Volume 55 — Pennsylvania Superior Court Reports

<p>Promissory notes — Negotiable collateral note — “Holder”—Bight of indorsee to apply collateral.</p> <p>Where a negotiable collateral note recites that certain warehouse certificates for whisky attached to the note are pledged “as collateral security for payment of this or any other liability or liabilities of the maker to the holder of the note,” and empowers the holder on default to sell the collateral and apply the proceeds “to pay any, either or all of said above-mentioned liabilities as the holder hereof shall deem proper,” an indorsee of the note is a bolder within the meaning of the instrument, and has a right to retain the collateral as security, not only for the note, but also for any other debt due him by the maker.</p>

<p>Appeals, Nos. 132 and 133, April T., 1913, by plaintiff, from order of C. P. No. 4, Allegheny Co., First Term, 1910, Nos. 569 and 570, refusing to take off nonsuits in case of Solomon Kaplan v. Manufacturers & Merchants Mutual Fire Insurance Company of Philadelphia et al.</p> <p>Assumpsit on policies of fire insurance. Before Brown, 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>The proofs of loss submitted were a substantial compliance with the requirements of the policies: Pearce Mfg. Co. v. Lebanon Mut. Ins. Co., 216 Pa. 265; Boyle v. Ins. Co., 169 Pa. 349; Thomas v. Ins. Co., 5 Pa. Superior Ct. 383; Cummins v. Ins. Co., 192 Pa. 359; Yost v. Ins. Co., 179 Pa. 381; Penn Plate Glass Co. v. Ins. Co., 189 Pa. 255; Post v. American Cent. Ins. Co., 51 Pa. Superior Ct. 352.</p> <p>There was no proper compliance with the policy-as to proofs of loss: Seibel Lebanon Mut. Ins. Co., 197 Pa. 106.</p>

<p>Appeal, No. 142, April T., 1913, by defendant, from order of C. P. Allegheny Co., Oct. T., 1912, No. 1,180, making absolute rule for judgment for want of a sufficient affidavit of defense in case of R. E. Donoghue v. Edward O’Kane.</p> <p>Appeal from judgment of county court.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>The opinion of the Superior Court states the case.</p> <p>Errors assigned were in the following form:</p> <p>1. The court below erred in refusing to allow defendant to file his supplemental affidavit of defense in answer to the second rule for judgment.</p> <p>2. The court below erred in not considering and passing upon defendant’s supplemental affidavit of defense.</p> <p>3. The court below erred in not following its own rule No. 12, quoting the rule.</p> <p>The rule is firmly established that each court is the best, judge of its own rules, and the appellate court will not interfere with the construction put upon its rules by the court below, except for palpable abuse or to correct manifest and material error: Livingston v. Kerbaugh, 30 Pa. Superior Ct. 534; Mendenhall v. Mendenhall, 12 Pa. Superior Ct. 290; Haines v. Young, 13 Pa. Superior Ct. 303; 'Kunkle’s Est., 21 Pa. Superior Ct. 200; Dickinson Township Road, 23 Pa. Superior Ct. 34; Higgins Carpet Co. v. Latimer, 165 Pa. 617; Morrison v. Nevin, 130 Pa. 344; Bair v. Hubartt, 139 Pa. 96; Brennan v. Insurance Co., 148 Pa. 199; McLane v. Hoffman, 164 Pa. 491.</p>

<p>Decedents’ estates — Presumption of death — Unaccounted absence— Evidence.</p> <p>1. The presumption of death arising from an unaccounted absence of a person for seven years must be taken to run exclusively from the termination of the prescribed period, so that the person must be taken to have thembeen dead, and not before. McCausland’s Est., 213 Pa. 189, explained and distinguished.</p> <p>2. Where a son has disappeared and his absence has been unaccounted for, for less than seven years before the death of his mother, he will be presumed to have lived until after the death of his mother, and if the latter dies intestate, and the son has also left no will and no children, the widow of the son will be entitled to a half interest for life in the real estate which descended to her husband, and the income may be paid to her directly without raising an administration on her husband’s estate under the Act of June 25, 1885, P. L. 155.</p>

<p>Appeal, No. 110, April T., 1913, by plaintiff, from judgment of C. P. Allegheny Co., Dec. T., 1908, No. 964, for defendant non obstante veredicto in case of J. J. Wetzel v. Pittsburg Railways Company.</p> <p>Trespass to recover damages for personal injuries and for injuries to a team. Before Reid, J.</p> <p>At the trial it appeared that on September 25, 1908, the'plaintiff was driving a pair of mules and a wagon on Fifth avenue near Elm street in the city of Pitts-burg. At the point of the accident there were two car tracks. Plaintiff was driving on the outbound track, and when he reached Elm' street, having some goods to deliver on Fifth avenue two doors above Elm street, he attempted to cross the inbound track, and was struck by a car on that track when his wagon had nearly cleared it. He testified that he saw the car in question stop at Logan street 282 feet away, that he stopped before turning, and then seeing the car at rest started from the one track to the other. There was evidence that the car was running at a high rate of speed, and the plaintiff claimed that the motorman ,saw him.</p> <p>The court submitted the case to the jury.</p> <p>Verdict and judgment for plaintiff for $1,037.50. Subsequently the court entered judgment for defendant non obstante veredicto.</p> <p>Error assigned was in entering judgment for defendant non obstante veredicto.</p> <p>It was error to enter judgment for defendant n. o. v.: Duffy v. York Haven Water & Power Co., 233 Pa. 107; Dalmas v. Kemble, 215 Pa. 410; Reel v. Elder, 62 Pa. 308.</p> <p>The plaintiff was not guilty of contributory negligence, and the question of contributory negligence was properly left to the jury: Haughey v. Rys. Co., 210 Pa. 363; Conyngham v. Electric Motor Co., 15 Pa. Superior Ct. 573.</p> <p>The court cannot usurp the function of the jury and decide that an accident occurred in a certain manner by drawing inferences from circumstances and facts which are disputed: Bane v. Rys. Co., 238 Pa. 216; Becker v. Traction Co., 52 Pa. Superior Ct. 93; Sheetz v. Traction Co., 49 Pa. Superior Ct. 177; McGovern v. Traction Co., 192 Pa. 344; Henderson v. Traction Co., 202 Pa. 527; Armstrong v. Traction Co., 216 Pa. 595; Luckenbill v. Rys. Co., 47 Pa. Superior Ct. 121.</p> <p>cited: Bornscheuer v. Traction Co., 198 Pa. 332.</p>

<p>Appeal, No. 112, April T., 1913, by plaintiff, from judgment of C. P. Allegheny Co., March T., 1908, No. 452, for defendants on case stated in case of James McKeand v. Israel Skirboll and Charles Gothe.</p> <p>Case stated to determine liability for damages to a building.</p> <p>The case stated was as follows:</p> <p>On and prior to September 17, 1907, the plaintiff and Israel Skirboll, one of the defendants, were the owners in fee of adjoining lots of land situate on the easterly side of Shiloh street, of the new nineteenth ward, city of Pittsburg of said county; the plaintiff’s lot being on the southerly side of defendant Skirboll’s lot.</p> <p>A short time prior to September 17, 1907, the plaintiff had erected and completed a three-story brick building on his said lot of land, the building being constructed of solid brick walls upon rubble stone foundation walls; the northerly edge of the northerly wall of the McKeand building being located at least three inches from the line dividing the plaintiff’s lot from the Skirboll lot.</p> <p>After the completion of the McKeand building and prior to September 17, 1907, work was begun on the Skirboll lot preliminary to the construction of a new building to replace a building destroyed by fire. For this purpose Skirboll entered into a contract with Charles Gothe, the other defendant, which contract is attached hereto and made part hereof. Charles Gothe subsequently sublet the excavation to one Nagle, who, pursuant thereto, began the work of throwing out the debris from the old fire and doing the excavating for the foundation walls of the new Skirboll building, which was to be of greater dimensions than the old building.</p> <p>On September 17, 1907, Gothe’s subcontractor, Nagle, dug down alongside of the McKeand wall, removing all the earth therefrom so as to expose the McKeand foundation wall, carrying his excavation down below the bottom of the McKeand wall, after which he dug a wall trench for the Skirboll wall, which trench was about two feet wide and about eight inches deep. The bottom of the Skirboll wall trench being twenty inches below the bottom of the Mc-Keand foundation wall, and this wall trench began at the property line on Shiloh street and had extended back about twenty feet. The southerly side of the wall trench was flush with the McKeand dividing line. The workmen finished this part of the trench late in the afternoon, leaving it at quitting time open for the entire twenty feet and leaving no protection or “shoring up” of any kind to support the McKeand building or the earth under the McKeand wall, and the character of the soil at the bottom of the McKeand wall, and from which the wall trench had been excavated, is of a “soap-stone” or marl nature and less substantial than ordinary clay.</p> <p>Shortly after the workmen quit, or between 5 and 6 p. m. of September 17, 1907, the earth under the Mc-Keand wall gave way and the wall settled down into the newly dug trench, greatly damaging the McKeand building, almost creating a total wreck. The McKeand building was occupied by McKeand and his family, and one tenant, who ran a butcher shop.</p> <p>If the court be of opinion that the contract attached hereto, relieved Skirboll of liability, then judgment to be entered for the plaintiff and against both defendants, for six and one-fourth cents, but, if not, then judgment to be entered for the plaintiff and against both defendants for the sum of $1,350. The cost to follow the-judgment, and either party reserving the right to issue out a writ of appeal therein to the proper appellate court.</p> <p>The court entered judgment for plaintiff for six and one-fourth cents. Plaintiff appealed.</p> <p>Error assigned was in entering judgment for plaintiff for six and one-fourth cents.</p> <p>—If Go the were an independent contractor, such .could not be pleaded as a defense in this case: Fox v. Porter, 6 Pa. Dist. Rep. 85; Witherow v. Tannehill, 194 Pa. 21.</p> <p>The following cases are conclusive of the contention of the appellant that an existing duty cannot be delegated by one to another, and thereby escape liability attached to him to see that duty performed: Cabot v. Kingman, 166 Mass. 403 (44 N. E. Repr. 344); Pitts-field Cottonware Manufacturing Co. v. Pittsfield Shoe Co., 71 New Hampshire, 522; Pickard v. Smith, 10 C. B. (N. S.) 470; Bonaparte v. Wiseman, 89 Md. 12 (42 Atl. Repr. 918); Davis v. Summerfield, 133 N. C. 325 (45 S. E. Repr. 654).</p> <p>The rule that an owner is entitled to lateral support for his ground, extends only to support for the ground in its natural state, and does not include such support for the protection of buildings or other structures placed upon it: Ward v. Cowperthwait, 16 Leg. Int. 85.</p>

<p>Appeal, No. 149, April T., 1913, by plaintiff, from judgment of C. P. Allegheny Co., First Term, 1910, No. 80, on verdict for defendant in case of J. H. Eller v. First National Bank.</p> <p>Appeal from order of an alderman. Before Carnahan, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>■Errors assigned were various instructions.</p> <p>cited: Hackett v. Reynolds, 114 Pa. 328; First Nat. Bank v. Gregg, 79 Pa. 384.</p> <p>cited: Morgan v. Tener, 83 Pa. 305; Hoover v. Wise, 91 U. S. 308; Bradstreet v. Everson, 72 Pa. 124.</p>

<p>Appeal, No. 152, April T., 1913, by plaintiff, from order of C. P. Allegheny Co., Oct. T., 1912, No. 236, quashing writ of foreign attachment in case of H. L. Schueck v. Philip Freeman et al., trading as Philip Freeman & Bros.</p> <p>Rule to quash writ of foreign attachment.</p> <p>Swearingen, J., filed the following opinion:</p> <p>The plaintiff commenced the above action by issuing a writ of foreign attachment. In accordance with the practice the plaintiff filed an affidavit at the time the praecipe was issued, in which he claimed that the defendants were indebted to him in the sum of $690, “for which the said defendants are answerable to the said plaintiff in an action of assumpsit on book account for goods and merchandise sold and delivered by the said plaintiff to the said defendants,” — “and for commission on goods and merchandise sold by the said plaintiff for the said defendants.”</p> <p>There was no averment in said affidavit that the defendants were nonresidents, nor was there any averment that they were not within the county of Allegheny at the time writ issued.</p> <p>Subsequently, the plaintiff filed a supplemental affidavit in which he averred that the defendants were nonresidents of the commonwealth, but there was no averment in this supplemental affidavit that the defendants were not within the county of Allegheny at the time the writ issued.</p> <p>Thereupon the defendants filed a petition and. the court granted a rule to show cause why the said writ of foreign attachment should not be quashed and the attachment dissolved.</p> <p>The court will inquire into the cause of action of foreign attachment in the same manner as on a capias where the defendant’s person is taken into custody, and for similar reasons, and will proportion the bail according to the justice and extent of the plaintiff’s demand, or if no sufficient cause of action be shown the court will discharge the property from the attachment: Nicoll v. McCaffrey, 1 Pa. Superior Ct. 187.</p> <p>The affidavit filed by the plaintiff in the above-stated case does not show what goods, if any, were sold by the plaintiff to the defendants. Neither does the affidavit disclose on what goods the plaintiff claims he is entitled to a commission from the defendants. Nor is there any averment in said affidavit showing what damages the plaintiff claims he is entitled to recover. If the plaintiff is entitled to recover commissions on goods sold by him for the defendants, he should have set forth the contract upon which said goods were sold by him, the amount of goods sold and the dates upon which said sales were made. If he suffered any damages for breach of a contract, he should have set forth the contract in his affidavit and wherein the defendants committed a breach of the same, and likewise any damages which he claimed to have sustained by the breach. In said particularity, the affidavit filed by the plaintiff when the writ issued is, in our judgment, defective.</p> <p>The supplemental affidavit filed by him does not state a cause of action with any greater degree of certainty.</p> <p>It is true that in mere formal matters, amendments to affidavits showing cause of action have been allowed. But in matters of substance the rule seems to be different.</p> <p>A plaintiff who seeks to avail himself of a remedy by writ of foreign attachment must bring himself within the rules which provide for such a remedy. He is required to state his oause of action with certainty so that a party, whose goods are seized, may know for what cause they have been seized.</p> <p>The plaintiff in foreign attachment will not be permitted to amend or supplement his affidavit of cause of action.</p> <p>An affidavit on which the writ of foreign attachment is granted is subject to the same rules as to particularity and certainty as an affidavit to hold to bail: Sperry v. Ollie, 32 Pa. C. C. Rep. 71.</p> <p>We are of the opinion that the plaintiff’s affidavit showing his cause of action is fatally defective. We are likewise of the opinion that the supplementary affidavit, which was filed without leave of court, is likewise fatally defective, in respect to setting forth legally a cause of action. It follows that the rule must be made absolute.</p> <p>Error assigned was the order of the court.</p> <p>cited: Nicoll v. Mc-Caffery, 1 Pa. Superior Ct. 187; First Nat. Bank v. Crosby, 179 Pa. 63; Chesborough v. Dodd, 2 W. N. C. 126; Redwood v. Consequa, 2 Browne, 62; Davis v. Mayer, 6 Lancaster Law Rev. 209.</p>

<p>Negligence — Master and servant — Vice principal.</p> <p>In an action by an employee against Ms employer to recover damages for personal injuries, the case is for the jury where the testimony of the plaintiff corroborated by two witnesses, but flatly contradicted by two witnesses for the defendant, tends to show that at the time of the accident plaintiff was working in a reasonably safe place with reasonably safe appliances, but that the foreman' who had full charge of fifteen or sixteen men, of whom the plaintiff was one, directed the plaintiff to put hooks on a stick of timber which was to be hoisted, and that while plaintiff was adjusting the hooks, the foreman gave a premature signal to the engineer of the hoisting engine with the result that plaintiff was severely injured.</p>

<p>Street railways — Occupation of streets — Duty to repair — Commorir-law liability to repair — Contract.</p> <p>1. A street railway company occupying streets in a city is at common law liable to repair the space covered by its right of way thereon, but out of repair, in a manner corresponding with the pavement of the rest of the street.</p> <p>2. Where a city passes an ordinance providing for the construction of a viaduct over which a street and the tracks of a street railway company may be carried, but stipulates in the ordinance that it shall not become effective until the street railway company enters into an agreement with the city to pay a stipulated portion of the cost of construction, and also to pay a share of the cost of repairs, the street railway company will be bound for repairs, although in the agreement which it executes with the city the cost of construction only is provided for, without any reference to repairs.</p>

<p>Appeal, No. 136, April T., 1913, by defendant, from judgment of C. P. Allegheny. Co., April T., 1909, No. 1,173, on verdict for plaintiff in case of George A. Jackson v. Pennsylvania Contracting Company.</p> <p>Trespass to recover damages for personal injuries. Before Macfarlane, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $300. Defendant appealed.</p> <p>Error assigned was in submitting the case to the jury.</p> <p>The Procedure Act of May 25, 1887, P. L. 271, requires an accurate and complete statement in trespass: Clark v. Lindsay, 7 Pa. Superior Ct. 43; Hale v. Hale, 32 Pa. Superior Ct. 37; McLean v. Schoenhut, 225 Pa. 100.</p> <p>The jury could not infer, it could only guess, that the injury to plaintiff was caused by a defective engine: Hayes v. Michigan Cent. R. R. Co., Ill U. S. 228 (4 Sup. Ct. Repr. 369); Patton v. Ry. Co., 179 U. S. 658 (21 Sup. Ct. Repr. 275); Melchert v. Brewing Co., 140 Pa. 448.</p> <p>It was a physical impossibility that the accident could happen in the manner alleged: Byersdorf v. Cream City Sash & Door Co., 109 Wis. 456.</p>

<p>Carriers — Bills of lading — Passing of title.</p> <p>Where an owner of a carload of eggs in Chicago on December 11, 1909, bills the car to himself at Pittsburg with notice to a corporation doing business in that city, and then makes a draft on such corporation, and sells the draft to a bank in Chicago with the bill of lading indorsed, and turned over to the bank, the title to the goods passes to the bank, and it may maintain its right of ownership to them as against the corporation in Pittsburg which has refused to accept the draft, and has seized the goods under a foreign attachment on a claim in another matter against the maker of the draft; and this is the case both under the law of Illinois and under the Pennsylvania Act of September 24, 1866, P. L. (1867), 1363, then in force.</p>

<p>Appeal, No. 88, April T., 1913, by defendant, from judgment of C. P. Allegheny Co., July T., 1910, No. 23, on verdict for plaintiff in casé of William H. Clark v. J. R. Forsyth.</p> <p>Trespass for malicious prosecution. Before Evans, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $300. Defendant appealed.</p> <p>Errors assigned were (1) in admitting record of justice of the peace, and (2) in refusing to enter judgment for defendant n. o. v.</p> <p>An action for false imprisonment cannot be sustained against one who has not been shown to have participated in any arrest of the plaintiff, either, (a) in contemplation of law, or (b) as a matter of fact: Grohmann v. Kirschman, 168 Pa. 189; Magnussen v. Shortt, 200 Pa. 257; Teal v. Fissel, 28 Fed. Repr. 351; McElhattan v. Kane, 7 Pa. C. C. Rep. 313; Foy v. Barry, 87 N. Y. App. Div. 291.</p> <p>A criminal offense was charged: Reel v. Martin, 12 Pa. Superior Ct. 340; Stewart v. Thompson, 51 Pa. 158.</p> <p>Even if this is not malicious prosecution, plaintiff is protected by the practice act of 1887: Hess v. Heft, 3 Pa. Superior Ct. 582; Grohmann v. Kirschman, 168 Pa. 189; Stine v. Hughes, 16 Pa. C. C. Rep. 545.</p>

<p>Practice, C. P. — Pleading—Sufficiency of statement of claim — Act of May 25, 1887, P. L. 271.</p> <p>1. To entitle a plaintiff to judgment for want of a sufficient affidavit of defense, the statement of Ms demand under the Act of May 25,1887, P. L. 271, must be self-sustaining; that is to say, it must set forth in clear and concise terms a good cause of action, by wMch is meant such averments of facts as, if not controverted, would entitle him to a verdict for the amount that is claimed.</p> <p>Practice, C. P. — Affidavit of defense — Set-off.</p> <p>2. Affidavits of defense should aver the facts depended upon with reasonable precision and distinctness. Averments of set-off must be as specific as those used in a statement of claim. The defendant in respect to such claim is the actor, and the obligation is upon him to aver his set-off in terms incapable of being misunderstood.</p> <p>3. In an action to recover a balance alleged to be due on building materials an affidavit of defense is insufficient which avers that the defendants were obliged to make many changes and pay bills, averring a lump sum as a set-off, but docs not set forth the different items or separate amounts thereof.</p> <p>4. Such an affidavit is also insufficient which sets up an aggregate sum which the defendants claim they were compelled to forfeit and pay because of failure to complete their own contract by a time stated, where there is ho time fixed for the delivery of the material, and there is no averment that the limitation of time was omitted from the contract by fraud, accident or mistake.</p> <p>Contract — Breach—Delay—Damages.</p> <p>5. In an action to recover for goods sold and delivered, if the defendant alleges loss by reason of the plaintiff’s failure to deliver in time, the measure of damages, where the materials could have been1 purchased in the open market, is the difference between the contract price and the market price.</p>

<p>Appeal, No. 150, April T., 1913, by defendant, from judgment of C. P. Allegheny Co.-, Aug. T., 1910, No. 121, on verdict for plaintiff in case of Bernhard G. Holz v. H. J. Heinz Company.</p> <p>Trespass to recover damages for personal injuries. Before Carnahan, J.</p> <p>The circumstances of the accident are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment -for plaintiff for $548.21. Defendant appealed.</p> <p>Error assigned amongst others was in refusing binding instructions for defendant.</p> <p>cited: Ricks v. Flynn, 196 Pa. 263; Miller v. Bridge Co., 216 Pa. 559; King v. McClure, 222 Pa. 625; McGrath v. Thompson, 231 Pa. 631; Feeney v. Abelson, 49 Pa. Superior Ct. 163; Ready v. Smith, etc., Machine Co., 51 Pa. Superior Ct. 294.</p> <p>The case at bar is ruled by the following cases: Rauhauser v. York Mfg. Co., 50 Pa. Superior Ct. 506; Sterner v. Morgan Smith Co., 233 Pa. 27; Klicke v. Steel Co., 200 Fed. Repr. 933.</p>

<p>Boroughs — Awarding contract — Street improvement.</p> <p>1. Where a borough council has in due form authorized the improvement of a street, and it appears in the course of the improvement that the construction of a small wall is necessary to prevent the flooding of neighboring property, a contractor who has built such wall may recover the cost of it from the borough although his contract was not awarded under an ordinance, if it appears that the work which he did was merely incidental to the improvement authorized, that his contract was approved by the street committee of councils, that the work was properly done, and that the amount involved was small.</p> <p>2. The Act of May 23,1893, P. L. 113, applies to all acts of a borough council by ordinance or resolution which are of a legislative character, but not to those which are merely ministerial or executive. The ordinary administration of the municipal affairs, the awarding of contracts which had been previously authorized, and the transaction of routine business are ministerial or executive rather than legislative.</p>

<p>Appeal, No. 186, April T., 1913, by defendant, from judgment of County Court of Allegheny Co., April T., 1913, No. 187, on verdict of guilty in case of Commonwealth v. Alvin Doughty.</p> <p>Appeal from justice of the peace.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was in sustaining conviction of justice of the peace.</p> <p>The act of May 11, 1911, is unconstitutional: O’Neil V. Ins. Co., 166 Pa. 72; Kittanning Academy v. Brown, 41 Pa. 269; Parker v. Com., 6 Pa. 507; Locke’s App., 72 Pa. 491; Frost v. Cherry, 122 Pa. 417; Scranton School Dist. App., 113 Pa. 176; Com. v. Denworth, 145 Pa. 172.</p> <p>The county commissioners had no authority to make the rule in question: Com. v. Allen, 148 Pa. 358; Chicago v. Collins, 175 111. 445.</p> <p>cited: Radnor Twp. v. Bell, 27 Pa. Superior Ct. 1; Keeley v. Shanley, 140 Pa. 213.</p>

<p>Appeal, No. 188, April T., 1913, by plaintiff, from decree of C. P. Allegheny Co., Fourth Term, 1911, No. 103, dismissing bill in equity in case of Iron City Laundry Company v. H. Leyton and Crown Laundry Company, Limited.</p> <p>Bill in equity for an injunction.</p> <p>Cohen, J., found the facts to be as follows:</p> <p>1. H. Leyton, the defendant, was for some years prior to 1906, employed by the Imperial Laundry Company of Pittsburg, Pa., as a collector and driver, and about the year 1905, the plant of the Imperial Laundry Company having been destroyed by fire, the defendant, H. Leyton, was employed by the plaintiff, the Iron City Laundry Company, in the same capacity, under a contract which was not offered in evidence. On June 11, 1908, the written contract, marked exhibit No. 1, which was offered in evidence, was entered into by the parties.</p> <p>In said contract, the party of the second part is “H. Leyton for himself and for his minor son, Samuel Leyton.” The said party of the second part agrees to act as laundry driver and collector for the party of the first part to “Collect laundry work from any and all persons from whom he can get it and bring the same to the said party of the first part and when the same is laundried to return it to the customer or agent from whom it was obtained, and to collect the money for said work, and to pay weekly to said party of the first part all money so collected, said weekly settlement to be made full and complete by said party of second part upon Tuesday of every week during the continuance of the employment under this contract: and finally upon the termination of said employment. Said party of the second part further agrees that while in the employ of said party of the first part he will be governed in the conduct of said business by the rules and directions given him from time to time, and that he will faithfully perform all his duties.</p> <p>“The said H. Leyton and his minor son, Samuel Leyton, shall not voluntarily leave the employ of said party of the first part without first having given two weeks’ notice in writing of the intention so to do; and in the event of the termination of said employment, whether voluntarily or involuntarily on the part of party of the second part, the said party of the second part hereby covenants and agrees that he will not for the period of ninety days thereafter, enter into the business of soliciting or collecting laundry or laundry work on his own account or in the employ or behalf of any other person, persons or company; or in any wise interfere with the good will of said party of the first part, or attempt to influence, solicit or take away for himself, or any other person, firm or corporation, any of the customers of the said Iron City Laundry Company within the County of Allegheny and State of Pennsylvania.</p> <p>“This agreement may be summarily terminated and said employment ended for any cause or reason which to the Iron City Laundry Company may seem good and sufficient.”</p> <p>The compensation of the party of the second part is on a sliding scale, ranging from a minimum of a commission of ten per cent and a salary of $10.00 per week, to the maximum of $25.00 per week and a commission of five per cent on a total amount over $100, for both Leyton and his son.</p> <p>2. At the time of Leyton’s employment by the said Iron City Laundry Company the said Leyton had about 300 customers, and he has had about the same number with some variations, when the number was increased or diminished, until the present time. No customers or route, so far as the evidence shows, was given to the defendant Leyton by the Iron City Laundry Company, and it appears from the testimony the said Leyton continued to solicit work after he had entered the employ of the plaintiff from the same people that had been giving him work previously, and from such other customers as he could make since that time.</p> <p>3. In accordance with the contract and custom, the defendant Leyton settled with the plaintiff weekly, paying all bills for laundry at the end of the week without regard to whether he collected for the same from the customers, and he has $300 invested in this way. The said defendant Leyton has paid the Iron City Laundry Company in full, except for the last week.</p> <p>4. On July 24, the defendant, H. Leyton, entered the employ of the Crown Laundry, without any knowledge of the Crown Laundry of his employment by the Iron City Laundry.</p> <p>5. Plaintiff admits that when Leyton started to work for it he had a route of customers of his own and that plaintiff never furnished him with any customers.</p> <p>6. The contract was duly executed by the parties and has been executed and carried out continuously according to its terms by both parties from its date until July 24, 1911. The defendant Leyton left the employment of plaintiff on July 24, 1911, voluntarily without giving two weeks’ notice as required by the contract.</p> <p>7. Defendant on July 24, 1911, entered the employment of the Crown Laundry, Limited, and solicited laundry work of his former customers.</p> <p>8. Plaintiff has performed its part of the contract by paying wages and commissions to the defendant under the contract and at its own expense furnishing the defendant with horses, wagons and necessary equipment to enable him to perform his part of the contract.</p> <p>The court entered a decree dismissing the bill.</p> <p>Error assigned was the decree of the court.</p> <p>cited: Erie County Milk Assn. v. Ripley, 18 Pa. Superior Ct. 28; Phila. Base Ball Club v. LaJoie, 202 Pa. 210; Eureka Laundry Co. v. Long, 146 Wis. 205.</p> <p>cited: Seward v. Shields, 9 Pa. Dist. Rep'. 583.</p>

<p>Lease — Oil and gas lease — Alteration of instrument — Deed—Evidence— Fraud.</p> <p>1. In an action to recover for gas taken from a well on the plaintiff’s premises and used on other properties for drilling wells, the case' is for the jury, where it appears that the plaintiff executed in duplicate a lease for a well on his own premises to the defendant, that the copy which he retained contained a clause which provided that the defendant “shall have sufficient gas for drilling and all operating purposes on this, and a joining lease free of charge;” that the copy delivered to the defendant and recorded by him showed an addition of the letter “e” to the word “this,” and the letter “s” to the word “lease”; that it was intended that both papers should be identical; and that both plaintiff and his son testified that the plaintiff had refused to sign a lease giving the defendant gas for use on adjoining leases, but had agreed to give him “gas on a joining lease.”</p> <p>2. The meaning of the maxim that great liberality of evidence is to be allowed in the trial of questions of fraud, is that every circumstance in the condition and relation of the parties, and every act and declaration of the person charged with the fraud shall be competent evidence if, in the opinion of the judicial mind, it bears such a relation to the transaction under investigation as in its nature is calculated to persuade the jury that the allegation of fraud is or is not well founded.</p>

<p>Appeal, No. 182, April T., 1912, by defendant, from judgment of C. P. Indiana Co., June T., 1911, No. 260, on verdict for plaintiff in case of George C. Hilty v. Saltsburg Coal Mining Company.</p> <p>Trespass to recover treble damages for the wrongful mining of coal. Before Telford, P. J.</p> <p>At the trial R. H. Wilson, a mining engineer and witness for the plaintiff, was asked this question:</p> <p>“Q. State whether or not you know the value of coal in the market in the neighborhood?”</p> <p>Objected to as incompetent, the witness having already testified to the market price of coal in place.</p> <p>The Court: Objection overruled, exception noted and bill sealed. [1]</p> <p>“Q. Do you know the value of coal in the market in the neighborhood? A. That is somewhat various. Take the commercial mines; the nicest coal loaded on the cars would be anywhere from $1.00 to $1.15 around there. Country pits will be lower; around four and four and a half cents, or five cents a bushel at the pit mouth. Q. From your examination of these entries on the two acres of ground, could you estimate the amount of coal that was taken out?”</p> <p>We object; we think he has not shown sufficient measurements.</p> <p>The Court: Objection overruled, exception noted to defendant and bill sealed. [2]</p> <p>“A. I think I could approximate it. Q. From your examination of these entries, state how much coal was taken out; calculate it which ever way you choose? A. Taking the four entries and there is a cross cut in each entry under this tract of two acres. My estimate is that it would be close to 1,000 tons of coal taken out.”</p> <p>“Q. How much would that coal that is in place there in the ribs; how much has it depreciated in view of the fact that the surface cannot be interfered with, as it stands there as it is, and what it would have been had the entries not been made? A. Assuming that the surface must be supported ......”</p> <p>Mr. Taylor: What is the purpose?</p> <p>Mr. Banks: To show the injury done to the coal in place.</p> <p>Objected to as not a competent measure of damage. There is no allegation here of negligent mining upon the part of .the defendant, and this is an action brought to recover for the coal taken and not for the coal that is left.</p> <p>The Court: Objection overruled, exception noted and bill sealed.</p> <p>Question read:</p> <p>“A. I don’t know whether I can answer that question or not. I don’t see that I can answer that intelligently. May be I don’t understand the question, but I cannot answer it.”</p> <p>Question read:</p> <p>“A'. I don’t understand it. Q. What is it worth in the market, considering the fact that the surface must be supported? A. If the surface is to be supported which the question presumes, then of course the coal has no market value, because it must remain there.</p> <p>Mr. Banks: “Q. What effect has the water on this coal?”</p> <p>Mr. Taylor: We ask the court to strike out the last answer of the witness, as incompetent.</p> <p>The Court: Motion to strike out is declined, exception noted to defendant and bill sealed. [3]</p> <p>“Q. What injury, if any, has been done to the coal remaining by reason of the operation of the defendants, as affecting the market value of the coal, and the facility with which it could generally have been mined?”</p> <p>Objected to as incompetent; also objected to as lumping damages.</p> <p>The Court: Objection overruled, exception noted to defendant and bill sealed. [4]</p> <p>Question read:</p> <p>“A. Does that mean the remaining coal, leaving out the coal that was taken out? Q. Yes, sir. A. Taking all the elements into consideration, probably it is reduced ten per cent in value. Putting that into concrete figures, say there is a matter of 300,000 bushels remaining. That would be a very low estimate of the amount of coal remaining, and the ten per cent it would be $300 worth of damages $300 damage to all the coal that is left; the coal alone.”</p> <p>The court charged in part as follows:</p> <p>[The defendant contends that it took out 263 tons of coal from the headings one and two, without knowledge that there was encroachment upon the plaintiff’s land. The defendant admits that it took the coal from heading's three and four, knowing at the time the coal was taken, that it was trespassing upon the plaintiff’s lands, and it asks you in the first instance for coal remaining in headings one and two, to award against it in this case, single damages — that is, for the single value of the coal, and that you award for the plaintiff as to the coal removed from headings three and four, three times the value of the coal in place.] [5]</p> <p>[The plaintiff in addition to the value of coal taken, seeks to recover for alleged resulting injury to his premises. He testifies that he is injured by depreciation of the remainder of the body of his coal under these two acres. This injury, he claims, results from the air and water coming in contact with the coal in the walls of the headings, as they have been left by the defendant. Also, by greater difficulty in mining and removing the coal that is left, in the future, when he is ready to take it out.] [6]</p> <p>[The plaintiff further alleges that as a damage resulting from the taking out of this coal, that two springs and a stream or streams of water flowing across these two acres of land, were injured. You will recall his testimony as to the damage which he says has resulted to these two acres of land, or the value of the two acres, its use and value from alleged injury, or destruction of the springs, and the interference with the stream of water, the allegation being that the springs and flowing water was carried from the surface into the headings of the defendant under ground. He alleges that during the summer time since these headings were driven, the stream and springs are dry. Several witnesses have been upon the stand on the part of both plaintiff and defendant. They have testified to the character of these springs, and the stream, and their condition before and since 'the trespass was committed. It will be for the jury to determine whether these springs existed or not, and whether or not they produced water in such volume as to be of value to the two acres of ground such as the plaintiff contends. If they did exist and were of value to the two acres, were they destroyed or injured by the act of the defendant to plaintiff’s damage? The jury will have to determine, if they find there was such injury, the extent of it. . . .</p> <p>There is not much that I can say to you in reaching a just conclusion. If the water remains substantially as it was before the driving of the headings, then the plaintiff has sustained no damage on this account. If the water supply has been drawn from the surface to the mine to an extent that causes appreciable injury to the surface of these two acres of ground* then the plaintiff is entitled to be compensated to the extent of such injury as you may find was done to plaintiff’s land.</p> <p>So far as I can recall there is no evidence of the extent of the alleged injury, except that, as testified to by plaintiff. It is alleged that during the summer the water failed and stock pasturing there could not obtain water, and the plaintiff would therefore be deprived of some revenue, the extent of which injury he did not inform the jury. The jury cannot guess on what the plaintiff’s damage would be. If they cannot find such evidence as satisfied their minds, they will be justified in refusing the item altogether.] [7]</p> <p>[The plaintiff has testified in the'hearing of the jury, the amount of damage which he says he has sustained for these reasons; also claim is made for the alleged probable settling of the surface. I believe no other witness, except the plaintiff, has testified to the amount of damage on these accounts, except probable testimony of Mr. Wilson, in which he says that coal which is affected by water and air may depreciate ten per cent of its value. Some other witnesses have testified to some injuries which they say may result to the plaintiff from those causes, but no one I believe, has fixed any amount of damage which they áre willing to say will result.] [8]</p> <p>Verdict for plaintiff for $1,037.51, on which judgment was entered for $800, all above that sum having been remitted. Defendant appealed.</p> <p>Errors assigned were (1-4) rulings on evidence, quoting the bill of exceptions; (5-8) above instructions, quoting them.</p> <p>cited: Oak Ridge Coal Co. v. Rogers, 108 Pa. 147; McIntyre v. Pittsburg, 238 Pa. 524.</p> <p>cited: Ruttledge v. Kress, 17 Pa. Superior Ct. 490.</p>

<p>Deed — Gas company — Pipe line — Agreement with owner — Eminent domain — Entire and severable contract.</p> <p>Where a landowner, in consideration of receiving natural gas for his premises at a fixed price, grants to a gas company the right to lay and maintain a pipe line through and under his land, and the right to construct and operate a telegraph or telephone line over his land, the gas company cannot, by a mere notice of its intention to maintain its pipe line by the right of eminent domain, and not thereafter supply gas at the price fixed by the contract, place itself in a position to cut off the supply of gas; and if it attempts to do so it will be enjoined. In such a case, if the gas company desires to exercise the right of eminent domain, it must indicate its intention to surrender or abandon all of the rights in the property of the grantor which it acquired by virtue of the grant.</p>

<p>Carriers — Common carriers — Live stock — Negligence—Evidence—Presumption.</p> <p>Where horses and colts in good health and condition are placed in a car in a proper manner, and the car is in good condition and securely closed, and it appears that when the car reached its destination one of the horses had died on the way and its body had been removed, and the remaining stock showed external injuries, and the owner who met the stock upon its arrival was given no proper opportunity to examine the car, or see the body of the horse that died, it is error in an action against the company for injuries to the stock to enter a nonsuit. In such a case, in the absence of a special contract, the burden of proof is on the carrier to show that it was not negligent.</p>

<p>Appeal, No. 134, April T., 1913, by plaintiff, from judgment of C. P. Somerset Co., Feb. T., 1910, No. 79, for defendant n. o. v. in case of A. E. Livengood, use of Albert Reitz, Cashier, use of William P. Myers, v. Drucilla Hay.</p> <p>Assumpsit on promissory notes. Before Ruppel, P. J.</p> <p>On December 20, 1904, C. A. Wilt and wife conveyed to Drucilla Hay certain real estate particularly described “ subject, however, to a mortgage of twenty-five hundred ($2,500) dollars, given by the grantors hereto in favor of A. E. Livengood, and assumed by the party of the second part hereto as a part of the consideration money or purchase price named herein.”</p> <p>The mortgage referred to was given to secure five promissory notes. These notes at the time of the conveyance were owned by the First National Bank of Salsbury. Shortly after the conveyance Mrs. Hay signed the following paper:</p> <p>“A. E. Livengood to Drucilla Hay.”</p> <p>“C- A. Wilt and Rachel C. Wilt to A. E. Livengood.”</p> <p>“Mortgage Record, Somerset Co., Pa., Volume 19, page 160.</p> <p>“Having become the purchaser of the land described in and bound by the above recited mortgage, and being now the sole owner and in possession thereof, situate on west side of Grant street, in the borough of Salisbury, Somerset County, Pennsylvania, deed to C. A. Wilt by Henry Loechel and wife, by deed dated December 17,1900, and recorded December 20,1900, in Deed Record, vol. 107, page 595, and by C. A. Wilt and wife to Drucilla Hay, by deed dated December 20, 1904, I do hereby assume payment of the said mortgage and accompanying five notes for the entire balance of principal and interest that may at any time become due thereon, and according to the times of payment stipulated therein.</p> <p>“Witness my hand and seal this 20th day of December, A. d. 1904.</p> <p>“Drucilla Hay (Seal).</p> <p>“Attest:</p> <p>“Levi Lichliter.”</p> <p>She also signed the following indorsement on each of the notes:</p> <p>“I assume payment of the within note as per assumption of payment of the mortgage securing it, by instrument dated December 20, 1904.</p> <p>“ (Signed) Drucilla Hay.”</p> <p>At the trial it appeared that Calvin T. Hay, the husband of the defendant, called on William P. Meyers, in September, 1905, after default had been made upon the first note, and begged Meyers to put up the money to pay the notes in Mrs. Hay’s immediate relief stating to him that the bank was pressing her, but not giving him any other information in reference to the notes. Meyers took over the notes and the mortgage by assignment from the bank, and subsequently foreclosed the mortgage. The proceeds of the sale under foreclosure proceeding was not sufficient to pay all of the notes, and Meyers brought the present action to recover the balance unpaid.</p> <p>The jury returned a verdict for plaintiff for $1,078.47. Subsequently the court entered judgment for defendant non obstante veredicto.</p> <p>Error assigned amongst others was in entering judgment for defendant non obstante veredicto.</p> <p>Defendant was personally liable under the deed: Blood v. Crew Levick Co., 171 Pa. 328; Hazleton Nat. Bank v. Kintz, 24 Pa. Superior Ct. 456.</p> <p>Defendant is estopped from asserting an equitable defense: Decker v. Eisenhauer, 1 P. & W. 476; McMullen v. Wenner, 16 S. & E. 18; Sackett v. Fast, 39 Pa. Superior Ct. 431; McMasters v. Wilhelm, 85 Pa. 218; Sidwell v. Evans, 1 P. & W. 383; Downing v. Funk, 5 Eawle, 69; Hesser v.; Steiner, 5 W. & S. 476; Dock v. Boyd, 93 Pa. 92.</p> <p>cited: Fisler v. Beach, 202 Pa. 74; May’s Est., 218 Pa. 64.</p>

<p>Appeal, No. 83, April T., 1913, by defendants, from order of C. P. Allegheny Co., Jan. Term, 1912, No. 641, making absolute rule for judgment for want of a sufficient affidavit of defense in case of James A. Robinson et al. v. Frank Huckestein et al., partners now or formerly doing business under the firm name of Federal Bowling Company.</p> <p>Assumpsit for breach of covenant in a lease. Before Haymaker, J.</p> <p>At the trial it appeared that on April 1, 1904, the defendants executed a lease of certain property in the city of Allegheny in which they covenanted to pay all the taxes that might be assessed upon the property. The lease further provided as follows:</p> <p>“ And it is further agreed that if the rents shall at anytime be in arrear or unpaid for a period of sixty days after the same shall become due and payable as aforesaid, or any tax, including water tax or gas bills and insurance premiums, shall remain due and payable and unpaid, for a like period, or if the said parties of the second part shall under-let or assign this lease or shall fail to comply with the conditions of this lease, or shall not well and truly perform and fulfill all and every the covenants and agreements on their part to be kept and performed, for a period of sixty days after notice in writing to said parties of the second part by said parties of the first part of their failure to comply with the conditions and fulfill the covenants of this lease, then this lease shall cease and absolutely determine and any attorney may immediately thereafter, as attorney for the said parties of the second part, at the sole request of the said party of the first part, sign an agreement for entering in any competent court an amicable action and judgment in ejectment (without any stay of execution or appeal) against said parties of the second part and all persons claiming under said parties of the second part for the recovery by the said party of the first part of possession of the hereby demised premises without any liability on the part of the said attorney for which this shall be a sufficient warrant. ... No such determination of this lease, nor taking nor recovering possession of the premises shall deprive the party of the first part of any other action against the parties of the second part for possession, for rent accrued before • such determination, for any gas bill left unpaid, for any expense incurred in removing ashes, rubbish or refuse matter from said premises, or for damages.”</p> <p>Other 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> <p>cited: Wolf v. Guffey, 161 Pa. 276; Wheeling v. Phillips, 10 Pa. Superior Ct. 634; Hornet v. Singer, 35 Pa. Superior Ct. 491; Brisben v. Wilson, 60 Pa. 452; Detwiler v. Cox, 75 Pa. 200; Fernwood Masonic Hall Assn. v. Jones, 102 Pa. 307; Latimer v. Groetzinger, 139 Pa. 207.</p> <p>cited: Haines v. Elfman, 235 Pa. 341; Wolf v. Guffey, 161 Pa. 276; Wheeling v. Phillips, 10 Pa. Superior Ct. 634.</p>

<p>Contracts — Lex loci — Jurisdiction—Construction of contract — Fraud— Conflict of laws.</p> <p>1. Where a person in Pennsylvania writes to a lumber dealer in Ohio requesting quotations on shipments of lumber f. o. b. at a point in Canada, and the Ohio dealer sends such quotations, and subsequently the Pennsylvania dealer requests a car of lumber shipped f. o. b. to Montreal, freight to be deducted by the consignee in Montreal from the price quoted, and the Ohio dealer ships the lumber to Montreal on the terms quoted, the contract is to be construed as one made under the laws of Ohio, and not under the laws of Pennsylvania.</p> <p>2. Under the laws of Ohio where a purchaser obtains goods fraudulently and transfers them to another in payment of a pre-existing debt, and the transferee refuses to return the goods to the owner after notice of the fraud, although they are still in his possession or under his control, the transferee will be liable to the owner of the goods in an action of trover and conversion for their value.</p>

<p>Partition — Mortgage—Judgments—Priority of liens — Shifting of liens —Purparts—Subrogation.'</p> <p>1. Where two brothers become by descent equal owners in common of certain real estate, and thereafter judgments are entered against one of the brothers, and subsequently the two brothers acquire by purchase equal undivided interests in another piece of real estate, and afterwards the brother who had the judgments against him, mortgages his undivided interest in the second piece of real estate, and after this mortgage was created the two properties are divided in partition proceedings into two purparts of exactly equal value, and the purpart allotted to the brother who was judgment debtor and mortgagor consisted entirely of a portion of the first piece of real estate, the lien of the mortgage is discharged from the second piece of real estate allotted to the other brother; but it does not follow that the lien of the mortgage in following the title of the mortgagor and in becoming seated on the purpart which he had acquired in severalty gave it precedence over the judgment creditors having liens upon that purpart.</p> <p>2. In such a case the mortgage creditor cannot successfully invoke the doctrine of subrogation, nor can he work out his claim through some enlargement of the principle which controls where owelty money is due to the cotenant who created the incumbrance.</p> <p>3. There is no line of separation or division running through a purpart by which it can be divided to apportion liens.</p>

Appeal, No. 196, April T., 1913, by plaintiff, from judgment of C. P. No. 3, Allegheny Co., Feb. T., 1910, No. 787, for defendant n. o. v. in case of Charles L. Kuhns v. Ward-Mackey Company. Trespass for malicious prosecution.

Appeal, No. 194, April T., 1913, by Margie Gaertner, Trustee, from decree of O. C. Allegheny Co., June T., 1912, No. 100, making.distribution in Estate of Frederick Gaertner, Sr., deceased. Exceptions to adjudication.

Appeal, No. 120, April T., 1913, by plaintiff, from judgment of C. P. Somerset Co., May T., 1907, No. 181, on verdict for defendants in case of Daniel Wagner v. James F. Hamer et al. Trespass to recover damages for the wrongful cutting of timber. Before Kooser, P. J. The facts are stated in the opinion of the Superior Court. Verdict and judgment for defendants. Plaintiff appealed. Errors assigned were various rulings and instructions.

<p>Appeal, No. 141, April T., 1913, by defendant, from order of C. P. Somerset Co., Sept. T., 1912, No. 96, affirming judgment of justice of the peace in case of Simon P. Sweitzer v. John G. Emert.</p> <p>Appeal from judgment of justice of the peace.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was the order of the court.</p>

<p>Appeal, No. 113, April T., 1913, by plaintiff, from order of County Court, Allegheny Co., No. 526, of 1912, reversing judgment of police magistrate in case of Commonwealth v. Samuel Mervis.</p> <p>Appeal from judgment of police magistrate.</p> <p>From the record it appeared that the defendant had been charged before the magistrate with holding a public meeting in the city of Pittsburg without notice thereof to the Bureau of Police and without a permit provided by the city ordinance.</p> <p>The ordinance in question was as follows:</p> <p>“That all street parades, processions, and street assemblages, occupying, assembling or marching upon any street, lane, alley, highway, wharf or public square of the City of Pittsburgh to'the exclusion or interruption of other citizens in their individual right of the use thereof excepting posts of the Grand Army of the Republic, the National Guard of the State of Pennsylvania, funeral processions and the fire and police forces of the City of Pittsburgh are forbidden, unless written notice of the object, time, place or route of such procession, parade or assemblage and the character, .purpose and names of the officers of the same be given by the chief officer thereof not less than twenty-four hours previous to its forming, assembling or marching, to the Superintendent of the Bureau of Police, and to protect the business interests of the citizens and to prevent delay in travel and to preserve peace and good order of the city, the said Superintendent of the Bureau of Police shall have the power and it shall be his duty, subject to the approval of the Director of the Department of Public Safety, to designate to such procession, parade or assemblage how much of the streets, lanes, alleys, highways, wharfs or public square it can occupy, and if parade or procession the time of starting, the length of time of such parade or procession, and the route of such parade or procession shall be determined upon by the Superintendent of the Bureau of Police and approved by the Director of the Department of Public Safety, and when so designated and approved the proper officers of said parade, procession or assemblage shall be responsible that the designation and limitation set out are obeyed and complied with, and it shall be the duty of the said Superintendent of the Bureau of Police to furnish such escort as may be necessary to protect persons and property and maintain public peace and good order of the city.</p> <p>“Any person or persons violating any of the provisions of this ordinance shall be punished by a fine of not less than $25.00 nor more than $100 for each offense, and in default of payment of said fine and costs, shall be committed to the common jail of Allegheny county or to the Allegheny county workhouse for a period of not more than thirty days.”</p> <p>The defendant was convicted before the magistrate and sentenced to pay a penalty of $25.00. On appeal the court of common pleas reversed the judgment and awarded restitution on the ground that the ordinance was discriminatory and invalid.</p> <p>Error assigned was in reversing the judgment.</p> <p>cited: Wilson v. Eureka, 173 U. S. 32 (19 Sup. Ct. Repr. 317).</p> <p>cited: Wilkes-Barre v. Garabed, 11 Pa. Superior Ct. 355; State v. Dering, 84 Wis. 585.</p>

Appeal, No. 201, April T., 1913, by defendant, from order of County Court, Allegheny Co., No. 731, of 1912, affirming judgment of police magistrate in case of Commonwealth et al. v. F. A. Curtis et al. Appeal from judgment of police magistrate. From the record it appeared that the defendant had been convicted before the magistrate of holding a public meeting in violation of a city ordinance.

<p>Appeal, No. 85, Oct. T., 1913, by defendant, from judgment of Q. S. Mont* gomery Co., March T., 1913, No. 21, on verdict of guilty in case of Commonwealth v. Grover C. Bergdoll.</p> <p>Indictment for assault and battery. Before Swartz, P. J.</p> <p>At the trial the jury returned a verdict of guilty of assault.</p> <p>On a rule for a new trial Swartz, P. J., filed the following opinion:</p> <p>The first count in the indictment charged an aggravated assault and battery, and the second count an assault and battery. The commonwealth went to trial on the count charging an aggravated assault and battery. It is alleged that, the defendant committed the offense with an automobile. He and the injured person were going in opposite directions in their respective cars. There were five persons in the defendant’s car, and Walter B. Mcllvaine and Sumner Rulon-Miller occupied the other car. There was a collision, and all seven persons were more or less injured. The defendant drove his car, and from the wreckage, described by the witnesses, it is surprising that some of the occupants in the two cars were not killed. The jury rendered a verdict of guilty of an assault upon Mr. Mcllvaine.</p> <p>It is earnestly contended, by counsel for the defendant, that the verdict is illogical and inconsistent with the testimony, and, therefore, should not be allowed to stand.</p> <p>It is admitted that a count for aggravated assault and battery will support a verdict of guilty of assault and battery. And it must follow that, under such count, a verdict of guilty of assault will be sustained, because an assault is included and involved in the offense of assault and battery. The jury may convict of any offense that is a constituent of the crime charged in the count: Com. v. Arner, 149 Pa. 35; Gorman v. Com., 124 Pa. 536.</p> <p>But it is argued that the evidence shows that the defendant was guilty of the battery, as well as of the assault, if he was guilty of anything. The evidence is for the jury, and if they find, under the testimony, that the defendant was not responsible for the battery, but was guilty of an assault, what right have we to say that their verdict should be set aside? The jury finds the facts, and the court has no right under our system of jury trial, to take this power away from them. If the jury finds a more serious degree of guilt than is supported by the evidence, the court will interfere and protect the rights of the accused, but if the jury, under their oaths, finds a lower degree of guilt than is indicated by the evidence, the verdict must stand. Our inquiry should be — was there evidence to support the charge of which the defendant was convicted? If there was, then punishment should follow. In this case there was abundant evidence to show an assault. If the same evidence just as conclusively disclosed an unlawful battery, we do not see how the defendant has any standing to complain because the jury failed to do its full duty. Suppose we should grant a new trial, what would follow? We could not allow the jury on a retrial, to convict the defendant of a battery, because of that charge he was acquitted. The battery was an included offense and the verdict rendered is a bar to any prosecution for the included misdemeanor: Com. v. Arner, 149 Pa. 35. If the contention of counsel is correct, then, at the new trial, we could not allow the jury to convict of the assault, because such verdict, under the evidence, would be illogical and inconsistent, and could not stand. It would follow, that the defendant must escape altogether, although a jury had found that he committed a crime which the evidence showed was in fact perpetrated.</p> <p>■ The fallacy of the defendant’s argument is found in the assumption that there can be no guilt of an assault because there was no guilt of a battery according to the verdict of the jury. There is no necessary inconsistency in such finding by the jury. An assault is not always followed by a battery. How the jury made the discrimination may be a difficult problem to us, but it is not unusual to find these problems when we attempt to fathom the process or reasoning whereby a jury reached the verdict. There is a theory, more or less plausible, under the defendant’s evidence, which may have induced the verdict. If Mr. Mcllvaine’s car was on the right side of the highway, where it ought to have been, and the defendant’s car was on the same side, where it should not have been, when it was about to pass the Mcllvaine car, then the jury could well find that there was an assault, if the defendant, with criminal negligence, was about to run directly into the Mcllvaine car. So long as there was no collision there was no battery. Now the jury may have found that the defendant would have escaped from the consequences of his reckless conduct, if Mr. Mcllvaine, in the sudden emergency that confronted him through no fault of his own, had managed his car differently. To the legal mind this might not excuse the defendant from the consequences of his criminal acts, but the jurors are the judges of the law, as well as the facts, and if they concluded, under the law, that the defendant was guilty of the assault but not responsible for the collision, it is not clear to us how the court can overrule then’ conclusion. At least, the granting of a new trial would be improper remedy for such error. Their mistake would inure to the benefit of the defendant. But, as already stated, it is not for us to attempt to explain by what process of reasoning under the facts found by them, they concluded that the defendant was guilty of the assault, but not guilty of the battery.</p> <p>Com., v. Williamson, 19 Phila. 566, cited by counsel, is not in point, when carefully examined. The court was evidently of opinion that the conviction was not supported by the evidence, and that, therefore, a new trial should be granted. The court said, if there was no aggravated assault and battery, then there could be no assault and battery. Even if the court, in that case, had the right to take from the jury the province to pass upon the grade of the offense, the decision is no authority for holding that the accused cannot be guilty of an assault if he is or is not guilty of a battery. No doubt this was a compromise verdict. If the court must set aside all such verdicts, the administration of justice, by jury trials, would be seriously hampered.</p> <p>We cannot sustain the second exception. The verdict was not against the evidence.</p> <p>There was evidence of reckless speed, and reckless running of the car, so that it zigzagged along the highway, from side to side. There was also evidence that the defendant ran his car on the wrong side of the street, as he approached the Mcllvaine car. The same evidence would support a finding that the defendant was running at great speed and collided with the Mcllvaine car when the latter was at the right side of the highway close to the gutter.</p> <p>The accident occurred near midnight on a wide thoroughfare, and could'not well arise except through gross negligence. There was competent evidence to show excessive speed. Mr. Mcllvaine first saw the defendant’s car when it was about 600 feet away from him. He had the opportunity to watch it approach while it moved 450 feet to the point of the accident. From the observations he made, the time it took the car to reach the point of collision, and his experience in running automobiles, he was qualified to give the rate of speed. “An intelligent person having a knowledge of time and distance is capable of forming an opinion as to the speed of a passing railroad train, a street ear or an automobile:” Dugan v. Arthurs, 230 Pa. 299.</p> <p>The demolishing of the defendant’s car, the distance it ran after the collision, and the fact that when the car was stopped it pointed to the west, although the defendant, at the time of the accident, was journeying to the east, are all factors which throw light upon the question of speed.</p> <p>The complaint, as to the testimony received from Captain Donaghy, the chief of police, is not well founded.</p> <p>The accident occurred about midnight, and he came upon the scene one hour later. He described the conditions upon the ground and also the wrecked condition of the defendant’s car. He.stated that one wheel, on the left side of the car, was bent almost double, that the tire and iron frame were off the car, and that the spokes of this wheel were broken. He also added that the other wheel “was missing altogether.” This evidence was not objected to, nor was there any motion to strike it from the record. When, later on, an effort was made to show where the missing wheel was found, next morning, about six o’clock, we sustained an objection upon the ground that the time was too remote from the happening of the accident. The captain was recalled, but we did not allow him to testify where the wheel was found next morning, at six o’clock. He repeated his evidence about the broken wheel and that one wheel was missing at one o’clock in the morning. His evidence was then objected to, although not a word was added to what he had already testified to and without any objection whatever.</p> <p>We think the objection was, in fact, directed against any admission of evidence as to the finding of the missing wheel, next morning. But if it was directed to the admission of evidence, as to the conditions upon the ground at one o’clock, the objection was not well founded. First, because it was competent. There were witnesses upon the scene, from the time the accident happened to the time Captain Donaghy appeared, and these witnesses gave the history of the occurrences after the accident to the period when the captain examined the grounds. The time was not too remote from the accident. If so, there would be few cases where the jury could be furnished with any evidence relating to the condition, results or consequences of an accident. Secondly, the testimony was already in evidence without objection, and, therefore, at least with the tacit admission of defendant’s counsel that it was competent.</p> <p>It is also contended that some of the jurors believed that under a verdict of “simple assault” the punishment could not extend beyond a fine.</p> <p>The verdict rendered was “not guilty of aggravated assault and battery but guilty of assault.” We do not know of any difference between “simple assault” and “assault,” but if there is any difference the record discloses just what the verdict was, as taken in open court. We were careful to interrogate the jurors and the record shows the true facts.</p> <p>Jurors have no right to pass upon the punishment of the accused. Their duty is to determine the question of guilt or innocence of the accused and leave the punishment to the court.</p> <p>If the court must inquire into the motives or reasons that controlled each juror in rendering his verdict, it is high time to abandon the jury system. Jurors will talk, and when counsel for the convicted defendant seek consolation, they can usually find it by interrogating some accommodating or weak-kneed juror.</p> <p>Two affidavits were presented, made by one of the jurors, and a third was made by a member of the bar who heard this juror make a statement. It is claimed that these affidavits show that the jurors took into consideration a matter that was not in evidence, and that they were influenced by it in rendering their verdict.</p> <p>We did not allow these ex parte affidavits to be filed. If a juror may impeach his verdict by this method, then a trial is of little consequence, and few verdicts could stand. The court would be kept busy in retrying the same case. Out of a panel of twelve men any persistent attorney is likely to find one juror who can give some plausible irrelevant matter as an excuse for not finding a verdict as counsel would prefer to have it.</p> <p>These affidavits give a good illustration of the unreliable character of such ex parte declarations. In the first affidavit the juror asserts positively that he voted for conviction because he was told such verdict would not support a sentence of imprisonment, but only a fine. In his next affidavit he swears that he voted for conviction only because one of the twelve jurors impaneled in the case with him stated that he had been called and acted as a juror in a previous prosecution of the defendant. The affidavit does not even state that he was informed whether the defendant was acquitted or found guilty at the trial. It is true, he says, he relied upon the juror’s experience when he was told that a verdict of guilty of assault meant a fine only. Can any reliable inference be drawn from these conflicting affidavits? It is not even safe to conclude that the juror was influenced by a belief that the sentence would be restricted to a fine. The other jurors should not be condemned by an ex parte statement of one of their number. As already stated, the juror overstepped his province, if he allowed the matter of sentence to intervene instead of confining his inquiry to the guilt or innocence of the accused. That the jury should not consider the punishment is clearly shown in Com. v. Switzer, 134 Pa. 383.</p> <p>That jurors will seek comfort, at times, in assuming that the sentence may not be severe, when they agree to a verdict of guilty, is no doubt true, but where the charge eliminates this question from their consideration, we do not see how the court can interfere with the verdict. We were careful to say to the jury, and repeated the instruction, “that they must not be influenced or controlled by anything they read or heard about the case, but that they must be guided and controlled by the law and by the evidence that was given from the witness stand.” “You will not be influenced by anything outside of the case, but judge the case by the evidence from the witness stand.”</p> <p>But if these affidavits show any misconduct on the part of the jury, which we do not admit, they are not properly before us for our consideration.</p> <p>The rule of law, that one juror, by his deposition, cannot be allowed to impeach the verdict of the jury on the ground that some other juror used an unfair argument before his fellows, is well established. The rule goes so. far, that a juror’s testimony is not admissible as to what transpired in the deliberation of the jury acting as an organized body in the performance of its official duty. This rule was announced as early as Chuggage v. Swan, 4 Binney, 150, and clearly reaffirmed as late as Stull v. Stull, 197 Pa. 243. In the latter case the jurors reached a verdict by lottery or chance, but the depositions of the jurors to establish this fact were not admitted to prove the fact. This ruling was affirmed, in the following language: “The motion for a new trial on the alleged misconduct of the jury was carefully considered by the learned judge of the court below, and finally dismissed by him in a clear and convincing opinion in accord with our own cases and the decisions of other states.” In Com. v. Beber, 10 Pa. Dist. Bep. 683, a juror was called to show that a fellow juror, during the deliberations, stated that the defendant, some years before, had committed an act similar to that for which he was on trial. The learned judge Endlich, who is presiding so ably for many years in the twenty-third district, excluded the depositions.</p> <p>It is clearly against public policy to admit such evidence. A relaxation of the rule “would subject the jurors to the importunities and inquiries of interested parties, after the verdict, and involve the jurors in controversies among themselves as to what actually occurred in the jury room, with a possible tendency to perjury.”</p> <p>If there is to be any relaxation of this rule in the trial of criminal cases, we should have something more substantial than the conflicting ex parte affidavits of a single juror. What we said about the affidavits of the juror applies with equal force to the deposition of the attorney. If the testimony of a juror is inadmissible, it follows that his declaration to others cannot be received: Stull v. Stuff, 197 Pa. 243.</p> <p>The defendant had a fair trial. There is no exception to the charge, and we were careful to protect the accused by cautioning the jury, specifically, to apply all the safeguards that should surround a man when he is brought into the criminal court, charged with the perpetration of an offense against the law.</p> <p>We were careful to exclude from their consideration anything they may have read or heard about the occurrence. We did this advisedly.</p> <p>And now, April 7, 1913, the reasons for a new trial are dismissed, and the motion for a new trial is overruled. The motion in arrest of judgment, for the reasons given in this opinion, is also overruled.</p> <p>Errors assigned were various rulings and instructions.</p>

<p>Railroads — Carriers—'Purchase of goods from shipper.</p> <p>Where a shipper delivers goods to a railroad company for transportation and the consignee at the point of destination has refused to receive them, the railroad company may purchase the goods from the shipper in consideration of satisfying the freight charge if the transaction involves no discrimination nor preference of rebate.</p>

<p>Appeal, No. 143, April T., 1913, by plaintiff, from decree of C. P. Allegheny Co., April T., 1911, No, 407, oh bill in equity in case of Louise Schutte v. James R. Kibler et al., and the Grand Lodge of the Ancient Order of United Workmen.</p> <p>Bill in equity to enforce payment of an amount alleged to be due under a beneficiary certificate. Before Evans, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The court entered the decree quoted in the opinion of the Superior Court.</p> <p>Error assigned was the decree of the court.</p> <p>cited: Chambers v. Knights of Maccabees, 200 Pa. 244; Fullenivider v. Supreme Council of the Royal League, 180 111. 621 (54 N. E. Repr. 485); Supreme Lodge Knights of Pythias v. Kutscher, 179 111. 340 (53 N. E. Repr. 620); Supreme Lodge Knights of Pythias v. La Malta, 95 Tenn. 157 (31 S. W. Repr. 493); Supreme Commandery Knights of Golden Rule v. Ainsworth, 71 Ala. 436.</p>

<p>Street railways — Passengers—Attack on passenger by fellow passenger.</p> <p>1. A carrier is not liable for injuries to a passenger resulting from the negligent or unlawful acts of a fellow passenger, unless prior to the act which causes the injury the conduct of the offending party has been such as to give rise to a reasonable apprehension of injury to others.</p> <p>2. A street railway company eannot be held in damages for injuries to a passenger struck by another passenger where it appears that but one blow was struck and this blow was struck suddenly and without warning by a passenger who up to that moment had been quiet and orderly and who had had no altercation with the person he struck.</p>

Appeal, No. 111, .April T., 1913, by plaintiff, from decree of Q. S. Armstrong Co., Dec. Sessions, 1911, No. 39, refusing order of removal In re Removal of Richard Aylor from the Poor District of Kittanning Borough to Rayburn Township Poor District. Petition for order of removal. From the record it appeared that the decree of the court below was entered on August 16, 1912, and the appeal was taken on September 22, 1912, more than thirty days after the decree was entered.

Appeal, No. 62, April T., 1913, by defendant, from judgment of C. P. Lawrence Co., Sept. T., 1909, No. 80, on verdict for plaintiff in case of National Supply & Construction Company v. M. Jennie Fitch, owner or reputed owner, and James Hood, contractor. Scire facias sur mechanic’s lien.

<p>Appeal, No. 66, April T., 1913, by defendant, from judgment of C. P. Lawrence Co., June T., 1911, No. 50, on verdict for plaintiff in case of Aaron Drenberg, a minor, by his next friend and father, Gustave A. Drenberg, arid Gustave A. Drenberg, in his own right, v. The Mahoning and Shenango Railway & Light Company.</p> <p>Trespass to recover damages for personal injuries. Before W. E. Porter, J.</p> <p>The circumstances of the accident are stated in the opinion of the Superior Court.</p> <p>At the trial the jury returned a verdict for the father, Gustave A. Drenberg, for $500, and for the son, Aaron Drenberg, $1,500. Subsequently the court entered judgment against the father non obstante veredicto, but overruled defendant’s motion for judgment n. o. v. as against the child.</p> <p>It appeared from the opinion of the court below that judgment was entered against the father because he had been guilty of contributory negligence in permitting the child to wander unattended upon the public streets.</p> <p>Error assigned among others was refusal to enter judgment for defendant n. o. v. as to the child.</p> <p>cited: Flanagan v. Ry. Co., 163 Pa. 102; Eastburn v. U. S. Exp. Co., 225 Pa. 33; McKee v. Traction Co., 211 Pa. 47; Phila. & Reading R. R. Co. v. Hummell, 44 Pa. 375; Moss v. Traction Co., 180 Pa. 389; Cominskey v. Ry. Co., 4 Pa. Superior Ct. 631; Gilmartin v. Transit Co., 186 Pa. 193; Penman v. Ry. Co., 201 Pa. 247; Barto v. Beaver Valley Trac. Co., 216 Pa. 328.</p> <p>cited: Yingst v. Ry. Co., 167 Pa. 438; Davison v. Traction Co., 10 Pa. Superior Ct. 442; Dunseath v. Traction Co., 161 Pa. 124; Citizens’ Pass. Ry. Co. v. Foxley, 107 Pa. 537.</p>

Appeal, No. 77, April T., 1913, by Andrew B. Berger et al., from order of C. P. Lawrence Co., Dec. T., 1911, No. 70, confirming report of viewers In re Carlisle Street. Exceptions to report of viewers. Before W. E. Porter, P. J. The facts are stated in the opinion of the Superior Court. Error assigned among others was order confirming report of viewers.

Appeal, No. 68, April T., 1913, by the Commonwealth of Pennsylvania, from decree of O. C. Butler Co., March T., 1912, No. 62, in sustaining exceptions to a collateral tax appraisement in Estate of John Lawall. Exceptions to collateral tax appraisement. Before Galbreath, P. J. The opinion of the Superior Court states the facts of the case. Error assigned was decree sustaining the exceptions.

Appeal, No. 159, April T., 1913, by plaintiff, from order of C. P. Allegheny Co., July T., 1912, No. 2,965, discharging rule for judgment, for want of a sufficient affidavit of defense in case of Carrick Borough v. Rt. Rev. Regis Canevin, Trustee for St. George’s Congregation. Rule for judgment for want of a sufficient affidavit of defense. The facts are stated in the opinion of the Superior Court.

<p>Appeal, No. 115, April T., 1913, by plaintiff, from decree of C. P. Allegheny Co., Third Term, 1911, No. 75, dismissing bill in equity in case of Central District & Printing Telegraph Company v. Pittsburg, McKeesport & Youghiogheny Railroad Company, and Pittsburg & Lake Erie Railroad Company.</p> <p>Bill in equity for an injunction to restrain defendants from removing plaintiff’s poles and wires. Before Evans, J.</p> <p>From the pleadings and admission filed by the parties, it appeared that the plaintiff was incorporated under the laws of Pennsylvania as a telephone and telegraph company, and that it occupied with its poles and wires certain streets of the borough of Connellsville with consent of that borough. The title to the bed of the streets in question was in the defendant railroads. On February 11,1911-, the borough passed an ordinance vacating the streets which the plaintiff used for its poles and wires.</p> <p>The court dismissed the bill.</p> <p>Error assigned was decree dismissing the bill.</p> <p>Under the charter and municipal ordinances the appellant acquired vested rights (an easement) and its franchise to use the streets is an irrevocable contract: Louisville Trust Co. v. Cincinnati, 76 Fed. Repr. 296; Levis v. Newton, 75 Fed. Repr. 884; Detroit Citizens’ St. Ry. Co. v. Detroit, 64 Fed. Repr. 628; Africa v. Mayor, etc., of Knoxville, 70 Fed. Repr. 729; Mayor, etc., of Knoxville v. Africa, .77 Fed. Repr. 501; Hudson Tel. Co. v. Jersey City, 49 New Jersey Law, 303; Board of Mayor, etc., of Morristown v. Telephone Co., 115 Fed. Repr. 304; New Castle v. C. D. & Printing Tel. Co., 207 Pa. 371; McKeesport v. Ry. Co., 2 Pa. Superior Ct. 242.</p> <p>Such contracts are' binding though affecting the control of subsequent municipal authorities over the streets: Baltimore Trust & Guarantee Co. v. Baltimore, 64 Fed. Repr. 153; New Castle City v. C. D. & Printing Tel. Co., 207 Pa. 371; McKeesport v. Pass. Ry. Co., 2 Pa. Superior Ct. 242; P. W. & B. R. R. Co. v. Chester, 121 Pa. 44.</p> <p>Highways in Pennsylvania are under the absolute control of the state, and the legislature may make such grants with respect to them for public use as it sees fit: Philadelphia & Trenton R. R. Co.’s Case, 6 Whart. 25; Shinzel v. Bell Telephone Co., 31 Pa. Superior Ct. 221; Jones v. R. R. Co., 151 Pa. 30.</p> <p>The right to vacate streets cannot be surrendered: Chicago, B. & Q. R. R. Co. v. Illinois, 200 U. S. 561; Wetherill v. R. R. Co., 195 Pa. 156; West Phila. Pass. Ry. Co. v. Philadelphia, 10 Phila. 70; Baltimore v. Baltimore Trust & Guarantee Co., 166 U. S. 673; Wabash R. R. Co. v. Defiance, 167 U. S. 88; Pittsburg v. Gas Co., 34 Pa. Superior Ct. 374; Ridge Ave. Pass. Ry. Co. v. Philadelphia, 181 Pa. 592.</p> <p>The rights of the appellant in the streets terminated upon the vacation of said streets by the municipality and the fee in said streets reverted to the abutting owner discharged of the appellant’s rights: Shinzel v. Bell Tel. Co., 31 Pa. Superior Ct. 221; Taylor v. Ry. Co., 91 Me. 193; Natick Gaslight Co. v. Natick, 175 Mass. 246; New England Telephone & Tel. Co. v. Boston Terminal Co., 182 Mass. 397.</p>

Appeal, No. 103, April T., • 1913, by defendant, from judgment of C. P. Butler Co., Sept. T., 1910, No. 84, on verdict for plaintiff in case of Leedom-Worall Company v. L. C. Wick. Assumpsit to recover damages for the breach of an alleged covenant of an oral lease. Before Galbreath, P. J. The opinion of the Superior Court states the case. Verdict and judgment for plaintiff for $105.69. Defendant appealed. Error assigned, was in submitting the case to the jury.

Appeal, No. 173, April T., 1913, by plaintiff, from judgment of C. P. Butler Co., Sept. T., 1909, No. 36, on verdict for defendant in case of Baltimore & Ohio Railroad Company v. T. W. Phillips Gas & Oil Company. Assumpsit to recover freight on an intercommerce shipment of iron pipe.

Appeal, No. 108, April T., 1913, by defendant, from judgment of C. P. Beaver Co., Sept. T., 1910, No. 140, on verdict for plaintiffs in case of Daniel Braheny et al. v. Pittsburg, Libson & Western Railroad Company. Trespass to recover damages for destruction of property by fire. Before Holt, P. J. At the -al the jury returned a verdict for plaintiff for $1,350.

Appeal, No. 134, April T., 1913, by defendant, from decree of C. P. Allegheny Co., Jan. T., 1908, No. 924, on bill in equity in case of Bertha A. Hunnings v. Edward R. Hunnings. Bill in equity by a wife against. husband for maintenance. Before Sharer, J. The facts are stated in the opinion of the Superior Court. Error assigned was decree in favor of the complainant.

<p>Appeal, No. 32, Oct. T., 1913, by defendant, from decree of C. P. No. 3, Phila. Co., June T., 1913, No. 6,379, on bill in equity in case of Benjamin H. Casper v. City of Philadelphia, Rudolph Blankeriburg, Mayor of the City of Philadelphia, and George D. Porter, Director of the Department of Public Safety of the City of Philadelphia.</p> <p>Bill in equity for an injunction. Before McMichael, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was decree awarding injunction.</p> <p>cited: People v. French, 102 N. Y. 583.</p> <p>cited: Com. v. Stokley, 20 W. N. C. 315; Com. v. Black, 201 Pa. 433; Koester v. Philadelphia, 46 Pa. Superior Ct. 110; Truitt v. Philadelphia, 221 Pa. 331; Saul v. Scranton, 9 Pa. Dist; Rep. 156; Doverspike v. Magee, 51 Pa. Superior Ct. 525.</p>

Appeal, No. 168, April T., by Lizzie Bruce, use plaintiff, from judgment of • C. P. Allegheny Co., July T., 1910, on verdict in case of Joseph. Blair, for use of Lizzie Blair, v. M. Wilson Stewart. Feigned issue on execution. Before Reid, J. The facts are stated in the opinion of the Superior Court. Verdict and judgment for Lizzie Bruce for $283.42, and for M. Wilson Stewart, for $1,239.44. Plaintiff appealed.

<p>School law — School teacher — Appointment of teachers — Minutes of school hoard — Act of April 11,1862, P. L. 471.</p> <p>1. A school teacher cannot recover for a balance of salary alleged to be due on a written contract signed by herself and the president of the school board and countersigned by the secretary of the board, where the minutes of the board of school directors which elected her merely disclosed that a quorum of the board were present, and that she was elected, but did not state the names of the members of the board voting in the affirmative or negative, nor that the election was unanimous, nor that all members present voted in the affirmative.</p> <p>2. Under the Act of April 11,1862, P. L. 471, relating to the appointment of teachers, the minutes of the school board must upon their face show in express words, or by necessary implication the names of the directors who voted in favor of the appointment, and that they constituted a majority of the entire board; otherwise the appointment is not binding upon the school district.</p>

<p>Negligence — Infant—Burning rubbish — Evidence.</p> <p>In an action by a child six years of age against a company operating a glass factpry, it appeared that the child was severely burned when her clothing ignited from a fire kindled by the employees of the defendant upon a lot in rear of its factory for the purpose of burning waste paper and rubbish from the office and the factory. The fire had been burning for some time when the child wandered upon the premises of the defendant, and approached the fire. No one saw how the accident happened. When first seen by any witness the child was lying in the edge of the burning rubbish and her clothing was then burning. There was no public highway within several hundred feet of the point where the fire was burning, although there was a few feet away, upon the private property of an adjoining owner, a path which was used by the employees of other companies in going to and from their work. There was nothing to show that the defendant had done anything from which an invitation to others, or to the public to use this property could be inferred, or that the property had been used as a public playground or common. Held, that the plaintiff was not entitled to recover.</p>

<p>Appeal, No. 210, April T., 1913, by defendant, from judgment of C. P. Allegheny Co., May T., 1911, No. 425, on verdict for plaintiff in case of Daniel B. Berry v. Pittsburg Railways Company.</p> <p>Trespass to recover damages for personal injuries. Before Cohen, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>After the charge counsel for defendant made this suggestion to the court:</p> <p>Mr. Smith: I was going to suggest this, if the court please: You began your charge by looking at it from the standpoint and the story of the plaintiff, and of course in that story there is nothing about the cars that were standing on Fifth avenue. You did not then, it seems to me, at least, sufficiently look at it in your charge from the other standpoint, supposing the two cars were standing there; in which case, of course, this automobile ■ would come out from behind the cars, and there would be the duty of the motorman, with the car coming out from behind the cars, somewhat different from what it was if it had been in his view all the time, and the circumstances would be somewhat different. Also, as far as the chauffeur was concerned, if he were coming out from behind the cars, close to a street car track, it would be different. There are .the two stories that are so entirely different that it seems to me they ought each to be looked at from different standpoints.</p> <p>The Court: Gentlemen, you have heard what Mr. Smith says, and he is quite right, and I adopt his statement as a part of my charge, which you will give attention to.</p> <p>I believe I did tell you that, as to the cars that were standing on Fifth avenue, the Fifth, Shady and Penn car and the South Highland car. The defendant’s witnesses swear that those cars were standing there, and the motormen and the conductors that were in charge of those cars, some of them, were produced and swore to it; whilst, on the other hand, Berry and the chauffeur both swore that there were no such cars there. These points are to be considered by you along with the general testimony.”</p> <p>Mr. Smith: I wish an exception noted to your honor’s answer to my request to charge more particularly as to the situation in regard to the Fifth avenue cars.</p> <p>The Court: I adopted your own language. What else?</p> <p>Mr. Smith: That is all. Exceptions allowed and bills sealed. [2]</p> <p>Defendant presented these points:</p> <p>3. Even if the jury find from the evidence that there was negligence on the part of the defendant, nevertheless, if they also find from the evidence that the speed at which the automobile was running was the proximate, and not simply a contributing cause of the accident, the verdict must be for the defendant. Answer: That point is affirmed, with the qualifications suggested in the general charge. [3]</p> <p>4. If the plaintiff, Berry, was seated in the front seat of the automobile and had a view of the tracks of the street railways company on Craig street, and knew that he was about to cross those street car tracks, then he had no right to rely solely upon the vigilance of the driver of the automobile, but was bound himself to look and listen for the approach of the street car; and if he failed to do so, or if having looked, he knew that the automobile was approaching street car tracks under such circumstances as indicated that a collision between the automobile and the street car was likely to happen, he was bound promptly upon becoming aware of that fact, to make a protest to the driver against going ahead, and if he failed to do so, he was guilty of contributory negligence, and cannot recover in this case. Answer: This point is affirmed, as qualified in the third point. That means, as qualified by my general charge. [4]</p> <p>5. If the plaintiff, Berry, became aware that either on account of the speed of the street car or because it was not going to make its safety stop, or for any other reason, that there was danger of a collision between the automobile and the street car, while the automobile was still a sufficient distance from the street car to have stopped in time to avoid a collision, but did not protest to the driver of the automobile until the automobile was so close to the track that it was then impossible to stop in time, then the plaintiff Berry was guilty of contributory negligence, and cannot recover. Answer: This point is affirmed, as qualified in the preceding points. [5]</p> <p>Verdict and judgment for plaintiff for $1,500. Defendant appealed.</p> <p>Errors assigned were (2-5) above instructions, quoting them.</p> <p>As to the inadequacy of the charge of the court the authorities are numerous. We cite the following: Herstine v. Lehigh Valley It. It. Co., 151 Pa. 244; Holden v. It. It. Co., 169 Pa. 1; Tietz v. Phila. Trac. Co., 169 Pa. 516; Richards v. Willard, 176 Pa. 181; Fineburg v. Pass. Ry. Co., 182 Pa. 97; Cooley v. Traction Co., 189 Pa. 563; Clark v. Union Traction Co., 210 Pa. 636; Hodder v. Rapid Transit Co., 217 Pa. 110; Davies v. Rapid Transit Co., 228 Pa. 176; Cohen v. Phila. Rapid Trans. Co., 228 Pa. 243; Lingle v. Scranton Railway Co., 214 Pa. 500.</p> <p>As to the answering of our points by a reference to the general charge, we cite the following authorities: Huddleston v. West Bellevue Boro., Ill Pa. 110; Duncan v. Sherman, 121 Pa. 520; People’s Sav. Bank v. Denig, 131 Pa. 241.</p> <p>A party is entitled to a distinct and responsive answer to his points, if they are properly drawn, present questions that fairly arise, and can be answered by a simple affirmance or refusal: Whitmire v. Montgomery, 165 Pa. 253; Lingle v. Scranton Railway Co., 214 Pa. 500; Mc-Nees v. Sims, 231 Pa. 386; Goldstein v. Adams Express Co., 32 Pa. Superior Ct. 190; Sutton v. Pennsylvania R. R. Co., 214 Pa. 274.</p>

<p>Appeal, No. 155, April T., 1913, by defendant, from judgment of C. P. Allegheny Co., Feb. T., 1911, No. 472, on verdict for plaintiff in case of William J. Banks v. Pittsburg, Cincinnati, Chicago & St. Louis Railway Company.</p> <p>Trespass to recover damages for personal injuries by a sleeping car porter. Before Carnahan, J.</p> <p>The company defended on the ground that the plaintiff had released the defendant from liability for injuries to himself, although suffered from defendant’s negligence.</p> <p>Verdict and judgment for plaintiff for $1,250. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for defendant.</p>

<p>Appeal, No. 25, March T., 1913, by defendant, from judgment of C. P. Juniata Co., Sept. T., 1909, No. 88, on verdict for plaintiffs in case of W. P. Thompson et al. v. W. P. Zartman Lumber Company.</p> <p>Trespass to recover damages for the wrongful cutting of timber on twenty-one acres of land in Turbot township. Before Seibert, P. J.</p> <p>At the trial it appeared that the case turned upon the location of the southern line of the William Stewart survey, and the northern line of the James Ramsey survey. The facts relating to these surveys are stated in the opinion of the Superior Court.</p> <p>H. J. Shellenberger and John Carney were offered as witnesses by the plaintiff to testify as to the value of the timber cut. After they had been examined as to their qualification, the court permitted them under objection and exception to testify as to value. [1, 2].</p> <p>When W. P. McCahan, a witness for defendant, was on the stand, he was asked this question:</p> <p>“Q. Now how did you find this subdivisional line of the Klugh between the Boyer and the Kohler? A. Well, it was well marked. Q. What did you find at this point? ”</p> <p>Mr. Hoopes: We object to the evidence of these sub-divisional lines. They are interior lines of the original warrants and it is incompetent, irrelevant and immaterial.</p> <p>The Court: We cannot tell at this time whether this evidence is relevant or not. We assume that it is as they are putting it in.</p> <p>Mr. Neely: We go further: We show that the well-marked corners of these subdivisional tracts are on the north line of the Klugh and these other warrants being the recognized corners of the owners of the tracts.</p> <p>Mr. Hoopes: Objected to. Make an offer.</p> <p>Mr. Barnett: Counsel for the defendant offers to prove by the witness on the stand, a surveyor who has gone over the ground, the lines and the marks upon the lines of subdivision of the Ramsey, Klugh, Jackson and Huston tracts for the purpose of tieing those lines between the northern straight boundary line and the southern boundary line, and marks upon the respective northern and southern boundary lines, for the purpose of establishing the main northern boundary line of the plot surveying the northern boundary line of the Ramsey tract.</p> <p>Mr. Hoopes: Objected to as immaterial, irrelevant and incompetent until the evidence shows that there are original marks upon any lines of any tract in this block by which this north line can be determined from the original survey.</p> <p>The Court: Objection is overruled and evidence admitted for the purpose offered. If it fails to be connected with other marks which will indicate the ancient character of this line, of course, the court will, on motion, strike it out.</p> <p>An exception noted for the plaintiffs.</p> <p>“Q. Now, Mr. McCahan, how was this line-”</p> <p>The Court: But I don’t see, Mr. Neely, how these sub-divisional tracts, the second subdivision, would be important.</p> <p>“Q. How did you find the line between the Boyer and the Kohler marked here? A. There was a well-marked line between the Boyer and the Kohler.”</p> <p>Mr. Pennell: Is it a subdivisional line?</p> <p>Mr. Neely: Yes, sir.</p> <p>Mr. Pennell: Objected to because it is irrelevant, immaterial and incompetent, being a subdivisional line of the original tract, or warrant, or survey.</p> <p>Mr. Neely: How was that line indicated on the ground, I mean the line between the Boyer and the Kohler, because I want to arrive at the southwest corner of the tract?</p> <p>The Court: You don’t refer to the divisional line between north and south?</p> <p>Mr. Neely: Yes, I do.</p> <p>The Court: It seems to me you get into an infinitude of detail here.</p> <p>Mr. Neely: My purpose is to show the witness what he found at the southeast corner of the Boyer tract on the southern line of the Klugh.</p> <p>Mr. Pennell: Then you have withdrawn the other question?</p> <p>Mr. Neely: No, I think that is right because he must lead to this point by a well-marked line.</p> <p>Mr. Hoopes: Objected to, and ask it to be stricken out.</p> <p>The Court: The court will confine you to marks along the northern line and southern line of the survey and cut out the intermediate lines. An exception noted for the defendant. [3]</p> <p>Mr. Pennell: We now offer in evidence the act of assembly authorizing the commissioners to run the county line between Perry and Juniata counties, it being the Act of April 2,1860, found in Pamphlet Laws of 1860, page 529.</p> <p>Mr. Barnett: Objected to as irrelevant and immaterial.</p> <p>Mr. Pennell: We offer it for the purpose of showing the authority of the commissioners to run the county line, to be followed by the report of these commissioners as found on file in the prothonotary’s office, in Juniata county, for the purpose of locating the Juniata county line as it was run in pursuance of this act of assembly, to show the difference between the county line as it is run now on the mountain, and the tract line as we contend it. is, south tract line. Also for the purpose of enabling the jury to determine the true tract line.</p> <p>Mr. Barnett: Objected to as irrelevant and immaterial and inadmissible for the reason that the act of assembly does not, in any way, tend to locate the line upon the ground, and the only materiality the county line has in this case is as a possible monument for the purpose of locating the boundaries of these tracts, and its value for that purpose depends upon its discovery and location upon the ground by the surveyors in endeavoring to locate the tract and where the trees were they found and claimed to be the line, is not material in this case for the reason that the Ramsey and other tracts in the block with the Ramsey, do not even call for the county line as an adjoiner or boundary. Also object because both the act of assembly and survey of the county line, under it, are more than half a century later in date than the original survey of the tracts in question.</p> <p>The Court: Mr. McCahan, the surveyor, adopts the county line and ties it to this survey.</p> <p>Mr. Hoopes: The title papers call for the county line as the southern line for this Ramsey tract.</p> <p>The Court: Objection overruled, evidence admitted, and an exception noted for the defendant. [4]</p> <p>Mr. Pennell: We also offer the report of the commissioners, fixing the county line between Juniata and Perry counties, filed in the prothonotary’s office in Juniata county on August 13, 1860.</p> <p>Mr. Barnett: Objected to as irrelevant and immaterial, and for the last reasons given.</p> <p>The Court: We make the same ruling and note the exception for the defendant. [5]</p> <p>Mr. Pennell: We offer in evidence draft prepared by Mr. Burchfield, identified as plaintiff’s exhibit No. 1, April 29, 1912.</p> <p>Mr. Barnett: Objected to as incompetent and inadmissible for the reason that the draft contains lines never run by a surveyor, who made the draft, as to which he cannot testify and has not attempted to testify, and shows upon the draft an assumed county line not shown upon the original certified draft from which this draft purports to be any part taken and, therefore, there is nothing authoritative in the draft, and it is not covered entirely by testimony, and parts of it are not covered by testimony in such a way that the uncovered portions can 'be excluded from the consideration of the jury.</p> <p>The Court:. Objection overruled, evidence admitted and an exception noted for the defendant. [6]</p> <p>Mr. Pennell: Also offer in evidence the act of assembly dated September 19, 1789, 2 Smith’s Laws, 493, it being an act for erecting certain parts of Cumberland and Northumberland counties into a separate county.</p> <p>"Second Section. Be it enacted, and it is hereby enacted by the representatives of the freemen of the Commonwealth of Pennsylvania, in General Assembly met and by the authority of the same, that all and singular lands lying within the bounds and limits hereinafter described and following, shall be and are hereby erected into a separate county, by the name of Mifflin County, namely; Beginning at the Susquehanna River, where the Turkey Hill extends to the said river, thence along the said hill to Juniata, where it cuts Tuscarora Mountain, thence along the summit of the said mountain to the line of Franklin County, thence along the said line to Huntingdon County, thence along the said line to Juniata River, thence up the said Juniata River to Jack’s Narrows, thence along the line of Huntingdon County to the summit of Turkey’s Mountain, thence along the line .of Huntingdon and Northumberland Counties, so as to include the whole of Upper Bald Eagle Township, in the county of Northumberland, to the mouth of Buck Creek, where it empties into the Bald Eagle Creek, thence to Logan’s Gap, in Nittany Mountain, thence to the head of Penn’s Creek, thence down said creek to Sinking Creek, leaving George McCormick’s in Northumberland County, thence to the top of Jack’s Mountain, at the line between Northumberland County and Cumberland, thence along the said line to Shure’s Spring, at the head of Mahantongo Creek, thence down the said Creek to Susquehanna River, arid thence down the said river to the place of beginning.”</p> <p>Mr. Pennell: That is the section to show that the summit of the mountain was the county line between Cumberland and Mifflin county.</p> <p>The Court: What materiality has that?</p> <p>Mr. Pennell: This tract, to go to the summit, has to go thirty-five rods from where it is. We are bound to show where it was to go.</p> <p>Mr. Barnett: Objected to, because it is irrelevant and immaterial and not connected in any way with any testimony in this case, and not capable of affording the jury any light, except a haphazard and uncertain method of determining any of the southern lines in question.</p> <p>The Court: Objections overruled, evidence admitted, and an exception noted for the defendant. [7]</p> <p>Plaintiff presented these points:</p> <p>1. The words “Cum’b. Co. Line” written by the deputy surveyor on the drafts of the Robert Smith and William Huston surveys a short distance from the south line of those' tracts, mean that the Cumberland county line at the time those surveys were made was the southern line of these two tracts. Answer: This point is affirmed. Words so placed upon the margin of a draft made by a deputy surveyor as a map of his survey, locating a warrant, are part and parcel of the survey, and indicate adjoiners and adoption of the lines of such adjoiners, as do the calls for trees and other objects indicate corners or lines upon the ground. [8]</p> <p>2. The summit of the Tuscarora Mountain at the place where the Robert Smith and William Huston tracts are located was the Cumberland county line in the year 1794. Answer: This point is affirmed. By the act of September 19, 1789, the county of Mifflin, now Juniata, was divided from the county of Cumberland, and that act made the summit of the Tuscarora Mountain the line of division. James Harris, deputy surveyor at the time, surveyed the Robert Smith tract August 20, 1794, and the William Huston tract August 21, 1794; it seems this division line was not actually run upon the ground, but the deputy surveyor having adopted the “Cumberland County Line” of 1794, as the southern line of these tracts, then their southern boundary was “the summit of the Tuscarora Mountain,” the exact location of which, with reference to these Smith and Huston tracts, is to be determined by the jury under all the evidence in the case. [9]</p> <p>3. The south line of the Robert Smith and William Huston tract, according to the original surveys made in 1794, being the Cumberland county line, that south line must now be located on the summit of the Tuscarora Mountain. Answer: This point is affirmed. But while the “summit of the Tuscarora Mountain” is the legal boundary line of the two surveys mentioned in this point, it has an element of uncertainty about it, and the jury must determine its location as the southern boundary line of these surveys with certainty as the evidence in the case may convince the minds of the jury it actually is upon the ground. [10]</p> <p>7. The south line of the Samuel Jackson, Henry Klugh and 116 rods of the James Ramsey tract being an eastern extension of the south line of the Robert Smith and William Huston tract and there being no proof of original marks anywhere along the north line of any of these tracts to control the distance called for in the drafts returned by the deputy surveyor, the north line of these surveys must be located at the end of the official distance called for in these drafts. Answer: This point is affirmed, provided the jury finds under all the evidence that there is no proof of original marks, or perpetuations thereof, anywhere along the north line of any of these tracts. The Samuel Jackson and Henry Klugh surveys calling for no adjóiners on the north, and the James Ramsey survey calling for an indefinite northern adjoiner, to wit: “Near Benjamin Kepler,” if there be no evidence of original marks along their northern line, or perpetuations of such original marks, then the official distances of the survey returned to the land office must govern, and these distances must determine the northern extent of these several tracts. [11].</p> <p>8. If the county line between Juniata and Perry counties, as run and now marked upon the ground, are the present county line, between those counties, does not agree and coincide to the south line of the Robert Smith and William Huston tracts, and the extension of that line along the south side of the Samuel Jackson, Henry Klugh and the west end of the James Ramsey tract, as originally surveyed, it does not constitute the true southern boundary line of these tracts, even although it may have been considered and recognized as such by some of the property owners along it for the last sixty or seventy years. Answer: This point is affirmed unless the jury shall find, under all the evidence, that the recognition of such line by adjoining property owners was because of original marks upon the ground, or marks that were perpetuations of such original marks, inducing such recognition. [12]</p> <p>9. If the jury find as a fact, from the evidence in the case, that the north line of the Robert Smith, William Huston, Samuel Jackson, Henry Klugh and James Ramsey tracts, as testified to by defendant’s witnesses, is more than the distance called for in the original surveys of said tracts, from the south line of those tracts, as fixed by the William Huston and Robert Smith tract on the summit of the mountain, then in the absence of evidence of any original marks of the north line of these tracts on the ground, or any evidence of any marks in perpetuation of said original marks, this north line as testified to by the defendant’s witnesses is not the true north line of said tract. Answer: Affirmed, provided the jury find the facts to be as stated in the point; and the jury is requested to carefully consider and weigh all the evidence in the case which relates to any, each and all of the facts referred to in this point. [13]</p> <p>10. The relocating or changing of the county fine by any subsequent regularly authorized commission or other method, will not change the location of any tract of land which calls for the county line as a boundary, nor will such relocating or changing of the county line change the line of such tract nor remove its corners nor decide on what side of the relocated county line said tract may lie. Answer: This is affirmed. As stated in the answer to the plaintiff’s second point, the act of September 19, 1789, dividing the county of Mifflin, now Juniata, from the county of Cumberland, fixed the boundary line between the two counties as “the summit of the Tuscarora Mountain;” by an Act of Assembly, passed April 14,1834, P. L. 404, three commissioners were appointed to run and mark the division line between the counties of Juniata and Perry, and they did so; then for some reason not now apparent, the legislature passed the Act of April 2,1860, P. L. 529, also appointed three commissioners to run the line between the counties of Juniata and Perry from the Juniata river to the Franklin county line, which they did, and so far as anything in this case goes to show, these commissioners of 1860 located the line south of the Ramsey, Klugh, Jackson, Huston and Smith surveys and practically in the same place as did the commissioners under the act of 1834. Now, if you find, under all the evidence, that the division line of 1787, between Cumberland and Mifflin, now Juniata, counties, was the true south line of the Ramsey, Klugh and other tracts mentioned, then, if the division lines between the counties of Perry and Juniata ran, in 1834, and in 1860, made any change from the old division line between the counties of Cumberland and Mifflin, now Juniata, such change will not alter the location of any tract of land which had for one of its boundaries the Cumberland and Mifflin, now Juniata, division line. [14]</p> <p>The court charged in part as follows:</p> <p>[Of original landmarks none appear to remain along the line of either tract; they seem to have disappeared through the long lapse of years, and it is for you to find. whether or not there are now upon the ground perpetuations of such vanished original, and if you find there are such perpetuations, then in the determination of this question you should be governed by them. We recall no evidence of any landmarks along the lines of either the Stewart or the Ramsey tract counting back to near about the dates of survey; the Spanish oak on one of the lines of the Stewart survey, according to the testimony of the surveyor, Mr. Cooper, only blocks back seventy-eight to eighty years, to 1832, twenty-one years after the survey was made; the rock oak block from trees along the alleged northern line of the Klugh, Jackson and Huston, and possibly other surveys, according to the testimony of the defendant’s surveyors, W. F. McCahan, J. Frank Patterson and S. W. Cooper, only count back sixty or sixty-five years, say back to 1847, or fifty-three years later than the markings of the survey and locating 'it on the ground under the Ramsey warrant.</p> <p>Because of the seeming absence of original landmarks along the lines of the Stewart and Ramsey surveys, evidence was admitted relating to lines and landmarks of the block survey of the Klugh, Jackson and Huston, of which block the Ramsey was a part, surveys and adjacent and contiguous other surveys, for the purpose-of allowing the proof of the present existence of some reasonably certain landmarks.] [16]</p> <p>Verdict and judgment for plaintiff for $1,008. Defendant appealed.</p> <p>Errors assigned were (1-7), rulings on evidence, quoting the bill of exceptions; (8-16) above instructions, quoting them.</p> <p>The jury are entitled to the benefit of witnesses of skill and judgment, who have had opportunities to learn the value of similar properties in the same neighborhood and all persons, who, whether as real estate agents or as private parties have been engaged in buying or selling similar property in the same neighborhoood are competent to express an opinion as to the market value of the land: Kellogg v. Krauser, 14 S. & R. 137; Brown v. Corey, 43 Pa. 495; Pennsylvania & New York R. R. Co. v. Burnell, 81 Pa. 414; Rees v. Schuylkill River E. S. R. R. Co., 135 Pa. 629; Jones v. Erie & Wyoming Valley R. R. Co., 151 Pa. 30; Lewis v. Springfield Water Co., 176 Pa. 237.</p> <p>Where surveys are made and returned into the land office in blocks, they are to be located on the ground in blocks: Hagerty v. Mathers, 31 Pa. 348.</p> <p>The marks on any part of a block of surveys belong to each tract of the block; and a tract of a block may be located by marks on the ground by other tracts of the block: Malone v. Sallada, 48 Pa. 419; Eister v. Paul, 54 Pa. 196; Pruner v. Brisbin, 98 Pa. 202; Mathers v. Hagerty, 37 Pa. 64; Northumberland Coal Co. v. Clement, 95 Pa. 126.</p> <p>To the commissioners was given no judicial powers beyond .locating the boundary line and establishing evidence thereof on the ground and in their report. They were not authorized and tad no power nor was it ■their purpose to determine the boundary lines of any tract of land: Keller v. Young, 78 Pa. 166; Pardee v. Orvis, 103 Pa. 451.</p> <p>The act of commissioners in laying out a county line cannot affect vested rights: Beale v. Patterson, 3 W. & S. 379; Hecker v. Sterling, 36 Pa. 423.</p> <p>The general rule of evidence is, that in questions of science, skill, trade, or others of the like kind, persons of skill, sometimes called experts, may not only testify to facts, but they are permitted to give their opinions in evidence: Mish v. Wood, 34 Pa. 451; Detweiler v. Groff, 10 Pa. 376; Canfield v. Johnson, 144 Pa. 61; Worden v. Connell, 196 Pa. 281; Ardesco Oil Co. v. Gilson, 63 Pa. 146; Com. v. Gibbons, 3 Pa. Superior Ct. 408; Delaware & Chesapeake Steam Towboat Co. v. Starrs, 69 Pa. 36.</p> <p>The words “ Cumberland county line” on the draft of the Huston tract, would indicate that the county line was the south line of that tract: Salmon Creek Lumber & Mining Co. v. Dusenburry, 110 Pa. 446; Beale v. Patterson, 3 W. & S. 379.</p> <p>The act directing county lines- to be run does not give the commissioners authority to relocate any tract of land, nor to decide on which side of the county line any tract might lie: Keller v. Young, 78 Pa. 166; Pardee v. Orvis, 103 Pa. 451.</p> <p>Courses and distances make the survey where the lines on the ground are not be found, except in calls for adjoinders: Boynton v. Urian, 55 Pa. 142; Green v. Schrack, 16 Pa. Superior Ct. 26; Wharton v. Garvin, 34 Pa. 340.</p> <p>A judgment will not be reversed for a slight inaccuracy in a portion of the charge, when the case was otherwise fairly presented and the testimony adduced showed that the error was harmless: McCahan v. Wharton, 121 Pa. 424; Commonwealth v. Razmus, 210 Pa. 609; Medis v. Bentley, 216 Pa. 324; Yerkes v. Wilson, 81* Pa. 9.</p>

<p>Master and servant — Arrest by servant — Care of property — Liability of master — Malicious prosecution.</p> <p>The duty of an employee requires him to protect the principal’s property under his care. If it is in danger, and he causes the arrest of one who is committing the wrong, the principal will be responsible for the agent’s act if it is illegal; but this rule does not obtain where one is arrested for a crime already committed, or where the offense does not endanger the master’s property which is under the care of the servant.</p>

<p>Land law — Surveys—Vacant land — Patent—Trespass.</p> <p>1. The issuing of a patent for land which has already been surveyed and patented to another is not an official act, although made by a deputy surveyor, and gives nothing to the patentee.</p> <p>Adverse possession — Woodland—Evidence—Construction—Possession.</p> <p>2. To maintain an actual adverse possession to woodland as such it is necessary that the person entering take actual possession by residence or cultivation, of a part of the tract to which the woodland belonged. Actual possession may be taken by inclosing and cultivating, without residence or by residence without cultivation, under a bona fide claim, where there is a designation of the boundaries with the ordinary use of the woodland. If in an action of trespass for cutting timber no such possession is shown in the defendant, his claim of title by adverse possession cannot be sustained.</p> <p>3. Where in an action of trespass for cutting timber no such possession is shown in the defendant, his claim of title by adverse possession cannot be sustained.</p>

<p>Railroads — Carriers—Freight—Rates—Discrimination.</p> <p>1. Where the agent of a railroad company has by mistake charged and collected a less amount of freight than that specified in the published schedule, the company may thereafter collect the difference from the shipper or person liable for the freight.</p> <p>2. Where goods were consigned to a shipping merchant, and through a mistake of the company’s agent a less amount of freight was collected than that prescribed by the published schedule, and the company sues the consignee for the difference, the latter in order to escape liability must aver in his affidavit of defense that the railroad company knew that the particular shipment in question had been made to the defendant as a commission merchant on account of a consignor. The mere fact that the railroad company knew that the defendant was a commission merchant and was in the habit of receiving shipments of goods to be sold on commission, is immaterial, inasmuch as the defendant may have contracted for merchandise on his own account.</p>

<p>Liquor law — Selling without license — Club.</p> <p>The steward of a lodge of a fraternal and beneficial order may be convicted of selling liquor without a license where the evidence showed that the sale of liquors was not a mere incident to the lodge for its social department, but the principal business of the social organization, and that the receipts from the sale, of liquors not only paid for the cost of the liquors and expense of their distribution, but paid all the expenses of maintaining the social rooms, including rent, light, heat and janitor service, and that without any outlay on the part of the lodge, or its social department.</p>

<p>Appeal, No. 30, April T., 1914, by plaintiff, from order of Q. S. Greene Co., Sept. Term, 1913, No. 1, quashing indictment in case of Commonwealth v. Debbie Haines.</p> <p>Motion to quash indictment.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was order quashing the indictment.</p> <p>The information was sufficient: Com. v. Dingman, 26 Pa. Superior Ct. 615; Com. v. Robertson, 47 Pa. Superior Ct. 472.</p> <p>The information was not sufficient: Hunter v. Com., 2 S. & R. 298.</p>

<p>Appeal, No. 8, Oct. T., 1913, by plaintiff, from judgment of C. P. No. 1, Phila. Co., March T., 1908, No. 1,271, for defendant n. o. v. in case of Lewis Latnee v. Philadelphia Rapid Transit Company.</p> <p>Trespass to recover damages for personal injuries. Before Kinsey, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was in entering judgment for defendant.</p>

Appeal, No. 283, Oct. T., 1912, by plaintiff, from judgment of C. P. Phila. Co., Dec. T., 1911, No. 408, for defendant non obstante verdicto in case of Barber Asphalt Paving Company v. Philadelphia. Assumpsit for paving. Before Audenried, J. Verdict and judgment for plaintiff for $741.72. Plaintiff appealed. Error assigned was in entering judgment for defendant n. o. v.

<p>Appeal, No. 114, Oct. T., 1913, by defendant, from judgment of C. P. No. 1, Phila. Co., Sept. T., 1910, No. 3,411, on verdict for plaintiff in case of Joseph F. Stevens v. Adams Express Company.</p> <p>Trespass to recover damages for injuries to an automobile. Before Kinsey, J.</p> <p>At the trial the plaintiff was asked this question:</p> <p>“Q. I am about to show you a bill of the FossHughes Motor Company, which appears by the receipt on it-</p> <p>“Mr. Evans: I am willing to admit that the FossHughes Motor Company did repairs for which they charged the plaintiff $153.53; that he had paid this bill, and that in those items, $112.63 worth were for repairs of the damage caused by this accident.</p> <p>“Q. Repairs having been made to this car, I want to know whether or not the car was in as good condition after the repairs were made as it was prior to the accident? A. No, sir; it was not. Any car that is in a smash-up or wrecked, depreciates in value at least-(Objected to.) Q. Was your car depreciated in value? A. At least twenty-five per cent.”</p> <p>There was no evidence that the plaintiff was an expert on the subject of automobiles.</p> <p>The court refused to strike out the evidence. [1, 2]</p> <p>Verdict for plaintiff for $1,000, on which judgment was entered for $500, all above that sum having been remitted. Defendant appealed.</p> <p>Error assigned were (1, 2) rulings on evidence, quoting the bill of exceptions.</p>

<p>Appeal, No. 197, Oct. T., 1913, by plaintiffs, from order of Q. S. Huntingdon Co., Feb. T., 1913, No. 2-a granting a retail liquor license on Petition of L. R. and W. S. Leister.</p> <p>Petition for retail liquor license.</p> <p>Motion to quash appeal.</p>

<p>Appeals, Nos. 69 and 70, Oct. T., 1913, by defendant, from judgment of C. P. No. 4, Phila. Co., March T., 1911, No. 1,552, on verdict for plaintiffs in case of Jacob Walton and Jacob Walton, Administrator of Emma Walton, deceased, v. City of Philadelphia.</p> <p>Trespass to recover damages for personal injuries. Before Carr, J.</p> <p>The circumstances of the accident are stated in the opinion of the Superior Court.</p> <p>Verdict for each of the plaintiffs for $250, upon which judgment was entered.</p> <p>Error assigned was in refusing binding instructions for defendant.</p> <p>cited: Hopkins v. Williamsport, 25 Pa. Superior Ct. 498; Runkle v. Pittsburg, 238 Pa. 349; McDonnell v. Orinoka Mills, 241 Pa. 61; Smith v. Lehigh Valley R. R. Co., 21 Pa. C. C. Rep. 9; Delaware, Lackawanna & Western R. R. Co. v. Caddow, 120 Pa. 559.</p> <p>cited: Bruch v. Philadelphia, 181 Pa. 588; Iseminger v. York Haven Water & Power Co. 206 Pa. 591; Smith v. Jackson Twp., 26 Pa. Superior Ct. 234; Kane v. Philadelphia, 196 Pa. 502; Henry v. Williamsport, 197 Pa. 465; Wall v. Pittsburg, 205 Pa. 48; McLaughlin v. Corry, 77 Pa. 109; Hopkins v. Williamsport, 25 Pa. Superior Ct. 498; Oil City & Petroleum Bridge Co. v. Jackson, 114 Pa. 321; Sellers v. Union Traction Co., 21 Pa. Superior. Ct. 5.</p>

<p>Carriers — Interstate commerce — Limitation of liability.</p> <p>A provision in a bill of lading for an interstate shipment by which the carriers’ liability is limited to an agreed valuation is valid in Pennsylvania.</p>

Appeal, No. 120, Oct. T., 1913, by plaintiff, from, decree of C. P. No. 5, Phila. Co., March. T., 1912, No. 2,927, dismissing libel for divorce in case of Jacob F. Wacker v. Frederick Wacker. Libel for divorce. The facts are stated in the opinion of the Superior Court. Error assigned was decree dismissing the libel. cited: Merrick v. Merrick, 43 Pa. Superior Ct. 13;. Ferree v. Ferree, 19 Pa. C. C. Rep. 67; Graham v. Graham, 153 Pa. 450.

<p>Statute of frauds — Promise to pay the debt of another — Building contract — Subcontractor—Material men.</p> <p>Where building contractors sublet a portion of the contract to a subcontractor, and the latter is supplied with material by a material man, under an oral promise by the contractors that if the subcontractor failed to pay the material man, they, the contractors, would'take the price out of whatever they might owe to the subcontractor, and pay it over to the material man, the promise is to pay the debt of another, and being oral is not enforceable under the statute of frauds.</p>

Appeal, No. 276, Oct. T., 1912, by defendant, from order of C. P. No. 4, Phila. Co., Sept. T., 1912, No. 1,335, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Albert Laib v. Alexander Kozuhowski. Assumpsit on a promissory note drawn by defendant to order of plaintiff.

Appeal, No. 294, Oct. T., 1912, by plaintiff, from judgment of C. P. No. 2, Phila. Co., Dec. T., 1907, No. £>,102, on verdict for defendant in case of W. Bruce Barrow v. Mahlon W. Newton. Assumpsit to recover $1,050 for commissions on sale of real estate.- Before Staples, P. J., specially presiding.

Appeal, No. 301, Oct. T., 1913, by defendant, from order of C. P. No. 1, Phila. Co., Sept. T., 1912, No. 3,656, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Fianah Kathern Gilfert v. Walter E. Lamond. Assumpsit on a promissory note for $225. Rule for judgment for want of a sufficient affidavit of defense. The facts are stated in the opinion of the Superior Court.

Appeal, No. 33, Oct. T., 1913, by defendant, from judgment of C. P. No. 1, Phila. Co., Dec. T., 1909, No. 486, on verdict for plaintiffs in case of Patrick Kilpatrick and Mary Kilpatrick, his wife, v. Philadelphia & Reading Railway Company. Trespass to recover damages for death of plaintiffs’ son. Before Magill, J. The facts are stated in the opinion of the Superior Court. Verdict and judgment for plaintiffs for $1,500. Defendant appealed.

Appeal, No. 49, Oct. T., 1913, by defendant, from judgment of C. P. No. 3, Phila. Co., March T., 1911, No. 606, on verdict for plaintiff in case of Elizabeth Wilson v. Hannah L. Eckman et ah, Administrators c. t. a. of Phoebe Mills, deceased. Scire facias sur mortgage. Before Davis, J. The facts are stated in the opinion of the Superior Court. Verdict and judgment for plaintiff for $974.51. Defendants appealed.

Appeal, No. 72, Oct. T., 1913, by defendant, from order of C. P. No. 5, Phila. Co., Pec. T., 1912, No. 2,399, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Benjamin Swartz v. Historical Publishing Company. Assumpsit on a promissory note. Rule for judgment for want of a sufficient affidavit of defense. The facts are stated in the opinion of the Superior Court.

<p>Appeal, No. 124, Oct. T., 1913, by plaintiff, from judgment of C. P. No. 4, Phila. Co., Sept. T., 1910, No. 2,615, for defendant n. o. v. in case of Mary E. Hakspacher, Executrix of the Last Will and Testament of William F. Hakspacher, v. Aetna Beneficial Association.</p> <p>Assumpsit for sick benefits. Before Willson, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was in entering judgment for defendant n. o. v.</p>

Appeal, No. 125, Oct. T., 1913, by defendant, from judgment of C. P. No. 3, Phila. Co., Dec. T., 1908, No. 2,311, on verdict for defendant in case of Joseph Baskin v. Margaret E. Andrews. Appeal from judgment of a magistrate. Before Ferguson, J. Verdict and judgment for plaintiff. Defendant appealed. Error assigned was a portion of the charge, quoting it.

Appeal, No. 198, Oct. T., 1913, by defendant, from order of C. P. Franklin Co., Dec. T., 1889, No. 163, discharging rule to open judgment in case of J. F. Frey, to use of Wm. R. Keefer, and Corpus Christi Catholic Church of Chambers-burg v. J. E. Gingrich. Rule to open judgment. Gillan, P. J., filed the following opinion: On November 18, 1889, defendant confessed judgment to Mrs. J. F. Frey to No. 163 of December term, 1889, in the sum of $450.

<p>Beneficial associations — Forfeiture of membership — Waiver—Evidence.</p> <p>In an action against a beneficial association for death benefits, the defense was that the deceased member was in default in the payment of his dues for a particular month, and that during such month and thereafter he had been ill. The plaintiff showed a tender of the dues a few days after the expiration of the time when they were due, and also proved that on another occasion the deceased and other members had paid their dues after the expiration of the month. This proof was met by evidence that the accountant for the inferior lodge of the association to which the deceased belonged was the collector for the supreme lodge, and that she had made returns on other occasions for delinquent members, including the deceased out of her own moneys and at her own risk and had never communicated this fact to the Supreme Lodge. Held, that there was no proof of waiver, and that plaintiff was not entitled to recover.</p>

<p>Appeals, Nos. 18 and 19, Oct. T., 1913, by defendants, from judgment of C. P. No. 3, Phila. Co., March T.; 1911, No. 4,895, on verdict for plaintiffs in case of Mabel Bosley by her father and next friend, James T. Bosley, and James T. Bosley v. John Gerrity and Julia Gerrity.</p> <p>Trespass to recover damages for malicious prosecution. Before Dayis, J.</p> <p>The plaintiff was charged on the magistrates’ docket with “Suspicion of Larceny.”</p> <p>The facts are stated in the opinion of the Superior Court.'</p> <p>Verdict and judgment for Mabel Bosley for $200 and James T. Bosley for $60.00. Defendants appealed.</p> <p>Errors assigned were various instructions.</p> <p>There was no case for the jury: Smith v. Ege, 52 Pa.. 419; Gilliford v. Windel, 108 Pa. 142; Mahaffey v. Byers, 151 Pa. 92; Mitchell v. Logan, 172 Pa. 349; Bruff v. Kendrick, 21 Pa. Superior Ct. 468; Cole v. Reece, 47 Pa. Superior Ct. 212; Com. v. Storey, 49 Pa. Superior Ct. 282; Grohmann v. Kirschman, 168 Pa. 189; Robitzek v. Daum, 220 Pa. 61; Hantman v. Hedden, 31 Pa. Superior Ct. 564; Scott v. Dewey, 23 Pa. Superior Ct. 396; Boyd v. Kerr, 216 Pa. 259; Roessing v. Rys. Co., 226 Pa. 523; McCoy v. Kalbach, 51 Pa. Superior Ct. 364.</p> <p>The case was for the jury: Schofield v. Ferrers, 47 Pa. 194; McCoy v. Kalbach, 51 Pa. Superior Ct. 364.</p> <p>It was held in Rhoades v. Van Phillips, 9 Del. County, 423, that where a person is arrested on a charge not constituting a crime, the jury may infer from that fact that the prosecution was without probable cause.</p> <p>In the case of Brobst v. Ruff, 100 Pa. 91, it was held that in an action for malicious prosecution a defendant cannot show that he acted on the advice of a justice of the peace in instituting the prosecution.</p>

<p>Extradition — Fugitive from justice — Requisition—Information—Act of May 24, 1878, P. L. 187 — Act of congress, U. S. Revised Statutes, sec. 5278.</p> <p>The word “information” in the proviso of the first section of the Act of May 24, 1878, P. L. 137, which states that a “requisition must be accompanied with a certified copy of the indictment or information,” is to be given its ordinary meaning of a written accusation sworn to before a magistrate upon which an indictment is afterwards founded, and not the mere technical meaning of a prosecution begun by the public prosecuting officer on his own initiative without any previous accusation, hearing or binding over.</p>

<p>Contract — Building contract — Substantial performance.</p> <p>1. The equitable right to recover on the ground of substantial performance involves an honest effort on the part of the contractor to fully comply with the strict terms of the contract resulting in minor defects which do not seriously injure the other party to the contract.</p> <p>2. Where a builder contracts to place building paper between the siding and the sheeting boards of a house, and he neglects to do so as to a material portion of the house, and subsequently willfully refuses to place the paper in accordance with the contract, he cannot invoke the protection of the rule of substantial compliance. In such a case it is immaterial that the owner may have paid half of the contract price, and when the builder claimed that his contract was completed, took possession of the house.</p>

<p>Appeals — Paper-books—Printed exhibits — Case stated.</p> <p>1. An appeal from a judgment on a case stated will not be quashed because the appellant failed to print certain exhibits, where the record shows that nothing was omitted from the case stated as printed, which was essential to the accurate understanding and decision of the question of law on which the case turned.</p> <p>Corporations — Building and loan associations — Transfer of stock.</p> <p>2. Where a member of a building and loan association assigns in blank a full paid stock certificate to a creditor in pledge for a debt, the transferee is entitled to have it transferred to his own name, although it appears that at the time of the assignment the member was indebted to the association, and that he subsequently consented that the stock should be transferred and charged up against his indebtedness to the association, and that the association had no notice of the prior assignment of the stock.</p>

<p>Contract — Building contract — Evidence—Itemized statement of account.</p> <p>1. In an action to recover a balance alleged to be due on a building contract it is proper to admit in evidence an itemized statement of the work and materials furnished, where it appears that such statement was rendered by the plaintiff to the defendant two years before the trial, and that the latter had not returned it or disputed its correctness.</p> <p>■ 2. In such a case the appellate court will not reverse the findings of the trial judge who tried the case without a jury, where it appears that such findings are sustained by competent evidence, and there is no manifest error.</p>

<p>Appeal, No. 281, Oct. T., 1912, by Esther C. Dermond, from decree of O. C. Delaware Co., No. 8,631, dismissing exceptions to report of auditor in Estate of Patrick Dermond, deceased.</p> <p>Exceptions to report of Edmund Jones, Esq., auditor.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was in dismissing exceptions to auditor’s report.</p>

<p>Practice, C. P. — Trial—Request for instructions — Failure to make request.</p> <p>Where in an action against an administrator to recover for money spent on the funeral of deceased and for his boarding and nursing, it appears that there were three trials of the case, and that at the second trial the judge held that plaintiff could not recover for nursing because there was no evidence as to the value of the same, and the third trial was upon the evidence produced at the second trial, the plaintiff cannot complain of the trial judge at the third trial in not referring to the nursing claim, if it appears that he made no request for instructions as to this claim, although he did as to the other claims.</p>

Appeal, No. 278, Oct. T., 1912, by plaintiff, from judgment of C. P. Berks Co., March T., 1911, No. 21, for defendant n. o. v. in case of Michael Mellet v. Reading Transit Company. Trespass to recover damages for injuries to an automobile. Before Endlich, P. J. At the trial the jury returned a verdict for plaintiff for $652.72.

Appeal, No. 184, Oct. T., 1913, by plaintiff, from judgment of C. P. Lancaster Co., Aug. T., 1912, No. 56, for defendant non obstante veredicto in case of C. D. Spigelmyer v. John E. Hess. Assumpsit to recover damages for loss of occupancy of leased premises. At the trial the jury returned a verdict for the plaintiff for $35.24.

Appeal, No. 62, Oct. T., 1913, by defendant, from decree of C. P. Centre Co., Sept. T., 1911, No. 2, on bill in equity in case of James L. Seibert v. John Sebring, Jr. Bill in equity for an injunction. Hall, P. J., filed the following opinion: The plaintiff, James L. Seibert, is the owner in fee of a certain lot situate in the borough of Bellefonte, having a frontage of forty-two feet and a depth of 200 feet.

<p>Appeal, No. 27, Oct. T., 1913, by defendant, from judgment of C. P. Lancaster Co., Aug. T., 1911, No. 64, on verdict for plaintiff in case of James F. Hall v. Milton Kreider.</p> <p>Appeal from judgment of justice of the peace.</p> <p>The opinion of the Superior Court states the case.</p> <p>Verdict and judgment for plaintiff for $95.41. Defendant appealed.</p> <p>Errors assigned were various instructions.</p> <p>Questions of jurisdiction can be raised at any time on the appeal: Deihm v. Snell, 119 Pa. 316; Moreland Twp. v. Gordner, 109 Pa. 116; Fowler v. Eddy, 110 Pa. 117.</p> <p>The action in this case was for consequential damages, over which the justice had no jurisdiction, nor the court below on appeal: Masteller v. Trimbly, 6 Binney, 33; Herrigas v. McGill, 1 Ash. 152; Millhauser v. Morgan, 6 Kulp, 48; Conaghan v. Rudolph, 4 Kulp, 504; Ripple v. Keast, 5 Pa. Dist. Rep. 31.</p> <p>A justice of the peace has jurisdiction in an action for trespass done to the growing crops on the farm of the plaintiff by cattle owned by the defendant: Yost v. Yost, 25 Lane. Law Rev. 54; Ziegler v. House, 1 Pa. Dist. Rep. 609; Townsend v. Whalen, 5 Pa. Dist. Rep. 656; Dolph v. Ferris, 7 W. & S. 367.</p> <p>A general proceeding of the case on its merits has estopped further questioning of the jurisdiction in such cases: Brown v. Fruit, 3 Clark, 295; Brown v. Quinton, 2 Clark, 169; Magee v. R. R. Co., 13 Pa. Superior Ct. 187.</p> <p>The Supreme Court has held that since 1889 the owner of cattle must fence them in and that the owner of the realty is not compelled to prove that his land was fenced, in order to recover damages from the depredations of cattle: Barber v. Mensch, 157 Pa. 390; Erdman v. Gottshall, 9 Pa. Superior Ct. 295.</p>

Appeal, No. 277, Oct. T., 1912, by Charles S. Bair, from decree of O. C. Phila. Co., Oct. T., 1911, No. 484, dismissing exceptions to adjudication in Estate of James A. Daly, deceased. Exceptions to adjudication. The opinion of the Superior Court states the case. Errors assigned among others was decree dismissing exceptions to adjudication.

Appeal, No. 94, Oct. T., 1913, by defendant, from judgment of C. P. Lancaster Co., March T., 1906, No. 48, on verdict for plaintiff in case of Santo Oterie and Chas. Delerno, trading as S. Oterie & Co., v. A. Vitale. Assumpsit to recover the price of bananas sold and delivered. Before Landis, P. J: At the trial the defendant claimed that he had bought the bananas from Russo Brothers of Baltimore and that he had paid Russo Brothers for them.

<p>Appeal, No. 150, Oct. T., 1913, by Andró Stremba, from order of Q. S. Schuylkill Co., Jan. T., 1913, No. 508, transferring liquor license in re Petition of William J. Dowling for Transfer of Retail Liquor License of Andró Stremba, in First Ward of Mahanoy City.</p> <p>Petition for transfer of liquor license.</p> <p>The order was as follows:</p> <p>And now, June 16, 1913, after hearing, the sureties on the bond of the above-dated application are approved and the transfer of license as prayed for is granted, upon payment to the said Andró Stremba of the full amount of the license fee for the current year. It is further ordered that a duplicate license be issued to the said William J. Dowling by the clerk of the court as the original license is in the hands of the said Andró Stremba.</p> <p>Error assigned was the order of the court.</p> <p>Whitlock’s License, 39 Pa. Superior Ct. 34; Schilbe’s License, 40 Pa. C. C. Rep. 496.</p>

<p>Contract — Sale—Passing of title — Warranty—Consideration.</p> <p>Where a person purchases a cow at a public auction and pays for it by delivering his check to the sales clerk, which is accepted as payment, and the cow is then separated from the other cattle and is earmarked, the title to the cow passes to the purchaser so that a subsequent warranty made by the owner to the purchaser that the cow was sound and all right, and if not the owner would make it right, is without consideration and invalid.</p>

<p>Appeal, No. 44, April T., 1914, by defendant, from order of C. P. Allegheny Co., July T., 1913, No. 2,032, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Albert B. Graver v. W. C. O’Reilly.</p> <p>Assumpsit on a check.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>Haymaker, J., filed the following opinion:</p> <p>The plaintiff was appointed master in partition, and the case was so proceeded in that he was ordered by the court to sell the real estate described in the bill at public sale, on the following terms:</p> <p>“Ten per cent, of the purchase price to be paid on the day of sale, one-third of the purchase price including said ten per cent, to be paid on the delivery of the Master’s deed upon confirmation of the sale by the Court; the remaining two-thirds of the purchase price to be payable in two equal installments in one and two years from the date thereof, with interest payable semiannually and to be secured by common bond and mortgage on the premises, containing the usual thirty days Sci. Fa. default clauses.”</p> <p>The plaintiff, as such officer of the court, and in pursuance of said order of sale, advertised the property and it was offered at public sale, the terms of which as above set forth having been previously publicly announced, whereupon the defendant made a bid of $45.50 per acre, and he being the highest bidder it was on May 22,1913, knocked down and sold to him.</p> <p>The defendant thereupon gave the plaintiff his check of the same date, in lieu of the ten per cent cash payment, as provided in the terms of sale, which being dishonored on presentation this action is brought to recover the amount thereof, viz., $809.90 with interest. These allegations constitute the plaintiff’s claim.</p> <p>The averments in the affidavits of defense, which we assume to be true, are substantially as follows: That in October, 1911, and since the partition proceedings were begun, defendant leased the real estate described in the bill from the owners for a term extending over a term of five years from April 1, 1912, at an annual rental of $200 and payment of taxes; that it was understood that he might place improvements thereon and charge the cost against the rent; that in case the property was later sold to him any excess of cost of improvement over the rent was to work a credit on his purchase price; that defendant informed the plaintiff before the sale that any bid he would make would be based on the terms and conditions of that lease and that plaintiff in accepting his bid "well knew of those conditions; that when he gave the check described in plaintiff’s statement he informed plaintiff that it would not be honored until June 10, 1913, so that the credits to which he would be entitled might be, by that time, computed, and that the money so expended in improvements in reliance on the faith and credit of said lease amounted to at least $2,200; that on June 10, 1913, he went to plaintiff’s office to take up the question of credits and the. amount of the purchase money bond and mortgage to be executed, but plaintiff refused to allow him any credits, whereupon defendant withdrew from the transaction, informed plaintiff that the check would not be paid, and stopped payment at the bank, where at that time he had sufficient funds to meet the same; that the amount of his bid, less said credits, would have been more than sufficient to defray all expenses and satisfy all claims against the property; that defendant, at the sale and before the property was knocked down to him, publicly announced that he had a claim against the property as heretofore stated; that he is advised that ..this suit is prematurely and improperly brought and plaintiff is not entitled to recover. In his amended affidavit of defense he alleges that he entered into possession of the property at the time the lease was made, has been in continuous possession ever since, during which time he made said improvements, and that he has presented his petition to the court in said partition proceedings, setting forth the matters contained in his affidavit of defense, and praying that said sale be set aside.</p> <p>On the argument of this rule for judgment the defendant presented his petition setting forth the matters alleged in his affidavit of defense, and obtained a rule to show cause why the said sale should not be set aside. We are unable to see wherein the allegations of defendant constitute a defense to this action. The plaintiff, as master in partition, was an officer of the court, and the sale so made was a judicial one. The defendant was fully aware of the terms of sale as fixed by the court, and he nowhere asserts that he was misled, deceived, or in any way induced by the master to make his bid by anything said or done by that officer. The defendant was bound to know at the time of his bid that the master would be required to sell the property in accordance with the terms of sale fixed by the court, and that the master could not stop at that stage of the proceedings to determine the controversies, and settle all the legal disputes, then existing, between him and the owners of the land. The master was merely the instrument of the court to carry out the purpose of the law, and the purpose of the law at that time was the sale of the property under the terms theretofore prescribed by the court, from which the master had no right then to depart. This defendant in making his bid has no higher right than any other creditor would have had in bidding at the sale; and to have judicial sales of this character held at bay by bidders, until their claims are adjusted by the master and then repudiated or accepted by them at will, would produce intolerable delays and confusion. The announcement of the terms of sale by the auctioneer and the bid of the defendant constituted a contract by which the bidder agreed to make the cash payment, for which this suit is brought. While it may not be.material to the real question here involved, there is nothing specific in the affidavit of defense as to the na.ture or character of, or time of making, the improvements for which he claims a credit. We cannot agree with the defendant’s contention that the only remedy open to the plaintiff is to resell the property and hold the defendant responsible for any loss. We are concerned now only with the sufficiency of the affidavit of defense. If on hearing of the rule to set aside the sale it should be made absolute the whole matter will bé under the control of the court and the interest of the defendant can be protected.</p> <p>We are of opinion that the affidavit of defense. is insufficient, and therefore rule absolute.</p> <p>Error assigned was order making absolute rule for judgment for want of a sufficient affidavit of defense.</p> <p>cited: Fifth Bluecher Building Assn. v. Sylvester, 35 Pa. Superior Ct. 62; Pepper v. Deakyne, 212 Pa. 181; Dickson v. McCartney, 226 Pa. 552; Weast v. Derrick, 100 Pa. 509; Freeman v. Lieberman, 52 Pa. Superior Ct. 426.</p> <p>cited: Weast v. Derrick, 100 Pa. 509; Vandever v. Baker, 13 Pa. 121; Forster v. Hayman, 26 Pa. 266; Allen v. Gault, 27 Pa. 473; Dickson v. McCartney, 226 Pa. 552; Wright’s App., 25 Pa. 373.</p>

<p>Appeal, No. 3, April T., 1913, by defendant, from judgment of Q. S. Washington Co., Feb. T., 1913, on verdict of guilty in case of Commonwealth v. John R. Channing.</p> <p>Indictment for extortion.</p> <p>The jury returned a special verdict as follows:</p> <p>We, the jurors impaneled in this case, find the following facts:</p> <p>On June 1, 1910, the defendant, John R. Channing, was, at the instance and request of The Vesta Coal Company, commissioned by Governor Edwin S. Stuart a coal and iron police for the said Vesta Coal Company, under the provisions of the Act of Assembly of April 11, 1866, P. L. 99, sec. 1, supplementary to, and amending the Act of February 27, 1865, P. L. 225, the term of the commission of the said John R. Channing as such coal and iron police being for the term of three years from the date of his said commission.</p> <p>The said John R. Channing by virtue of his said commission was to have and to hold the said office of coal and iron police and to exercise all the powers of policeman of the city of Philadelphia, in the said county of Washington.</p> <p>The said John R. Channing took his oath of office as such coal and iron police on June 1, 1910, and his commission as such coal and iron police and his oath of office are of record in the recorder’s office of Washington county in Commission Book No. 7 at page 351.</p> <p>The said John R. Channing received as compensation for his services as such coal and iron police a salary of $80.00 per month, which said sum was paid him by the said Vesta Coal Company.</p> <p>On March 5, 1912, the said John R. Channing made an information before J. D. Hornbake, a justice of the peace at the borough of California, Washington county, against one Joe Orosz, in which information the said Joe Orosz was charged with malicious mischief, and a warrant for the arrest of the said Joe Orosz was issued by the said J. D. Hornbake, justice of the peace, to the said John R. Channing, who arrested the said Joe Orosz and took him to the office of the said J. D. Horn-bake. The said Joe Orosz was subsequently given a hearing before the said J. D. Hornbake and was held for court and a return thereof was made by the said J. D. Hornbake to the court of quarter sessions of the peace of Washington county, which said case was filed and docketed to No. 28, May Term, 1912. The defendant in that case, Joe Orosz, subsequently entered a plea of guilty to said charge and on his plea was sentenced by the court of quarter sessions of Washington county.</p> <p>In connection with the arrest of the said Joe Orosz, certain services were performed by the said John R. Channing and certain fees for those services were taxed up on the transcript by the said J. D. Hornbake, in favor of the said John R. Channing, as appears by the transcript filed to said number and term, which said services and fees were as follows:</p> <p>Serving subpoena for commonwealth.... $1.40</p> <p>Mileage..............................48</p> <p>Executing commitment................ 1.00</p> <p>Mileage............... 4.80</p> <p>Prisoner’s car fare.....................85</p> <p>Prisoner’s meals...................... 1.00</p> <p>Total____•..................... $9.53</p> <p>In connection with this case the said John R. Channing served a subpoena on certain witnesses, and there was taxed up in his favor for fees and mileage in connection with the service of said subpoena the sum of $3.51.</p> <p>On February 20, 1912, one A. O. Conoway made an information before the said J. D. Hornbake, justice of the peace as aforesaid, against one Philip Terpid, in which the said Philip Terpid was charged with attempting to blow up a building, and a warrant for the arrest of the said Philip Terpid was issued by the said J. D. Hornbake, justice of the peace, to Henry B. Lake and John R. Channing, and the said defendant, Philip Terpid, was arrested and taken to the office of the said J. D. Hornbake. The said Philip Terpid was subsequently given a hearing before the said J. D. Hornbake and was held for court and a return thereof was made by the said J. D. Hornbake to the court of quarter sessions of the peace of Washington county, which said case was filed and docketed to No. 18, May Term, 1912. On May 7, 1912, the grand jury of the May Term of court returned “Not a True Bill” and the defendant was discharged.</p> <p>In connection with the arrest, hearing, binding over and commitment of the said Philip Terpid certain services were performed by the said John R. Channing and certain fees for those services were taxed up on the transcript by the said J. D. Hornbake, in favor of the said John R. Channing, as appears by the transcript filed to said number and term, which said services and fees are as follows:</p> <p>Mileage............................ $ 9-.60</p> <p>Serving subpoena for commonwealth... 2.00</p> <p>Mileage............................ 10.08</p> <p>Executing commitment to lockup..... 1.00</p> <p>Prisoner’s car fare................... 1.85</p> <p>Total........................ $24.53</p> <p>Subsequently the said John R. Channing receipted on the cost docket in the office of the clerk of courts of Washington county for all the costs above set out, and subsequently received from the commissioners of said Washington county a warrant on the county treasurer for the amount of said costs and upon indorsement of said warrant the said John R. Channing received from the county treasurer of Washington county the amount of said costs.</p> <p>If the facts stated and the acts of the defendant do, in the opinion of the court, constitute the offense of extortion, then the jury do say that the defendant is guilty of extortion as charged. If they do not constitute such offense, then the jury find the defendant not guilty.</p> <p>Error assigned was in entering a verdict of conviction on the special verdict.</p> <p>cited: Com. v. Saulsbury, 152 Pa. 554; Evans v. Trenton, 24 N. J. L. 764; Dutton v. Philadelphia, 6 Phila. 597; Burrall v. Acker, 23 Wend. 606; United States v. Harned, 43 Fed. Repr. 376; Hamlin v. Berks County, 8 Pa. C. C. Rep. 462; Pyle v. Sweigart, 18 Lane. Law Rev. 81; McAndrew v. Jones, 3 Pa. Justices’ L. R. 128.</p> <p>cited: Franklin County v. Conrad, 36 Pa. 317; Fry v. Berks Co., 38 Pa. Superior Ct. 449; McElhinney v. Venango County, 6 Pa. Justices’ L. R. 83; McHenry’s Petition, 6 Pa. Superior Ct. 464; Hamlin v. Berks County, 8 Pa. C. C. Rep. 462; Walsh v. Luzerne Co., 6 Pa. Justices’ L. R. 142; Com. v. Saulsbury, 152 Pa. 554; Com. v. Wilson, 30 Pa. Superior Ct. 26.</p>

<p>Justice of the peace — Record—Appeal—Defects cured by trial on the merits.</p> <p>1. Where a person has been convicted before a j ustice of the peace of a violation of the game laws, has appealed to the court of quarter sessions, pleaded not guilty, and had a trial on the merits, he cannot have the judgment on a verdict against him arrested merely because the decision of the justice was defectively stated. Such a rule applies where the statement of the justice’s record was: “After hearing demanded to pay fine for four birds $40.00 and costs. Defendant refused.”</p> <p>Game laws — Jurisdiction of quarter sessions — Appeal—Act of May 1, 1909, P. L. 325.</p> <p>2. Where a person has been convicted before a justice of the peace of violation of the Game Law of May 1, 1909, P. L. 325, and has given bail for appearance at the quarter sessions, but the record does not show that he took an appeal, the court of quarter sessions after a verdict against the defendant in that court, will arrest the judgment because of its lack of jurisdiction over the case.</p>

<p>Appeal, No. 187, Oct. T., 1912, by defendant, from judgment of C. P. No. 4, Phila. Co., Dec. T., 1911, No. 4,497, for plaintiff on case stated in suit of Patrick J. Hurley v. A. S. Ashbridge, Jr.</p> <p>Case stated to determine whether Patrick J. Hurley was entitled to receive payment in preference to general creditors. the amount of certain promissory notes out of the proceeds of the sale of certain real estate belonging to Robert G. Caldwell. The case turned upon the following agreement in writing:</p> <p>“Whereas, Robert G. Caldwell executed and delivered to P. J. Hurley his four promissory notes, all dated October 1, 1909, as follows:</p> <p>“ One for $300 payable nine months after date.</p> <p>“ One for $300 payable one year after date.</p> <p>“ One for $300 payable fifteen months after date.</p> <p>“ One for $220.93 payable eighteen months after date, each of said notes bearing interest from date.</p> <p>“ Said notes having been given' for labor and material furnished by P. J. Hurley in fitting up a saloon for Robert G. Caldwell at 1118 South Broad street, Philadelphia.</p> <p>“ And whereas, the first note for $300 is overdue and Robert G. Caldwell is unable to pay the same.</p> <p>“ Now it is agreed as follows:</p> <p>“ 1. Robert G. Caldwell will pay to P. J. Hurley cotemporaneously with the execution of this agreement on account of said due note the sum of Fifty dollars, together with the interest due on said note to date.</p> <p>“2. P. J. Hurley will extend the time for the payment of the balance due on said note until August 1, 1910, said balance to continue to bear interest until paid.</p> <p>“3. Robert G. Caldwell agrees that in case he shall at any time sell or transfer his business or lease or fixtures at 1118 South Broad street, all of said four notes, or the entire balance thereof remaining unpaid shall at once become due and payable as if said notes had been made payable on demand.</p> <p>“ 4. Robert G. Caldwell agrees that in case he shall at any time sell or transfer his said business or lease or fixtures at 1118 South Broad street, he will pay the entire amount of said notes or any unpaid balance thereof out of the first proceeds of such sale and will immediately upon such sale give such order to P. J. Hurley on the purchaser as will secure such payment.”</p> <p>The court entered judgment for plaintiff on case stated.</p> <p>Error assigned was in entering judgment for plaintiff on case stated.</p> <p>There was no pledge: Collins’s App., 107 Pa. 590; Christmas v. Russell, 81 U. S. 69; Wylie’s App., 92 Pa. 196.</p> <p>cited: Nesmith v. Drum, 8 W. & S. 9; Patten v. Wilson, 34 Pa. 299; Wallace’s App., 104 Pa.’ 559; Wylie’s App., 92 Pa. 196; Ingersoll v. Coram, 211 U. S. 335 (29 Sup. Ct. Repr. 92); Peugh v. Porter, 112 U. S. 737 (5 Sup. Ct. Repr. 361); Union Trust Co., v. Bulkeley, 150 Fed. Repr. 510; Atchison, etc., Ry. v. Hurley, 153 Fed. Repr. 503.</p>

<p>Contract — Subcontractor—Deferred payments — Real estate as security for deferred payments.</p> <p>A contractor conveyed to a trust company a piece of real estate to secure deferred payments to a subcontractor. These payments were represented by a promissory note. The agreement provided that on failure to pay the note, the trust company should convey the property to the subcontractor. Subsequently the subcontractor stopped work, on the ground that the contractor had failed to supply him with money when and as the agreement provided. The trust company refused to make the conveyance, and at this time the equity in the property was greater than the value of the note. The subcontractor then brought suit against the trust company, and produced evidence tending to show that his failure to complete his work was due to the default of the contractor. Held that a verdict and judgment for plaintiff should be sustained.</p>

Appeal, No. 28, Oct. T., 1913, by defendant, from order of C. P. No. 5, Phila. Co., June T., 1912, No. 349, discharging rule to strike off judgment in case of Samuel Bernstein and Jacob Lippman, trading as Bernstein & Lippman, v. Solomon B. Brown. Rule to strike off judgment. The facts are stated in the opinion of the Superior Court. Error assigned was order discharging rule to strike off judgment.

<p>Contract — Sales—Principal and agent — Authority of agent.</p> <p>1. Where a purchaser asks the agent of a dealer for a price on goods to be delivered in the future, and the agent states that he must consult ■ his principal, and subsequently returns with a written proposition from the principal, and the purchaser persuades the agent to change the wording of the written proposition in such a way that the price was reduced, about one-half, and this is done by the agent without consultation with his principal, and without further authority from him, the purchaser cannot recover damages from the seller for failure to deliver the goods at the reduced price.</p> <p>2. Where twenty-five barrels of a particular kind of goods are purchased under a verbal agreement with an agent of the seller and subsequently the agent is persuaded to sign a written agreement, the effect of which was to reduce the price to an amount about one-half of the price which the agent alleged was fixed at the verbal sale, and the agent acts without authority from his principal to execute the written agreement, and thereafter five barrels of the goods are shipped and billed by mistake at the reduced price, but the mistake is corrected at once by the sending of a proper bill, the purchaser cannot hold the seller liable for failure to deliver the remainder of the twenty barrels at the reduced price. In such a case it is for the jury to determine what were the terms of the original verbal agreement under the disputed testimony, and whether the principal ratified the action of the agent in signing the written agreement.</p>

Appeal, No. 39, Oct. T., 1913, by defendant, from judgment of C. P. No. 5, Phila. Co., Dec. T., 1909, on verdict for plaintiff in case of Frederick C. Gaussman v. Philadelphia & Reading Railway Company. Trespass to recover damages for personal injuries. The facts are stated in the opinion of the Superior Court. Verdict and judgment for plaintiff for $324. Plaintiff appealed. Error assigned was in refusing binding instructions for defendant.

Appeal, No. 23, Oct. T., 1913, by Jacob Garrett, from decree of O. C. Phila. Co., July T., 1912, No. 249, dismissing exceptions to adjudication in Estate of Samuel T. Lineaweaver, deceased; Exceptions to adjudication. Lamobelle, J., filed the following opinion.

Appeal, No. 9, March T., 1914, by plaintiff, from judgment of Q. S, Susquehanna Co., April Sessions, 1913, No. 9, on verdict of guilty in case of Commonwealth v. Anthony Matis. Indictment for selling liquor without a license. The opinion of the Superior Court states the case. Errors assigned were the two sentences quoted in the opinion of the Superior Court.

Appeal, No. 122, Oct. T., 1913, by defendant, from judgment of Q. S. Berks Co., Sept. Sessions, 1911, No. 37, on verdict of guilty in case of Commonwealth v. William J. Cotter et al. Indictment for conspiracy. Before Endlich, J. The facts are stated in the opinion of the Superior Court. Verdict of guilty, upon which judgment of sentence was passed. Errors assigned were various rulings on evidence and instructions.

Appeal, No. 35, Oct. T., 1913, by defendant, from order of C. P. No. 1, Phila. Co., June T., 1912, No. 679, discharging rule to open judgment in case of John Eckstein Beatty to the use of Albert L. Pleibel v. Frederick S. Koons. Rule to open judgment.

<p>'Contract — Building contract — Subcontractor — Delay — Affidavit of defense.</p> <p>1. In an action by a subcontractor against the contractors for a municipal building to recover a balance alleged to be due for materials and work, an affidavit of defense is insufficient which sets up as a defense a delay in the completion of the work without any showing that the work was to be completed at a specified date, or that the delay was an unreasonable one.</p> <p>2. In such a case an averment in the affidavit of defense that the defendants were “penalized” under their contract with the city by reason of the plaintiff’s delay, is insufficient where no averment is made as to the time when, or the manner in which the defendants were penalized, nor whether the action of the city was solely because of the failure of the plaintiff to complete the work on a date mentioned by the defendant; nor is an averment sufficient which states that the work was not commenced within two weeks after the date of the contract where there is no averment that the failure to begin at the time stated produced unnecessary or unreasonable delay in the completion- of the work.</p> <p>3. Where a subcontractor fails to begin work at the time specified in the contract, .the contractor is not obliged to accept the performance thereafter, but if he does so he waives his right to object to the delay.</p>

<p>Judgment — Confessed judgment — Striking off.</p> <p>A judgment regularly entered by confession under a warrant contained in a lease “for the amount remaining due and unpaid under the said lease,” will not be stricken off as irregular and void where the warrant authorizes any attorney “to appear for and confess judgment against the lessees for the amount” due and unpaid under the terms of the lease, and there are no grounds alleged for striking off the judgment, other than that the warrant did not authorize the confession of a judgment for any specific sum, that it did not affirmatively appear either by an affidavit filed by the plaintiff or otherwise that there had been any default on the part of the lessee, or how much money, if any, was due and owing by reason of such default.</p>

<p>Taxation — Collateral inheritance tax — Masses—Will.</p> <p>A bequest of money for the solemnization of masses for the repose of the soul of testator or others is subject to the collateral inheritance tax. This is the case although no particular priest is mentioned to whom the money is to be paid.</p>

<p>Negligence — Railroads—Passengers—Joint tort feasors — Station platform.</p> <p>In an action against two railroad companies to recover damages for personal injuries, the defendants cannot be charged as joint tort feasors or individually negligent, where the evidence shows that the plaintiff was a passenger on the rear ear of a train of'one of the defendants, that he alighted from' the rear end of the car at a point to which the station platform did not extend, although it did extend to the front of the car; that the plaintiff after alighting did not" get on to the platform and proceed to the exit, but turned in the opposite direction, walked over 700 feet and stepped almost immediately in front of a locomotive of the other railroad company, and was injured.</p>

<p>Practice, C. P. — Motion for judgment n. o. v. — Evidence.</p> <p>1. An assignment of error to the refusal of defendant’s motion for judgment non obstante veredicto will not be sustained where the material issue of fact was not so conclusively established at the trial by the testimony as to warrant the court in withdrawing the question from the jury by giving binding direction for the defendant.</p> <p>Contract — Building contract — Satisfaction of owner.</p> <p>2. In an action to recover a balance due on a contract for building stairs in a building operation, plaintiffs submitted a written offer to do the work for $544. Finding that they had made a mistake in their estimate they sent two days afterwards another written offer to do the work for $590. The defendant by letter agreed to accept the first offer to which he added the following words: “I hereby agree providing the said work is done properly and to my satisfaction, to pay the additional sum of $46.00.” The plaintiffs accepted the latter offer and agreed to do the work. Held, that the true construction of the writings was that it was only the obligation to pay the difference between the two offers, namely, $46.00, that was conditioned on the performance to the satisfaction of the defendant.</p>

<p>Appeal, No. 90, Oct. T., 1913, by defendant, from judgment of C. P. No. 2, Phila. Co., March T., 1913, No. 4,671, on verdict for plaintiff in case of Morris Schoenfeld v. Morris Fuhrman.</p> <p>Assumpsit to recover the amount of a check. Before Heydt, P. J., specially presiding.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $237.37. Defendant appealed.</p> <p>Error assigned was in refusing judgment for defendant n. o. v.</p>

<p>Appeal, No. 100, Oct. T., 1913, by plaintiff, from judgment of C. P. No. 5, Phila. Co., Dec. T., 1912, No. 2,115, sustaining demurrer to statement in case of Ford Chain Block and Manufacturing Company v. Estate of David M'. Hess, deceased, and Maurice Levy, Constable.</p> <p>Replevin to recover goods taken under distress of rent.</p> <p>The statement of claim contained, inter alia, the following averment:</p> <p>Plaintiff by defendant, “Estate of David M. Hess,” was induced under the conditions hereinafter set out to sign a written lease or agreement (copy of which is hereto attached and made • part of this statement), wherein and whereby the defendant, estate of David M. Hess, leased or rented the premises situate in the city of Philadelphia, known and numbered as 139 Oxford street, for- the term of three years from March 1, 1912. At the time and immediately prior to the execution of the lease for the said premises the defendant, estate of David M. Hess, and plaintiff, knowing the roof of the leased premises was in bad order and plaintiff refusing to sign lease unless the same was repaired, defendant, estate of David M. Hess, promised plaintiff if he would sign the lease, the roof of premises would be repaired at once. Whereupon plaintiff signed the lease upon the special promise and agreement aforesaid. Defendant, estate of David M. Hess, has from time to time neglected and refused to repair said roof and refused to allow plaintiff to repair and deduct from the rent whereby great damage has accrued to plaintiff by reason of their material, to wit, their iron blocks, chains, bars and machinery. The stock of plaintiff has been injured to the amount of $175. Plaintiff company is advised and informed, and therefore aver that at the time the representations in relation to the roof were made defendant, Hess estate, knew that said roof was not water-tight and would leak. Plaintiff relying upon the assurances and representations made by said defendant, estate of David M. Hess, and in consideration of the same, signed said lease and went into possession, placing therein their goods and chattels.</p> <p>The court sustained a demurrer to the statement.</p> <p>Error assigned was the judgment of the court.</p> <p>This case, plaintiff submits, is ruled by the case of Fairman v. Fluck, 5 Watts, 516.</p> <p>In replevin no set-off is allowable: Fairman v. Fluck, 5 Watts, 516; Peterson v. Haight, 3 Whart. 150; Macky v. Dillinger, 73 Pa. 85; Hardy Auto Co. v. Posey, 50 Pa. Superior Ct. 399.</p> <p>This rule has not been changed by the Replevin Procedure Act of April 19, 1901, P. L. 88 (4 Stew. Purd., pp. 4138 et seq.); National Cash Register Co. v. Cochran, 22 Pa. Superior Ct. 582.</p>

<p>Appeal, No. 104, Oct. T., 1913, by defendant, from judgment of C. P. No. 5, Phila. Co., March T., 1910, No. 3,266, on verdict for plaintiff in case of August Lutz v. Pennsylvania Laundry Company.</p> <p>Trespass to recover for loss of one-half of a party wall. Before Ralston, J.</p> <p>The court charged in part as follows:</p> <p>When a man owns a lot and wishes to build upon it he may put his wall half on his neighbor’s lot and half on his own. That is what is called a party wall, and in regard to that we have followed a very sensible and useful custom which was brought over here from London by William Penn, and it enables both lot owners to use one wall which is divided equally between them. The subject of party walls is now regulated by statute, and when a wall is built in that way by one owner, the adjoining owner is not bound to pay anything for it or contribute anything to the expense of building the wall until he uses it, and when he uses it, he is bound to pay half the cost of the wall — he is bound to pay for what he uses.</p> <p>The question in this case is whether the defendant used the plaintiff’s wall. It was a party wall, and the defendant built next to it, and if it used the wall for the purpose of its building it is bound to pay for what it used. The plaintiff’s claim, based upon the measurement of the official measurer, whose figures are not contradicted, is for $193.42. If you find from the testimony that the defendant when it built its building adjoining the plaintiff’s building, used the plaintiff’s wall, broke into or attached its building to it, then the plaintiff is entitled to recover. On the other hand, if you find that the defendant built entirely upon its own land and made no use of the wall, then the plaintiff is not entitled to be paid for it. That is the question in the case which you will decide from the testimony.</p> <p>I. “Under all the evidence of this case your verdict must be for the defendant.” Answer: Refused [1],</p> <p>4. “If the jury find that the wall of the plaintiff unlawfully encroaches upon the land of the defendant, and the defendant has not broken into or used the party wall of the plaintiff, you should find a verdict in favor of the defendant, and should certify in favor of the defendant the amount of damages it has sustained by the said encroachment of the plaintiff’s wall upon the land of the defendant from the twelfth day of July, 1906, to the date of the commencement of this suit.” Answer: Refused [2].</p> <p>Verdict and judgment for plaintiff for $236.74. Defendant appealed.</p> <p>Errors assigned were (1, 2) above instructions, quoting them.</p>

<p>Beneficial association — Fraud—Application—Death benefits — Marriage to two women.</p> <p>Where a person on applying for membership in a beneficial association is asked the question: “Are you married to more than one woman,” and replies: “No” and the by-laws of the association show that if he had answered the question: “Yes” he would not have been admitted, the question and answer are material, and if it appears after the death of such member, that at the time of his application he had been married to two women, no death benefits can be claimed from the association.</p>

<p>Appeal, No. 29, Oct. T., 1913, by plaintiff, from judgment of C. P. No. 2, Phila. Co., Sept. T., 1910, No. 1,885, for defendant n. o. v. in case of David Crumley v. Philadelphia Rapid Transit Company.</p> <p>Trespass to recover damages for personal injuries. Before Wiltbank, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict for-' plaintiff. Subsequently judgment was entered for defendant n. o. v.</p> <p>Error assigned was judgment for defendant n. o. v.</p>

<p>Affidavit of defense — Contract—Building contract — Practice, C. P.</p> <p>1. In an action to recover a balance claimed to be due on a contract in writing to rebuild a stable, an affidavit of defense is sufficient which avers that the defendant had purchased certain materials specified at a price stated, which it was the duty of the plaintiff to furnish, and that it had been agreed that such amount should be considered a credit on account of the contract price; and further that plaintiff had not performed the work in a good and workmanlike manner, but that one of the walls had been so badly built it was in danger of falling in and had to be supported by a block tackle even during the period of construction, and that defendant had remonstrated with plaintiff as to the character of the work, but that notwithstanding this, the wall had been finished in such an imperfect manner that it was four or five inches out of plumb and likely to fall in, and would entail the cost of a specified sum to rebuild it.</p> <p>2. In such a case where the plaintiff also claims to recover for extra labor and material alleged to have been furnished under a parol contract made subsequent to the written contract, an affidavit of defense is sufficient which flatly denies the making of any verbal contract or the furnishing of any extra work or materials, and avers that all of the said materials and labor had been necessarily furnished in the performance of the written contract.</p>

Appeal, No. 148, Oct. T., 1913, by defendant, from judgment of C. P. No. 1, Phila. Co., Sept. T., 1908, No. 856, on verdict for plaintiff in case of Deacon R. Taylor v. Philadelphia Rapid Transit Company. Trespass to recover damages for injuries to an automobile. Before Brégy, P. J. The facts are stated in the opinion of the Superior Court. Verdict for plaintiff for $912.54.

<p>Evidence — Books of account — Harmless error.</p> <p>1. In an action between two lumbermen engaged in cutting and logging timber the admission in evidence of slips and memoranda made by plaintiff’s sawyer, not properly books of account, is not ground for a reversal of the judgment in favor of the plaintiff, where it appears' that the sawyer testified positively in regard to all the work in question, and used the slips only to refresh his recollection in regard to the details of the work, and eleven employees of the plaintiff testified in such a way that all ambiguities in the slips and memoranda were explained to the jury.</p> <p>2. When parties dispute upon a question of pure fact and have joined issue and tried the question, the courts are not disposed to sustain fine technical objections which do not vitally affect the result.</p>

<p>Carriers — Common carriers — Conflict of laws — Pennsylvania and federal law.</p> <p>1. Where the consignor and consignee of a shipment by express are both residents of Pennsylvania, and the contract of shipment is made and is to be fully performed within the limits of this state, and the loss of the goods occurs in this state, the liability of the express company for damages is to be determined by the laws of Pennsylvania, and not by the laws of the United States.</p> <p>Carriers — Common carriers — Declaration as to value.</p> <p>2. In an action against an express company to recover for loss of a package of rings, a verdict for the full value of the rings will be sustained, although a limitation of liability to $50.00 appears in the receipt for the goods, where the.evidence shows that the rings were sent by a firm of jewelers in Philadelphia for inspection to plaintiff’s residence in a town in Pennsylvania; that the outside wrapper showed that the package came from jewelers and had been carried for'the sum of twenty-five cents; that in returning them plaintiff used the same box with new wrapping paper and addressed it to the same jewelry firm; that she took the package to the defendant’s agent, and showed him the original wrapping paper; that the agent asked her if she desired to fix the value of the package; that she replied that she did not, as no value had been fixed when it was sent to her, but that it was a valuable package; that the agent without further demand or inquiry received the package, accepted twenty-five cents from her, and gave her a receipt therefor, and that the package was subsequently lost through the negligence of the express company.</p>

<p>Negligence — Master and servant — Unsafe place to work — Demolition of building:</p> <p>In a personal injury case against a company engaged in the business of the demolition of buildings, a verdict and judgment for plaintiff will be sustained where the evidence for the plaintiff although contradicted tends to show that the taking down of the building in question was not done in a proper and customary way, that the plaintiff was a common laborer, unfamiliar with the work, that immediately before the accident he asked whether the place he was directed to go was safe, that defendant’s foreman assured him that it was safe, and that plaintiff relying upon the assurance proceeded with his work and was injured by the fall of a wall.</p>

<p>Appeal, No. 116, Oct. T., 1913, by defendant, from judgment of C. P. No. 2, Phila. Co., Sept. T., 1911, No. 4,075, on verdict for plaintiff in case of Sol. Lowenstein to use of Max Hirseh v. Johanna Michael, Executrix, and Leon Michael, Executor of the Estate of Samuel Michael, deceased.</p> <p>Assumpsit on a promissory note. Before Wiltbank, J.</p> <p>From the record it appeared that the defendant filed two affidavits of defense. The first was in general terms denying liability, and the second set up payment. No special notice was given as required by rule of court of any other defense.</p> <p>At the trial counsel for plaintiff offered in evidence the following note: “Philadelphia, June 10th, 1911. On demand I promise to pay to Sol. Lowenstein the sum of Eight hundred and forty-seven dollars and 85.100 ct. $847.85. Value received. (Endorsed) Sol. Lowenstein.”</p> <p>Objected to. Objection overruled. Exception noted for defendants. [3]</p> <p>Mr. Lewis: I offer to prove by the witness that this claim arises out of moneys alleged to be due the witness as profits in the business conducted under the name of Samuel Michael; that the witness on the stand made a sworn statement in a bill in equity filed by Max Hirsch against the same defendant, that this note for $847.85, the note in suit, was given as the proportionate share of profits belonging to him; to be followed up by proof that there were at that time no profits due him.</p> <p>Objected to. Objection sustained. Exception noted for defendants. [4]</p> <p>Mr. Lewis: I offer to prove by this witness on cross-examination, to inquire as to what the note was given for.</p> <p>Objected to. Objection sustained. Exception noted for defendants. [5]</p> <p>Mr, Lewis: I offer to prove the assignment of the witness’s claim to the use of the plaintiff, and to show that this claim arises out of alleged profits due the witness, which was the subject of the assignment, to be followed up by proof that there were no profits at the time this paper was given.</p> <p>Objected to. Objection sustained. Exception noted for defendants. [6]</p> <p>Jacob Sockett, sworn.</p> <p>Mr. Lewis: I offer to prove by this witness that he was a bookkeeper of the firm of Samuel Michael, the decedent, in which Lowenstein, the plaintiff in this case-</p> <p>The Court: This gentleman was bookkeeper in the lifetime of Mr. Michael, the decedent?</p> <p>Mr. Lewis: Yes, sir; and that he was bookkeeper at the time this paper was executed; that from his own knowledge and from the books of the concern, there were no profits due Mr. Lowenstein, the nominal plaintiff in this case.</p> <p>Objected to. Objection sustained. Exception noted for defendant. [7]</p> <p>Mr. Lewis: “Q. What was Mr. Lowenstein’s interest in that business? ”</p> <p>Objected to. Objection sustained. [8]</p> <p>The court charged as follows:</p> <p>[In this case I am of the opinion that the plaintiff should recover your verdict, and if in instructing you to find for plaintiff, as I now do, I err in any manner, it will be corrected later by the court in banc; you will, therefore, find a verdict for plaintiff for the amount stated by Mr. Oliensis.] [9]</p> <p>Errors assigned among others were (2-8) rulings on evidence, quoting the bill of exceptions, and (9) charge of the court, quoting it.</p> <p>The note was improperly admitted: Perkins v. Humes, 200 Pa. 235.</p> <p>The court below erred in rejecting the offers of evidence tending to show a substantial legal defense: Kamber v. Becker, 27 Pa. Superior Ct. 266; Sentinel Printing Co. v. Long, 28 Pa. Superior Ct. 608; Sherrard v. Johnston, 193 Pa. 166; Flegal v. Hoover, 156 Pa. 276; Taylor v. Beatty, 202 Pa. 120; Dawson v. Tibbs, 4 Yeates, 349; Falconer v. Smith, 18 Pa. 130; Heck v. Shener, 4 S. & R. 249; Harris v. Harris, 154 Pa. 501; Hessner v. Helm, 8 S. & R. 178; Geiger v. Cook, 3 W. & S. 266; Wilson v. Wilson, 2 Pittsburg, 201.</p> <p>The note was properly admitted: Dixon v. Sturgeon, 6 S. & R. 25; Reakirt v. Flanagan, 6 Pa. Dist. Rep. 402; Helffrich v. Greenberg, 206 Pa. 516.</p> <p>In an action of account stated, mistake or incorrectness of the account must be pleaded specially or, where notice has been substituted by law for special pleading, as in this state, by pleading generally and giving notice of the special matter: Dunlap v. Miles, 4 Yeates, 366; Hendy v. March, 75 Cal. 566; Barker v. Hoff, 52 How. Pr. (N. Y. Sup. Ct.) 382; Anthony v. Day, 52 How. Pr. (N. Y. Sup. Ct.) 35; St. Louis Lager Beer Bottling Co. v. Nat. Bank, 8 Colo. 70; Taylor v. Coryell, 12 S. & R. 243; Robinson v. Dawson, 2 W. N. C. 185.</p>

<p>Appeal, No. 130, Oct. T., 1913, by defendant, from judgment of C. P. No. 3, Phila. Co., June T., 1912, No. 2,784, on verdict for plaintiff in case of William Spittall v. J. Frank Allee.</p> <p>Assumpsit on a promissory note. Before Ferguson, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $1,261.81. Defendant appealed.</p> <p>Errors assigned were various rulings on evidence and instructions.</p> <p>A written receipt or agreement of sale cannot be varied or contradicted by parol evidence, there being no allegation of fraud, accident or mistake: Becker v. Second Active Bldg. Assn, 239 Pa. 590; Hatfield v. Thomas Iron Co., 208 Pa. 478; Lowry v. Roy, 238 Pa. 9; Spritzer v. Penna. R. R. Co., 226 Pag. 166; Wallace v. Steele, 228 Pa. 70; Armour v. U. S. Express Co., 52 Pa. Superior Ct. 329.</p> <p>The right to give evidence of all the facts that took place at the time a receipt is signed is abundantly fortified by decided cases: Batdorf v. Albert, 59 Pa. 59; Jessop v. Ivory, 172 Pa. 44; Gregory v. Huslander, 227 Pa. 607; Horton’s Appeal, 38 Pa. 294; Shoemaker v. Stiles, 102 Pa. 549.</p>

<p>Appeal, No. 45, Oct. T., 1913, by plaintiff, from judgment of C. P. No. 1, Phila. Co., Dec. T., 1909, No. 2,653 on verdict for defendant in case of John H. Law and George W. Law, Copartners trading as Law Brothers, Trustees for the Royal Insurance Company, Limited, of Liverpool, England, v. Alfred W. Waldron.</p> <p>Assumpsit for commissions. Before Magill, J.</p> <p>■ The facts appear by the opinion of the Superior Court, and by the report of the case of Law v. Waldron, 230 Pa. 458.</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Errqr assigned was in directing a verdict for defendant.</p> <p>cited: Louchheim v. Weighing Co., 12 Pa. Superior Ct. 55; People v. Globe Mut. Life Ins. Co., 91 N. Y. 174; Bosler v. Bank, 4 Pa. 32; Law v. Waldron, 230 Pa. 458; Treat v. Life Ins. Co., 199 Pa. 326; Singerly v. Fox, 75 Pa. 112; Spader v. Mfg. Co., 47 N. J. Eq. 18.</p> <p>cited: Pierson v. Krause, 208 Pa. 115; Light v. Leininger, 8 Pa. 403.</p>

<p>Bailment — Conditional sale — Lease of machine-^-Passing title.</p> <p>An instrument in writing is to be construed as a bailment and not a conditional sale, where the instrument on its face is called a lease, and its provisions are that the lessee is to have the use of a patented machine for two years from a date designated, that he is to pay a certain sum in monthly installments, “until the machines are paid for as herein specified,” that in default of payments the lessor may distrain for the rent or declare the lease at an end, but without any provision that the lessee may become the owner of the machine after paying the installments or rent.</p>