Volume 57 — Pennsylvania Superior Court Reports

Appeal, No. 181, Oct. T., 1913, by plaintiff, from decree of C. P. Bradford Co., May T., 1912, No. 297, refusing divorce in case of George R. Hill v. Mabel Snow Hill. Libel for divorce. Before Whitehead, P. J., specially presiding.

<p>Negligence — Reckless shooting of firearms — Case for jury.</p> <p>In an action by a girl to recover damages for the loss of an eye caused by the alleged careless firing of a rifle, the case is for the jury, and a verdict and judgment for plaintiff will be sustained where the evidence tends to show that the defendant was familiar with the use of the rifle, that the weapon in question carried from a mile to a mile and a half, that the defendant fired the gun from the window of his father’s house to frighten some boys stoning an apple tree in the orchard, that the plaintiff was struck while walking with other girls along a lane on the farm of defendant’s father, much frequented by the public without objection by the owner of the land, and it is fairly deducible from the evidence that the ball was shot in the direction of the girls, or if not, was deflected towards them by striking some obstruction in its course.</p>

<p>Boroughs — Ordinances—Approval of burgess — Contract.</p> <p>1. Where a firm of engineers have a valid contract with a borough (1) to do routine engineering work on streets and sewers at a stated salary per year; (2) to construct a disposal plant at a certain percentage on the cost, and (3) other construction work at a certain percentage for plans, engineering and superintending construction, and during the course of the year the borough council passes a resolution not approved by the burgess for the construction of a thoroughfare at a large cost, the engineering firm cannot recover from the borough compensation for the preparation of the plans and specifications for the thoroughfare, inasmuch as the resolution unapproved by the burgess is invalid under the Act of May 23, 1893, P. L. 113.</p> <p>2. In such a case the resolution providing for the expenditure of a large sum of money and involving the defining of street lines the condemnation or purchase of land is legislative and not ministerial in character, and must therefore be approved by the burgess.</p>

<p>Negligence — Municipalities—Defective water pipe.</p> <p>1. Where by reason of a faulty construction of a line of water pipe, or because after construction such pipe becomes out of repair, a leak results causing damage, the municipality is liable if it fails to exercise such diligence and care as ordinary prudence would require under the circumstances after notice, actual or constructive, of the defect.</p> <p>2. In an action against a city to recover for injuries to a house alleged to have resulted from a break in a water pipe, the case is for the jury where the plaintiff produces evidence tending to show that the street had settled at or near the place where the break occurred; that irregularities and depressions existed in the surface sufficient to create the impression that a defect existed in the water main; that the street was in a wet condition at this point, and had so continued for a long time; that after the repair of the pipe the wet condition was not observed; and that in the opinion of a mechanical engineer called by the plaintiff the fracture in the pipe.was an old one from which the water had been leaking for a long time. Such evidence makes out a prima facie case for the plaintiff, and is sufficient to put the city on proof.</p>

<p>Appeal, No. 18, March T., 1914, by defendant, from judgment of Q. S. Susquehanna Co., Aug. T., 1913, No. 12, on verdict of guilty in case of Commonwealth v. F. W. Dean.</p> <p>Indictment for assault and battery. Before New-comb, J.</p> <p>From the record it appeared that the prosecutor L. G. Crouse was assaulted by the defendant on April 26, 1913. At the time of the occurrence Crouse was in the employ of the Delaware, Lackawanna & Western Railway Company in doing- certain construction work on the land of defendant’s wife, which had been taken by the railroad company in condemnation proceedings. The defendant objected to the work, and in interfering with it assaulted Crouse. The latter swore out a warrant before C. M. Shelp, a justice of the peace, who had been a witness for the railroad company in condemnation proceedings, and prior to such proceedings had endeavored to secure amicably a right of way through the land in question.</p> <p>The court overruled motions to quash the indictment, based upon the disqualification of Crouse and Shelp, and at the trial a verdict of guilty was rendered. Dean was. sentenced to pay the costs of prosecution.</p> <p>Errors assigned were in refusing to quash the indictments and in sentencing the defendant.</p>

<p>Appeal, No. 21, March T., 1914, by plaintiff, from judgment of C. P. Lackawanna Co., Oct. T., 1911, No. 216, on verdict for defendant in case of Mary Durkin v. Margaret T. Lamond.</p> <p>Ejectment for a strip of land in the city of Scranton. Before O’Neill, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>At the trial the following receipts offered by the defendant were admitted under objection and exception.</p> <p>“Sold to Patrick Lamond, 431 Phelps street, 1907, September 30, being a bill of lumber amounting to $21.05. Stamped paid October 4, 1907. Price & Howarth, per Wage.” [5]</p> <p>“Scranton, Pa., June 19, 1905. Received of Patrick Lamond in full for stone, cement and sand and stone and labor — in wall in front of house on Phelps Street, Scranton, and flagstone and coping. George Lowry.” [7]</p> <p>The court admitted under objection and exception the defendant’s tax receipts for the years 1905-1908. [8, 9]</p> <p>When F. O. Stone, a witness for defendant, was on the stand he was asked this question:</p> <p>“Q. From what data did you start to make your survey of the Lamond lot? A. I had a copy or had Mrs. Lamond’s deed from which I took the description, and then I simply went around and located her corners there were on the ground and located the house. Q. How do the dimensions of the lot as found inclosed or partially inclosed by fences as you found it correspond or compare with the description in the Lamond deed from John Caffery?”</p> <p>Mr. Watson. We object to that as irrelevant and immaterial.</p> <p>The Court. Objection overruled.</p> <p>Exception noted for the plaintiff. [13]</p> <p>Mr. Hoban: “Q. What is your answer. A. This deed of Mrs. Lamond’s calls for 32.25 feet in front, which is practically what we found upon the ground; the depth was a little greater. Q. The depth of the lot? A. Yes, but the rear fence line overran about a tenth of a foot. Q. From your draft can you state how far this projected red line west of the Lamond house is from the house itself? A. In the rear of the lot, or the rear house rather, where the fence joins the house there was a distance from the body of the house to the fence of about 1.6 feet, which was practically the edge of the eaves of the building. Q. And about how far was the distance between the projected red line and the front part of the side of the house? A. The length of the house was 41.7 feet.”</p> <p>The court charged in part as follow:</p> <p>[The answer of the defendant is, that it is true a fence was erected in 1907, but that as a matter of fact it was erected upon the old post line and upon the exact line as it had existed before that. You have heard the testimony of the defendant, also the testimony of Mr. Macker who was engaged in the erection of part of the fence. Some point is made, of course, that this fence so erected was done at, the instance and direction of the plaintiff herself, but that wouldn’t necessarily debar her from bringing an action if, as a matter of fact, a mistake had been made by the carpenter in erecting' the posts. The defendant also says that she is in possession of only approximately the exact number • of feet that her deed calls for, something like thirty-two feet in front, that they erected a wall there in 1905, and that wall is still there. This would be a circumstance for you to consider as to whether or not it did not indicate the possession of the land claimed for, from the front to the rear of the lot — not necessarily so, but it is a circumstance for you to consider. Also the circumstance that the land described in the writ here and for which this action is brought, if the case were won by the plaintiff, would run very close to the house of the defendant that had admittedly been standing there for thirty years; that is also a circumstance as to the condition of affairs before the building of this fence in 1907.] [1]</p> <p>[There is no dispute between these parties that Mary Durkin owned a tract of land, on the one hand, and that Margaret T. Lamond owned a tract of land, on the other; it is this narrow strip between, that is in dispute. It is true that regardless of the lines or the description in the deed, if a person has been in lawful possession, adverse, notorious and open against the whole world for twenty-one years, it is of no consequence what deeds, or of little consequence at least, may say with regard to this proposed tract of land. It is a question of fact as I view it at present, and it is for you to consider which of these stories is the more reasonable and proper under all the circumstances, taking all the testimony into consideration.] [2]</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned among others were (1, 2) above instructions, quoting them (5, 7, 8, 9-13) rulings on evidence, quoting the bill of exceptions.</p>

<p>Appeal, No. 143, Oct. T., 1913, by defendant, from judgment of Q. S. Phila. Co., April T., 1910, No. 501, on verdict of guilty in case of Commonwealth v. Morris Goodstein.</p> <p>Indictment for receiving and disposing of goods to defraud creditors. Before Trexler, P. J., specially presiding.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict of guilty, upon which judgment of sentence was passed.</p> <p>Error assigned among others was (10) ruling on evidence, quoted in the opinion of the Superior Court.</p>

<p>Promissory notes — Rights of indorser — Surrender of collateral to maker —Subrogation.</p> <p>When the maker of a promissory note indorsed for accommodation by a third party, delivers to the holder of the note property or security of the maker as collateral security for the debt represented by the note, and thereafter, without the knowledge or consent of the indorser, the holder surrenders and returns to the maker the collateral so held, the indorser is relieved from liability on the note to the holder.</p>

<p>Contempt of court — Tampering with jurymen — Embracery—Fine.</p> <p>1. Where, in an action against a railway company, twenty men are called into the jury box, from whom twelve are to be selected, but the jurors are not selected and sworn until the following day, and in the meantime an employee of the railroad company approaches one of the jurymen who was an intimate friend, and tells him that if he can do anything for the railway company “it will be appreciated,” the person approaching the juror may be fined for contempt of court; and in such a case the fine of $1,000 will not be reversed by the appellate court, although the offender may be convicted and sentenced for embracery under the Act of March 31, 1860, P. L. 382.</p> <p>2. The findings of a judge in a proceeding for contempt will not be reversed where there is evidence to support them, and there is no manifest error.</p>

<p>Appeal, No. 2, Feb. T., 1914, by defendant, from judgment of C. P. Sullivan Co., Feb. T., 1912, No. 12, on verdict for plaintiff in case of William Shaffer, Executor of John U. Hartzig, deceased, v. Julius Bahr.</p> <p>Assumpsit for money alleged to have been loaned to the defendant. Before Terry, P. J.</p> <p>At the trial the plaintiff testified that the money was not loaned to him, but was a gift to his wife. He offered to show that nine days after the alleged gift his wife had loaned him $800 of the money, and he had given her a judgment note for that sum, which had been entered up. The court overruled the offers. Exception [1, 2].</p> <p>The court charged in part as follows:</p> <p>[We repeat that if you find from the testimony in the case, and such is your conclusion after considering all of it, that the plaintiff gave this money to Mrs. Bahr, he cannot recover, and your verdict should be for the defendant. If, however, after considering the testimony, your conclusion is that the plaintiff loaned this $1,000 to the defendant, as alleged by him, then the plaintiff is entitled to recover.] [3]</p> <p>Defendant presented these points:</p> <p>3. The transaction as claimed by plaintiff in this suit is so unusual, so contrary to the common experience of men in business dealings of this kind, that the jury should scan it carefully before accepting it as true. It is flatly contradicted by the defendant and his wife, and indirectly contradicted by other evidence in the case, and is not corroborated by any evidence in the case. Answer: This point is not affirmed. We cannot say, as a matter of law, that it is contrary to common experience that men will not loan money without taking a note. Whether the transaction as claimed by plaintiff was unusual is for you to say. You should, however, scan the evidence carefully before accepting the contention of the plaintiff as true, and consider all the evidence in the case carefully. It is for you to determine what the contradictions in the case are. [4]</p> <p>4. If the jury find from the evidence that the plaintiff, before this transaction took place, stated to Gabriel Leitzelman that he intended making a gift of* this money to Mrs. Bahr, the wife of defendant, and that he stated to Charles Yonkin during the fall of 1911, that defendant owed him $90.00, these statements would justify the jury in coming to the conclusion that this $1,000 was not loaned to defendant as claimed by the plaintiff, but, on the contrary, was a gift to Mrs. Bahr, as alleged by the defendant. Answer: This point is not affirmed. This testimony, however, should be considered with other evidence in the case in order to determine whether the money was a gift to Mrs. Bahr or not. [5]</p> <p>Verdict and judgment for plaintiff for $1,047. Defendant appealed.</p> <p>Errors assigned were (1, 2) rulings on evidence, quoting the bill of exceptions; (2-5) above instructions, quoting them; (6-9) refusal of new trial on the ground of improper conduct of jurymen.</p>

<p>Taxation — Unseated lands — Assessment and levy — Tax sale — Acts of April 8,1804, 4 Sm. L. 201, March 18,1815, 6 Sm. L. 299, April 15, 1834, P. L. 509, June 6,1887, P. L. 868, and June 4,1901, P. L. 864.</p> <p>1. To sustain a tax title for unseated lands there must be an assessment, a tax lawfully levied, the tax must be due and unpaid for one year, a regularly conducted sale, and no redemption.</p> <p>2. Whenever an assessment for taxes against unseated land has been properly made and returned into the county commissioner’s office, and the rate fixed by the county commissioners, the taxes become due, and if, from the date of the return of the assessment and the levy, there has been one whole year prior to the sale by the county treasurer, such sale is good and vests a legal title in the purchaser.</p> <p>3. The placing of a tax duplicate in the county treasurer’s hands does not fix the time when the taxes become due and payable. It is the assessment that makes the tax, and when assessed they are due and payable. The word “collectible” used in the Act of June 6,1887, P. L. 363, does not change the time when a tax becomes due and payable.</p>

<p>Master and servant — Discharge from employment — Affidavit of defense.</p> <p>1. Where a defendant seeks to set off a counterclaim for damages arising from an alleged wrongful discharge from employment, an affidavit of defense to be sufficient must aver the conditions of the contract of employment, the services to be performed and a fixed term of employment.</p> <p>2. An affidavit of defense which sets up an employment of defendant by plaintiff’s agent and a wrongful discharge from such employment is insufficient if it does not also set forth the date on which the defendant’s employment was to begin, the authority of the agent who employed him, the time within which he was to work, or the length of time that' he did work, and the precise services which he was to render, and the actual performances of such services.</p> <p>Mortgage — Scire facias — Suit by assignee — -Affidavit of defense.</p> <p>3. On a scire facias sur mortgage brought in the name of the assignee of the mortgage, an affidavit of defense is insufficient which avers that there was no right of action in the assignee, and denies that there had been a legal assignment of the mortgage. Such statements without more are mere conclusions of law.</p>

<p>Appeal, No. 138, Oct. T., 1913, by plaintiff, from judgment of C. P. No. 4, Phila. Co., Dec. T., 1909, No. 3,931, for defendant non obstante veredicto in case of Michael Moldawer v. Trust Company of North America.</p> <p>Assumpsit to recover for the value of a promissory note. Before Willson, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>At the trial the jury returned a verdict for plaintiff for $350. Subsequently the court entered judgment for defendant n. o. v.</p> <p>Error assigned was in entering judgment for defendant n. o. v.</p>

<p>Negligence — Pollution of stream — Personal injuries — Case for jury.</p> <p>1. In an aetiou by an employee of a bridge contractor against the proprietors of a paper mill to recover damages for personal injuries, the case is for the jury where the evidence tends to show that the plaintiff at the time the injuries were sustained was working in a shallow stream below the defendants’ mill; that acids had escaped from the mill, and came in contact and burnt the plaintiff’s person; and that although boots were provided for plaintiff he had no information of any danger, other than that from wet feet, if he failed to use them.</p> <p>2. In such a case evidence as to the quality of the water in the stream is admissible although referring to other occasions than the one on which the plaintiff was injured, if it appears that the defendants testified that no liquid of any kind of a harmful character was discharged from the mill into the stream.</p>

<p>Appeal, No. 220, Oct. T., 1913, by plaintiff, from order of C. P. No. 3, Phila. Co., Dec. T., 1912, No. 5,414, discharging rule for judgment for want of a sufficient affidavit of defense in case of William H. Chambers v. Pelican Mutual Life Insurance Company.</p> <p>Assumpsit on a certificate issued by a mutual life insurance company.</p> <p>The certificate in suit was as follows:</p> <p>Number Class</p> <p>12099. G.</p> <p>Pelican Mutual Life Charter Perpetual Insurance Company.</p> <p>Age 47. Incorporated in Pennsylvania. Grade G.</p> <p>“This is to certify, that William H. Chambers,, of 1310 Green St., Phila., Pa., has been enrolled a member of class G of the Pelican Mutual Life Insurance Co., and has subscribed to its guarantee fund in the sum of</p> <p>One Thousand Dollars</p> <p>which will be returnable in cash, in addition to the distribution value and the accumulations thereon, when 120 consecutive monthly payments of $6.83 each for the guarantiee and general funds of The Pelican Mutual Life Insurance Co., have been made on or before the twelfth day of this month and each month thereafter; and, if the death of the above member should occur prior to all the payments on this subscription, his or her heirs or executors will receive from the general Fund of the Pelican Mutual Life Insurance Co., the sum of $260, and the return of all the above payments made to ■ the guarantee fund in excess thereof, and with the accumulations thereon.</p> <p>Subject to the following Terms and Conditions</p> <p>H: ‡ ‡ ‡ ‡ ‡ ‡</p> <p>“Third. — Maturity.—All subscriptions to the Guarantee Fund are returnable, in the order of subscription, from the Guarantee Fund only; and, in the event of nonpayment of monthly dues after one year from the date hereof, the subscription will be paid up for its then value, maturing in cash in the order of application after the full-paid subscriptions, or its paid-up value may be converted into and credited as payments on any other form of certificate of membership in the Company, as approved by the Board of Directors.”</p> <p>■ The defendant filed an affidavit of defense, the material portions of which were as follows:</p> <p>The defendant company is a corporation chartered under the laws of the state of Pennsylvania, doing a life insurance business on the mutual or assessment plan; it has no capital stock, and is governed entirely by its members. It has a guarantee fund, the subscribers to which receive six per cent cumulative interest certificates for the amount subscribed, when actually paid in cash.</p> <p>Under the laws of the state of Pennsylvania, subscribers to the guarantee fund can only be repaid whenever the lawfully invested assets of such company shall exceed the reinsurance reserve and other liabilities to an amount equal to the amount of the guarantee fund subscribed, and then only at the option of the directors (Act of May 1, 1876, P. L. 53, sec. 24, P. & L. Dig. 2356, etc.) copy of which is hereto annexed, marked exhibit “Y.”</p> <p>That on or about December 9, 1902, the plaintiff, William H. Chambers, subscribed to the said guarantee fund, a copy of the said subscription being hereto annexed, marked exhibit “Z.”</p> <p>That in accordance with the said subscription, the defendant company gave the plaintiff a bond or contract wherein the defendant agreed to return to the plaintiff the amount paid by him, together with interest, in accordance with the terms and conditions set forth in the said bond or contract and subject to the laws of the state of Pennsylvania in such case made and provided. A copy of the said bond or contract is attached to the plaintiff’s statement of claim marked exhibit “B.”</p> <p>That the defendant company admits that the plaintiff paid the installments, as specified in the said contract, amounting together to $819.60, and of this amount the sum of $99.60 (eighty-three cents per month) was applied to the general fund of the company for the mortuary insurance in connection with the plaintiff’s bond, and the balance, $720 ($6.00 per month), was charged to the guarantee fund of the company.</p> <p>That on or about December 10, 1912, the plaintiff, having completed his payments as above set forth, was offered by the defendant company a paid up subscription certificate for forty shares of the guarantee fund of the said company of the value of $25.00 per share, and was also informed that the said shares could not be cashed at the present time.</p> <p>That the plaintiff refused to accept the said certificate, although the defendant company is anxious and willing to deliver the same in accordance with its agreements. A copy of the defendant’s letter wherein the said offer is contained is attached to the plaintiff’s statement of claim marked exhibit “D.”</p> <p>That the subscriptions to the guarantee fund of the defendant company amount to $60,800, all of which are prior to the plaintiff’s subscription and are entitled to payment prior to the plaintiff.</p> <p>That the surplus assets of the defendant company are now $18,768, and the defendant is advised and believes, and therefore avers, that it would be unlawful to pay the plaintiff (or any of the other subscribers to the guarantee fund) the amount of his subscription at this time.</p> <p>The court discharged the rule for judgment for want of a sufficient affidavit of defense.</p> <p>Error assigned was the order of the court.</p>

<p>Negligence — Municipalities—Defective sidewalk — Contributory negligence — Man on crutches.</p> <p>A boy seventeen years old compelled at the time to use crutches cannot be charged, as a matter of law, with contributory negligence in going over a hole of considerable size in a defective sidewalk, where it ' appears that he knew of the hole, that he had gone over it before, that he did all in his power to avoid injury, and the evidence as to an alternative route is conflicting.</p>

<p>Appeal, No. 107, Oct. T., 1913, by plaintiff, from order of C. P. Northampton Co., April T., 1911, No. 46^2, refusing to take off nonsuit in ease of Jesse Oyer v. Ellen Applegate.</p> <p>Assumpsit for breach of a contract to erect a store building. Before Stewart, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was refusal to take off nonsuit.</p>

<p>Appeal, No. 6, Feb. T., 1914, by defendant, from judgment of C. P. Tioga Co., Sept. Term, 1909, No. 266, for plaintiff on case tried by the court without a jury in case of The Johnston Harvester Company v. J. H. Burch.</p> <p>Replevin for a binding machine.</p> <p>The case was tried by the court without a jury under the act of April 22, 1874.</p> <p>Cámeron, P. J., found the facts to be as follows:</p> <p>On June 1, 1909, W. 0. Curtis and C. L. Vaughn, agents of the plaintiff company, called on one Burt Leach at his residence on his farm in Troupsburg, in the state of New York, for the purpose of selling him a binder. On that day, he signed an order for the “Bonnie binder” in question. A copy of the pertinent parts of the order are as follows:</p> <p>“June 1, 1909, The Johnston Harvester Co.: Please ship me at once with freight from Knoxville, Pa., the .machine specified below. 1 Bonnie binder 6. Price 130.00; 1 tank, 1 carrier.</p> <p>“For which I agree upon demand to make settlement in cash or notes as follows:</p> <p>“One note $30.00 due Jan. 1st, 1910.</p> <p>“One note $50.00 due Dec. 1st, 1910.</p> <p>“One note $50.00 due Dec. 1st, 1911.</p> <p>“All interest at 6 per cent, per annum from Oct. 1st, 1909.</p> <p>“It is stipulated and agreed that the title to the above ordered machine or machines shall remain in the Johnston Harvester Company untiL fully settled for. Each machine warranted as upon back of this order, a copy of which I have received.</p> <p>“(Signed) Burt Leach, Purchaser.”</p> <p>The shipping directions are as follows:</p> <p>“Name; Burt Leach. P. O., Woodhull, state N. Y. R. R. station, Knoxville, Pa. How.to ship, in car, R. R.</p> <p>“Traveling salesman, C. L. Vaughn.”</p> <p>In pursuance of the order the property in question was shipped to Burt Leach from Elmira, New York, June 10, 1909, and reached Knoxville, June 11, 1909, over the Buffalo & Susquehanna Railroad, from Addison, N. Y., to Knoxville, Pennsylvania.</p> <p>[At the time the order was signed and delivered and as an inducement to the giving thereof the plaintiff’s agents agreed] [3J^] [that Burt Leach might cancel the order at any time before August 1, 1909. They told him that if he would sign the order they would give him the privilege of canceling it if he wrote them before August 1.] [4] When he was notified that the binder was at Knoxville he telephoned Mr. Curtis he would not take it; he would not have it crowded on him till he knew whether or not his crop would pay for it. Some time in July, after talking with Mr. Curtis, he concluded to take the binder and sent a man to Knoxville after it. The station agent refused to let. the man have it until a charge of $2.00 for storage was paid; this Mr. Leach refused to pay and telephoned Mr. Curtis that, as there were to be no charges, he would not take the binder; Mr. Curtis telephoned back that he would call in a few days. He did call, and asked Mr. Leach if he had decided not to take the binder, and Mr. Leach replied that he would not take it. He was asked and answered:</p> <p>“Q. What further was said? A. Mr. Curtis then said he had a place to use the machine; afterwards he would order me another one if I wanted it — that he would order me another one at any time.”</p> <p>He never ordered another machine of the plaintiff. He never used the machine in question; it never was tried on his place, and never was on his place; [he never had possession of it physical or constructive.] [5] [He refused to take it and rescinded the order.] [6] [Mr. Curtis, who, with C. L. Vaughn took the order, recognized his right so to do and took possession of it for the company plaintiff. He paid the charges due the Buffalo & Susquehanna Railroad and had the machine moved about a mile to Mr. Woodberry’s barn and paid the man who moved it. In this behalf, acting for the plaintiff by direction of Mr. Near, the district manager, under whom both he and Mr. Vaughn operated.] [7] While the binder was in Mr. Woodberry’s barn the defendant by proceedings in foreign attachment seized and sold it as the property of Burt Leach, purchased it at the sale and took possession of it. Before the sale and after the seizure as aforesaid Mr. Leach at the request of Mr. Curtis notified the defendant that the binder did not belong to him, but was the property of the Johnston Harvester Company, the plaintiff in this action.</p> <p>The market value of the binder at the time the writ of replevin was served was $130</p> <p>The court entered judgment for plaintiff.</p> <p>Error assigned was in entering judgment for plaintiff.</p>

<p>Negligence — Boroughs—Fright of horse — Proximate cause.</p> <p>1. In an action against a borough to recover damages for personal injuries resulting from a horse taking fright at a cow tethered in a street of the borough, there is no ease for the jury where it appears that after the fright caused by the cow, the horse became perfectly calm and still, and only took fright again after a burst of thunder. In such a case the tethered cow in the street was not the proximate cause of the accident.</p> <p>Constitutional law — Trial by jury — Act of April 22,1905, P. L. 286.</p> <p>2. The Act of April 22,1905, P. L. 286, which provides for the entry of judgment upon the whole record whenever a request for binding instructions has been reserved or delivered by the trial judge, is not a contravention of the right of trial by jury and is constitutional.</p>

<p>Appeals — Assignments of error — Refusal to answer points — Nonsuit.</p> <p>1. Assignments of error complaining that the court below neither affirmed nor denied a number of points submitted, cannot be considered where there is nothing on the record to show that any points were submitted at the trial.</p> <p>2. The refusal to enter a compulsory nonsuit is not assignable for error.</p> <p>3. An assignment of error will not be considered which embraces more than one point, refers to more than one bill of exceptions, or raises more than one distinct question.</p> <p>Sale — Misrepresentations—Warranty—Horse—Question for jury.</p> <p>4. In an action of trespass in the nature of deceit to recover damages from the vendor of a horse, the case is for the jury where the plaintiff’s testimony, although contradicted, tends to show that the defendant had guaranteed the horse to be all right in every particular, but as a matter of fact the horse was dangerous and kicked and was known as a kicker before the defendant became her owner, and that the defendant knew of this bad habit of the horse.</p>

<p>Election law — Primary elections — •Expenses—Account—Petition for audit — Construction of statute — Act of March 6, 1906, P. L. 78.</p> <p>1. Under the Act of March 5, 1906, P. L. 78, which provides that “within twenty days after the last day for the filing of any account required by this act, any five electors of the state .... may present a petition in a court of quarter sessions of the county in which the office where such account has been filed, is situated, praying for an audit of such account,” the filing of a petition for audit with the clerk of the court of quarter sessions, the court not being in session, is a sufficient presentation of the petition to give the court jurisdiction over it.</p> <p>2. As the purpose of the Act of March 5,1906, P. L. 78, was to give a more comprehensive remedy to prevent the corruption of voters, the act is remedial legislation and calls for a liberal construction so as to give effect to the legislative intent.</p> <p>3. In the construction of statutes an interpretation is never to be adopted that would defeat the purpose of the enactment, if any other reasonable construction can be found which its language fairly bears.</p>

Appeal, No. 13, March 'T., 1914, by defendant, from judgment of C. P. Luzerne Co., March T., 1911, No. 288, on verdict for plaintiff in case of Wilkes-Barre Automobile Company v. Emil Malinowski. Held: liable. Defendant’s ownership would naturally enhance almost to the point of demonstration, the probability of the inference that he was contracting for himself. It was clearly a question of fact for the jury on a conflict of evidence, and in our judgment was properly decided.

Appeal, No. 234, Oct. T., 1913, by plaintiff, from order of C. P. No. 5, Phila. Co., Dec. Term, 1912, No. 439, refusing divorce in case of Herbert Stell Litzenberg v. Margaret Elizabeth Litzenberg. Libel for divorce. Exceptions to master’s report.

<p>Criminal law — Conspiracy—Evidence—Fraud, of officers of beneficial association.</p> <p>1. On the trial of an indictment of the officers of a beneficial association for the fraudulent manipulation of the funds of the association, the commonwealth is not concluded by the testimony of one of the parties to the transaction called by the commonwealth to the effect that the transaction in question was not unlawful; and the conviction of the defendants will not be set aside because of such testimony.</p> <p>2. On the trial of such an indictment it is not error to refuse to admit oral testimony of the opinion of an attorney as to the legality of the transaction where the opinion of the attorney was in writing; nor is it error to refuse to permit one of the defendants to testify that the commissioner of insurance of the state of Ohio regarded the transaction as legitimate.</p> <p>3. On the trial of an indictment for conspiracy charging the officers of a beneficial association with having entered into a combination with strangers to turn over the assets of the corporation of the latter in such a way that the assets might be embezzled, the commonwealth may show that certain of the assets were paid over to the defendants. In such a case it is not error to exclude a question on cross-examination as to whether a witness had been informed that certain of the defendants had paid back the money they had received. Such a question is mere hearsay, and not proper cross-examination.</p>

<p>Appeal, No. 28, March T., 1914, by defendants, from order of C. P. Luzerne Co., March T., 1913, No. 62, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Joe Shilanski v. J. C. and W. L. Farrell.</p> <p>Assumpsit to recover back purchase money of real estate.</p> <p>From the record it appeared that on March 7, 1910, the plaintiff entered into an agreement with the defendants whereby he agreed to buy from defendants and defendants agreed to sell to plaintiff two lots of land, the price of which lots was to be $300, payable as follows: $25.00 cash down to be paid on execution of the agreement and $10.00 on the seventh day of each and every month thereafter until the whole of the said sum of $300 was paid in full.</p> <p>The agreement also contained the clause, “And it is expressly understood and agreed, that the payment of the said instalments, as the same severally fall due, is made material; and the failure to pay any one of them on the day the same falls due shall be an absolute forfeiture of this contract and the said parties of the first part, their heirs, executors, administrators or assigns, shall thereupon have the right to re-enter and repossess the said lot of land with the appurtenances. Time, therefore, in reference to each and every one of the payments as above stated being hereby expressly made material, a failure to pay in accordance with the dates as fixed and agreed upon above, shall work an absolute and unconditional forfeiture of this contract.”</p> <p>The agreement contained a further clause as follows: “And it is further agreed, that the said party of the second part shall enter'into an amicable action of ejectment for the said lots of land, in which there shall be a confession of judgment in favor of the parties of the first part; and that upon the failure of the party of the second part, his heirs, executors, administrators, or assigns, or either of them, of such failure, filed with such amicable action of ejectment, accompanied by the affidavit aforesaid, issue a habere facias possessionem, and take immediate possession of the said lots of land, with the appurtenances. And in case of the death of the said parties of the first part, or any of them, or the sale by them, or any of them, or of the assigns of them or any of them, may be substituted in said amicable ejectment and judgment thereon entered as fully and with like effect as if the proceedings were in the name of the parties of the first part. And the said party of the second part hereby releases all errors and waives all appeals, exceptions, or objections to any proceedings under said amicable ejectment taken upon failure to pay any installment as aforesaid.”</p> <p>There was actually paid by the plaintiff to the defendants on the dates mentioned below, the following amounts:</p> <p>March 5, 1910...........................$25.00</p> <p>April 13, 1910............................ 20.00</p> <p>June 2, 1910............................. 10.00</p> <p>July 18, 1910............................ 15.00</p> <p>September 1, 1910..................... 10.00</p> <p>September 30, 1910....................... 10.00</p> <p>October 29, 1910. . . :..................... 10.00</p> <p>December 1, 1910'........................ 10.00</p> <p>February 23, 1911...................... 10.00</p> <p>June 10, 1912............................ 30.00</p> <p>Total................................$150.00</p> <p>On November 9, 1912, the defendant sold lots to another person for $300.</p> <p>The defendants filed an affidavit of defense in which they denied the right of the plaintiff to recover back any of the installments paid on account of the purchase money.</p> <p>The court made absolute a rule for judgment for want of a sufficient affidavit of defense.</p> <p>Error assigned was the order of the court.</p>

<p>Appeal, No. 64, April T., 1914, by plaintiff, from judgment of C. P. Beaver Co., Dec. Term, 1913, No. 126, for defendant on case stated in suit of Beaver County v. Charles W. Bradshaw, prothonotary.</p> <p>Case stated to determine whether the prothonotary should pay a statutory attorney fee on a scire facias sur municipal lien for taxes to the county of Beaver or to John B. McClure, county solicitor. Before Holt, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The court entered judgment for defendant on the case stated.</p> <p>Error assigned was the judgment of the court.</p>

<p>Railroad — Negligence—Fire from sparks — Evidence—Damages.</p> <p>1. In an action against a railroad to recover damages for injuries resulting from fire caused by sparks, where the evidence for the plaintiff shows that it was not practicable to identify the engine from which the sparks were thrown which caused the fire, evidence is competent to prove that the defendant’s locomotives generally, or many of them, at or about the time of the occurrence threw cinders of unusual size and kindled fires on that part of the railroad.</p> <p>2. In such a case a witness for plaintiff may give his opinion that certain cinders which he had seen and described would not pass through a spark arrester properly constructed and in good repair, if it appears that such witness had been engaged in railroad work for nine years, had worked in railroad shops for two years, had assisted in taking apart and putting together two engines, had been a fireman, had operated a locomotive and was familiar with the use of spark arresters.</p> <p>3. In an action against a railroad to recover damages resulting from escaping sparks, plaintiff may prove the value of standing timber which had been destroyed as bearing upon the difference between the market value of the property injured before and after the fire.</p>

Appeal, No. 110, April T., 1914, by defendants, from judgment of Q. S. Allegheny Co., Sept. Sessions, 1913, No. 289, on verdict of guilty in case of Commonwealth v. W. J. Lavery and Leo Kennedy. Indictment for an offense under the Act of June 7, 1911, P. L. 698. Before Reed, P. J., specially presiding. At the trial the jury returned a verdict of guilty.

Appeal, No. 141, April T., 1914, by Albert L. Gohn, from order of Q. S.. Somerset Co., Feb. T.,1914, No. 72, refusing a retail liquor license. Petition for a retail liquor license. Ruppel, P. J., made the following order: These two applications come with strong recommendations and especially with reference to the fitness of the applicants and the character of the houses.

<p>Appeal, No. 144, April T., 1914, by defendant, from judgment of Q. S. Indiana Co., Dec. Sessions, 1913, No. 83, on verdict of guilty in case of Commonwealth v. James Dunn.</p> <p>Motion to abate appeal on the ground of the death of the appellant since the appeal was taken.</p>

<p>Appeal, No. 4, Feb. T., 1914, by defendant, from judgment of C. P. Tioga Co., May Term, 1912, No. 230, on verdict for plaintiff in case of Burnap Building & Supply Company to use of E. H. Stone et al. v. W. N. Ladd.</p> <p>Assumpsit for stock subscription. Before Cameron, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The court charged in part as follows:</p> <p>[If you believe, from all the evidence in the case, that this defendant made this agreement with Mr. Whinnery when he signed his contract, and subsequently went to Mr. Whinnery before or at the time fixed in which he was to make the request and made the request of Mr. Whinnery to take his name from the contract; and that Mr. Whinnery agreed to take his name from the contract in pursuance of the agreement between them; we are going to say to you there can be no recovery in this case.] [1]</p> <p>[On the other hand, we are going to say to you, even if this agreement was made originally as testified to by these two witnesses and by the defendant; if he went to that meeting and took part in the organization of that company, if you believe that, that is an abrogation of the agreement between him and Mr. Whinnery. We regard this as the crucial question in the case. Did Mr. Ladd attend that meeting and take part in the organization of this company? If he did, it is such an act on his part as to make him liable under the terms of this contract.] [2]</p> <p>Verdict and judgment for plaintiff for $240.17. Defendant appealed.</p> <p>Error assigned among others was (1, 2) above instructions, quoting them.</p>

<p>Appeal, No. 33, March T., 1914, by defendant, from order of C. P. Luzerne Co., March T., 1913, No. 607, discharging rule for judgment for want of a sufficient affidavit of defense in case of Frank Martz v. W. H. Wilcox Company.</p> <p>Assumpsit on a promissory note.</p> <p>The note in suit was as follows:</p> <p>“$1,118.49. Plymouth, Pa., 12-27-1912.</p> <p>“One month after date I promise to pay to the order of W. H. Wilcox........at the First National Bank of Plymouth, Pa., Eleven Hundred Eighteen and 49.100......Dollars, without defalcation for value received.</p> <p>“No. 6654. Due 1-27-13. Frank Martz.”</p> <p>The note was indorsed and delivered by W. H. Wilcox to. the W. H. Wilcox Company.</p> <p>The facts of the case are stated in the opinion of the Superior Court.</p> <p>Error assigned was order discharging rule for judgment for want of a sufficient affidavit of defense.</p>

<p>Appeal, No. 32, March T., 1914, by defendant, from order of C. P. Lackawanna Co., dismissing exceptions to report of referee in case of Nathan J.. Packard and Moses Packard, copartners, trading as Packard & Co., v. C. S. Woodruff.</p> <p>Assumpsit by holder against indorser of a promissory note.</p> <p>The case was referred to W. M. Bunnell, Esq., as referee.</p> <p>The note in suit was as follows:</p> <p>“$345.00 November 2d, 1908.</p> <p>“Ninety days after date I promise to pay to the order of N. B. Levy & Brother, Three Hundred and Forty-Five Dollars at Union Savings & Trust Co'., Pittston, Pa. Value received. A. D. Quick,</p> <p>“No. 5815. Due 2-1-09. Pittston, Pa.</p> <p>“Endorsements as follows:</p> <p>“N. B. Levy & Bro.</p> <p>“Without recourse to us.</p> <p>“C. S. Woodruff.</p> <p>“N. B. Levy & Bro.</p> <p>“Without recourse to us.</p> <p>“Pay any Bank, Banker or Trust Co.</p> <p>“or Order</p> <p>“Packard & Company, Bankers, “New'York.</p> <p>“Endorsements Guaranteed.”</p> <p>The referee found as follows:</p> <p>That the said note was sold outright before maturity, by N. B. Levy & Brother, for a good and valuable consideration, to Packard & Company.</p> <p>That the said note when due, to wit, on the first day of February, 1909, was duly presented for payment at the bank upon which it was drawn and payment of the same duly demanded, but payment was refused and thereupon the said note was duly protested by a notary public.</p> <p>It further appears, from the evidence submitted, that the indorsement of C. S. Woodruff was placed upon the said note after delivery to payee, but prior to the time any other indorsement was placed upon the said note, and it further appears that the plaintiffs had no knowledge whatever of the circumstances under which C. S. Woodruff’s name appeared upon that note.</p> <p>The referee found for the plaintiffs for $454.37.</p> <p>Exceptions to the report of the referee were dismissed by the court.</p> <p>Error assigned was in dismissing exceptions to report of referee.</p>

<p>Appeal, No. 17, March T., 1914, by defendant, from judgment of C. P. York Co., Aug. T., 1913, No. 87, on demurrer to statement in case of U. S. G. Strine v. York County.</p> <p>Demurrer to statement in assumpsit to recover fees for serving on a jury of view appointed under the Act of June 23, 1911, P. L. 1123.</p> <p>From the record it appeared that the county of York objected to pay the fee of the plaintiff inasmuch as he had been appointed a viewer under the Act of June 23, 1911, P. L. 1123. It was contended that as the damages sustained were from the diversion of water by a water company, the viewers should have been appointed under the Act of April 29, 1874, P. L. 73.</p> <p>The court in an opinion by Ross, J., overruled the demurrer and entered judgment for plaintiff.</p> <p>Error assigned was the judgment of the court.</p>

Appeal, No. 6, March T., 1914, by E. T. Eyster, from decree of C. P. York Co., Jan. T., 1908, No. 2, dismissing exceptions to report of auditor in case of Wolf Miller et al. v. Hellam Distilling Company. Exceptions to report of Donald H. Yost, Esq., auditor. The facts are stated in the opinion of the Superior Court. Error assigned was in dismissing exceptions to auditor’s report.

<p>Liquor law — Application for license — Certificate of twelve citizens— Residence — Ward of borough — Payment of taxes within two years — Act of May IS, 1887, P. L. 108.</p> <p>1. Persons who reside in a borough but not in the ward of the borough for which a liquor license is asked, are not electors of the ward qualified to sign a certificate for the applicant within the meaning of the Act of May 13, 1887, sec. 6, P. L. 108. The word “ward” as used in the act applies to wards of boroughs as well as to wards of cities.</p> <p>2. A certifier to an application for a liquor license who has not actually paid a county or state tax within two years of the time he signed the certificate is not qualified, although he may have been a qualified voter at the next preceding election by reason of his having paid a tax prior to the period of two years.</p>

<p>Appeal No. 126, Oct. T., 1913, by defendant, from judgment of C. P. No. 4, Phila. Co., Sept. T., 1911, No. 2,626, on verdict for plaintiff in case of Thomas McGrath v. First Mortgage Guarantee & Trust Company.</p> <p>Assumpsit upon a contract of guaranty. Before Willson, P. J.</p> <p>From the record it appeared that on November 6, 1907, the defendant entered into two agreements in writing by which it guaranteed the payment of the principal and interest of two bonds and mortgages “provided such payments shall have been requested of the company in writing by the assured on or before the sixth day of November, 1910.”</p> <p>The material portion of the guaranty was as follows:</p> <p>“The company is appointed by the assured as the agent of the assured:</p> <p>“1. To collect, sue for and receive the interest secured to be paid by the bond arid mortgage described in Schedule A, and the fire insurance in case of loss by fire, and the title insurance in case of any defect in title, and to exercise every option or privilege contained in said bond or mortgage.</p> <p>“2. Whenever the principal sum due upon the said bond and mortgage shall become due, either by the terms thereof or by reason of the exercise of any option given therein to the mortgagee, the company shall have the right in the name of the assured, but without expense to the assured, to foreclose the said mortgage, and out of the proceeds of sale to be paid so much as may remain after paying to the assured whatever may be due to the assured for principal and interest upon the said bond and mortgage; provided, however, that in any such case the assured shall, on demand in writing by the said company, sent by mail to the assured at Hazlett and Moss, 627 Walnut Street, or at such other address as the assured may hereafter designate in writing for that purpose, deposit the said bond and mortgage, with all title and fire insurance policies and all other documents accompanying said mortgage, with the company for foreclosure, and render such reasonable assistance as the company may require in enforcing payment of the principal and interest of said mortgage and in enforcing the performance of any and all covenants contained therein; and if the assured shall fail so to do within thirty days after the date of the mailing of such notice, all further liability of the company under this policy shall cease.</p> <p>“4. The company shall not be responsible for loss by reason of the depreciation in. value of the mortgaged premises, occurring by reason of fire, explosion, lightning, earthquake, wind, water, war, riot or any breach of the peace, or from defect in the title to the premises described in said mortgage, or prior encumbrances now existing thereon.</p> <p>"5. Conveyance, by any means of the premises described in the mortgage, or any part thereof, to the assured, and the acceptance thereof by the assured or the purchase of said premises at any judicial sale by the assured, shall be deemed payment by this company to the assured of said principal sum or süch part thereof as the value at the time of said conveyance of the portion of said premises conveyed shall bear to the value of the whole.</p> <p>“9. The assured is bound to assign and deliver the said bond and mortgage, with all insurance policies, and all other instruments accompanying the same to the company if requested so to do, whenever the assured is entitled to require payment thereof, upon receipt from the company of the full amount due the assured upon said bond and mortgage.”</p> <p>No demand was made upon the company for the payment of the face of these mortgages and accrued interest before November 12, 1910, at which time the real estate officer of the company wrote the plaintiff that there was a defect in the title to the premises and that under the terms of the policy “we do not assume any liability by reason of defective title,” but as they were always anxious to adjust such matters he should bring in his bonds and mortgages to their office, and they would foreclose them for him without cost to him.</p> <p>Plaintiff’s attorney thereupon called upon said real estate officer and discussed the question at issue. He refused to surrender the mortgages unless the company would, admit its liability. Thereupon the bonds and mortgages were foreclosed by the plaintiff. One property was sold to a disinterested party for $4,650, and with attorney’s fee of $225 and necessary costs of foreclosure resulted in a loss to plaintiff of $401.20. The other property was bought in by the plaintiff for $4,600, and with the same attorney’s fee and necessary costs resulted in a loss to plaintiff of $403.95, and for reimbursement for these two several sums plaintiff thereupon brought suit in the court below.</p> <p>Verdict and judgment for plaintiff for $905.77. Defendant appealed.</p>

<p>Contract — Building contract — Bond—Insurance of. mortgages — Default of subcontractor — Contract of indemnity.</p> <p>1. In a suit by a trust company against a subcontractor, who had defaulted in a building operation, to recover moneys expended by the trust company in completing the subcontractor’s work, no judgment can be entered for plaintiff on demurrer, where it appears that the bond given by the subcontractor to the plaintiff recited that at the request of the defendant plaintiff had issued its policies of insurance to various mortgagees to secure them against loss by reason of mechanics’ liens, and it also appears that the defendant had in his contract with the principal contractor agreed not to file any mechanics’ liens, but there is nothing in the bond or in the policies requiring the plaintiff to do any work on the building, and no averment in the statement that the buildings as they stood with the uncompleted work of the subcontractor, would not have sufficiently protected the plaintiff against the obligations which it had assumed by its policies to persons to whom the policies were issued; and this is the case although in the building contract the general contractor was given the right to do the work if the subcontractor failed, and the bond itself provided that the contract of the defendant with the general contractor should inure to the benefit of the trust company.</p> <p>2. Such a bond is in truth and in fact an obligation of indemnity only, and does not require the obligor to do any specific work or to bear the expense thereof in case it should be done by any other than the subcontractor.</p>

<p>Evidence — Custom.—Slate quarry lease — Royalties—Mines and mining.</p> <p>Where a lease for the operation of a slate quarry provides that the lessees shall pay for “all slate mined and manufactured by them, including every description of material taken and sold from said demised premises, a royalty of eight per cent,” and the lease further provides for the payment of such royalty on a specified day in each month, the terms of the lease as to the payment of royalties are not ambiguous; and evidence is not admissible of a custom prevailing in the district by which royalty was calculated on prices at which the slate sold at the quarry, plus what it would have cost to deliver the same at a railroad station some distance away; and all the more is such evidence inadmissible where the witnesses called to prove the custom could not state that the leases of other quarries where they alleged the custom prevailed were identical in terms with the lease in question.</p>

<p>Appeal, No. 159, Oct. T., 1913, by plaintiffs, from decree of C. P. No. 5, Phila. Co., Dec. T., 1912, No. 4,252, dismissing bill in equity in case of Lamar F. Brunner and Blanche deB. Brunner v. John H. Hinge, Jr., and Margaret F. Ringe.</p> <p>Bill in equity for the cancellation of a deed and for an accounting. Before Ralston, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was decree dismissing the bill.</p>

<p>Contract — Sale—Failure to deliver — Measure of damages.</p> <p>In an action of assumpsit to recover the price of automobile supplies sold and delivered, where the defendant seeks to set off a loss of profits on resale of automobiles purchased by the defendant from the plaintiffs, which the plaintiffs failed to deliver, it is proper to permit the plaintiffs to show that they directed the defendant how and where he could obtain automobiles identical with those which were not delivered to him, and at exactly the same price which he had agreed to pay, and that the defendant had made no-effort to secure such cars.</p>

<p>Negligence — Fall through trap — Telegraph company — Contributory negligence — Evidence.</p> <p>In an action against a telegraph company to recover damages for personal injuries sustained,by falling through an open trap in a hall, it appeared that defendant occupied for its telegraph offices a front room in a small building, access to which room from the street was by a hall running along the side of the room. The defendant’s employees’ only entrance to the front room where the telegraph appliances were, was by going through the hall to a door which opened into a back room. The hall could be lighted by opening a shutter. The public transacted its business with the company through a window .in the partition between the hall and the front room. Between this window and the door to the back room there was a trap in the floor of the hall leading to the cellar. The defendant had no control over the cellar nor the door to the trap. Plaintiff went to the defendant’s office about ten o’clock in the morning to deliver a telegraph message. She entered the hall, found the window closed, and not receiving any answer to her knock, but hearing the click of the instruments in the front room, she started along the hall to enter the back room in order to secure attention. As she did so she fell into the trap, the door of which had been left open by a plumber employed by the owner of the house, a few minutes before. Plaintiff was injured. Held, (1) there was no error in the refusal of the trial judge to instruct the jury that plaintiff was guilty of contributory negligence (2) that there was no negligence on the part of the defendant, except that it had failed to open the shutter by which the hall could have been adequately lighted, and (3) that it was reversible error for the trial judge tb charge that the defendant was bound to supply a “safe” place instead of “a reasonably safe place” for the transaction of business by its patrons.</p>

Appeal, No. 193, Oct. T., 1913, by Pennsylvania Academy of the Fine Arts, from decree of O. C. Phila. Co., Jan. T., 1909, No. 339, dismissing exceptions to adjudication in Estate of John Lambert, deceased. Exceptions to adjudication.

<p>Appeal, No. 231, Oct. T., 1913, by defendant, from judgment of C. P. No. 2, Phila. Co., June T., 1912, No. 1,353, on verdict for plaintiff in case of Aaron Knoller v. Everett Realty Company.</p> <p>Assumpsit upon a contract. Before Heydt, P. J., specially presiding.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Verdict and judgment for plaintiff for $1,384.64. Defendant appealed.</p> <p>Errors assigned among others were (2) portion of charge, quoted in the opinion of the Superior Court.</p>

<p>Appeal, No. 192, Oct. T., 1913, by plaintiff, from order of O. P. No. 2, Phila. Co., March T., 1912, No. 1,500, refusing to take off nonsuit in case of Charles M. Raspa, Administrator of the Estate of Mathias Schnepf, deceased, v. Frank Mark.</p> <p>Assumpsit to recover the value of building association stock. Before Heydt, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was refusal to take off nonsuit.</p>

<p>Municipal claims — City of Philadelphia — Registered owner — -Name of owner — Scire facias.</p> <p>1. Where real estate in the city of Philadelphia is registered in the name of a particular person, and after the death of such person a municipal claim is filed against the 'property designating it as the “estate of” the deceased owner as “owner and registered owner,” the claim is valid and is sufficiently descriptive of the land. The designation of the estate is sufficient notice to put all persons upon inquiry.</p> <p>2. Where an affidavit of defense has been filed to a scire facias sur municipal lien for paving and subsequently an issue of fact in the proceeding is raised by a plea, the mere failure to obtain a final judgment within five years after the writ of scire facias had issued, and subsequent proceedings to revive had been taken, is not ground for striking off the claim.</p>

<p>Municipal claim — City of Philadelphia — Registered owner — Name of owner — Scire facias.</p> <p>1. Where real estate in the city of Philadelphia is registered in the name of a particular person, and after the death of such person a municipal claim is filed against the property designating it as the “estate of” the deceased owner as “owner and registered owner,” the claim is valid and is sufficiently descriptive of the land. The designation of the estate is sufficient notice to put all persons upon inquiry.</p> <p>2. Where the real owner of property against which a municipal lien for paving has been filed agrees to an amicable scire facias, and enters a plea raising an issue of fact, he cannot, before such issue is decided have the claim stricken off because it had been entered against the “estate of” a former deceased owner; nor will he be entitled to have two subsequent alias writs to revive and continue the lien stricken off before the issue of fact is decided.</p>

<p>Wills — Devise—Ademption—Sale of real estate — Codicil.</p> <p>1. Where a particularly described piece of ground is specifically devised, and afterward is sold by the testator, or taken from him by operation of law in his lifetime, the devisee takes nothing.</p> <p>2. Testatrix devised to two sisters and a brother “to be divided equally” “my interest in the real estate in the City of Albany.” Subsequently she sold the real estate and took in part payment a purchase money mortgage. Afterwards one of the sisters died, and the testatrix made a codicil as follows: “Since the death of my sister M. my bequests to her I now transfer to my sisters S. and I.” In the original will there were other bequests to M. Held,, that the gift of the real estate was adeemed by its sale, and not revived by the codicil.</p>

<p>Negligence — Pleadings—Variance—Nonsuit.</p> <p>1. Where evidence is admitted without objection on the part of the defendant that the proof offered varied from the statement of claim, the trial judge cannot raise such an objection to the evidence, of his own motion, and assign it as a reason for refusing to take off a compulsory nonsuit.</p> <p>Negligence — Master and servant — Contributory negligence — Question for jury.</p> <p>2. In an action by a woman against her employer to recover damages for personal injuries, the question of the plaintiff’s contributory negligence is for the jury, where it appears that the plaintiff was employed to wash some windows in the second story of a house which was part of a new building operation, that noticing the paint which was to be washed off was on the outside of the windows, she called the defendant’s attention to it and he said: “You can go out there and get at it handier,” that plaintiff stepped out on what she supposed was the roof of the porch, but which was merely a frame covered with tar paper, and fell into a cellar opening and was injured.</p>

<p>Contract — Restraint óf trade — Master and servant — Injunction— Equity.</p> <p>Where a laundry company employs a driver on wages and commissions for a particular route, giving him a list of the names and addresses of the company’s customers along the route, and the driver in consideration of the employment and his wages covenants not to engage on his own account, or as agent for another, in the laundry business in the district assigned to him for one year after his employment ceased, such covenant will be enforced by a court of equity if the driver attempts to violate it; and this is the case although he may have voluntarily withdrawn from his employment with consent of his employer.</p>

<p>Appeal, No. 5, Feb. T., 1914, by plaintiff, from judgment of C. P. Union Co., March Term, 1913, No. 22, on verdict for defendant in case of D. B. Martin Company v. Samuel K. Strickler.</p> <p>Issue to determine whether a judgment entered on a judgment note had been paid. Before Johnson, P. J.</p> <p>At the trial it appeared that on March 16, 1911, the defendant gave the plaintiff a judgment note for $1,288. The defendant claimed that he had paid this note by giving to the plaintiff three bankers’ trust notes each for $500, which had been accepted in the discharge of his debt. Other facts appear by the opinion of the Superior Court.</p> <p>When the defendant was on the stand he testified as follows:</p> <p>“A. (Samuel K. Strickler) I went down to Philadelphia; I wrote to Mr. English and told him to meet me at the Windsor Hotel, and instead of his coming they sent Mr. Dumont, and I told Mr. English I would give them three bankers’ trust notes. Q. Of what denomination? A. Five hundred dollars each, $1,500. Q. Tell the court and jury. A. He said he could not agree on doing anything like that without seeing Mr. English, and if they would accept the bonds or trust notes, he would come up in a few days and would take them with him, and he came up to my place and he penned that receipt himself and signed it, and took the bonds with him, — he wrote the whole receipt himself. Q.- Defendant’s exhibit No. 1, shown witness, is that the receipt to which you refer? A. That is the receipt.”</p> <p>Judge McClure: We now offer this receipt in evidence.</p> <p>Mr. Linn: What is the purpose of the offer?</p> <p>Judge McClure: To show payment of the note.</p> <p>Mr. Linn: This is objected to as not evidence for the purpose offered, and immaterial and irrelevant. The receipt on its face not showing that it is in full payment of the note, the presumption being that a receipt of this character is only collateral, that is, that something taken other than cash is collateral. And further, that it has not been shown that H. T. Dumont had authority to sign a receipt in full settlement of the note for these bonds in question.</p> <p>The Court: We will receive it for the present, so far as the receipt itself is concerned. As to the question of authority, is there any testimony at all to show that Mr. Dumont had authority to sign the receipt?</p> <p>Judge McClure: He had authority to settle with Mr. Strickler.</p> <p>“Q. What was Mr. Dumont’s business? A. Sales manager for the fertilizer department of D. B. Martin Company. Q. What was English? A. I think he was , assistant treasurer.</p> <p>The Court: We will receive the receipt for the present. The objection is overruled, and the evidence admitted, to which ruling counsel for plaintiff excepts, and at his request an exception is noted, and bill sealed. [1].</p> <p>Defendant’s Exhibit No. 1</p> <p>“Rec’d of Samuel K. Strickler three Bankers Trust Notes of $500.00 each for payment of note of $1288.00 (twelve Hundred &. Eighty Eight) dollars.</p> <p>“D. B. Martin Co.</p> <p>“per H. T. Dumont.”</p> <p>The court charged in part as follows:</p> <p>[There is still another question you will have to determine and- that is whether the agent here, Mr. Dumont, had power to give a complete satisfaction in this matter. Now, you have heard all the testimony in this case as to his general power and authority. He was general sales agent of the plaintiff for fertilizers, and he met Mr. Strickler in Philadelphia, at the Windsor Hotel, to discuss this matter, and he was sent up here to Mifflinburg to see Mr. Strickler. Now it will be for you to determine from his testimony and all the testimony and correspondence with Dumont and Mr. English, and the company, what was the general authority, and what was the apparent authority of Mr. Dumont.</p> <p>For an agent has the right to bind his principal, the person, or company, or corporation, or individual, for whom he is agent, in the general scope, or apparent scope of his employment; that is to say,' other parties dealing with that agent have the right to assume, and act upon that assumption that the agent has the power to bind his principal which he appears to have, which are apparent, so that if it lay within the general authority of the agent, or within the apparent authority of this agent to give a receipt in full, by settling upon the basis upon which Mr. Strickler says he did, was within the scope of that authority, but if he did not have that authority, if it did not lie in the authority or the apparent authority of Mr. Dumont to give receipt for these bonds, in full payment of this note, then his act would not bind his principal. In other.words, if the giving of this receipt in full for these bonds as evidence of complete satisfaction of the note was within the scope of the authority of Mr. Dumont, or within the apparent authority of Mr. Dumont, then his acts bind his principal. But, if it was not within the scope or apparent scope of Mr. Dumont’s agency, then it would not bind the principal. Now, I think you will understand that fully.] [2]</p> <p>[On the face it is an absolute receipt because it says on its face, “Received of Samuel K. Strickler three Bankers Trust Notes of $500.00 each for payment of note of $1288.00. . . .”</p> <p>Does it under all the testimony in this case amount to absolute payment? Were these bonds given in absolute payment? We say this receipt is prima facie evidence of payment, for it says'on its face “for payment of note of $1,288.00.”] [3]</p> <p>Defendant presented this point;</p> <p>3. The receipt dated October 7, 1911, given by Martin .and Co. to-Strickler for the three bankers trust notes of $500 each expressly states that they,were “for payment of note of $1,288 (twelve hundred and eighty-eight) Dollars” and is stout evidence of the truth of the defendant’s contention that these notes were taken in absolute payment of Strickler’s note, and not as collateral security for the debt. Answer: We affirm that point. [4]</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned were (1) ruling on evidence, quoting the bill of exceptions; (2-4) above instructions, quoting them.</p>

<p>Road, law — Change of grade — Borough street — Reconstruction of bridge —Impairment of access — Damages—Acts of May 24, 1878, P. L. 129, and April 27, 1911, P. L. 89.</p> <p>Where a stream crossing a borough street has been covered by a wooden bridge for many years and such bridge forms a constituent part of the highway, and the borough in the exercise of its municipal functions, and in a non-negligent manner removes the old bridge and erects a concrete bridge in its place, but leaves on each side of the new bridge a portion of the stream uncovered, thereby depriving an adjoining owner of access to his property, such owner will be entitled to compensation as for special damage to his property, and he may recover such compensation by proceedings authorized by the Act of May 24, 1878, P. L. 129, as amended by the Act of April 27, 1911, P. L. 89. In such a case the leaving of the open space over the stream at the side of the new bridge was in fact a depression of, or change of grade of the street, and therefore within the very letter of the Act of May 24, 1878, P. L. 129.</p>

<p>Appeal, No. 7, March Term, 1914, by defendant, from judgment of C. P. Luzerne Co., Oct. T., 1908, No. 123, on verdict for plaintiff in case of William Prutzman v. Lackawanna & Wyoming Valley Railroad Company.</p> <p>Trespass to recover damages for personal injuries. Before Strauss, J.</p> <p>The opinion of the Superior Court states the facts.</p> <p>Verdict and judgment for plaintiff for $100. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for defendant.</p>

<p>Appeal, No. 2, March T., 1913, by plaintiff, from order of C. P. Lackawanna Co., March T., 1907, No. 924, sustaining exceptions to referee’s report in case of John H. Jones v. The Red Men’s Fraternal & Accident Association of America.</p> <p>Exceptions to report of referee.</p> <p>The opinion of the Superior Court states the facts.</p> <p>Error assigned was in setting aside the report of the auditor.</p>

<p>Insurance — Fire insurance — Application attached to policy — Act oj May 11,1881, P. L. 20 — Reduction of premium.</p> <p>1. A mere reference to a by-law, indorsed upon the back of the policy of insurance without the by-law itself being annexed, is not a compliance with the Act of May 11, 1881, P. L. 20, which provides that unless the by-law is attached or accompanies the policy no such by-law shall be received in evidence nor be considered a part of the policy or contract between the parties.</p> <p>2. A policy of fire insurance without any exact time limit specified, had indorsed upon it the following: “This policy shall be in immediate benefit for its full face value; this company reserving the right to deduct, in case of fire, the balance of what would be one annual premium unpaid at the time of said fire.” Held (1) that the policy was intended to be in force for at least one year with the right of the company to deduct in case of loss any premium that is unpaid at the time; and (2) that such result was secured by a judgment for the amount of admitted loss, less the unpaid balance of the one year’s premium.</p>

Appeal, No. 17, Jan. T., 1914, by plaintiff, from decree of C. P. Luzerne Co., Oct. T., 1912, No.'2, dismissing bill in equity in case of Ira Boyd et al. v. William F. Miller. Bill in equity for an injunction. Before Strauss, J. The opinion, of the Superior Court states the case. Error assigned was decree dismissing the bill.

<p>Appeal, No. 27, March T., 1914, by defendant, from judgment of C. P. Luzerne Co., Oct. T., 1910, No. 626, on verdict for plaintiff in case of Boyd Dodson v. Wilkes-Barre Railway Company.</p> <p>Trespass to recover damages for injuries to an automobile. Before Garman, 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 $148.72. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for defendant.</p>

Appeal, No. 244, Oct. T., 1913, by defendants, from decree of C. P. No. 1, Phila. Co., June T., 1912, No. 1,137, on bill in equity in case of Blum Brothers, Incorporated, v. Max Berg and Adolph Berg, Individually and as Copartners, trading as Berg Brothers. Bill in equity for an injunction. Brégy, P. J., filed the following adjudication: From the bill, answer and proofs, I make the following FINDINGS OF FACT. 1.

Appeal, No. 37, March T., 1914, by plaintiff, from order of C. P. Lackawanna Co., Jan. T., 1911, No. 518, refusing to take off compulsory nonsuit in case of Adolph Marcus v. People’s National Bank. Assumpsit to recover the amount of charges against plaintiff’s account by reason of' the alleged wrongful payment of certain checks. Before Staples, P. J., specially presiding.

Appeal, No. 19, March T., 1914, by plaintiff, from order of C. P. Luzerne Co., Oct. T., 1913, No. 652, discharging rule for an inter-pleader in case of Grace A. Cross v. The Wyoming Valley Beef Company. Rule for interpleader.

<p>Contract — Consideration—Compromise of disputed claim — Accord and satisfaction.</p> <p>1. A compromise of a disputed claim is a consideration sufficient to support an agreement of settlement. Such a contract is binding on the parties and can only be rescinded when they mutually agree to that effect.</p> <p>2. Where a dispute has arisen between two parties as to liability for the negligent injury of an automobile, and the owner of the automobile agrees to accept a ear body of the same style and make in place of the injured car body, and in pursuance of such agreement the other party buys and delivers such a car body at a place convenient for the owner, the latter is bound by the agreement of settlement.</p> <p>3. In an action to recover damages for the negligent injury to an ■automobile where it appears that the car body and other parts of the car were injured, it is not error to refuse to permit the defendant to show that he had purchased and offered to deliver to the plaintiff a car body of a price stated and of the same character as that which was injured, where the offer is made in mitigation of damages only.</p>

<p>Appeal, No. 8, March T., 1914, by plaintiff, from order of C. P. Lackawanna Co., May T., 1913, No. 636, dissolving writ of estrepement in case of E. B. Axford, Trustee, v. Kirby and Howard.</p> <p>Petition to dissolve writ of estrepement.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was the order dissolving writ of estrepement.</p>

<p>Negligence — Townships—Diversion of waters — Damages.</p> <p>In an action against a township to recover damages for a mill property resulting from the diversion of water in the repair of a public road, the trial judge properly states the measure of damages when he charges the jury as follows: “If you find that the mill property is permanently injured you should give such damages as would put it back into its former condition, unless it would take more to put it in that condition than it was worth, and then of course you would not allow more than it was worth.”</p>

Appeal, No. 2, March T., 1914, by plaintiff, from judgment of C. P. Luzerne Co., Oct. T., 1910, No. 924, on verdict for plaintiff in case of Martha Saba v. McElwaine, Knight & Co. Interpleader to determine ownership of wines, liquors and cigars. Before Garman, J. At the trial it appeared that Elias Saba had a wholesale liquor license which he conducted in a building owned by his wife.

<p>Appeal, No. 38, March T., 1914, by defendant, from judgment of C. P. Lackawanna Co., March T., 1909, No. 851, on verdict for plaintiff in case of A. E. Hunt v. M. A. Donahoe.</p> <p>Assumpsit for breach of a contract of sale. Before O’Neill, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>At the trial S. S. Spruks was called as for cross-examination.</p> <p>Mr. Torrey: “Q. Are you interested in this case? A. I don’t know- whether I am or not; I was interested in the sewer. Q. Would you have to put up any of this .money if this plaintiff got a verdict here?”</p> <p>Mr. Donahoe: We object to that.</p> <p>The Court: What is the purpose?</p> <p>Mr. Torrey: I want to call' him as for cross-examination; if he is a party in interest we are entitled to call him as if upon cross-examination.</p> <p>The Court: You may proceed. Exception noted for the defendant.</p> <p>Mr. Torrey: “Q. You would have to put up some of the money or all of it if this verdict was for the plaintiff? A. Yes, sir; I would not, not all of it; I would have to put up part of it.”</p> <p>The counsel for the plaintiff ask to have the witness called and sworn as if upon cross-examination.</p> <p>Mr. Donahoe: We object to the witness being called as if upon cross-examination, because he is not a party to the record.</p> <p>The Court: Objection overruled. [7]</p> <p>The court charged as follows:</p> <p>The plaintiff claims there is due to him the sum of $329.89 occasioned by the breach of a contract that existed between him and the defendant. By an agreement the plaintiff was to furnish 206 manhole castings at $9.75 a piece, to the defendant who was engaged in the construction of a sewer in this city. These manhole castings were to be delivered by Mr. Hunt to the defendant, Mr. Donahoe, when required, that is, when some notice was given by the defendant as to when and where he needed them in the course of the construction of the sewer. Fifty-two castings were furnished and paid for, and then there was no further request made upon the part of the defendant for any more castings. Some time later in the year, in July I think the plaintiff discovered that the defendant was going along with the work and using castings obtained from some other party or place.</p> <p>[He brings his suit now to recover the profit that he would have made if Mr. Donahoe had taken from him the entire number of castings, 206. He was making a profit of $1.75 on each casting.</p> <p>Of course, if this story be true on the part of the plaintiff, we say to you as a matter of law that he is entitled to recover the sum of $1.75 for the difference between the 206 and the .fifty-two, together with interest from the time it became due.] [1]</p> <p>The defendant claims that he was at all times ready to receive those castings; that he,took a quantity and paid for those he did receive; but that upon one occasion when he was .greatly in need of them by reason of the work being more rapidly advanced than formerly, the brickwork of the manholes being finished, and not having the castings to place upon them, he was obliged to have them covered with boards, and in some instances covered with clay, so as to protect the public from any danger that might follow from such exposure; and that he called upon Mr. Hunt, and instructed him to send to this particular place right away the number of castings required. Not hearing anything further from Mr. Hunt, no castings having been delivered, he then went elsewhere and was obliged to go elsewhere and provide himself with the remaining number of castings that he needed in this work. It seems to me this is about all there is in the case, as to which of these stories may be true. Mr. Hunt denies that he received any such notice at all, but that at that time and at all times up to the time the work was completed he had on hand and in stock all the castings that would be required of that could be demanded at any time.</p> <p>So this is a question then for you to pass upon between these two parties. If Mr. Hunt did not deliver after having been notified within a reasonable time, he is not entitled to recover anything. It is for you to say what would be a reasonable time under all the circumstances in the case. It is very difficult to advise you upon this particular point, because the law places the duty upon you of saying whom you are to believe.</p> <p>In arriving at a conclusion you are permitted and should take note of the manner and action of the witnesses upon the stand; their manner of testifying; of the probability of their stories; the interest they may have in it. [The plaintiff, of course, has the burden upon him to make out to your satisfaction by what is called the preponderance of evidence, that is, the outweighing or overweighing of the evidence. You are presumed to balance before you these two stories, these two sides, and to whichever one you give the most credit, that is the way in which you should be swerved.] [4]</p> <p>Verdict and judgment for plaintiff for $327.89., Defendant appealed.</p> <p>Errors assigned were (1, 4) above instructions, quoting them; and (7) ruling on evidence, quoting the bill of exceptions.</p>

<p>Statutes — Repeal—Amendment—Game lam — Killing deer — Acts of May 1,1909, P. L. 825, and May 1, 1918, P. L. 187.</p> <p>1. The Act of May 1, 1909, P. L. 325, which forbids the killing in any one season of more than one male deer “with horns visible above the hair” is not repealed, but is merely amended by the Act of May 1, 1913, P. L. 137, which prohibits the killing of any male deer “with horns two inches above the hair;” and if a person is indicted for a violation of the earlier act before the later act was passed, he cannot after the passage of the later act claim to have the indictment quashed, on the ground that the earlier act was repealed.</p> <p>There never was an instant of time from the date of the approval of the Act of May 1, 1909, to the present when the killing in any one season of more than one deer which did not have horns visible above the hair ceased to be a penal offense.</p>

<p>Appeal, No. 5, March T., 1914, by plaintiff, from .judgment of C. P. Cumberland Co., May T., 1912, No. 49, on verdict for plaintiff in case of James H. Kuhns v. Upper Allen Township.</p> <p>Trespass to recover damages for personal injuries. Before Sadler, P. J.</p> <p>The circumstances of the accident are fully stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $225. Defendant appealed.</p> <p>Error assigned amongst others was in refusing binding instructions for defendant.</p>

<p>Appeal, No. 11, March T., 1914, by defendants, from judgment of C. P. Adams Co., April T., 1913, No. 408, for plaintiff on case stated in suit of R. H. Lupp v. Directors of the Poor and of the House of Employment of Adams County.</p> <p>Case stated to determine liability of a poor district for Pasteur treatment. Before Swope, P. J.</p> <p>The case stated was as follows:</p> <p>That on December 23, 1912, Ada M. Lupp, the daughter of R. H. Lupp, both of whom reside in Menallen township, Adams county, Pa., was bitten by a cat. As soon as R. H. Lupp learned that his daughter had been so bitten, he called in Dr. Merriman of Arendtsville, who killed the cat and sent its head to the State Health Department at Harrisburg for examination. Late on the night of December 26, 1912, Dr. Merriman received a telegram from the State Health Department stating that the cat had rabies or hydrophobia. Dr. Merriman at once telephoned this news to R. H. Lupp and advised that the daughter be given the Pasteur treatment as soon as possible. On the morning of December 27, 1912, R. H. Lupp telephoned to S. McC. Eicholtz, one of the commissioners of Adams county, and applied for proper medical attention for his daughter, but was informed by Eicholtz that the matter was in the hands of the directors of the poor.</p> <p>On the same morning, December 27, 1912, R. H. Lupp took his said daughter, Ada M. Lupp, to Biglerville, where they boarded the 11 o’clock morning train for the purpose of taking his daughter to Marietta for the Pasteur treatment. As the train was about to start, R. H. Lupp called G. W. Koser, who was standing by, and stating that he did not have time to do so himself, requested the said Koser to make application for him to the proper officer of the poor directors for the Pasteur treatment for his daughter.</p> <p>That within two hours after the said train left Biglerville, G. W. Koser telephoned to C. E. Stahle, Esq., attorney for the defendants herein, and the proper officer of the poor district, and stated to him that the said Ada M. Lupp had been bitten by a cat, that the head of the said cat had been sent to Harrisburg by Dr. Merriman where it was found by the proper authorities that the said cat suffered from rabies, and that the said Ada M. Lupp had been taken to Marietta that morning by her father, upon the advice of Dr. Merriman, there to be given the Pasteur treatment, and asked him whether under the circumstances the said board of directors of the poor would pay the bill for the treatment at Marietta; to which the said Stahle, representing the said board of directors of. the poor, replied that he would advise the said board not to make payment of the bill for said treatment. No proof was offered to the said Stahle of the statements made by the said Koser, nor has any proof of the said statements been offered to the said directors of the poor since. That no order of relief was issued by a justice of the peace authorizing and directing the said directors of the poor to furnish medical treatment to the said Ada M. Lupp, before the said Ada M. Lupp was taken by her father to Marietta where she took the Pasteur treatment, nor has such an order of relief been received by the directors of the poor, or their attorney, since.</p> <p>That the said. R. H. Lupp, with his daughter, arrived at Marietta about two hours after the said telephone communication between G. W. Koser and ’C. E. Stahle, and at once took his daughter to the Pasteur Institute at that place, where he then contracted for the treatment to be given her, with Dr. H. M. Alexander & Co., the proprietors of said institute, where she remained under said treatment for .eighteen days.</p> <p>The bill of Dr. H. M. Alexander & Co., for said medical attention which included the Pasteur treatment, was $92.50, which bill was paid by R. H. Lupp, on January 11, 1913, and a receipt taken therefor. That payment of said bill having been refused by the said directors of the poor, an action in assumpsit was brought by said R. H. Lupp, to the above number and term, against the said directors of the poor, on April 16, 1913, and an appearance entered and service waived by C. E. Stahle, attorney for said defendants.</p> <p>If the court is of the opinion that the act of May 7, 1907, entitled, “An Act to amend sec. 1 of 'An Act providing for necessary medical attention to needy persons who may be in danger of suffering from hydrophobia,’ approved the 31st day of March, 1905, so as to include all persons who may apply for aid, and providing that the costs of said medical attention shall be paid by the several poor districts within this commonwealth,” is constitutional; and if under the facts herein stated the court is of the opinion that the directors of the poor and of the house of employment of Adams county is liable for and owes to R. H. Lupp, the sum of $92.50, claimed by the plaintiff and denied by the defendant, then judgment to be entered for the plaintiff and against the defendant for the sum of $92.50, with costs of this action; but if not then judgment to be entered for defendant, etc.</p> <p>The court entered judgment for plaintiff.</p> <p>Error assigned was in entering judgment for plaintiff on case stated.</p>

<p>Appeal, No. 1, Feb. T., 1914, by plaintiff, from judgment of C. P. Lycoming Co., June T., 1913, No. 309, reversing judgment of justice of the peace in case of Ellen Robinson v. J. W. Moyer.</p> <p>Appeal from judgment of justice of the peace. Before Whitehead, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was reversal of judgment of justice of the peace.</p>

<p>Appeal, No. 20, March T., 1914, by defendant, from judgment of C. P. Luzerne Co., May T., 1910, No. 490, on verdict for plaintiff in case of John C. Lewis v. Metropolitan Life Insurance Company.</p> <p>Assumpsit upon a policy of life insurance. Before Fuller, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The defendant presented the following points:</p> <p>1. That under all the evidence and the pleadings the verdict must be for the defendant. Answer: Refused. [2]</p> <p>2. The proofs of death, signed and sworn to by the plaintiff as the claimant under the policy and furnished by him to the defendant, contain the following questions:</p> <p>9. “Upon what date did the deceased first consult a physician for such sickness;” to which he answered, “January 4th, 1908,” which was three months prior to her death. This sworn statement is unqualified and unimpeached by any evidence in the case, except by his testimony that instead of January 4, 1908, his answer to the ninth question was, “The first part of January, 1908.” This contradicts the statement of the insured in her application as to her condition of health and her treatment by a physician at the time she was insured. Her statement as to these matters was material to the risk and false, and a verdict must be for the defendant. Answer: Refused. [3]</p> <p>3. The proofs of death signed and sworn to by the plaintiff, John C. Lewis, and his statement furnished to the defendant as claimant under the policy contained the following question: “12. What was the duration of the deceased’s last illness?” To which he answered, “Four months.” This sworn statement is uncontradieted, unimpeached, and unqualified by any testimony in the case. The answer to the question in the application, made by the insured, for the policy as to her condition of health, the question being material to the risk and her answer being false as shown by the sworn proofs of death furnished by the claimant, he cannot recover and the verdict must be for the defendant. Answer: Refused. [4]</p> <p>Verdict and judgment for plaintiff for $649.17. Defendant appealed.</p> <p>Errors assigned were (2-4) above instructions, quoting them.</p> <p>James L. Morris, for appellant. — Statements contained in proofs of death submitted by a claimant, are competent evidence in behalf of the insurer. If these statements establish that certain material statements of the applicant which are warranties, are not true and no evidence explaining, correcting or contradicting them is introduced in rebuttal, the defendant is entitled to binding instructions: Siebelist v. Metropolitan Life Ins. Co., 19 Pa. Superior Ct. 221; Baldi v. Metropolitan Life Ins. Co., 30 Pa. Superior Ct. 222.</p>

<p>Appeal, No. 11, March T., 1914, by defendant, from judgment of C. P. Luzerne Co., Oct. T., 1910, No. 221, on verdict for plaintiff in case of Abbie Ryman v. West End Coal Company.</p> <p>Trespass to recover damages for injuries to an island. Before Strauss, J.</p> <p>At the trial a number of witnesses offered by the plaintiff to prove the value of the land injured were objected to as incompetent. The facts relating to this testimony are set forth in the opinion of the Superior Court. [1-7]</p> <p>Defendant’s counsel: Counsel for the plaintiff having said in the presence and hearing of the jury the following statement — made the following statement: “Your Honor,</p> <p>I have some human instincts in me and when a coal company tries or is charged with taking away all that this poor woman has I cannot refrain,” counsel for defendant at this point interrupts counsel for plaintiff, objects to the statement as being improper in the presence and hearing of the jury and ask that the remarks be taken down and a juror be withdrawn.</p> <p>The Court: I overrule the motion. While recogniz-. ing the serious character of remarks like these if presented to the jury in argument, this remark was uttered on the impulse and the court is of the opinion that this jury will not be influenced by it, expressly not after due warning by the court. The case is one in which the jury has visited the premises, a considerable time has been taken up in the matter, the public is entitled to some consideration and as the court is of the opinion that no harm will result, the motion is overruled; and if there should be any repetition of anything of this character the court will certainly have to take some action.</p> <p>Defendant’s counsel: Please note an exception and seal a bill. Exception noted, bill sealed for defend-" ant. [8]</p> <p>The court charged in part as follows:</p> <p>If the evidence satisfies you that the damage was all attributable to defendant’s culm, then you will ascertain what the damage, was and return a verdict to that effect. If the evidence satisfies you that the damage was not all attributable to defendant’s culm, then you will ascertain what the damage was under the instructions I have given you and report the proportion of that damage you find against the defendant and find it in dollars and cents, and in doing that or in finding any damages against the defendant you have the right to consider whether you will award damages for detaining the amount not to exceed six per cent as if it were interest but it is not interest, it is damages for detention.] [9]</p> <p>’ Plaintiff presented this point:</p> <p>4. The measure of damages under all the evidence in the case is the difference in value of the island for agricultural purposes in July, 1904, after the flood and after the flood of 1910, with a reasonable compensation for delay in paying the damages. I suppose the attorney means not exceeding, however, six per cent for the damages, “found by the jury for culm deposited by the defendant on plaintiff’s island.” Answer: That is affirmed as to the measure of damages. [10]</p> <p>The verdict of the jury was as follows:</p> <p>“We, the jurors in the case of Abbie Ryman v. The West End Coal Company, find the island damaged to the amount of $1,500, and the West End Coal Company’s proportion of this damage to he $500.”</p> <p>Judgment was entered on the verdict for $500. Defendant appealed.</p> <p>Errors assigned were (1-7) rulings on evidence, quoting the bill of exceptions; (8-10) above instructions, quoting them.</p>

<p>Appeal, No. 34, March T., 1914, by defendant, from judgment of C. P. Luzerne Co., March T., 1911, No. 18, on verdict for plaintiff in case of C. C. Garrison v. J. H. Van Luven.</p> <p>Scire facias sur mechanic’s lien. Before Fuller, P. J.</p> <p>At the trial it appeared that the lien was based on an oral contract for the electrical equipment of a building for the contract price of $475. The claim filed indicated that labor and material had been furnished to the amount of $441.68. The building was first known as the Van Luven Building. Subsequently the name was changed to the Bohemian Theatre. The testimony in the case showed the difference between the contract price and the amount of the lien was due to the fact that certain of the equipment had not been furnished owing to the change in the owner’s plans. Other facts appear by the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $467.96. Defendant appealed.</p> <p>Errors assigned were various rulings on evidence, quoting the bill of exceptions, and in refusing to give binding instructions for defendant.-</p>

<p>Divorce — Cruel and barbarous treatment — Charge of infidelity.</p> <p>1. Where a husband tells his wife that he had been intimate with another woman for the purpose “that if she believed me that she would leave me,” and the wife does believe him, and afterwards charges him with infidelity, and makes statements to that effect to other persons, the husband in a subsequent suit for divorce cannot allege such charges and statements as cruel and barbarous treatment and indignities within the meaning of the act.</p> <p>2. Where first cousins were married prior to the date of the act which made such a union illegal, the court cannot in a divorce proceeding instituted after the passage of the act consider the fact that the parties were first cousins as in any way material to the issue involved in the proceeding.</p> <p>3. A husband will not be granted a divorce on the ground of indignities to the person and cruel and barbarous treatment where' the only evidence of such acts is the testimony of the husband himself, and all of such acts are denied by the wife and contradicted in most essentials by other witnesses, even those called by the libelant.</p>

<p>Appeal, No. 3, Feb. T., 1914, by defendant, from judgment of C. P. Tioga Co., May Term, 1911, No. 222, on verdict for plaintiff in case of Ambrose It. Decker v. New York Central & Hudson River Railroad Company.</p> <p>Trespass to recover damages for personal injuries. Before Cameron, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Defendant’s points were as follows:</p> <p>2. If the jury find from all the evidence in the case that there is as reasonable a probability that the property for which this action is brought was destroyed from a cause other than the one complained of, there can be no recovery in this action. Answer: That is the law as a general proposition. But, it is our duty to say to you that there is no direct evidence here on the part of the defendant that this fire was caused in any way! The plaintiff’s witness, Mr. DeWitt, testifies that he could trace the fire from this pile of ashes to the bam; bearing that evidence in mind, if you still think from the evidence that there is a reasonable probability that these barns were destroyed by another cause, it would be your duty to return a verdict for the defendant. [1]</p> <p>3. The uncontradicted evidence being that the plaintiff was present and saw the cinder pile complained of when on fire, saw the danger and made no effort to protect his property, he was therefore guilty of contributory negligence and your verdict must be for the defendant. Answer: Refused. [2]</p> <p>4. The plaintiff cannot recover in this case because his own evidence shows himself guilty of contributory negligence, in going away and making no effort to protect his property, after he saw the cinders dumped upon the railroad track near his property and believed, as he testified, that there was danger from the cinders so deposited upon the track. Answer: Refused. [3]</p> <p>5. That the lease under which the plaintiff was in possession of the land upon which his barn was located by its provisions bars the right of the plaintiff to recover in this case. Answer: Refused. [4]</p> <p>If the jury find from the evidence that there are other causes for which the defendant was not responsible, which might just as well have produced the result complained of, and that there is an absence of direct proof as to the cause of the injury, there can be no recovery for the plaintiff and the verdict must be for the defendant. Answer: Refused. In view of the evidence of Mr. DeWitt already alluded to, we cannot say to you there is no direct proof of the cause of the fire. [5]</p> <p>9. Under all the evidence in this case, the verdict must be for the defendant. Answer: Refused. [6]</p> <p>Verdict and judgment for plaintiff for $1,293.60. Defendant appealed.</p> <p>Errors assigned were (1-6) above instructions, quoting them.</p>

<p>Appeal, No. 8, March T., 1914, by plaintiff, from judgment of C. P. Dauphin Co., Sept. T., 1910, No. 12, on verdict for plaintiff in case of Isaac D. West v. Alfred F. Hanna.</p> <p>Ejectment for land in Lykens borough, Jackson township and Winonisco township. Before McCarrell, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The court charged in part as follows:</p> <p>[That action (of ejectment) was brought in November, 1870, in this court. It was tried in this court and resulted in a verdict in favor of Barrett, who claimed under the Barnett warrants, for 600 acres of land less sixty-two acres, or about 538 acres of land. That is to say, in this court, upon the trial of that case, after investigating the surveys and hearing the claims of the Barretts, who were claiming under the Barnett warrants and the claims of Gratz and others, who were claiming under the Gilbaugh ánd Wilson warrants, the verdict was in favor of Barrett, the plaintiff, for only about 538 acres of the land covered by the Barnett warrants. That action was not finally disposed of until about 1875, when a motion for a new trial was overruled and nothing further done.</p> <p>While the action was pending and before it was finally decided by refusal of the motion for a new trial the Barretts conveyed their title to Anton F. Englebert. The necessary implication from the verdict that was rendered in that case is that Mr. Gratz, the defendant in the action, had title to the remainder of the Barnett warrants not covered by the finding of 538 acres in favor of the Barretts, the plaintiffs in that action. The necessary conclusion is that the title to the remainder was vested in Mr. Gratz, claiming under the earlier warrants to Gilbaugh and Wilson.] [2]</p> <p>[Nothing further, as we have said, was done in that action. Mr. Englebert had gotten a deed prior to the final determination of the action, and in 1878, according to the uncontradicted testimony in this case, Mr. Englebert, then holding the Barnett title and having more than 900 acres described in the deed given him by the Barretts, met Mr. Gratz, the claimant to the other land, and according to the uncontradicted testimony they established a line showing the division between the lands belonging to Mr. Englebert and the lands belonging to Mr. Gratz. This line, according to the uncontradicted testimony of Mr. Low, who located by Mr. Hoffman, who was employed by the parties — by Mr. Gratz and Mr. Englebert — for that purpose. The line was located. Low says he saw Hoffman making the surveys, and that the line was located and marked upon the ground appears from the testimony of Mr. Van Horn, a witness for the plaintiff, who says that, after he was shown the Englebert map, on which Mr. Englebert had noted the lines of his property, after he had the Englebert map and went upon the ground he found the marks and lines as called for by that maja. So that according to the uncontradicted testimony in this case there appears to have been a line established between Mr. Englebert and Mr. Gratz in 1878, and we recall no testimony that after that line was thus established Mr. Englebert ever claimed any of the land lying on the Gratz side of the line, and Mr. Gratz never claimed any of the land lying on the Englebert side of the line. They established that line and, according to the uncontradicted testimony, as we recall it, Mr. Englebert and Mr. Gratz held and enjoyed possession of these lands according to that line thus established by the surveys made by Mr. Hoffman, who represented both parties. And Mr. Englebert continued to hold it during his life, and his conveyances show that a division of the remainder of the Barrett tract was recognized, and that in one part there was a tract of 531 acres and in the other a tract of 439 acres, the 439 acres being the part belonging to Mr. Gratz, according to the line thus located, and 531 acres being the part on Mr. Englebert’s side of the line. The land’s were so held according to that line down until the death of Mr. Englebert, and that line seems to have been recognized by the heirs of Mr. Englebert, for when they came to consider Mr. West’s proposition to purchase their lands in 1908, they were of opinion, and so stated to Mr. West, that they did not own the 439 acres, that if Mr. Englebert ever had title to that land, he must have disposed of it, because they did not claim it; and Mr. West, after having been given the papers which the Engleberts had, looked them over and came back and assured them that on the papers, according to the records which he had examined, the title to the 439 acres seemed to be in Mr. Englebert and therefore he asked and obtained a special quitclaim deed for the 439 acres, which, according to the uncontradicted testimony seems to have been set off for the use of Mr. Gratz and enjoyed by Mr. Gratz from and after the survey made by both in 1878. This you will remember, gentlemen, was thirty years after that line had been run in 1878, and, if the case was in such shape that we felt obliged to leave that question to you and to be determined as .matter of fact, we would say to you that, if you find from the uncontradicted testimony in this case, or from the weight of the evidence in this case that from and after 1878 Mr. Englebert and those claiming under him and Mr. Gratz and those claiming under him recognized the line established by Mr. Hoffman in 1878 as the dividing line between their respective properties, and that each from and after the establishment of that line held and enjoyed the lands in accordance therewith and had possession of it in accordance therewith, then that each would have acquired title by reason of the lapse of time. That would have given Mr. Englebert title to the 531 acres and Mr. Gratz and those claiming under him a title by prescription to the remaining 439 acres.] [3]</p> <p>[Following that this action was brought, it cannot be insisted that this action of ejectment was brought because of the order of this court. This court had before it no claim asserted by anyone with respect to any of the lands except the 439 acres. Mr. West was not bound to bring any action at all. It was simply requiring him to bring this action if he desired to assert title and preventing him from asserting any title if he did not bring it within the statutory time. The bringing of the action was a matter for Mr. West’s voluntary consideration and action.] [4]</p> <p>[So that according to the law of the state, the court, as we view it, cannot permit this action of ejectment to be prosecuted to a conclusion in his favor by the present plaintiff, Isaac D. West. His action is barred because of the former action of ejectment, and any action. by anyone claiming under the Englebert title was barred before he purchased this land, and we shall therefore be obliged to instruct you in accordance with this view of the law.] [5]</p> <p>Defendant presented this point:</p> <p>If the verdict be for the defendant it should be molded in substantially the following form:</p> <p>Verdict for defendant for so much of the land described in the praecipe and summons as is bounded and described as follows’:</p> <p>“Beginning at stones; thence by land formerly of Edward Gratz south 85° 15' east 165.7 perches to stones;, thence north 15' east 78 perches to stones; thence by lands now or late of Lykens Valley Coal Company and others north 82° 21' east 198.5 perches to post; thence by lands formerly of S. H. Barrett south 8° east 213 perches to post; thence by land formerly of Edward Gratz south 82° 45' west 404.5 perches to stones; thence by land formerly of Gratz and Haldeman north 47° 15' west 47 perches to stones; thence north 42° 45' east 78 perches to stones; thence north 8° 15' west 83 perches to stones; the place of beginning, containing 439 acres, more or less.” Answer: This point we affirm, and in accordance with its affirmance and because of the fact that this present action was not brought within one year from the date of the passage of the act of April 4, 1907, we say to you, as matter of law, that Mr. West cannot prosecute this action so as to obtain in his favor a verdiot for any part of the lands that have been claimed here by him, and the defendant, who upon the record after the bringing of this action disclaimed title to all the lands mentioned in the summons of ejectment save the 439 acres, which have been particularly described by him, is entitled to your verdict for that land, and we therefore instruct you to render the following verdict:</p> <p>“And now, November 25, 1912, the jury find in favor of the defendant for so much of the land described in the praecipe and summons filed in this case as is bounded and described as follows, to wit: Beginning at stones; thence by land formerly of Edward Gratz south 85° 15' east 165.7 perches to stones; thence north 15' east 78 perches to stones; thence by lands now or late of Lykens Valley Coal Company and others north 82° 21' east 198.5 perches to post; thence by lands formerly of S. H. Barnett south 8° east 213 perches to post; thence by land formerly of Edward Gratz south 82' 45° west 404.5 perches to stones; thence by land formerly of Gratz and Haldeman north 47° 15' west 47 perches to stones; thence north 42° 45' east 78 perches to stones; thence north 8° 15' west 83 perches to stones, the place of beginning, containing 439 acres, more or less.”</p> <p>This, gentlemen, is the conclusion we have reached and we therefore instruct you to find such verdict. [20]</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned among others were (2-5, 20) above instructions, quoting them, and (1) order making absolute rule to bring ejectment.</p>

<p>Appeal, No. 19, March T., 1914, by Edward W. Miller, from decree of O. C. York Co., dismissing exceptions to auditor’s report in Estate of Caroline Bahn, deceased.</p> <p>Exceptions to report of Harvey A. Gross, Esq., auditor.</p> <p>From the record it appeared that Caroline Bahn by her will directed as follows:</p> <p>“I direct that my husband, Henry Bahn, and my daughter, Elsie Minerva, shall occupy my house and lot until such time as my husband, Henry Bahn and my executor hereinafter named, shall agree to sell the same, and when so sold, that the proceeds of said sale shall be equally divided, share and share alike between my husband, Henry Bahn, and my daughter, Elsie Minerva Bahn.”</p> <p>Pursuant to this provision the testatrix’s husband, Henry Bahn, and her daughter, Elsie Minerva Bahn, occupied the house and lot in question until the death of the husband, without any'sale thereof. After his death the property was sold by Elsie Minerva Bahn as administrator d. b. n. c. t. a. of the estate of Caroline Bahn, deceased. The auditor distributing the proceeds of said sale awarded the whole of them to Elsie Minerva Bahn under the intestate laws of this commonwealth, upon the ground that the failure of the testatrix to make any devise over of the said realty itself in the event of its not being sold, made her die intestate as to that portion of her estate.</p> <p>Exceptions to auditor’s report were dismissed by the court.</p> <p>Error assigned was in dismissing exceptions to auditor’s report.</p>

<p>Appeal, No. 13, April T., 1914, bv deiendant, from judgment of C. P. Erie Co., Nov. T., 1911, No. 79, on verdict for plaintiff in case of George W. Boettiger v. Ferdinand Weber.</p> <p>Scire facias sur mechanic’s lien. Before Walling, P. J.</p> <p>Verdict and judgment for plaintiff for $154.62. Defendant appealed.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was in refusing to enter judgment for defendant n. o. v.</p>

<p>Will — Legacy—Charitable gift — Void gift — Codicil—Act of April 26, 1855, P. L. 828.</p> <p>Where a testatrix by a will executed more than a calendar month before her death, made bequests to individuals, and named a charitable institution as residuary legatee, and by a codicil executed within a calendar month prior to her death, reduced the bequests to individuals, and thereby increased the residue to the charity, the amount of such increase represented by the difference between the residuary estate given by the will, and the residuary estate given by the codicil is void under the Act of April 26, 1855, P. L. 328.</p>

<p>Promissory notes — Contemporaneous agreement — Parol evidence— Evidence — Fraud.</p> <p>1. Where a person is' induced by a contemporaneous parol promise to sign a promissory note which he would not have signed, except for the promise, a subsequent breach of the promise is a fraud upon his rights, and he may set up the breach as a defense to the note, and prove the promise by parol evidence.</p> <p>2. In an action upon such a note where the defendant sets up in his affidavit of defense the promise and the breach thereof, and avers that he expects to prove the facts averred, the presumption is that he will do so by proper proof at the trial. He is not required in his affidavit of defense to set forth the manner in which the facts therein alleged will be proved, nor the evidence by which they will be substantiated.</p>

<p>Insanity — Weak-minded persons — Evidence—Review.</p> <p>1. On an appeal from a decree in a proceeding under the Act of May 28, 1907, P. L. 292, finding a person of weak mind, the appellate court will take into consideration that the court below had the respondent himself before it, in determining whether the decree was correct, and if the testimony of the respondent himself shows weakness, childishness and a sense of personal irresponsibility, and it also appears that the respondent a few years before, had a serious illness which caused a mental change in him, the decree will not be reversed.</p> <p>2. In a proceeding under the Act of May 28, 1907, P. L. 292, the lower court is not required to reduce to writing, its conclusions of fact and law as in equity cases, nor to make any specific findings as to the appearance, manner and testimony of the respondent.</p>

<p>Insurance — Live stock insurance — Contract—Payment of premiums— Waiver — Proofs of loss — Conflicting evidence as to health — Case for jury.</p> <p>1. Where an owner of a horse is permitted, without payment of premium, to retain a policy of insurance on the horse, conditionally on his keeping the animal, and three months afterwards pays the premium to the company, and the company retains the same for two months, and then offers to return it after the death of the horse, the contract of insurance will be deemed to have become effective on the day that the company accepted the premium.</p> <p>2. Where in an action on a policy of insurance on a horse the evidence is conflicting as to the condition and health df the horse on the day that the insurance became effective, the case is for the jury. In such a case the court cannot say as a matter of law that a mere cough from which the animal suffered was a condition of sickness within the. meaning of the health clause in the policy.</p> <p>3. Where the owner of a horse immediately after its death notifies by telephone an insurance company of the death of the horse which the company had insured, and the company at once sends its surgeon to make a post-mortem, and thereafter within sixty days notifies the insured that the policy will not be paid, the company cannot subsequently defend an action on the policy, because of the failure of the insured to give written notice of death or proof of loss within sixty days as specified in the policy.</p>

<p>Insurance — Live stock insurance — Age of animal — Mistake—Health of animal.</p> <p>, 1. Where a person about to insure a horse states to the agent that the horse was fifteen years old and exhibits to him a bill in which the age of the horse is correctly given, but the company in writing the policy by mistake states the age as fourteen, the policy is not thereby rendered invalid so as to enable the company to profit by its own carelessness. ,</p> <p>2. In an action upon a policy of live stock insurance the trial judge cannot be convicted of error in refusing to charge that “if at the time the policy went into effect the animal insured was not in good health, or was unsound, or diseased, then there can be no recovery,” where the policy provides that “the company will not be liable for the death of any animal resulting from sickness or disease contracted or accident occurring prior to or upon the day of the issue of the policy.” Such a point is too broad, and could not be affirmed unless it is shown that the unsoundness was such as was embraced in the words “sickness or disease,” and furthermore that the death resulted from such unsoundness.</p> <p>3. In an action upon a live stock policy which provides for notice to the company of the sickness of the animal, the court cannot say as a matter of law that the fact that the insured did not give notice of the development of nodules on the legs of a horse, invalidated the policy, where the evidence showed that the horse was in good health, and was used to within three days prior to his death, and that a horse in such a condition might render services for a long period. The question whether the horse was suffering from a sickness within the meaning of the policy is for the juiy.</p> <p>4. In such a case the failure to mention in the proof of loss the fact that the horse had nodules on his legs was not such a fraud as to work forfeiture of all claims under the policy.</p> <p>Insurance — Live stock insurance — Attaching application to policy— Act of May 11, 1881, P. L. W.</p> <p>5. A policy of live stock insurance which insures an animal not only against a loss by death from natural causes, but also against a loss by fire, is within the operation of the Act of May 11,1881, P. L. 20, which provides for the attaching of the application to the policy as essential to the application being received in evidence.</p>

Appeal, No. 48, April T., 1914, by defendants, from judgment of C. P. Erie Co., Sept. T., 1911, No. 210, on verdict for plaintiff in case of H. G. Vogel Company v. The Grape Products Company. Scire facias sur mechanic’s lien. Before Benson, J. At the trial the plaintiff offered the lien in evidence. Objected to as incompetent, immaterial and irrelevant and not evidence in this case; that it is only the statement of counsel.

Appeal, No. 104, April T., 1914, by Charlotte Olds Thomas, from decree of O. C. Erie Co., May T., 1912, No. 31, dismissing exceptions to auditor’s report in Estate of Florence E. Olds, deceased. Exceptions to report of E. L. Whittelsey, Esq., auditor. The opinion of the Superior Court states the case. Error assigned was in dismissing exceptions to auditor’s report.

Appeal, No. 61, April T., 1914, by E. G. Carrier et al., Supervisors, from order of Q. S. Warren Co., June Sessions, 1911, No. 1, dismissing exceptions to report of viewers In re Road in Columbus Township. Exceptions to report of jury of view. The opinion of the Superior Court states the case. Error assigned was order dismissing exceptions to report of viewers.

<p>Appeal, No. 93, April T., 1914, by defendant, from judgment of Q. S. Allegheny Co., June Sessions, 1913, No. 280, on verdict of guilty in case of Commonwealth v. George F. Young.</p> <p>Indictment for violating the Act of June 5, 1913, P. L. 429.</p> <p>At the trial the jury returned a verdict of guilty.</p> <p>The defendant moved to arrest the judgment for the following reason:</p> <p>The act of June 5, 1913 (285) under which the indictment in this case is found, is unconstitutional on the following grounds:</p> <p>(a) The title is defective in that the act contains more than one subject, to-wit: (1) Regulating the making of certain loans which is clearly expressed in the title, (2) limiting and restricting the act as to aliens, (3) providing for the assignment of money to be received in the future, and (4) providing for the taking of usury; the title offends against art. 3, sec. 3, of the constitution of Pennsylvania.</p> <p>(b) The act violates art. 8 of the federal constitution in providing an unusual punishment; any person convicted of one of the crimes enumerated in sec. 1, subhead f is, in addition to the punishment laid down for the crime, rendered ineligible to engage in a lawful occupation or business.</p> <p>(c) The act violates art. 1, sec. 17, of the constitution of Pennsylvania in providing an “ex post facto” punishment for persons convicted of the crimes enumerated in sec. 1, sub-head f.</p> <p>(d) The act is special legislation and is void for want of notice as provided in art. 3, sec. 8, of the constitution of Pennsylvania.</p> <p>(e) The act is special legislation in that sec. 6 fixes the rate of interest in excess of six per cent per annum and violates art. 3, sec. 7, of the constitution of Pennsylvania.</p> <p>(f) The act is special legislation in that it grants special privileges to its licensees, and special immunities to the classes mentioned in sec. 7, to wit, banks, trust companies, building associations or pawnbrokers.</p> <p>(g) The act is not a police regulation but a trade or business regulation in excluding from its operation the classes mentioned in sec. 7.</p> <p>(h) The act (sec. 1) grants to any corporation, regardless of the extent of its corporate powers, the right to loan money.</p> <p>(i) The Act of May 28, 1858, P. L. 622, sec. 2, limits the bringing of an. action for the recovery of excess interest to six months, while this act makes the limitation two years, and is in violation of the fourteenth amendment to the federal constitution.</p> <p>Error assigned was in refusing to arrest the judgment, and in passing sentence on the verdict.</p>

<p>Appeal, No. 17, April T., 1914, by plaintiff, from judgment of C. P. Allegheny Co., Dec. T., 1910, No. 453, on verdict for defendant n. o. v. in case of Gertrude Mcllvaine v. David P. Lutz and William E. Rodemeyer, doing business as Lutz & Rodemeyer.</p> <p>Trespass to recover damages for personal injuries. Before Macfarlane, J.</p> <p>At the trial the jury returned a verdict for the plaintiff but the court entered judgment for defendant n. o. v. on the ground of a fatal variance between the pleadings and the proof.</p> <p>Error assigned was in entering judgment for defendant n. o. v.</p>

<p>Appeal, No. 8, April T., 1914, by defendant, from judgment of C. P. No. 2, Allegheny Co., Jan. T., 1910, No. 41, on verdict for plaintiff in case of Samuel McKim v. Benjamin Burke.</p> <p>Replevin for chairs and scenery in a theater. Before Brown, J.</p> <p>The court below found the facts to be as follows:</p> <p>This, is an action by Samuel McKim, plaintiff, against Benjamin Burke, defendant, to recover drop curtains and 550 chairs. Both claim title by sheriff’s sales upon executions against the Bessemer Amusement Company— plaintiff by sale of July 16, 1909, defendant by sale of September 13, 1909.</p> <p>1. In 1907, Jesse P. McCune and wife leased to Israel Rosenbloom a vacant lot in the borough of Braddock for the term of fourteen years and eleven months.</p> <p>2. Shortly thereafter the lessee and others secured a charter for the Bessemer Amusement Company formed “for the purpose of establishing and maintaining a nickelodeon or nickelodeons, theater and theaters, and a like place or like places of public amusement and entertainment” — and the lessee assigned the lease to that company.</p> <p>3. The amusement company erected a theater building, installing and using therein chairs, scenery and other appliances for theatrical and nickelodeon purposes.</p> <p>4. The. lease provides: “. . . . if the parties of the first part refuse to release at a reasonable readjustment of rent, .... the parties of the first part agree to buy the building; the price .... to be adjusted by three arbitrators, one to be chosen by the parties of the first part, one by the party of the second part, and the third by the two arbitrators chosen.”</p> <p>5. Anderson, Darragh & Company obtained a judgment against the amusement company and issued an execution, levying on pool tables, barber chairs, pianos (and the drop curtains and 550 chairs, the subject of this replevin). The property was sold by the sheriff, July 16, 1909, and purchased by Anderson, Darragh & Company. The company received a bill of sale therefor and assigned it to Samuel McKim. The lessors made no claim to the chairs and drop curtains, but as against the proceeds of sale, presented to the sheriff the following claim for rent: “Rent of building for April, 1909, $140; Rent of building for May, 1909, 140; Rent of building for June, 1909,140; Rent of building for July, 1909, 140.”</p> <p>6. Upon a later execution against the amusement company, the sheriff, on September 13, 1909, sold to Benjamin Burke the leasehold right of the amusement company, delivering to him a bill of sale therefor. Burke purchased with notice of the prior sheriff’s sale under which McKim held title.</p> <p>The court gave binding directions for plaintiff.</p> <p>Verdict and judgment for plaintiff for $1,471.42. Defendant appealed.</p> <p>Error assigned amongst others was in giving binding directions for plaintiff.</p>

<p>Conspiracy — Civil action — Evidence.</p> <p>1. In a prosecution for a conspiracy the combination is of the gist of the offense, and if that is not proved there can be no conviction. The offense is complete when the conspiracy is formed. In a civil suit for damages the rule is different. In the latter case the mere combination injures no one, and unless there is something done in pursuance thereof no action will lie.</p> <p>2. The burden is on him who alleges a conspiracy as the foundation of his suit to prove it by sufficient testimony, and, failing to do so his action falls. A conspiracy must be proven by substantive facts, not by disconnected circumstances, any one of which, or all of which are more consistent, or just as consistent with a lawful purpose as with an unlawful undertaking.</p>

Appeal, No. 34, April T., 1914, by plaintiff, from judgment of C. P. Allegheny Co., Sept. T., 1910, No. 155, on verdict for defendant n. o. v. in case of Lizzie Nelson, now Lizzie Porter, v. Pittsburg, Cincinnati, Chicago & St. Louis Railway Company. Trespass to recover damages for death of plaintiff’s husband. Before Macfarlane, J. The facts are stated in the opinion of the Superior Court. At the trial the court rendered a verdict for plaintiff.

Appeal, No. 3, March T., 1914, by J. J. Nutt, from decree of O. C. Dauphin Co., sustaining exceptions to account in Estate of W. H. Smith, deceased. Exceptions to report of W. E. Buffington, Esq., auditor. The opinion of the Superior Court states the case. Error assigned was decree sustaining exceptions to account.

Appeal, No. 18, March T., 1914, by Henry I. Hartman et al., from order of Q. S. Dauphin Co., June Sessions, 1912, No. 197, refusing to divide township In re Division of Washington Township. Held: and that the ballots were not prepared in accordance with the laws relating to elections.

<p>Appeal, No. 39, April T., 1914, by plaintiff, from , judgment of C. P. Allegheny Co., Nov. T., 1911, No. 544, on verdict for defendant in case of M. H. Pickering Company v. Friedman Realty Company, impleaded with Edna Kane, otherwise known as Edna Lewis.</p> <p>Replevin for goods distrained. Before McFarlane, J.</p> <p>From the record it appeared that on October 13, 1911, W. J. Morris, as bailiff of the Friedman Realty Company, agents, served a landlord’s warrant for $200 on Edna Lewis at 421 Second avenue. He did this by entering an outer door to the premises from an alley in the rear, the door being locked by a Yale lock. He opened this door by inserting his hand through a lower pane or partition of a sash, which composed the upper part of the door, from which the glass had been broken by some one, and pushing aside a wire screen which covered and protected the sash in the door he thus reached the Yale lock on the inside, turning it, opened the door and entered; after which he went through the house and levied or distrained upon all the goods on the premises. The lease for the premises contained the following clause:</p> <p>“If the premises at any time be deserted or dosed, the lessor may enter by force without liability to prosecution or action therefor, and may distrain for rent and also re-let the premises as agent for the tenant for any unexpired portion of the term, and receive the rent therefor and apply it on this lease.”</p> <p>On October 25, 1911, M. H. Pickering Company, the bailor of the most of the goods upon the premises which had been levied upon under the landlord’s warrant, issued a writ of replevin under and by virtue of which the goods distrained were- replevied and delivered to said M. H. Pickering Company.</p> <p>At the trial the landlord in proving his claim did not prove the time of day the distraint was made.</p> <p>At the trial the following request was made.</p> <p>Mr. Buchanan: I would make one other suggestion, your Honor, and that is, that an essential and material part of' the defendant’s case is to show not only the landlord’s warrant was levied upon a certain day, but that it was levied on that day between sunrise and sunset, and there is not anything here, no evidence to show when this levy was made, and the burden is upon the landlord to show it.</p> <p>The Court: We will not instruct the jury that it is necessary for the defendant to affirmatively show that this was .done between sunrise and sunset. The points are refused. [1]</p> <p>The court charged, inter alia, as follows:</p> <p>[The next step is not disputed, that Mr. Morris received the landlord’s warrant and went down and dis-trained the goods. The single question is: In doing that, was he a trespasser? Did he commit a trespass? His testimony is that the back entrance to this property is a door, leading into the alley. As I understand it, it was something that you could not climb over, the whole place was inclosed away up to the building somewhere; apparently a side alleyway, or passageway, into the place.. Whether it was covered he, and the young man who was with him, do not know: A witness called for the plaintiff said it was. He said it was sort of a shed or outside kitchen, and I have the impression that the bell was on the inner door, but it is not material.</p> <p>In the door leading into the alley there was a glass that had been broken, and both the witnesses say there was a snap lock, and that -Mr. Morris put his hand through this opening and opened that lock. If that is all there was to the case, he would be entering the premises in a way that would constitute him a trespasser. He would have no right to do that, and the landlord would have no claim here, but the lease makes this provision: “if the premises at any time be deserted or closed, the lessor may enter by force without liability to prosecution or action therefor, and may distrain for rent, and also re-let the premises, and so forth.”</p> <p>Were these premises deserted or closed? That is your single question in this case, gentlemen. Mr. Morris and Mr. Lichtenstul say that they went down there and found the front of the house closed, and then went around to the back and got in as I have just told you, into this place at the rear, and then found the kitchen door standing open, went in, and the house was all open. They say they went through it, there was no one there. Mr. Morris used the remark in his testimony that the place seems to be vacant. At any rate the testimony of both of them is, that they went through the house and there was no one there.</p> <p>You have perhaps not deserted premises, as they say she was back there later, they found her there in her room, but it seems there were a considerable number-of rooms in that house, and she was out, according to their testimony, no one there, and the house standing in that way. If that is true they had a right to go in, and there was no trespass about it- — it would be a proper entry within the meaning of this lease. That is your single question. It has taken a good while to get to that. We have had various matters under discussion, and some of you saw that we were trying to get at the law of this case, without knowing about this clause in the lease, but it comes down to that.] [2]</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned were (1, 2) above instructions, quoting them.</p>

<p>Appeal, No. 54, April T., 1914, by defendant, from order of C. P. Allegheny Co., April T., 1913, Docket “A” making absolute rule for judgment for want of a sufficient affidavit of defense in case of Commonwealth to use of Maurice Joy v. Saverio Amantea.</p> <p>Assumpsit on an appeal bond.</p> <p>The material averments of the affidavit of defense and statement of claim are set forth in the opinion of the Superior Court.</p> <p>Error assigned was order making absolute rule for judgment for want of a sufficient affidavit of defense.</p>

<p>Negligence — Hole in sidewalk — Contributory negligence — Case for jury.</p> <p>■ 1. In an action by an elderly woman against the proprietor of a store building to recover damages for personal injuries resulting from falling into an opening in the sidewalk immediately in front of the store, the case is for the jury, both on the question of defendant’s negligence, and the question of plaintiff’s contributory negligence, where the evidence tends to show that the accident happened on a congested sidewalk; that at the time of the accident it was raining so that the plaintiff and other pedestrians carried hoisted umbrellas; that the opening was about two and a half feet wide, and ordinarily protected by an iron covering; that at the time of the accident an employee of an ice company was delivering ice through the opening, and was himself leaning down over it; that the hole had been opened at the instance of the defendant, who had given instructions to the ice company and its servants, that when the door was opened pedestrians were to be carefully protected from injury; and that the plaintiff not noticing the hole or the stooping form of the iceman, fell over him partly into the hole, and was injured.</p> <p>Appeals — Review—Charge—Harmless error.</p> <p>2. A judgment for plaintiff in an action for damages for injuries resulting from a fall in a hole in a sidewalk, will not be reversed because the trial judge said to the jury that the plaintiff had a right to presume that the sidewalk was perfect at the time, if it appears that the court, when its attention was called to this statement, further charged that he meant that the plaintiff had a right to presume that the sidewalk was in a reasonably safe condition.</p>

<p>Appeal, No. 70, April T., 1914, by defendants, from order of C. P. Allegheny Co., July T., 1913, No. 2,011, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Elizabeth G. Snyder v. Arthur B. Snyder and F. L. Graf.</p> <p>Assumpsit on a bond.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>The material portions of the affidavit of defense and statement of claim are set forth in the opinion of the Superior Court.</p> <p>Error assigned was order making absolute rule for judgment for want of a sufficient affidavit of defense.</p>

<p>Appeal, No. 65, April T., 1914, by plaintiffs, from order of C. P. Erie Co., Nov., Term, 1912, No. 37, discharging rule for judgment for want of a sufficient affidavit of defense in case of Benjamin C. Willson, .surviving partner of the firm of Willson Brothers v. Bert Harned et al.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>The material averments of the statement of claim and affidavit of defense are set forth in the opinion of the Superior Court.</p> <p>Error assigned was order discharging rule for judgment for want of a sufficient affidavit of defense.</p>

<p>Landlord and tenant — Removal of goods — Violation of covenant — Goods of a third person — Attorney’s commissions.</p> <p>1. A provision in a lease that the entire rent for the balance of the term should become due and payable if the tenant removed or attempted to remove his goods, does not apply to the action of a third person who attempts to remove from the premises goods owned by him and subject to distress.</p> <p>2. A provision in a lease giving the landlord a right to enter judgment in case of default “with costs of suit and attorney’s commission of twenty dollars for collection,” does not apply to proceedings by distress.</p>

<p>Appeal, No. 77, April T., 1914, by defendant, from judgment of C. P. Allegheny Co., First Term, 1910, No. 382, on verdict for plaintiff in case of William Keown v. Henry W. Mallissee.</p> <p>Trespass for the wrongful holding over. Before Evans, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The court charged in part as follows:</p> <p>This plaintiff was the owner of a piece of land in the city of Pittsburg, on Eva street, and on that land was erected a stable with some twenty-six stalls in it. [The defendant occupied those premises as a tenant, and in October of 1907 the plaintiff in this case, the landlord, gave to the defendant a notice to quit, and to terminate the lease. Not having complied with that notice, proceedings were had before an alderman in the city, and judgment of ouster was rendered against the tenant, who is the defendant here, in December of 1907. That was the end of that proceeding unless it was appealed from, and there was no appeal, and that judgment now becomes a final judgment, and is conclusive of all questions involved, so far as the relationship of these parties was concerned in regard to the ownership and occupancy of that property. From that time forward the defendant in this case had no right to occupy those premises; he was in law a trespasser, and had no right to occupy the premises. This plaintiff then, after about two years— twenty-three months or so — -brings this suit to recover his damages for the use and occupation of the premises by the defendant. Now that is the only question in this case. What are his damages for the use and occupation, by the defendant, of that stable on the plaintiff’s land?] [4]</p> <p>Verdict and judgment for plaintiff for $1,129.34. Defendant appealed.</p> <p>Errors assigned among others was portion of opinion as above, and various rulings on evidence referred to in the opinion of the Superior Court.</p>

<p>Appeal, No. 78, April T., 1914, by D. Herbert Hostetter, from order of C. P. Allegheny Co., Oct. T., 1913, No. 897, dismissing proceedings to obtain possession of real estate In re Petition of D. Herbert Hostetter, Guardian of Theodore R. Hostetter, Jr.</p> <p>Petition for proceedings under the act of April 20, 1905, P. L. 239, to obtain possession of real estate. Before Davis, J.</p> <p>The case was heard on petition and answer.</p> <p>The material facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was order dismissing the proceedings.</p>

<p>Negligence — Boroughs—Defective crossing — Case for jury.</p> <p>In an action against a borough to recover damages for personal injuries suffered at a crossing of a street over a railroad, a recovery may be had against the borough where the evidence' tends to show that at the crossing there was a curve of the railroad tracks which was partly within the borough and partly within a neighboring township, that along the whole of the curve the rails were permitted to extend about two inches above the planks placed between the rails, that the planks were in an uneven condition so that the wagon which plaintiff was driving started to skid in the township, and continued to skid owing to the condition of the planks in the borough, and was finally so jarred in the borough by a projecting plank, that plaintiff was thrown out and injured.</p>

<p>Constitutional law — Trial by jury — Constitution of Pennsylvania, art. 1, sec. 6 — Judgment n. o. v. — Practice, C. P.</p> <p>The Act of April 22, 1905, P. L. 286, is not unconstitutional as a whole, nor as to that part which permits the trial court to enter judgment for the plaintiff when there has been a verdict for the defendant. It is not a denial of the right of trial by jury, and does not violate art. 1, sec. 6, of the constitution of Pennsylvania which reads- “Trial by jury shall be as heretofore, and the right thereof remain inviolate.”</p>

<p>Criminal law — Indictment—Motion to quash.</p> <p>1. Where a defendant moves to quash an indictment on the ground that the information was defective, and such motion is ultimately-overruled by the appellate court, the defendant has no standing again to move for the quashing of the indictment on the ground that the array of grand jurors on which the indictment was drawn was defective, where there is no offer to prove that the defendant could not have objected to the irregularity of the drawing of the grand jury on the first motion to quash.</p> <p>2. A motion to quash an indictment on the ground that a grand jury was improperly drawn will not be entertained, where there is no offer to prove the facts as to the manner in which it was drawn.</p> <p>3. A motion to quash an indictment on the ground that a grand jury was improperly drawn cannot be sustained as a challenge to the array where the motion is made after the grand jury has been discharged. A challenge to the array comes too late after the discharge of the grand jury.</p>

<p>Negligence — Damages—Inadequate verdict for plaintiff.</p> <p>In a negligence case a verdict for plaintiff for six and one-quarter cents will not be sustained where the uncontradicted evidence of the plaintiff corroborated to some extent by that of his wife shows that plaintiff was entitled to recover substantial damages, if he was entitled to recover at all; and this is the case although a verdict for defendant might have been rendered under the evidence.</p>

<p>Principal and agent — Beal estate brokers — Commissions—Employment — Evidence.</p> <p>1. In an action by a real estate broker to collect his commissions, the plaintiff is entitled to have his case go to the jury, where, although it appears that he did not introduce the purchaser to the owner, there is evidence that, at an interview between the owner and the wife of the purchaser, which the broker had brought about, and at which all three were present, the wife was acting for her husband as well as herself, and that after the owner had stated to her the prices for which he would sell two properties singly or together, the wife had said that she would consult her husband, and let the parties know.</p> <p>2. In such an action the broker cannot recover where he had never communicated directly with the purchaser, or had in any way contributed to bringing the purchaser and owner together, although a person introduced by the broker to the owner may have told the purchaser independently of the broker that the property was for sale.</p>

<p>Appeal, No. 139, April T., 1914, by defendants, from order of Q. S. Westmoreland Co., Feb. T., 1914, No. 176, quashing appeal in case of Commonwealth ex rel. Lieutenant Albright v. Mike Konas et al.</p> <p>Motion to quash appeal.</p> <p>The court below made the following order:</p> <p>It appears from the record in the case that the defendants were tried for offending against an ordinance of the borough of Monessen, that the case was heard before the burgess of that municipality; that they were adjudged guilty and were sentenced to pay a fine, the amount of which was within the provisions of the ordinance, and out of the money then in the hands of the burgess belonging to the men this fine, together with the costs, was paid, the circumstances of payment justifying the conclusion that it was voluntary payment. The defendants, therefore, have been tried, adjudged guilty, sentenced and the sentence carried into execution. The case, therefore, was at an end, and the allowance of the appeal was inadvertently made. The appeal is therefore quashed.</p> <p>Error assigned was the order of the court, quoting it.</p>

<p>Road law — Mining coal under street — Municipalities—Police power.</p> <p>Where an owner of land sells the surface but reserves the right to mine the coal without responsibility for surface support, and thereafter the vendee dedicates and conveys a portion of the land to a municipality for a public street, and the municipality accepts the land for that purpose, the owner of the coal cannot be restrained by an ordinance regulating the mining of coal under streets, from removing the coal under the street in question, although such removal affects surface support.</p>

<p>Promissory notes — Notice of protest — Misdirected letter — Evidence.</p> <p>In an action against the indorsee of a promissory note where the defendant alleges that he had never received notice of protest, a verdict and judgment against him will be sustained, where it appears that although the letter containing the notice was misdirected, the conclusion could be drawn from the competent evidence in the case that the notice of protest was in fact received.</p>

<p>Appeal, No. 1, April T., 1914, by John B.'Heron, Jr., from order of C. P. Allegheny Co., July T., 1912, No. 41, dismissing appeal from’ tax assessment in case of John B. Heron, Jr., v. City of Pittsburg.</p> <p>Appeal from tax assessment. Before Reid, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was order dismissing the appeal.</p>

<p>Promissory notes — Consideration—Forbearance.</p> <p>1. Where a person gives promissory notes as security for a judgment against a corporation, and it appears that at the time the notes were given the attorney for the judgment creditor stated that he was instructed to i^sue execution, and that unless the claim was secured it was his duty so to do, the maker of the notes cannot claim that there was no agreement for forbearance merely because the attorney did not expressly declare that he would not issue execution on the judgment. Forbearance in such a case is sufficient consideration.</p> <p>Promissory notes — Payment—Application of payments.</p> <p>2. In an action on the first of a series of promissory notes executed by two defendants, it appeared that the first defendant after suit was brought made a payment more than sufficient to cover the note in suit. He made no direction as to the application of this money, and it was received as a general payment on account of the debt. Held, that the second defendant had no standing to demand that the payment should have been applied to the note in suit and thus delay recovery against him until the other notes became due.</p> <p>3. The fact that the plaintiff brought suit before the payment was made and persisted in a demand for payment by pressing the suit, is sufficient evidence of an election not to apply the amount paid to the amount in suit.</p>