against the estate, and that his individual interests are hostile to the trust: Silver’s Est., 18 Pa. C. C. Rep. 340. Where, as in this case, the executor is likely to become involved in litigation with the estate, letters of administration should not be granted to him: Ellmaker’s Est., 4 Watts, 34. In Kellberg’s App., 86 Pa. 129, which was an application to the orphans’ court to vacate letters of administration granted by the register of wills, it was held that where the relations between the administrator and the legal representative of the decedent were not harmonious, and it was manifest that the interest of the administrator was adverse to those of the representatives, nothing but some controlling necessity would justify his retention as administrator. I think it may be safely asserted that it is the concensus of judicial opinion that one holding disputed claims against the estate, and whose interests are antagonistic to other heirs of the estate, is not a proper person to administer upon the estate: Hassinger’s App., 10 Pa. 454; Failor’s Est., 10 Pa. Superior Ct. 253; Spencer’s Est., 20 Pa. C. C. Rep. 657, and many other authorities that might be cited. It follows, regardless of whether the executor’s claims in this case are valid or not, the letters heretofore granted to him should be vacated.</p> <p>And now October 9, 1912, the rule in this case is made absolute and it is ordered, adjudged and decreed that the letters testamentary granted on the estate of Silas Clark Henry, deceased, May 20, 1911, by the register of wills to D. N. Postlewaite, executor, be and the same are hereby vacated and the said executor removed, and new letters are awarded to be granted by the register of wills to some competent, disinterested and impartial person. It is further ordered that said executor deliver over and pay to his successor, when appointed and qualified as required by law, all and every the goods, chattels and property, money, estate or effects in his hands or under his control.'</p> <p>Error assigned was the decree of the court.</p>

Appeal, No. 107, April T., 1913, by plaintiff, from order of C. P. Somerset Co., May T., 1912, No. 381, discharging rule for judgment for want of a sufficient affidavit of defense in case of V. M. Johnson v. David Putnam. Assumpsit for the price of a piano. Rule for judgment for want of a sufficient affidavit of defense.

<p>Appeal, No. 156, April T., 1913, by defendant, from judgment of C. P. Somerset Co., Feb. T., 1912, No. 179, on verdict for plaintiff in case of Somerset Borough v. Simon Sweitzer, defendant, owner or reputed owner, or whoever may be owner, and Lipscher and Crowley terre-tenants.</p> <p>Scire facias sur municipal lien. Before Ruppel, P. J.</p> <p>At the trial it appeared that the borough of Somerset had paved West Main street upon petition of property owners, and under the authority of the Act of April 23, 1889, P. L. 44, it assessed two-thirds of the cost of the improvement against abutting properties, and subsequently filed claims against such properties in conformity with the provision of the Act of June 4, 1901, P. L. 364.</p> <p>At the trial the plaintiff introduced evidence to show that the petition for the improvement had been duly posted in compliance with the Act of April 14, 1905, P. L. 168. The defendant made the following offer:</p> <p>Mr. King: I offer petition for the purpose of showing that it is not signed by two-thirds of the owners of the property along West Main street, in the borough of Somerset, between West street and Franklin street.</p> <p>This for the purpose of showing that there was not a petition presented to council signed by two-thirds of the owners of property fronting on West Main street before the work was begun.</p> <p>Mr. Boose: Objected to as incompetent, irrelevant and immaterial for the reason that the defendant, together with all other property owners on said street, are now estopped from raising the question of the number of signers to said petition.</p> <p>The Court: We sustain the objection to the admission of testimony relative to the signers to the petition, exclude the evidence and note an exception to defendant. [3]</p> <p>The court gave binding instructions for plaintiff.</p> <p>Verdict and judgment for plaintiff. Defendants appealed.</p> <p>Errors assigned were (1) in giving binding instructions for plaintiff, and (3) ruling on evidence, quoting the bill of exceptions.</p>

<p>Liquor law — Brewing company — Selling without license — Sale at brewery or destination — Prepayment of freight — Refusal of license— Discretion of court.</p> <p>1. Where a brewing company delivers beer at places other than the brewery, and its customers pay the freight or drayage when the beer is delivered to them, the mere fact that the company when it collects its bills allows credit for such freight or drayage, is not in itself sufficient to convict the brewing company of selling liquor without a license; and if the court of quarter sessions refuses to renew the company’s. license on this ground alone, such refusal will be reversed by the appellate court, and the case remanded so that proper action may be taken by the court below under all the circumstances that may be developed. The appellate court will not of itself make an order directing the issuance of the license.</p> <p>2. The discretion vested in the court of quarter sessions to grant or refuse a liquor license is a judicial discretion, to be exercised for legal reasons, and in a judicial manner. When so exercised it is not reviewable; but where the court without willful abuse or intentional wrong, but through an honest or erroneous opinion as to the nature of its discretion, and as to the legal principles governing its exercise, refuses to grant a license, the appellate court will set aside the action of the lower court, and remit the matter to such court with direction to proceed according to the legal principles governing the judicial discretion committed to it..</p>

<p>Road law — Opening road — Termini—Draft accompanying petition.</p> <p>1. Where a petition for the opening of a road designates the termini and also the location of the proposed road, and also has attached to it a draft which shows in detail the location of the road for the entire distance, and the order to the viewers and the viewers’ report show that the new road was laid out in accordance with the petition and the draft, an order of the quarter sessions confirming the report of the viewers will be reversed.</p> <p>2. It is fatal error to designate an intermediate point or points between the termini of a proposed road either in the petition or the order to viewers, or both.</p> <p>Road law — Opening road — Bond—Act of April 4,1907, P. L. 44•</p> <p>3. The Act of April 4, 1907, P. L. 44, requiring a bond to be filed on a petition to open a road, does not provide for sureties, and is therefore not void if two of the petitioners sign the bond as sureties.</p>

<p>Appeal, No. 33, March T., 1912, by plaintiff, from judgment of C. P. Luzerne Co., June T., 1909, No. 404, for defendant n. o. v. in case of Paul Golien v. Susquehanna Coal Company.</p> <p>Trespass to recover damages for personal injuries. Before Ferris, J.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was in entering judgment for defendant n. o. v.</p>

<p>Divorce — Divorce a mensa et thoro — Alimony—Indignities to person— Acts of March IS, 1815, 6 Sm. L. 286, and February 26,1817, 6 Sm. L. 405.</p> <p>1. Where a libel by a wife against her husband alleges as a ground for divorce, such indignities to her person as to render her condition intolerable and her life burdensome, and prays for an absolute divorce from him, and also for alimony, the court may disregard the prayer for absolute divorce, and enter a decree a mensa et thoro with alimony. Even if this were not so, the libel could be amended so as to support the decree.</p> <p>2. In an action for divorce by a wife against her husband for indignities to her person, the wife testified that her husband had struck her at different times, and that on one occasion to secure some papers which she had on her person he threw her down, put his knees upon her, struck her upon the face until the blood ran, told her that he wanted her to leave, that he would get even if he had to go through Hell’s fire to do so. She further testified that for this reason she was afraid of him and left him. ' A woman witness for the libelant confirmed the testimony of the libelant as to the wounds and bruises on her body, and also testified that the respondent had declared that he was sick and tired of this kind of life, and would have a change. The respondent, although duly served with process and represented by counsel, did not take the witness stand or offer any testimony to contradict the libelant. Held, that the evidence was sufficient to sustain a decree of divorce a mensa et thoro.</p>

<p>Street railways- — Municipal consent — Conditional consent — Boroughs • — Validity of borough ordinance — Jurisdiction—Quarter Sessions — Con'stitutional law — Article XVII, sec. 9.</p> <p>1. Article XVII, sec. 9, of the constitution which provides that “No street passenger railway shall be constructed within the limits of any city, borough or township without the consent of its local authorities,” gives a borough the power to impose conditions upon a street railway company as a consideration for the consent given, and an ordinance giving such consent and imposing such conditions cannot be set aside by the court of quarter sessions, as unreasonable, illegal and void. The jurisdiction of the court is limited to the review of ordinances and regulations done, or purporting to be done in the exercise of some power conferred upon the borough by statute. It does not apply to a grant of power directly from the constitution to municipalities.</p> <p>2. Where a borough grants its consent to a street railway on condition of certain annual payments during ten years “at the expiration of which period the council reserves the right to regulate and determine the future annual payment,” and the borough after expiration of such period fixes by ordinance the annual payment at a much larger amount, and such ordinance states that the payment is “solely for the rights and privileges granted,” in the previous ordinance, designated by its number, the court of quarter sessions has no jurisdiction to set aside the later ordinance as unreasonable, illegal and void.</p>

Appeal, No. 20, March T., 1913, by plaintiff, from judgment of C. P. York Co., Aug. T., 1911, No. 122, on verdict for defendant in case of Kindling Machinery Company v. York City. Assumpsit for the price of a street cleaning machine. Before Wanner, P. J. At the trial the court gave binding instructions for defendant. Verdict for defendant.

Appeal, No. 18, April T., 1913, by plaintiffs, from order of C. P. Washington Co., Feb. Term, 1912, No. 64, refusing to take off nonsuit in case of Hazen Neil, by Fred Neil, his next friend and father, and Fred Neil in his own right, v. Monongahela City. Trespass to recover damages for personal injuries. At the trial the court entered a compulsory nonsuit.

<p>Road law — Paving—Grading—Borough—Acts of April 88,1889, P. L. 44, May SI, 1897, P. L. 114, and May 8, 1909, P.'L. 888 — Petition of two-thirds of owners — Votes of three-fourths of councils.</p> <p>1. A borough ordinance approved October 23, 1908, imposing a special assessment upon property owners for grading, paving and curbing a street, will not support a valid municipal claim, where it appears that no petition had been presented to councils by owners of abutting property for paving the street.</p> <p>2. The Act of April 23, 1889, P. L. 44, confers no jurisdiction upon a borough to assess property for the cost of grading a street; nor can councils impose a special assessment for paving a street, except, as required by the act of 1889, on the petition of two-thirds of the owners of property representing not less than two-thirds in number of feet of the properties fronting or abutting on the street.</p> <p>3. A borough ordinance under the Act of May 31,1897, P. L. 114, for the paving of part of a street, 499 feet in length, and connecting parts of the street already payed and approved, is not valid unless it was voted for by three-fourths of the members of council. A vote of five out of seven couneilmen comprising the councils is insufficient.</p> <p>4. The Curative Act of May 3,1909, P. L. 383, does not apply to an assessment made under an invalid ordinance where it appears that part of the assessment was for grading a street; nor is it applicable where the borough does not file a claim as provided by the curative act setting forth “the date of the assessment for which the lien is filled.” The requirement that the claim must state when the assessment was made, is mandatory.</p>

<p>Appeal, No. 122, April T., 1913, by defendant, from decree of C. P. Allegheny Co., First Term, 1912, No. 170, on bill in equity in case of George Anton v. William B. Secrist.</p> <p>Bill in equity for an injunction.</p> <p>On a motion for a preliminary injunction Swearingen, P. J., filed the following opinion:</p> <p>This bill was filed by George Anton, who is the owner of certain land situated in the ninth ward, Pittsburg, Allegheny county, Pennsylvania, against William B. Secrist, in which the complainant prayed, inter alia, for an injunction to restrain the defendant from exposing it to sale. The sale was advertised for Monday, September 6, 1911. The bill was presented on September 4, 1911, and the complainant moved the court to grant a preliminary injunction and fix a time for hearing upon motion to continue the same. Counsel for the defendant agreed to adjourn the sale until October 10, 1911, and October 8, 1911, was fixed as the time hearing upon said motion. Accordingly no preliminary injunction was issued. At the time fixed, the parties appeared and the defendant filed an answer. The case was not, however, heard upon bill and answer,but it was heard upon motion for preliminary injunction and testimony was taken.</p> <p>Thé land in question formerly belonged to Elsie Stumbillig, who died in 1904. She left a will, dated October 31, 1900, which was duly probated August 1, 1904, and the same is now on file in the register’s office of said county of Allegheny, and is of record in Will Book, vol. 80, page 30. In the first and second items of said will, the' testatrix made certain pecuniary bequests for masses. In the third item, she devised and bequeathed the above-described land to her daughter “Annie Winter, wife of Adam Winter,” in fee. In the fourth item, she devised and bequeathed certain other land to her daughter, “Agnes Conrad, wife of George H. Conrad,” in fee.</p> <p>The fifth clause of said will is as follows:</p> <p>“All the rest and residue of my estate, real, personal and mixed, of which I shall die seized and possessed, or to which I shall be entitled at my decease, I give, devise and bequeath unto my two daughters, Annie Winter and Agnes Conrad, share and share alike to them and their heirs and assigns forever, so nevertheless that the same, as well as the other bequests above given them shall be for the sole and separate use of the said daughters, Annie and Agnes, notwithstanding any coverture, and not to be in any way, at' any time or manner whatever, hable to the contracts, debts or engagements of their present husbands, or any husband either may hereafter have or take and not to be in any way or manner whatever subject to the control or interference of such husband or husbands.”</p> <p>On July 3, 1906, the said Annie Winter and Adam N. Winter, her husband, executed and delivered to the city deposit bank their bond with warrant of attorney to confess judgment, accompanied by their mortgage of said land, to secure the payment of $1,000 at the end of three years from said date, which mortgage was recorded in the recorder’s office of said county of Allegheny in Mortgage Book, vol. 1260, page 515. By various assignments, said mortgage and bond became vested in the defendant, William B. Secrist, on October 10, 1911.</p> <p>On January 30, 1909, the orphans’ court of the. said county of Allegheny, upon the petition of said Annie Winter, entered a decree appointing William M. Hess trustee to take charge of, receive the income and preserve the property devised in said will of Elsie Stumbillig; and the trustee filed his bond as required by said order of court. Upon his petition, the orphans’ court entered a decree September 30, 1909, directing him to convey said real estate to George Anton, the complainant. for the sum of $7,000; and pursuant thereto, the trustee, by deed dated December 8, 1909, of record in the recorder’s office of said county of Allegheny, in Deed Book, vol. 1639, page 600, conveyed said land to George Anton and received the purchase money, all of which, with the exception of about $300 or $400, he still has. It does not appear that the holder of said bond and mortgage was given any notice of said proceedings in the orphans’ court. Of course the defendant herein was not served with notice of the proceedings, because he did not become the holder of said bond and mortgage until long afterwards. It was not shown that the defendant herein made any attempt to protect himself by obtaining a certificate of no defense to the bond and mortgage.</p> <p>October 17, 1911, the defendant herein entered judgment upon the bond, accompanying said mortgage, against Annie Winter and Adam N. Winter, her husband, for the sum of $1,126, issued execution thereon and caused a levy to be made upon the said land of the complainant, and the same has been advertised for sale by the sheriff as aforesaid.</p> <p>The position of the complainant is that said mortgage and judgment are void as a lien upon his land, that the defendant herein is seeking to throw a cloud upon his title by process of law, against right and justice, and to injure him by harassing him with such proceedings.</p> <p>The position of the defendant herein is that said lien js not void and that complainant has shown no equity to entitle him to the relief for which he has prayed,</p> <p>In Pennsylvania, where we have no separate court of chancery, the general rule is that a judgment creditor may sell any real estate, the title to which is alleged to be in the defendant in his judgment, and then the title will be tried in an action of ejectment by the purchaser. Ordinarily,, there is no jurisdiction in our courts of equity -to interfere. But to this rule there are exceptions. If there were not, any owner of real estate might be harassed by suits involving his title, and the declaration that the law protects a man in the enjoyment of his property, would be vain and meaningless. But the exceptions to the rule are few and the facts must be undoubted; otherwise, the extraordinary powers of a court of equity cannot be invoked. If, however, the execution creditor is acting fraudulently, or if it is so clear that the defendant in the judgment has no title to the land levied, so that no question thereon could be submitted to a jury, then equity will interfere to protect an owner from harassing and vexatious litigation. The exceptions to the general rule are well stated by our Supreme Court as follows:</p> <p>“The result of the authorities is that the practice in regard to interference with a creditor levying on an alleged interest of his debtor, is assimulated to the general chancery practice upon bills to remove cloud upon title, and the jurisdiction of equity is only exercised where the facts are clear, and the hardship or inadequacy of the common-law procedure is manifest, but where these elements appear, the court will not be deterred from intervention by the fact that the practice at common law has been so long established and that all presumptions are in its favor:” Kreamer v. Fleming, 200 Pa. 414.</p> <p>The complainant’s contention is that the mortgage upon said land, given by Annie Winter, is not and never was a lien. If this be true, the defendant herein obtained no lien upon the land by the entry of his judgment. The reason is that the judgment was not entered until long after any title in Annie Winter had passed to the complainant. It could, therefore, only be claimed that the judgment is a lien, because the bond accompanied the mortgage, and thus the hen of the judgment related back to the date of the mortgage. But, if the mortgage was void, of course the lien of the judgment upon the bond, by relation, is equally invalid. The question then is: What estate in the above-described land did Annie Winter take by the will of her mother? Was the devise to her in fee, or was it a devise to her sole and separate use? If it was a fee simple, then the mortgage given by her is valid; if it was an estate to her sole and separate use, the mortgage is void for want of power in her and her husband to execute it.</p> <p>It is clear that by the third item of said will, if it stood alone, Annie Winter took an estate in fee in the land therein devised to her. It is settled that such an estate cannot be cut down by subsequent provisions of the will unless they be clear. Does the fifth item of said will, above quoted at length, have such effect upon the devise to Annie Winter in the third item?</p> <p>That the testatrix intended to grant an estate for the separate use of Annie Winter in a portion of the gift to her. is, in our opinion, beyond question. She used the technical words “for the sole and separate use,” which of themselves indicate the intention, and she expressly excludes the husband from all control over the property. Undoubtedly this created an estate to the use of the beneficiary. But the defendant’s counsel argue that, while this may be true as to the residuary estate, it is not true as to the land devised to Annie Winter by the third item of said will. We cannot agree with this contention. We think the manifest purpose of the testatrix was to create an estate to the separate use of her daughters in all the property which she left them. But she intended that each, as against the other, should have a specific piece of land. In the third and fourth items of the will she gave to each of her daughters specific land in fee. In the fifth item, she gave them the rest of her land and the personalty in fee, by equally express technical language. Then she provided that “the same,” the residue, “as well as the other bequests above given them” should be for their sole and separate use. We cannot perceive that the testatrix made any distinction between the residuary and the specific devises. Both were brought by apt words under the direction that they shall be held for the separate use of the devisees. No previous bequests or devises were made in said will to said daughters, other than those contained in the third and fourth items. If the words “as well as the other bequests above given them,” do not refer to the third and fourth items of the will, they do not refer to anything, they are meaningless and they may be cut out of this will. But we cannot so deal with the language used by the testatrix. It is our duty to give effect to every word of her will, if possible; and, if the will be construed as above indicated, effect is given to every word, and the will is consistent, manifesting a plain intent on the part of the testatrix to give her daughters, not estates in fee, but to their sole and separate use. They were both married, and the husband of Annie Winter is still living. We therefore conclude that the estate which Annie Winter took in the land in question, under the will of her mother, was an estate to her sole and separate use. It is immaterial that no trustee was named, because equity will not permit a trust to fail for want of a trustee. The important matter is that a trust was created.</p> <p>It is only necessary to refer to the authority of Lancaster v. Dolan, 1 Rawle, 231, for the proposition, that Annie Winter had' no powers over the estate to her separate use, except those given her in the will of her mother. That is the settled law of Pennsylvania. In this will, Annie Winter was given no powers over her separate estate and therefore could exercise none, while covert. Consequently, her attempt to mortgage her land was void for want of power to do so, and the mortgagee obtained thereby no lien upon the land, and neither did the assignee thereof, the defendant herein.</p> <p>This case is thus brought directly within the rule that equity will interfere, where the complainant’s right is so clear that the intervention of a jury would be entirely unnecessary. If the purchaser at the proposed sheriff sale were before us in an action of ejectment against this complainant, we would be obliged to rule the case upon a construction of the will of Elsie tótumbillig. There would be nothing whatever upon which a jury could pass. Therefore, under the authorities cited, it is our duty to now construe said will. Being of opinion that Annie Winter was without power to mortgage said land and that defendant herein acquired no lien therein, it is equally our duty to protect this complainant from the wrong with which he is threatened.</p> <p>The equities are rather evenly balanced. If, as alleged, the proceeds of said mortgage went to improve the land, that might be a strong reason why the orphans’ court should afford the holder relief, if possible, out of the moneys in the hands of the trustee. But it is no reason why this complainant should be made to suffer against right and justice. On the other hand, if the defendant herein took said bond and mortgage without examination of Annie Winter’s title and without securing a certificate of no defense thereto, he cannot rightfully complain of anyone but himself. Between the parties, we think the law is with the complainant, and that the preliminary injunction should issue.</p> <p>The court subsequently entered a final decree making the injunction perpetual.</p> <p>Error assigned was the final decree of the court.</p>

Appeal, No. 129, April T., 1913, by defendant, from judgment of C. P. Allegheny Co., Oct. T.,. 1909, No. 299, on verdict for plaintiff in case of Cora M. Livingston v. David Reich. Trespass for slander. Before Carnahan, J. From the record it appeared that in 1909, the defendant was a dealer in fruits and vegetables, occupying a stand in the Pittsburg Market House.

Appeal, No. 151, April T., 1913, by defendant, from judgment of C. P. No. 1, Allegheny Co., June T., 1907, No. 286, on verdict for plaintiff in case of J. H. Folsom v. M. J. Slattery. Assumpsit for commissions for securing the sale of a lot of land to defendant. Before Frazer, P. J. ' The facts are stated in the opinion of the Superior Court. Defendant presented the following point: 2.

<p>Appeal, No. 167, April T., 1913, by Benjamin H. Thompson, Ancillary Administrator c. t. a. of the Estate of Stephen M. S. Campbell, deceased, from decree of O. C. Allegheny Co., May T., 1912, No. 123, sustaining exceptions to adjudication in Estate of Sarah A. Campbell, deceased.</p> <p>Exceptions to adjudication.</p> <p>From the record it appeared that James Wallace died on July 7, 1881, intestate, leaving as his only heirs a number of nephews and nieces. His estate consisted of real and personal property. One of the nieces, Sarah A. Campbell, a resident of Kansas, died on July 26, 1885, leaving a will by which she disposed of her estate as follows:</p> <p>“First. I give, devise and bequeath to my sisters. Mary Jane Wilson, Six Hundred Dollars, Elizabeth Adams, Two Hundred Dollars, Ellen Moorhead, Two Hundred Dollars, to my brothers as follows: William N. Wilson, Two Hundred Dollars, D. W. Wilson, Two Hundred Dollars. Said bequests to come out of the James Wallace Estate.</p> <p>“Second. I give, devise and bequeath to my husband, S. M. S. Campbell, his heirs and assigns forever, the following real estate, lying in Sedgwick County, State of Kansas, viz: The South Half of the Southwest quarter of Section Four and the North half of the Northwest quarter of Section Five in Township Twenty-eight South Range One West. Also the balance coming out of the aforesaid Wallace Estate, this property is to consist of real, personal, mixed of whatever nature and kind soever.”</p> <p>The real estate of the Wallace estate was not sold until after her death.</p> <p>At the audit the deposition of David W. Wilson, one of the legatees, was offered in evidence.</p> <p>Mr. Graham: I object to the competency of David W. Wilson, he claiming this legacy out of land the fee of which was vested in Stephen M. S. Campbell and the said Stephen M. S. Campbell being now deceased, the said David W. Wilson is claiming adversely to the estate of the said Stephen M. S. Campbell.</p> <p>I object to the answers to the interrogatories from four to eight, both inclusive, as incompetent, irrelevant and immaterial, and I call your honor’s attention to the last two as being hearsay, and I object to them.</p> <p>The deposition is further objected to for the reason that they show on the face that they are not in the handwriting of the deponent, and there is no certificate that they were written by the commissioner.</p> <p>Objection overruled. [1]</p> <p>The auditing judge, Oveb, J., awarded the fund to the ancillary administrator of the estate of Stephen M. S. Campbell.</p> <p>On exceptions to the adjudication Hawkins, P. J., filed the following opinion:</p> <p>If there had been by express words or necessary implication, a specific devise to testatrix’ husband of her share in the Wallace estate, the intent would of course have been clear. The whole title would have vested in him charged with liability for these legacies, and the devisee would himself have become personally liable as well by acceptance. But the will presents a different aspect. The gift is not of the Wallace property in specie, but of its proceeds. One sister was to receive $600, “out of” the estate, another sister $200, the brothers $200 each, and the husband “the balance.” Balance of what? Obviously of the fund “out of” which sisters and brothers were to be paid: Mustin’s Est., 194 Pa. 437. The same idea runs through the whole disposition. ■ The husband must look to the same source as testatrix’ brothers and sisters. The same operative words are used in respect to each and all. Each was to be paid “out of” the Wallace estate. That is the designated source of payment. The sisters and brothers were to be paid in cash and so must he. And the reason which underlies this scheme is obvious. Because testatrix had but an undivided interest in the land, distribution would follow the ordinary course of proceedings in partition. As the shares of the beneficiaries were made payable in cash, conversion must from necessity have been in contemplation in order to provide the means of satisfaction: Keim’s Est., 201 Pa. 609. In Laughlin’s Est., 131 Pa. 333, where an undivided interest in real estate was set apart as a fund “out of which” certain pecuniary legacies were directed to be paid, and the surplus, if any, paid to another, conversion was held necessary to carry out the testamentary scheme. The manifest intent, said the court, was to give certain specified legatees an interest, as distinguished from a lien, in his individual property. He expressly “set apart or designated” that property as a “fund or estate out of which” their “payment in full” should be made. So here this testatrix sets apart her interest in the Wallace estate, blending realty and personalty as a fund from which payment should be made. The legacies to the brothers and sisters and to the husband were by the express terms of the will to “come out” of the fund, and conversion of the land was necessary to carry out the testamentary intent. The wording of the two wills differs, but the meaning is unmistakably the same.</p> <p>In this view the question of the bar of the act of 1855 is not involved. The contingency of conversion in course of proceedings in partition which testatrix had in contemplation has happened; and the proceeds are now here for distribution. The delay in making partition is immaterial to the question involved here. No time was set by Mrs. Campbell for conversion, and the institution of proceedings in partition was a voluntary matter. Mr. Campbell and those claiming under him stand on the same footing as his colegatees and cannot plead delay in bar. As between them this is the first opportunity for presentation of their claims, and there is neither legal or equitable bar to allowance: DuPlaine’s Est., 185 Pa. 332.</p> <p>The sentence following the gift to Mr. Campbell was not intended to change this scheme of disposition. The expression “this property,” referred to the last antecedent, the Wallace estate, and its obvious purpose was to declare that the whole of that estate, whether it consisted of “real, mixed or personal property,” should constitute the source of payment of these legacies. It was neither in form nor intent a dispository clause. Testatrix had just made a complete disposition and the language here used raises a necessary implication that the legatees were intended to be treated as a class. They were all to be paid out of a common fund, the Wallace estate.</p> <p>In ordinary course this fund would go to the domiciliary forum for administration; but inasmuch as citizens of this state have made demand for distribution here, this court must assume jurisdiction under the Act of March 31, 1905, P. L. 91. In view of the fact that Mrs. Campbell has been dead many years, the probability is that there are no domiciliary debts remaining unpaid, and therefore no one will be injured by distribution here.</p> <p>Errors assigned were (1-5) various rulings on evidence and final decree dismissing exceptions to amendment of adjudication.</p>

Appeal, No. 180, April T., 1913, by plaintiff, from order of C. P. Allegheny Co., Jan. T., 1913, No. 514, making absolute rule to open judgment in case of Washington Jarvis v. John Stoffal. Rule to open judgment so as to strike off attorney’s commissions. Swearingen, J., filed an opinion which was in part as follows: The amount of the loan was but $2,000. The remaining $6,000 was purchase money for about one-third of the land pledged as security therefor.

Appeal, No. 191, April T., 1913, by plaintiff, from decree of C. P. Allegheny Co., Oct. T., 1912, dismissing libel for divorce in case of Elmer P. Yost v. Ada A. Yost. Libel for divorce. Brown, J., filed the following opinion: 1.

<p>Appeal, No. 94, April T., 1913, by defendant, from judgment of C. P. No. 4, Allegheny Co., Fourth Term, 1908, No. 23, on verdict for plaintiff in case of Cesare Moscarelli v. James A. Wakefield.</p> <p>Assumpsit to recover money alleged to have been wrongfully paid as an attorney’s fee. Before Carnahan, J.</p> <p>In addition the facts are stated in the opinion of the Superior Court, it appeared that plaintiff conceded that $300 was a proper fee for W. H. Cox.</p> <p>Defendant presented these points.</p> <p>3. If you find that W. H. Cox was an attorney at law; that at the request of plaintiff he rendered professional services to the plaintiff in his action against Mercantile Trust Company, then the law creates a promise on the part of plaintiff to pay to said Cox what his services were reasonably worth. For the amount of such reasonable compensation Mr. Cox had a lien upon the moneys collected in said action, and defendant here was justified in paying such reasonable compensation' out of the moneys in his hands derived through said action. Answer: Refused. [7]</p> <p>4. In determining the reasonable value of the professional services rendered by Mr. Cox to the plaintiff, you must be governed by the evidence. You cannot arbitrarily ascertain and fix such value. If you find from the evidence that $800 was a reasonable compensation for Mr. Cox for the professional services rendered by him to plaintiff and that this sum was paid to him by defendant out of the fund that came into his hands as a result of the litigation in which Cox was employed, then your verdict must be for the defendant. Answer: Refused. [8]</p> <p>Verdict and judgment for plaintiff for $595.10. Defendant appealed.</p> <p>Errors assigned were (7, 8) above instructions, quoting them.</p>

<p>Beneficial associations — Payment of calls — Forfeitures of membership— Burden of proof.</p> <p>Where a beneficial association consists of a “Supreme Circle,” and “Subordinate Circles,” and the members pay regular monthly dues to the subordinate circles, and irregular assessments called at times by the Supreme Circle, the association, when sued for a death benefit, has upon it the burden of proof to show that the Supreme Circle had called an assessment which it was claimed the deceased member had not paid. Such burden of proof is not met by the production of loose typewritten sheets of paper purporting to be the minutes of the executive committee of the Supreme Circle, with the name of a former secretary affixed at the end by a rubber stamp, without any proof that the secretary named had ever used such a stamp, or that he had ever had one in his possession, or that the stamp resembled his signature, and without any evidence to show that it would have been impossible, or difficult, or even inconvenient to produce such secretary as a witness.</p>

<p>Water companies — Laying pipe under public road — Coal lands— Support.</p> <p>Where a water company lays its pipes under a township road without making any compensation to the owner of the land, and thereafter, the owner, a coal company, removes the coal in its mining operations, and the surface of the road subsides and injures the pipes, the water company cannot recover damages from the coal company for the injuries sustained.</p>

<p>Telegraph and telephone companies — Occupancy of land — Easement-Disputed questions of fact — Case for jury — Evidence.</p> <p>1. An occupancy of land by a telephone company with its poles under a parol license from the owner of the land, lacks the essential qualities of an easement inasmuch as an easement is only established where there are two tenements owned by distinct proprietors, one to which the right is attached and another on which it is imposed.</p> <p>2. When a person excuses what would otherwise be a trespass on the ground of a parol license, such license must be clearly established.</p> <p>3. In an action of ejectment to compel a telephone company to give up the occupancy of land which it had used for its poles, the case is for the jury, where the plaintiff testifies that the company had received a parol license to erect the poles only on the condition that they were to be removed at the request of the owner; that the owner had absolutely refused to sign any agreement relating to the poles, or to accept any compensation; that the defendant company had accepted a license from an adjoining owner to bo terminated on sixty days’ notice; and that an agent of the company in charge of the location of the poles had declared that when he was getting the consent of the owner that the latter had stated that the company must get off when he gave notice.</p>

<p>Negligence — Street railways — Collision of automobile and car.</p> <p>1. In an action against a street railway company to recover damages for injuries to an automobile struck by a street car, plaintiff testified that his car stalled on the tracks at a crossing when the car was at least 284 feet distant. His testimony was contradicted by defendant’s witnesses who testified that plaintiff had not stopped his automobile before crossing, and that he had driven directly in front of the car when it was only twenty-five to thirty feet distant, and that when the automobile stalled the motorman made every possible effort to stop his car. Held, that it was reversible error for the trial judge to ignore the defendant’s testimony, and to virtually charge that negligence of the defendant might be presumed from the mere fact that the car was not stopped before it reached the automobile.</p> <p>Negligence — Damages—Damages for detention.</p> <p>2. In an accident case where the plaintiff in his statement claims $2,000, testifies to damages in the neighborhood of $1,200, and recovers a verdict for about half of that amount, it is reversible error for the court to charge affirmatively that the plaintiff was entitled to damages for detention. In such a case the question of detention is for the jury.</p> <p>Negligence — Street cars — -Automobiles—Collision between car and automobile.</p> <p>3. Where an automobile stalls on the tracks of a street railway at a grade crossing, it is the duty of the person in charge of it to signal with reasonable promptness to those operating an approaching street car, in order that the latter may know that the automobile could not be gotten off the tracks. In such a case it is reversible error for the court to charge as a matter of law that the driver of the automobile was not required to get out of his car, and go upon the track to warn the motorman of his danger.</p>

<p>Appeal, No. 18, March T., 1913, by defendant, from judgment of C. P. Cumberland Co., May T., 1912, No. 20, on verdict for plaintiff in case of Cyrus Liggett v. L>. F. P. Ritter.</p> <p>Assumpsit for breach of warranty. Before Sadler, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Defendant presented these points:</p> <p>4. If the jury find from the evidence that the plaintiff in this action presented his petition to the court of common pleas of Cumberland county, in No. 217, February Term, 1912, to open the judgment in that case, which was entered and confessed on the note given by the plaintiff to defendant in the transaction now in suit, in which petition he set up the same facts upon which he sought to have that judgment opened, and that a rule was granted and the proceeding on said judgment, and a writ of execution issued thereon, and after the stay of said writ the plaintiff paid the full amount of the claim and the rule to show cause thereon was abandoned, then he is estopped from setting up the same matters in this action, and upon which his right to recover is based, and if the jury so find, the verdict of the jury should be for the defendant. Answer: As it does not appear that there was any adjudication in this case by the court, but a mere abandonment of the proceeding by Liggett, on advice of counsel, we cannot affirm this prayer. [1]</p> <p>6. The proceedings had in the court of common pleas to stay the execution have no bearing on the present controversy, Liggett having had the right either to move to set aside the execution, or to pay the same, as was done, and sue for his damages. Answer: As there was no adjudication on the proceeding by the court, but a mere abandonment on the-advice of his attorney, it is affirmed. [2]</p> <p>1. If the jury find from the evidence that the defendant did not warrant the horse then and in that case their verdict should be for the defendant. Answer: This is affirmed as an abstract principle of law. We might also state that if the jury in this case should find that there was a guarantee by Ritter that the horse would work anywhere, and that Liggett treated this as a warrant of the same, and that he, Ritter, intended thereby to warrant, then there would be in law such a warrant as would bind Ritter, and for a breach thereof would be liable in damages to Liggett. [4]</p> <p>The court charged in part as follows:</p> <p>[The measure of damages was set forth in one of the points, that is, the test is this: what was the horse worth in the market guaranteed, as contended for» by the plaintiff, if she was guaranteed? Then the difference between that and what its actual market value was after its qualities had become known and the people became acquainted with the horse — the difference in the market value of the horse — that is the damage claimed.] [5]</p> <p>[Now the plaintiff insists that the testimony which ought to have great weight with you is the fact that this horse was twice offered at public sale; that at the first sale, with this guarantee, as they contend, she was bid up to $231.50; that at the second public and open sale, which was advertised, with the same credit, she brought $103, and that the damage which has been suffered is the difference between what Liggett paid, $231.50 and $103, which he received, and that Ritter now has the horse in his possession for the latter outlay.] [6]</p> <p>[And what was the market value of the horse? What it was worth at the time of the sale it is insisted was $231.50. What was it worth afterwards? One of the best tests, or at least one that ought to be taken into consideration by you is what did it bring at an open public sale at which it was repurchased for Mr. Ritter.] [7]</p> <p>Verdict and judgment for plaintiff for $100. Defendant appealed.</p> <p>Errors assigned were (1-7) above instructions, quoting them.</p>

<p>Appeals, Nos. 175, 176, 177 and 178, April T., 1913, by defendant, William H. Black, from judgments of C. P. Allegheny Co., Sept. T., 1908, Nos. 1017, 1018, 1019 and 1020, on verdicts for plaintiffs in cases of Ophelia Grimsley, Verona Sims, Phenie Tapp and Dessie Tapp v. William H. Black.</p> <p>Assumpsit on an agreement in writing. Before Reid, J.</p> <p>At the trial it appeared that plaintiff sued upon an agreement in writing, the details of which are set forth in the opinion of Reid,- J., on motion for new trial, infra.</p> <p>The defendant made the following call:</p> <p>Mr. Patterson: In case of Ophelia Grimsley, we have served Mr. Jennings, the (attorney for the) principal plaintiff here, for the production of the plaintiff for cross-examination. And, as the plaintiff is of course in court, we ask him to produce Ophelia Grimsley for cross-examination in that case and any of the. other cases we ask to have them called for cross-examination.</p> <p>Mr. Ivory: Mr. Patterson certainly knows better than that. There is a way of taking the testimony of parties, the same as other witnesses in the case.</p> <p>The Court: The parties are not here?</p> <p>Mr. Ivory: No.</p> <p>Mr. Patterson: We served them with notice to produce these people in ample time; and, if they are not present, I will have to ask for a continuance.</p> <p>Counsel for defendant, after notice to produce the plaintiffs in these several cases, for cross-examination, and they not being produced, now request the court to grant him a continuance, for purpose of taking their testimony, he only having appeared as counsel in this case within the last week.</p> <p>Motion refused. Exception. [1]</p> <p>Mr. Ivory: I move to strike out the testimony of Wm. H. Black, witness, for the following reasons:</p> <p>First, because the testimony generally is incompetent and irrelevant to the issue being tried.</p> <p>Second, because the testimony does not come up to the offer made or the allegations of the affidavit of defense.</p> <p>Third, because the testimony does not disclose that there was any authority on the part of the counsel for claimants to make the contract.</p> <p>Fourth, because the testimony, on the contrary, disclosed affirmatively that counsel for the claimants stated that he had no authority to make any compromise.</p> <p>Motion granted.</p> <p>To which ruling of the court counsel for the defendant request an exception.</p> <p>Exception allowed and bill sealed. [3]</p> <p>The court gave binding instructions for plaintiffs.</p> <p>Verdicts and judgments in each' case for $318.75.</p> <p>On motion for a new trial Reid, J., filed the following opinion:</p> <p>The four cases above stated were tried together by consent.</p> <p>The plaintiffs sue in assumpsit to recover from the defendant $500 due by virtue of the terms of a certain written agreement, exhibit “A,” of the various statements of claim.</p> <p>By reference to this instrument it will be seen that the plaintiffs were legatees to the amount of $500 each under the last will of Alexander M. Black, which was being contested by Mrs. R. J. Graham and others in an issue devisavit vel non pending in the court of this county at No. 369, April Term, 1907.</p> <p>The defendant in the case at bar, as appears by the agreement, purchased the interest of Mrs. R. J. Graham and desired to procure the settlement of the will case then pending — by having a verdict entered for the defendants in the issue devisavit vel non, and the subsequent probate of another will, of earlier date, which provided for the same legatees and devisees as were named in the will in contest, except the four plaintiffs in the case at bar.</p> <p>This being the situation, on October 25, 1907, the will contest being on for trial, defendant signed the agreement, exhibit “A,” in consideration of the settlement of said contest when he undertook:</p> <p>First. To offer for probate the will of Alexander M. Black, dated January 31, 1900, and, second, to pay or cause to be paid to W. K. Jennings for his clients, Yerona Sims, Ophelia Grimsley, Phenie Tapp and Desie Tapp, the sum of $500 each within four months from date.</p> <p>The affidavits of defense admit that fifty per cent of the amount sued for was due and judgments for the amounts were taken, leaving the sum of $250, with interest from February 25, 1908, in controversy.</p> <p>Defense is made to this sum in the following terms:</p> <p>“At the time of the execution of the agreement marked exhibit ‘A,’ attached to plaintiffs’ statement, the matters in dispute relating to the wills of Alexander M. Black were being adjusted and settled between the several persons in interest and W. K. Jennings, Esq., representing the plaintiffs above named, as counsel, not being able to communicate with his client, the plaintiff above named, induced defendant to execute the agreement aforesaid with the distinct understanding that the amount to be paid plaintiff should and would be the proportion of the amount of her legacy under said will, based upon the proportion which other legatees, including one Mrs. R. J. Graham, settled and adjusted other legacies or claims against said estate of Alexander M. Black with defendant.</p> <p>“That all claims or legacies, except those mentioned in the agreement exhibit 1 A,’ aforesaid, were settled and adjusted upon a basis of fifty per centum, or less, in each case.”</p> <p>A supplemental affidavit adds the following:</p> <p>“That the parol agreement and understanding made at the time, or contemporaneous with the written agreement, as set forth in said parol agreement, constituted the inducement for the execution and delivery of the written agreement set forth in plaintiff’s statement, upon the faith of which defendant executed it, and without which said agreements or understandings he would not have done so.”</p> <p>The plaintiffs offered the undenied averments of the statement of claim and after allowing credit for payment of $250 in each case rested.</p> <p>Mr. Patterson for the defense, after opening his case, asked plaintiffs’ counsel to produce the plaintiff Ophelia Grimsley for cross-examination in her case, and in the other three cases asked that the plaintiffs be called for the same purpose. Upon inquiry by the court it was learned that none of plaintiffs, were present.</p> <p>The agreement sued upon gives the place of the residence of the plaintiffs as Spottsylvania, Virginia, counsel for the defendant stating that he had served plaintiffs’ counsel with notice to produce the several plaintiffs at the trial for cross-examination, and they not being in attendance, moved the court to continue the cause, for the purpose of taking their testimony. This motion was refused and the defense proceeded to trial. The only reason assigned on the record by counsel for not taking or attempting to take the testimony of the parties at an earlier date was that he had only appeared in the case within the preceding week; and (although that reason was not put on record) stated that he had a right to rely upon the presence in court of the several plaintiffs, in pursuance of the notice referred to.</p> <p>Before the conclusion of testimony on behalf of defendant, defendant’s counsel again moved to continue the cause, offering to pay the costs of the trial “for the purpose of procuring the testimony of the plaintiffs in these cases, to show that Mr. Jennings, as their attorney, was authorized to make the agreement testified to by Mr. Black, and that his action in so doing was after-wards ratified by plaintiffs.</p> <p>This motion was also refused for the reason that the court had already passed upon the question and that there was nothing upon the record to show why it should be granted.</p> <p>Other counsel than Mr. Patterson appeared in the case for defendant, filed the affidavit of defense, the supplemental affidavit and the sole charge apparently down to the week previous to the trial. No statement was made or affidavit filed explaining the failure to take or attempt to take the testimony of plaintiffs as upon cross-examination, either by commission and interrogatories, or by depositions. The case was put at issue December 1, 1910, and was reached for trial September 23, 1912.</p> <p>If it be the law that a party litigant who depends upon the opposing party to furnish on cross-examination, material evidence in his behalf, may require him by written notice to be in court at the trial, and need not attempt to procure his testimony in advance, by one of the means above indicated, then the court was wrong in refusing a continuance.</p> <p>The able brief of defendant’s counsel has not convinced us that such is the law. The dictum of Judge McIlvaine, in Gray v. Braden, 13 Pa. Dist. Rep. 481, as to the effect and purpose of sec. 7 of the Act of May 23, 1887, P. L. 158, cannot control and it is to be read in connection with the concluding lines of his opinion, which are as follows:</p> <p>"This ruling of the court, of course, would not prevent any party from obtaining a rule to take the testimony of a party to be used in case of his death before the trial, or for any other cause shown the court by petition duly verified, that would move a chancellor to grant such a rule.”</p> <p>Now, the great distance which the plaintiffs resided from this court, the probability of their being hostile and unwilling to testify; the uncertainty of four plaintiffs, each with a claim of only $250 traveling from a remote part of Virginia to attend upon the trial of a case in which their presence was not needed to support their own claim, would all be facts, which if presented, would almost certainly result in the granting of a rule for the taking of depositions.</p> <p>Defendants’ counsel also cites Asch v. West Philadelphia Pass. Railway Co., 4 W. N. C. 571, to support his position. Not only that case, but Brandon v. George, 4 Schuylkill Leg. Rec. 24, and of Gray v. Braden, 13 Pa. Dist. Rep. 481, whilst discussing the question of depositions as on cross-examination and the desirability of having the witnesses present in court, only actually decide that such a deposition will not be permitted without its propriety and necessity being first established by proper petition or affidavits.</p> <p>Even in the case of Asch v. Ry. Co., 4 W. N. C. 571 (C. P. No. 2 of Phila. Co.), the court held that the application “was within the letter of the law,” but that a mere “fishing expedition” would not be encouraged.</p> <p>In the case of as good authority, immediately preceding that just cited, Wise v. Philadelphia Dispensary, 4 W. N. C. 571 (C. P. No. 1 of Philadelphia County) being an application for a rule to take depositions of an adverse party, as upon cross-examination, the court says:</p> <p>“The defendants here have the same rights to the testimony of Wise, the plaintiff, if they think it to be in their favor, or relevant to their case, as that of any other witness. Besides, the third section of the Act of Assembly (April 15, 1869, P. L. 30) shows this to have been the intent of the legislature.”</p> <p>Also, in Yerkes v. Whitaker, 4 W. N. C. 571, immediately following that of Asch v. Railway Company, it was held in common pleas No. 3 of Philadelphia county, that before a rule for depositions in such cases would issue an affidavit would be required setting forth the reasons for application and the proposed line of examination, thus recognizing the right to take the deposition of an opposing party.</p> <p>As to the proof offered by defendant to support his contention of the execution of a parol contemporaneous contract which he avers displaced the written agreement sued on, we need not say much. A comparison of the offer made by defendant’s counsel and the proof which followed in support of it (not to speak of its essential departure from the facts set up in the affidavit of defense), convince us that we were right in striking out the evidence of the defendant, and of his counsel, Mr. Craig, which was exactly to the same effect.</p> <p>Nothing is better settled than the principle that to overthrow a solemn written instrument, by substituting a parol contemporaneous agreement for it, the evidence must be clear, precise and indubitable.</p> <p>The offer was to show that Mr. Jennings procured the defendant’s signature to exhibit “A,” upon his assurance that “he would expect to receive for them the same portion of their legacies as other legatees and devisees under the second and first wills received in settlement of their claim; that no more would be expected for these four people than the proportions paid to the other people; this to be followed by evidence that these people received only fifty per cent of the amount. of money provided for them as legacies or devises stipulated for them in the two writings purporting to be the wills of Alexander M. Black.”</p> <p>The affidavit of defense already quoted shows that the amount to be paid plaintiffs would be the proportion of the amount of the legacies under the will based upon the proportion which other legatees, including Mrs. R. J. Graham, settled and adjusted their legacies or claims against defehdant. That all claims or legacies, except those mentioned in the agreement, were settled and adjusted upon a basis of fifty per cent, or less, in each case.</p> <p>The offer and affidavit of defense must be read together. The effect must be limited to the matters set out in the latter.</p> <p>After the testimony was in, all the elements above specified were lacking, especially clearness and precision. A jury could not accurately determine what proportion had been paid to various claimants. Some claims alleged by the affidavit to be paid proportionately were paid in full, and, in short, there was no evidence which a chancellor would permit a jury to utilize to destroy a written contract.</p> <p>Even had plaintiffs been present at the trial, as demanded by defendant, all they could have testified to would have been as to their authorization of the alleged parol agreement, or the subsequent ratification.</p> <p>Before they could have been estopped by either authorization or ratification the alleged parol contract must first have been established by the full measure of proof. It is evident as plaintiffs were not present that they could not have been used to make certain or clarify the testimony to support the alleged parol agreement.</p> <p>It was .not necessary to rest the ruling of the court, striking out,, the defendant’s .testimony or the lack of authority of Mr. Jennings to make such a contract. Defendant himself testified that Mr. Jennings explicitly stated he was without such authority, and consequently, he signed the agreement eihibit “A,” with full knowledge that plaintiff’s attorney could not legally vary its terms. The court was warranted in disposing of the case on that ground alone but did not. The lack of full measure of proof, the failure to make good the promise of the offer and the departure from the allegations of the affidavit of defense were in themselves more than sufficient.</p> <p>The motion for new trial is refused.</p> <p>Errors assigned were (1, 3) rulings on evidence, quoting the bill of exceptions, and (5) in giving binding instructions for plaintiffs.</p>

<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.</p> <p>Petition for reargument.</p>

<p>Appeal, No. 140, April T., 1913, by plaintiff, from order of C. P. Allegheny Co., Third Term, 1909, No. 671, refusing to take off nonsuit in case of Charles J. Rieger v. City of Pittsburg.</p> <p>Assumpsit for services. Before Frazer, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was refusal to take off nonsuit.</p>

<p>Appeal, No. 2, April T., 1913, by Otto Kohler, from decree of O. C. Crawford Co., Nov. Term, 1910, No. 14, distributing proceeds of sale in Estate of Jennie S. Chamberlain, deceased.</p> <p>Exceptions to report of W. W. Henderson, Esq., auditor. Before Prather, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Errors assigned were in dismissing exceptions to the auditor’s report.</p>

Appeal, No. 96, Oct. T., 1913, by defendant, from judgment of Q. S. Phila. Co., Nov. Term, 1912, No. 22, on verdict of guilty in case of Commonwealth. v. Alexander Brown. Indictment for pandering.

<p>Decedents’ estates — Husband and, wife — Neglect of husband to support wife — Exclusion of husband from sharing in wife’s estate — Act of May 4, 1855, P. L. 480.</p> <p>A finding by the orphans’ court that a husband through drunkenness had neglected to provide for his wife during the last year of her life, and that therefore he is properly excluded from sharing in her estate, will not be reversed by the appellate court where the evidence is sufficient to support the finding, and there is no manifest error.</p>

<p>Appeal, No. 11, April T., 1913, by plaintiff, from judgment of C. P. Armstrong Co., June T., 1911, No. 147, on nonsuit in case of Eli B. Phillips v. Levi Swartzlander and Anna Swartzlander.</p> <p>Ejectment for land in West Franklin township. Before Patton, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The plan on the following page shows the contention of the parties.</p> <p>The broken line a. b. c. d. is the line which the plaintiff claimed was the proper line. The straight north and south line a. b. d. is the line claimed by the defendants.</p> <p> </p> <p>The court entered a compulsory nonsuit which it subsequently refused to take off.</p> <p>Error assigned was refusal to take off nonsuit.</p>

<p>" Appeals — Jurisdiction—Supreme and Superior Courts — Money controversy — Lunacy—Certification of case from one court to another.</p> <p>Where on an appeal to the Superior Court from an order of the court of common pleas superseding an inquisition in lunacy and proceedings thereon because of the restoration of sanity, it is promptly made to appear to the Superior Court that the value of the alleged lunatic’s estate is over $1,500, the case will be certified to the Supreme Court, and this is so whether the appeal be regarded as involving a money controversy, or as only involving the question of the superseding of the inquisition and proceedings thereon.</p>

<p>Appeal, No. 130, April T., 1913, by plaintiff, from judgment of C. P. Lawrence Co., Sept. T., 1908, No. 49, on verdict for defendants in case of Lew W. Cochran v. Robert R. McGeorge and Alice M. McGeorge.</p> <p>Assumpsit on promissory notes. Before Porter, P. J.</p> <p>Verdict and judgment for defendants. Plaintiff appealed.</p> <p>Errors assigned were (4) rulings on evidence, quoted in the opinion of the Superior Court, and (9) refusal of binding instructions for plaintiff.</p>

Appeal, No. 213, April T., 1913, by defendant, from order of C. P. Lawrence Co., June T., 1912, No. 193, refusing rule to open judgment in case of H. S. Blatt Hardware Company v. M. D. McCarthy and D. J. Mulcahy. Rule to open judgment. The facts are stated in the opinion of the Superior Court. Error assigned was order refusing rule to open judgment.

Appeal, No. 84, April T., 1913, by defendant, from judgment of C. P. Butler Co., Sept. T., 1912, No. 66, on verdict for plaintiff in. case of C. A. Silsby for use of H. W. Leonard v. A. H. Knauff. Assumpsit to recover half of the expenses of drilling an oil well. Before Galbreath, P. J. The facts are stated in the opinion of the Superior Court. Verdict and judgment for plaintiff for $527.59. Defendant appealed.

Appeal, No. 114, April T., 1913, by defendant, from judgment of C. P. Beaver Co., April T., 1913, No. 11, on verdict for plaintiff in case of James W. Hall v. Joseph K. Hall, Assumpsit for money loaned. Before Holt, P. J. The facts are stated in the opinion of the Superior Court. Verdict and judgment for plaintiff for $538.12.

Appeal, No. 153, April T., 1913, by defendant, from order of C. P. Beaver Co., Dec. T., 1910, No. 3, making absolute rule for judgment for want of a sufficient affidavit of defense in case of .Beaver Falls Planing Mill Company v. R. A. Whiteside. Assumpsit on a promissory note. Rule for judgment for want of a sufficient affidavit of defense. Error assigned was order making absolute rule for judgment for want of a sufficient affidavit of defense.

Appeal, No. 162, April T., .1913, by plaintiffs, from judgment of G. P. Beaver Co., March T., 1912, No. 341, for defendant n. o. v. in case of Carl R. and Oliver V. Douds, partners trading as Douds Brothers, v. Beaver Valley Traction Company. Trespass for injuries to an automobile. Before Holt, P. J. At the trial the jury returned a verdict for plaintiff.

Appeal, No. 195, April T., 1913, by defendants, from order of C. P. Forest Co., Sept. T., 1912, No. 40, making absolute rule for judgment for want of a sufficient affidavit of defense in case of George R. Johnson, to use of Citizens’ National Bank of Tionesta, v. Elizabeth Weller, Executrix of the last will and testament of A. L. Weller, deceased, and J. F. Proper, liquidating and surviving partner of the late firm of A. L. Weller, and J. F. Proper.

Appeal, No. 150, Oct. T., 1912, by defendant, from judgment of C. P. No. 4, Pfiila. Co., Dec. T., 1909, No. 4,359, on verdict for plaintiff in case of Philip E. Wright v. Adams Express Company. Trespass to recover for the loss of a trunk. Before Willson, P. J. The facts are stated in the opinion of the Superior Court. Defendant presented, inter alia, these points: 2.

Appeals, Nos. 76-77, Oct. T., 1912, by defendant, from judgment of C. P. No. 1, Phila. Co., Dec. T., 1908, No. 3,756, on verdict for plaintiffs in case of Harry Geltzer by his father and next friend, Sam Geltzer, and Sam Geltzer v. Philadelphia Rapid Transit Company. Trespass to recover damages for personal injuries to a boy ten years old. Before Kinsey, J. The facts are stated in the opinion of the Superior Court.

Appeal, No. 29, March T., 1913, by defendant, from judgment of Q. S. Susquehanna Co., Aug. Sessions, 1912, No. 21, on verdict of guilty in case of Commonwealth v. Paul Franciski. Indictment for seduction. Before Little, P. J. At the trial the jury returned a verdict of guilty, upon which judgment of sentence was passed. Defendant appealed. Errors assigned were various instructions and rulings on evidence.

<p>Deeds — Exception—Reservation—Land excepted for road.</p> <p>1. A strip of land will be considered as being excluded from a grant where the description of the land conveyed by the deed is followed by a provision as follows: “Said parties of the first part excepting and reserving however thereout and therefrom and from the operation of this deed, a strip of ground thirty feet wide running directly across the above described lot from the said Thomas land to J. B. Mitchell’s land, passing a little southwestwardly of the spring; the said thirty feet wide being reserved for a road or way and is not hereby intended to be conveyed.”</p> <p>Nuisance — Obstruction of road — Laches.</p> <p>2. The presence of gates or bars on a road over which neighboring owners have a right of way, will not defeat such owners’ rights, where it appears that such gates and bars were used merely to restrain cattle from wandering. Continued encroachments or permissive trespasses cannot extinguish public from private rights.</p> <p>3. Where a person builds a house within the limits of a road over which neighboring owners have a right of way, such owners cannot be accused of laches, if they permit the house to stand without objection for several years during which the trespasser had provided a substituted road over his own land, and take no action until such substituted road is itself closed by the owner.</p>

Appeal, No. 269, Oct. T., 1912, by plaintiffs, from judgment of C. P. No. 3, Phila. Co., June T., 1907, No. 5,224, for defendant n. o. v. in case of Max Isdaner et al., copartners, trading as Isdaner, Cohen and Schmidt, v. Philadelphia and Reading Railway Company. Trespass for loss of merchandise.

<p>Appeal, No. 32, Oct. T., 1912, by defendants, from decree of. C. P. No. 2, Phila. Co., March T., 1911, No. 3,393, on bill in equity in case of James J. Carlin et al. v. Division No. 5 of Philadelphia County, Pennsylvania, of the Ancient Order of Hibernians of America, Patrick McCauley et al.</p> <p>Bill in equity for an injunction. Before Wiltbank, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Errors assigned were (1-17) various findings of fact and conclusions of law, but not to the final decree.</p>

<p>Appeal, No. 236, Oct. T., 1912, by plaintiff, from judgment of C. P. Schuylkill Co., Sept. T., 1907, No. 141, on verdict for plaintiff in case of Jacob Zehner v. E. M. B. Shepp, C. S. Shindel and James Tonley, trading as Shepp & Co.</p> <p>Trespass to recover damages for injuries to water power. Before Brumm, J.</p> <p>The court gave binding instructions to find for the plaintiff for six cents damages.</p> <p>Verdict and judgment for plaintiff for six cents. Plaintiff appealed.</p> <p>. Error assigned were (1-18) various instructions and rulings on evidence.</p>

<p>Appeal, No. 8, March T., 1913, by M. Morris Moskovitz, from decree of O, C, Lackawanna Co., 1909, No. 292, surcharging appellant in Estate of Frank Fredrick, deceased. •</p> <p>Exceptions to account.</p> <p>Sando, P. J., found the facts to be as follows:</p> <p>The decedent, Frank Fredrick, died on or about December 26, 1908, intestate, leaving to survive him a widow, Kate Fredrick, and a minor daughter. The widow, having renounced her right to administer, letters of administration were granted on June 11, 1911, to M. Morris Moskovitz, who filed a bond in the sum of $2,000 with E. W. Friedman and Joseph F. Gilroy as sureties. An inventory, made by appraisers appointed by the administrator, filed February 7, 1910, showed assets, consisting of cash, in the hands of the administrator, amounting to $1,002.34. It was admitted of record that the administrator on March 12, 1910, paid to the attorney for Kate Fredrick, the sum of $300 as her widow’s exemption. No account was filed by the administrator. On September 8, 1910, upon due proceedings in this court, a decree was entered removing M. Morris Moskovitz as administrator, and vacating the letters of administration issued to him. On September 24, 1910, letters of administration de bonis non were issued to George W. Maxey. The first and final account of M. Morris Moskovitz, administrator, as stated and filed by his bondsmen, pursuant to a citation, is as follows:</p> <p>“The said Frank Fredrick having died intestate, possessed of no personal property, there was and is in the hands of M. Morris Moskovitz, administrator as aforesaid, no funds of the said estate for which an accounting might be made.”</p> <p>To this account filed, the administrator d. b. n. has filed an exception. The exception seeks to surcharge the accountants with the sum of $1,002.34, received by M. Morris Moskovitz, administrator, from the First National Bank of Forest City, Pennsylvania, on June 29, 1909, as assets of the estate of the decedent, acknowledged and inventoried as such in the inventory filed on February 7, 1910, by M. Morris Moskovitz, administrator.</p> <p>The account with the bank was opened on January 26, 1904, and the last deposit was made on November 25, 1908. A bank book was issued by the First National Bank of Forest City, Pa., “Savings Department,” with rules printed thereon, presumably on January 26, 1904, when the first deposit was made, with the following heading:</p> <p>“No. 1237. Interest will be credited with red ink.</p> <p>“First National Bank, Forest City, Pa., in account with Frank or Kate Fredrick.”</p> <p>The rules printed in the bank book, provide, inter alia:</p> <p>“5. Although the bank will endeavor to prevent fraud on its depositors, the pass book will be considered the voucher of the depositor, and the possession of the pass book shall be sufficient authority to the bank to warrant any payment made and entered on it.</p> <p>“6. The acceptance of this book and the entries thereon shall be conclusive evidence that the foregoing rules are agreed to by the bank and the depositor.”</p> <p>On June 28, 1908, the balance standing to the credit of the account, including interest, amounting to $1,002.34, was paid to M. Morris Moskovitz, on a check drawn to the order of “Cash,” and signed by him as “Admininistrator of the Estate of Frank Fredrick, Deceased, and Attorney in Fact for Kate Fredrick.” At the time of the withdrawal of the fund, Moskovitz filed with the bank, the pass book, his letters of administration, a certificate of the register of wills of the grant of letters of administration, and a copy of a power of attorney, the original of which being on file in the office of the register of wills.</p> <p>The sureties on the bond of the administrator contend that the money standing to the credit of “Frank or Kate Fredrick” in the bank was held by entireties, and that, therefore, upon the death of Frank Fredrick, the right to said money vested in Kate Fredrick as survivor.</p> <p>The court entered the following decree:</p> <p>Now, May 31, 1912, upon the disposition of the exception filed to the first and final account of M. Morris Moskovitz, administrator of the estate of Frank Fredrick, deceased, as stated and filed by E. W. Friedman and Joseph F. Gilroy, his sureties, it is ordered and decreed that the accountant be surcharged in accordance with our rulingSj and the account as restated is confirmed finally.</p> <p>Error assigned was the decree of the court.</p>

<p>Appeals — Practice, Supreme Court — Costs—Reversal of judgment — ■ Acts of May 19,1897, P. L. 67, and April 27,1909, P.L. 268.</p> <p>Where an appeal from a judgment on a verdict for plaintiff is terminated by the order “The judgment is reversed,” the prothonotary of common pleas on return of the record has no power to enter judgment in favor of the defendant and against the plaintiff for costs incurred in the common pleas and on the appeal. Such an order is not a final determination of the case within the meaning of the Act of May 19,1897, P. L. 67, which imposes the costs on the party “finally losing the cause,” nor within the meaning of the Act of April 27, 1909, P. L. 263, relating to the taxation of the cost of printing paper-books.</p>

<p>Appeal, No. 22, March T., 1913, by defendant, from order of Q. S. April T., 1911, No. 75, refusing to quash indictment in case of Commonwealth v. Charles F. Williams.</p> <p>Motion to quash indictment.</p> <p>Wanner, J., filed the following opinion:</p> <p>The defendant is charged in this indictment with having burned his own barn with intent to cheat and defraud certain insurance companies, by whom it was then insured. The motion to quash this bill is not based upon any misconduct of the grand jury, or upon any legal defect in the form or substance of the bill itself, but chiefly upon the fact that the justice who issued the warrant against the defendant, and the jurors who found the defendant to have been accessory to the burning, under the provisions of the Act of April 17, 1869, P. L. 74, were policy holders in said insurance companies.</p> <p>Said act provides that whenever it shall be made to appear upon the affidavit of a credible witness that any building has been set on fire maliciously or burned' from an unknown cause, any justice of the peace of the borough or township wherein such fire occurred, upon the request of any citizen thereof, or of any president, secretary, or agent of any insurance company having a policy in force on the premises burned, shall summon three jurors to determine the cause of such fire.</p> <p>In this case, the jury so impaneled certified to the justice of the peace that the defendant, Charles F. Williams, was an accessory to the burning of said building, whereupon the magistrate issued a warrant against him, charging him with said offense, as directed by the act of assembly. Upon these proceedings, duly returned to the district attorney, this bill of indictment was drawn-and sent to the grand jury.</p> <p>It is strenuously contended by the defendant, that the fact that the jurors and the justice were policy holders in these mutual fire insurance companies, and therefore subject to assessment for this loss, disqualified them from acting in this case on the ground of interest.</p> <p>If they had entered a judgment, or made any final or adverse adjudication as to the person or property of the defendant, this exception would be well taken, even though their supposed interest in the case, as appears from the testimony, may have been but a few cents each. But such was not the case, nor was the proceeding in which they were sworn to act as jurors, one to which the defendant was then a party of record, or which was in the first instance directed against him.</p> <p>It was merely a general inquiry into the cause of the fire, conducted under the provisions of an act entitled, “An act to provide a mode of inquiry into the origin of fires.” The supposed interest of the jurors is not .made a disqualification under the terms of the act, which indeed contains one provision leading to a contrary inference, viz.: that which makes the president, secretary or agent of any insurance company having a policy on the buildings burned competent to make the request upon which the magistrate is required to start this proceeding.</p> <p>Neither do we think such an interest would be sufficient under the ordinary rules of criminal practice to prevent these jurors from acting in this capacity, though it may be somewhat similar to that of an ordinary prosecutor in a case. It is a general rule that interest does not disqualify a party from becoming the prosecutor in a criminal case, and as a matter of fact in cases of larceny and similar offenses, they are usually directly interested.</p> <p>The magistrate seems to have no discretion in the matter of issuing his warrant, as the act is mandatory as to that, if the jurors certify to him who, in their opinion, is the guilty party. His apparent interest, therefore, would be entirely immaterial because it could not affect his action in the case. But neither he or any of the jurors really has any direct interest in the criminal case itself, or in the judgment that may be entered therein, because it can in no way affect them financially, or personally.</p> <p>The commonwealth and the defendant are the only parties in this criminal issue, whilst any financial interests or liabilities which the justice and the jurors may have by virtue of their contracts of insurance, must be determined in another court, and in another case.</p> <p>We are, therefore, of the opinion, that the objection to the bill on the ground of the supposed interest of the justice and the jurors in this case, is not a valid one.</p> <p>The other objection insisted on is that this method of procedure is in violation of the constitutional provision that no citizen shall be deprived of life, liberty or property except by “due process of law.” But while this is not the -usual common-law form of starting criminal proceedings, it is one expressly authorized by statute in this commonwealth, and must therefore be recognized by the courts as “due process of law” unless the Act of April 17, 1869, P. L. 74, is itself unconstitutional. No sufficient reason for reaching that conclusion, however, has been shown by counsel, or discovered by the court.</p> <p>Now, to wit, December 18, 1911, the motion to quash the bill of indictment in this case is overruled.</p> <p>Error assigned was order refusing to quash indictment.</p>

<p>Appeal, No. 5, April T., 1913, by defendant, from judgment of C. P. Allegheny Co., Third Term, 1909, No. 795, on verdict for plaintiff in case of Lew Keener v. Robert Jeffries.</p> <p>Trespass for malicious prosecution. Before Evans, J.</p> <p>Verdict and judgment for plaintiff- for $255. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for defendant.</p>

Appeal, No. 41, April T., 1913, by defendant, from order of C. P. No. 4, Allegheny Co., First Term, 1912, No. 176, making absolute rule for judgment for want of a sufficient affidavit of defense in case of The Manufacturers Light & Heat Company v. W. H. S. Thompson. Assumpsit on a contract. Before Carnahan, J. The opinion of the Superior Court states the facts. Error assigned was order making absolute rule for judgment for want of a sufficient affidavit of defense.

<p>Affidavit of defense — Set-off—Sale of beer — Practice, C. P.</p> <p>1. In an action by a brewing company against a wholesale liquor dealer to recover the price of beer sold'and delivered during one month, an affidavit of defense is sufficient which avers that the defendant had purchased beer from the plaintiff for one whole year including the month in question, that during the year the plaintiff had delivered a number of barrels stated, all of which were of uniform size, that during the month in question the defendant had weighed a number of barrels and found that each was short two gallons; that each gallon was worth a price stated, and that the amount of the deficiency should be set off pro tanto against the plaintiff’s claim.</p> <p>Custom — Invalid custom — Liquor business — Continuance of agency.</p> <p>2. There can be no valid custom of the liquor business in the absence of a contract to that effect, which requires a brewery to continue the agency of a wholesale liquor dealer so long as the agency is satisfactory to the retail trade.</p>

Appeal, No. 117, Oct. T., 1912, by defendant, from judgment of C. P. No. 4, Phila. Co., Dec. T., 1909, No. 4,054, on verdict for plaintiff in case of Nicholas Martin, by his next friend and uncle, Angelo Venafra, v. City of Philadelphia. Trespass to recover damages for personal injuries. Before Carr, J. The circumstances of the accident are stated in the opinion of the Superior Court. Verdict and judgment for plaintiff for $1,000. Defendant appealed.

Appeal, No. 75, April T., 1913, by defendant from judgment of C. P. No. 4, Allegheny Co., Fourth Term, 1909, No. 224, on verdict for plaintiff in case of Eduard Schenk v. William H. Fetzer and Frank Fetzer, Co-partners trading and doing business as Fetzer Bros. & Co. Assumpsit for a concrete mixer sold and delivered.

Appeal, No. 170, April T., 1913, by defendant, from judgment of C. P. Washington Co., Peb. T., 1912, No. 1,029, on verdict for plaintiff in case of John Rau v. Pittsburg-Buff alo Company. Trespass to recover damages for personal injuries. Before Taylor, J. Verdict and-judgment for plaintiff for $250. Defendant appealed. Error assigned was in refusing binding instructions for defendant.

<p>Appeal, No. 100, April T., 1913, by defendant, from order of Q. S. Westmoreland Co., Feb. T., 1912, No. 18, removing paupers in case of The Directors of a Home for the Destitute of the County of Westmoreland, Directors of the Westmoreland County Poor District v. The Poor District of Kiskiminetas Township, Armstrong County.</p> <p>Petition for order of removal under the Poor Law of April 6, 1905, P. L. 112. Before Doty, P. J.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was the order of removal.</p>

Appeal, No. 95, April T., 1913, by plaintiffs, from judgment of C. P. No. 2, Allegheny Co., Jan. T., 1910, No. 750, on verdict for plaintiff in case of J. L. Crider and Clara B. Miller v. Pittsburg, Harmony, Butler and New Castle Railway Company. Issue to determine damages resulting from the taking of land. Before Evans, J. From the record it appeared that in April, 1905, Joseph Crider conveyed to the defendant company by deed a right of way through his land.

Appeal, No. 8, March T., 1913, by Thomas M. Derr, from order of C. P. Cumberland Co., Nov. T., 1909, No. 12, for contempt in case of David L. Greason v. Cumberland Railway Company. Rule to show cause why Thomas M. Derr should not be punished for contempt of court. Before Sadler, P. J. The facts are stated in the opinion of the Superior Court. Error assigned was order adjudging the respondent guilty of contempt of court and fining him $25.00.

<p>Appeal, No. 48, April T., 1913, by defendant, from judgment of C. P. No. 4, Allegheny Co., Third Term, 1909, No. 428, on verdict for plaintiffs in case of Patrick Ridge and Michael Ridge, partners doing business as Ridge Brothers, v. Erie Railroad Company.</p> <p>Trespass for the loss of a horse and buggy. Before Bkown, J.</p> <p>The facts. are stated in the opinion of the Superior Court. •</p> <p>Defendant presented the following points:</p> <p>2. That under the contract under which the horse was carried, to entitle the plaintiffs to recover for the loss of the horse they must show that the fire which burned the horse was caused by the negligence of the defendant. The plaintiffs have failed to show the fire was caused by the negligence of the defendant and the verdict must be for the defendant as to the horse. Answer: Refused. [1]</p> <p>3. That under the contract under which the horse was shipped, to entitle the plaintiffs to recover for the loss of the horse the burden is upon them to show that the fire was caused by the negligence of the defendant. The plaintiffs have failed to meet that burden, and the verdict must be for the defendant as to the loss of the horse. Answer: Refused.</p> <p>4. That under the law and all the evidence the verdict must be for the defendant as to the horse. Answer: Refused. [2]</p> <p>Verdict and judgment for plaintiffs for $1,084.16. Defendant appealed.</p> <p>Errors assigned were (1, 2) above instructions, quoting them.</p>

<p>Appeal, No. 146, April T., 1913, by defendant, from judgment of C. P. Fayette Co., June T., 1910, No. 500, on verdict for plaintiff in case of D. Nathenson v. Joseph T. Crossland.</p> <p>Trespass to recover damages for the alleged wrongful sale of a horse. Before Umbel, P. J.</p> <p>The opinion of the Superior Court states the facts.</p> <p>Verdict and judgment for plaintiff for $136.87; defendant appealed.</p> <p>Errors assigned were various instructions.</p>

<p>Negligence — Townships—Defective road — Failure to maintain barrier— Case for jury.</p> <p>In an action against a township to recover damages for personal injuries, the case is for the jury where the evidence shows that at the time of the accident the plaintiff was driving in a buggy in good condition, drawn by a gentle horse with good harness; that at the point of the accident the road was thirteen feet wide, with a steep unguarded declivity of thirty-three feet on one side, and that the horse suddenly stopped and backed the buggy down and off the highway over the declivity.</p>

<p>Practice, C. P. — Affidavit of defense — Lack of particularity.</p> <p>1. In an action to recover for work done and material furnished on a motor truck which the plaintiff had originally sold to the defendant under a guaranty, an affidavit of defense is insufficient which avers generally that the material furnished and the work performed were faulty, and that many of the items charged for should have been done at the plaintiff's own expense under the guaranty, but wdthout' any objection to the specific items, and without any particular statement of the material or workmanship alleged to bo defective.</p> <p>2. In an action to recover for work done and material furnished on a motor truck owned by the defendant, an affidavit of defense is insufficient, which avers in general terms that the material furnished and work performed was faults', and that as a consequence of this the defendant had repairs made by another company which amounted to an aggregate sum stated, but without specifying in detail what these items were, or in what respect the material and workmanship were defective.</p>

<p>Negligence — Mines and mining — Master and. servant — Employment of infant — Oiling machinery — Agre—Certificate—Act of June 2, 1891, $8,art.5,P.L.176.</p> <p>1. Under § 5, art. 8, of the Act of June 2, 1891, P. L. 176, which provides that “no person under fifteen years of age shall be appointed to oil the machinery, and no person shall oil dangerous parts of such machinery while it is in motion,” a boy under the age of fifteen cannot be employed to oil machinery, whether the machinery is in motion or not.</p> <p>2. Where a boy presents to a mining company a certificate misstating his age, and it appears that although the certificate purported to be signed by the boy’s father, the latter did not in fact sign it, had refused to sign it, knew nothing of its presentation to the company, and had no knowledge of the boy having been appointed to oil machinery, such certificate will not estop the father from recovering damages, for injuries sustained by the boy while oiling the machinery; nor will it estop the boy himself from showing his true age, and recovering damages for the injuries which he has sustained.</p>

<p>Appeals — Reducing charge to writing — Certificate—Act of May 11, 1911, P. L. m.</p> <p>1. Where it appears from the record of a trial that the stenographer wrote out a full copy of the record and certified the same as being a correct transcript of his notes and this is approved and directed to be filed by the judge over his own signature, it is immaterial that the record does not show that appellant’s counsel in terms before verdict requested that the charge be reduced to writing, and filed of record.</p> <p>Beneficial association — Death benefits — Misstatements in application.</p> <p>2. In an action against a beneficial association to recover benefits on the life of a deceased member, the court should give binding instructions for defendant where it appears that the deceased in his application for membership stated that one of his brothers had died of “influenza,” and the other from “foot ball,” and it appeared without contradiction both in the evidence and proofs of death that both brothers died of pulmonary tuberculosis and that the deceased himself had died from the same disease.</p>

<p>Beneficial associations — Death benefits — Wife and children — Parties to action — Guardian.</p> <p>1. Where a member of a beneficial association designates his widow and minor children as entitled to receive in equal shares the death benefits provided by the by-laws, the widow and children may join in one action against the association to recover the benefits; and it is immaterial that no guardian has been appointed for the minor children, if it appears that the widow sues not only in her own right, but also as mother, guardian and next friend of the minor children designated by name.</p> <p>2. Where the by-laws of a beneficial association provide that the association shall pay death benefits to the person designated by a deceased member, and the member has designated his.wife and children as beneficiaries, the association cannot set up, in a suit by the wife and children to recover the death benefits, as a defense, that it had already paid such benefits to a subordinate lodge of which the deceased was a member; and this is the case although a by-law declared that “a cheek for a death benefit shall be made out in the name of the person entitled to the same, and in the name of the president, secretary and treasurer of the subordinate lodge of which the deceased was a member.”</p>

<p>Negligence — Evidence—Elevators—Case for jury.</p> <p>In an action by a telegraph company against an elevator company to recover damages for the destruction of property, it appeared that defendant was called upon to repair cable connections in an elevator belonging to a third party. In doing the work an employee of the defendant in order to melt metal, took a burning plumber’s furnace into the shaft, placed it on a plank which he knew to be greasy, and during the progress of his work his foot slipped, struck the furnace and knocked it off the plank and it fell down the shaft and ignited the greasy covering of the wires of the plaintiff, and destroyed them. The presence of the wires and their condition was known to the defendant’s employee. There was evidence that the work could have been done without taking a lighted furnace into the shaft. There was also evidence that the defendant’s employee had been warned by the superintendent of the. building not to take the furnace into the shaft. Held, that the case was for the jury, both on the question of defendant’s negligence, and the question of proximate cause.</p>