Volume 58 — Pennsylvania Superior Court Reports

<p>Appeal, No. 89, April T., 1914, by defendant, from judgment of C. P. Allegheny Co., March T., 1911, No. 3, on verdict for plaintiff in case of George A. Kelly Company v. G. A. Snyder, trading as Snyder’s Pharmacy, John W. Hyde, Garnishee.</p> <p>Issue to determine ownership of a stock of goods attached under the Act of March 17, 1869, P. L. 9. Before Carnahan, J.</p> <p>The .court charged in part as follows-:</p> <p>[There was a levy made upon the goods in this store, and Mr. Hyde was summoned as a garnishee. Mr. Hyde claims that the goods in the store did not belong to Snyder at the time of this levy or issuing of the execution. In support of his claim he produces an article of agreement which indicates that he and his brother, some time in February of 1910, sold to Snyder his store and the things in the store and the leasehold upon certain terms. Certain payments were to be made at different times, and in the agreement there was a provision that if the agreement was not promptly observed by Snyder, Hyde Brothers could repossess themselves of the goods in the store. Mr. Hyde, the garnishee, claims here, and it does not seem to be disputed, that the agreement was not carried out by Snyder on his part; that he defaulted in his payments, and Mr. Hyde and his brother did repossess themselves of this store.</p> <p>Further, it appears that Mr. Snyder himself voluntarily gave up his lease and surrendered the agreement and at the time of this execution the Hydes were in possession of this property.</p> <p>The plaintiff claims that this is a fraud upon the creditors.of Snyder, and that it is a creditor of Snyder; that the Hydes, by making this agreement, allowing it to be carried out on the part of Snyder and allowing him to conduct the store as if it was his, and allowing him to create debts, cannot now enforce their agreement as against these persons with whom these debts were created. That is their position. It was the act of Hyde, or at least participated in by Hyde, that enabled Snyder to contract these debts, and represent to Kelly that he was the owner of this store. The Kelly Company says on the strength of what appeared to be the fact, on the strength of the fact, as they found it, that Snyder did have possession of his store and was running it, they gave him credit.</p> <p>Right in that connection there is an act of assembly which has played an important part in the trial of this case, and in order that you may understand' just the situation here, it will be necessary for me to read this act of assembly. It was passed for the protection of creditors.</p> <p>Treating this as a sale by Snyder back to Hyde, and the effect is all the same so far as the creditors of Snyder are concerned, it was necessary under this act for the purchaser, Hyde, to ascertain the names and addresses of the creditors of Snyder, and to give notice to them. And in case that is not done, according to the provisions of this act, the sale shall be considered a fraudulent sale]. [3]</p> <p>[If you believe the testimony introduced by the plaintiff, George A. Kelly Company, that Snyder was in possession of this store at the time he became a creditor of George A. Kelly Company; that he so represented to George A. Kelly Company; that on the strength of his possession of that store and the goods in it, George A. Kelly Company gave .him credit, the credit for which this suit is now brought, and at the time of the return of the goods, or of the repossession by Hyde Brothers, no notice was given to George A. Kelly Company, under this sales act of this proposed repossession—or call it a sale—then the plaintiff is in a position to ask of you a verdict in his favor.] [4]</p> <p>[Of course, if credit was not given on the strength of Snyder’s possession of the store, that would be a different matter. If Hyde Brothers, by their act, permitted Snyder to do just what seems to have been done here—if you believe the testimony—then they cannot take the property back, except subject to the debts of Snyder, created on the strength of the fact that Snyder had that store. Those are questions of fact for you to</p> <p>determine. As I say, they are not contradicted. Nevertheless, it is for you to say whether they are facts or not upon which you feel at liberty to act. If you find'them to be so, your verdict ought to be in favor of George A. Kelly Company.</p> <p>If you do not believe the testimony that the plaintiff has submitted to you, namely, that they gave credit to him on the strength of Snyder having this store; on the strength of the fact that their own representative visited the store and saw Snyder in there and did business with him in the store—if you do not find those things to be true, then the plaintiff ought not to recover, and your verdict should be in favor of the defendant, John W. Hyde, garnishee.] [5]</p> <p>Verdict and judgment for plaintiff. Defendant appealed.</p> <p>Errors assigned were (3, 4, 5) above instructions, quoting them.</p>

<p> Malicious prosecution—Arrest by police officer—Acts of February 27, 1865, P. L. 225, April 11,1866, P. L. 99, and April 14,1905, P. L. 169-Evidence—Punitive damages. </p> <p>1. A police officer appointed under the Act of February 27, 1865, P. L. 225, and its supplement of April 11, 1866, P. L. 99, lias authority by law to arrest upon view and without a warrant for a violation of the Posting Act of April 14,1905, P. L. 169.</p> <p>2. The rule of law is that where an arrest is made without warrant by an officer of the law, it is not false imprisonment if the officer arresting had reasonable ground to believe that a felony had been committed, or if in the presence of- the officer, a misdemeanor had been committed by the person taken in custody.</p> <p>3. In an action for false imprisonment against a police officer commissioned to protect a coke works, the court may say as a matter of law that there was no false imprisonment where it is undisputed that the defendant had on previous occasions arrested the plaintiff for trespassing upon the coke property after it had been posted; that on such occasions defendant had taken plaintiff before a justice of the peace who had found him guilty and had sentenced him; that counsel had advised defendant that plaintiff was guilty of a misdemeanor, and that this advice had been concurred in by the county court although it was subsequently ruled not to be the law by the appellate court.</p> <p>4. In such a case the trial court commits no error in refusing to allow the record of the conviction of the police officer of assault and battery on the plaintiff, to be put in evidence, where no damages are laid by reason of any personal injury to the plaintiff in the manner of the arrest; nor in such a ease is there any ground for punitive damages.</p>

<p> Malicious prosecution—Injury to business—Damages. </p> <p>1. In an action of trespass where damages are claimed, not only for malicious prosecution and false imprisonment, but also for interference with .the plaintiff’s business, the court may disallow the claim for malicious prosecution and false imprisonment, and permit a recovery for damages resulting from injuries to plaintiff’s business.</p> <p>2. In such a Case it is reversible error for the trial court to allow the plaintiff in showing the damage to his business to prove the amount of business at another plant similar in character and smaller, situated in the same neighborhood, where it appears that the plaintiff had a limited right of entry only in the plant involved in the case, but had an unlimited right of entry in the other plant.</p> <p> Trespass—Parties—Joinder of parties. </p> <p>3. In an action of trespass against six defendants, a verdict and judgment against three may be sustained, where conspiracy is charged, although not proved, but there is proof of an actual wrong by the three defendants against whom the verdict and judgment was rendered.</p>

<p> Taxation—License tax—Telegraph and telephone companies—Act of April 17, 1906, P. L. 188. </p> <p>1. The Act of April 17, 1905, P. L. 183, entitled, “An Act providing for the determination by the Court of Common Pleas of the proper county of all disputes as to the reasonableness of the amount of license fees between municipal corporations and telegraph, telephone, or light or power companies,” does not afford a remedy against a wholly illegal tax levied by a municipality under the provisions of an ordinance which the municipality had no authority to enact, and no lawful power to enforce.</p> <p>2. In a proceeding under the Act of April 17, 1905, P. L. 183, by a telegraph company to determine the amount of annual license tax or fee which should be paid to a city in order to properly compensate it for the necessary costs of the services of inspection, where the court finds from competent evidence that the license tax or fee imposed by the ordinance is neither unreasonable nor excessive, it should not dismiss the petition, but should enter a decree fixing the rate that should be paid until there should be such change in conditions as will warrant alteration of the decree by the court itself.</p>

<p> Trade-marks—Infringement—Accounting. </p> <p>Where the infringement of a trade-mark is not the result of mistake or ignorance of the plaintiff's right, but is born of a deliberate and premeditated plan to divert from him business and profits fairly resulting from his own skill or enterprise, the defendant will not only be enjoined from continuing the infringement, but will be compelled to account for the profits which accrued from his own deliberate wrongdoing.</p>

<p> Road law—Assessment and damages for opening street—Payment of assessment—Reduction of damages—Act of May 16, 1891, P. L. 75. </p> <p>Where assessments of benefits for the opening of a street equal the damages awarded, and the parties benefited pay their assessments, but subsequently on an appeal from report of viewers, the damages awarded are reduced, the parties who paid their assessments are entitled to recover back from the borough;their ratable proportion of the money paid to the borough in excess of the damages finally awarded. The fact .that such'payments were voluntary is immaterial.</p>

<p>Appeal, No. 62, April T., 1914, by defendant, from decree of C. P. Allegheny Co., Jan. T., 1911, No. 760, on bill in equity in case of Pittsburg & Lake Erie Railroad Company v. George W. Peterson.</p> <p>Bill in equity to declare an agreement invalid and for an injunction.</p> <p>Macfarlane,. J., found the facts to be as follows:</p> <p>1. The McKeesport & Belle Vernon Railroad Company on or about April 10, 1889, gave to defendant an agreement dated April 10,1889, stipulating in consideration of $1.00 “that it will continuously hereafter transport over the line of the first party’s railroad the party of the second part.” The date originally written was March 00, 1889, and was altered to April 10, 1889, which was even date with defendant’s deed for right of way.</p> <p>2. On January 1, 1884, the Pittsburg, McKeesport & Youghiogheny Railroad leased to the plaintiff its line and all rights, privileges and property thereafter acquired, the plaintiff to maintain, work and operate the said railroad (the P., McK. & Y.) in all respects as it would be bound to do and' would do if it were the owner thereof, "with like franchises, powers, right and privileges, charter, statutory or other which the said Youghiogheny Company possesses, and subject to the like duties and obligations as now rest or may be hereafter imposed upon it, the said Youghiogheny Company, in the premises, and will observe and perform such duties and obligations in the same manner as the said Youghiogheny Company would be bound to do if this indenture were not made.” October 7, 1890, the McKeesport and Belle Vernon Railroad was consolidated with and merged into the Pittsburg, McKeesport & Youghiogheny, all liabilities being assumed by the latter company.</p> <p>3. The plaintiff permitted the defendant to ride free of charge upon its trains while passing over the line of the Belle Vernon road until March, 1910, when he was notified that the agreement would not be recognized and thereafter he was required to and did pay his fare, in each instance taking a receipt from the conductor.</p> <p>4. Defendant brought seven suits before a justice of the peace, each to recover a number of fares paid by him as follows: May 6, 1910, for $2.44; May 13, 1910, for $1.16; June 28, 1910, $2.98; July 28, 1910, $4.66; September 26, 1910, $3.95; October 18, 1910, $1.16; November 19, 1910, $2.40. Judgments were recovered in which the costs were respectively $16.15; $9.21; $10.03; $10.27; $9.65; $10.55; $11.71. In each suit defendant subpoenaed several of plaintiff’s conductors to whom he had paid fare and they attended the first two hearings.</p> <p>5. These actions were brought and the conductors were subpoenaed for the purpose of harassing the plaintiff.</p> <p>'■ 6. Defendant threatened to bring further actions and this bill was filed December 23, 1910.</p> <p>7. There was no evidence as to the value of the agreement nor that it was not at a discount.</p> <p>8. There was no valuable consideration for the agreement.</p> <p>CONCLUSIONS OF LAW.</p> <p>1. The agreement of merger and the lease bind the plaintiff to perform the agreement, if it be valid, otherwise not.</p> <p>2. The agreement is severable.</p> <p>3. An injunction should be granted on the ground of vexatious litigation. I</p> <p>4. The defendant’s agreement is a free pass or pass at a discount in violation of art. 17, sec. 8, of the constitution and is invalid.</p> <p>5. It is invalid under the Act of 1874, P. L. 289, Purdon, 3905.</p> <p>6. The Act of May 31, 1907, P. L. 352, 5 Purdon, 5987, forbids the honoring of the pass.</p> <p>7. Plaintiff is entitled to a decree restraining further suits upon the agreement and from proceeding to collect judgments already recovered, and declaring the agreement to be invalid, at the costs of the defendants.</p> <p>OPINION.</p> <p>While the agreement is severable (McLaughlin v. Hess, 164 Pa. 570; Allen v. Colliery Co., 196 Pa. 512; s. c. 201 Pa. 579; Page on Contracts, sec. 1486), the numerous actions with their disproportionately large costs .were unnecessary and the subpoenaing of the conductors was vexatious, and a court of equity has jurisdiction to suppress useless litigation and to prevent a multiplicity of suits: Lyons v. Importers, etc., Bank, 214 Pa. 428. •</p> <p>The defendant was a prospective shipper, the pass bore the date of his deed, and at that time it was the habit of officials of railroads to distribute passes as gratuities, and there is no presumption or even an inference that there was a valuable consideration. It is not the case of Watterson v. Allegheny Yal. R. R. Co., 74 Pa. 208, where there was a recital of the consideration of $1.00 for a release of right of way over a mile through a farm and there was a natural inference that there was some other consideration. Whether the rule be as contended by plaintiff’s counsel, that the defendant must overcome the recital by clear, precise and indubitable testimony with corroboration, or by the preponderance of the evidence as was held in the Watterson case, the evidence ought to be convincing, and it is not. Defendant testified that at the instance of the president of the company he secured a reduction in a claim for damages for right of way from $1,200 to $600, and that the president asked him to continue to assist in getting rights of way, saying, “We will reimburse you for it.” That he agreed to this and secured or assisted in securing another right of way, the details of which he did not remember, and a few months after, the president asked him what his bill was and suggested that he would give him free transportation, which offer was accepted. The only other witness had been the right of way agent for the company, and his testimony was that the defendant was not employed and was helping him through friendship, and that the president said that the defendant “had been very good and rendered a great deal of service to the company and had never been paid for anything and he thought he was entitled to it,” i. e., to the pass. That “He was going to give Mr. Peterson an agreement for transportation or going to give him transportation.” This testimony is to the effect that the pass was a gratuity in recognition of past kindnesses. I am unable to conclude that there was a valuable consideration.</p> <p>A pass in consideration of $1.00 is at a discount, and it is for the defendant to show that it was not so. He gave no evidence as to the value of the pass. The constitution forbade “free passes or passes at a discount,” and I am unable to see how the act of 1874 can validate “passes granted for a valuable consideration under contracts made between corporations and individuals” if such passes are at a discount. The suggestion made by Mr. Backalew that the statute was in contempt of the constitution is apt. Although Mr. White in his “Constitution of Pennsylvania,” p. 501, thinks that there is a remedy for violation of the constitution, it is not necessary to so hold, for the Belle Vernon road was limited in its powers by the constitution. The plaintiff assumed only the legal obligations of its lessor.</p> <p>The plaintiff’s bill does not invoke art. 17, sec. 3, of the constitution, but if it invalidates the agreement it is our duty to consider it. It forbids undue or unreasonable discrimination in charges for transportation of passengers, and persons transported shall be delivered at any station at charges not exceeding charges for transportation of persons in the same direction. The Act of May 31, 1907, P. L. 352, 5 Purdon, 5897, forbids any discrimination. It is in part, “No discrimination in charges or facilities for transportation shall be made between transportation companies and individuals or in favor of either by abatement, drawback or otherwise.” “Contracts must be understood as made in reference to the possible exercise of the rightful authority of the government and no obligation of a contract can extend to the defeat of legitimate governmental authority:” L. & N. R. R. v. Mottley, 219 U. S. 467. In that case an agreement made in 1871 to issue free passes and to renew them, it being part consideration for settlement of a claim for personal injuries, was held to be forbidden by the Commerce Act of 1906. That act is more explicit than the provision of our constitution and the act of 1907, yet the principle applies here. Justice Haklan said, “But the purpose of Congress was to cut up by the roots every form of discrimination, favoritism and inequality.” And it was held that the contract cannot be made the basis of actions at law, and this whether it was illegal in its inception or the illegality has been created by a subsequent statute.</p> <p>To now transport Peterson without charge would be discrimination and the company is bound to collect his fare or be subject to the penalty of the act.</p> <p>The line of the Pittsburg & Belle Yernon is short and entirely within this state, but although it is a part of a system of roads operated by the plaintiff company in interstate commerce, we cannot agree that the Interstate Commerce Act applies. The contention is that because the pass might be used on the Belle Vernon line, as a part of a continuous interstate journey and the company be thus caused to violate the Interstate Commerce Act, the agreement is in violation of that act. That he might attempt to do so would not warrant the issuing of an injunction, nor does it invalidate his agreement.</p> <p>Error assigned was the decree of the- court.</p>

<p> Railroad companies—Railroad police—False arrest—Wanton assault —Respondeat superior. </p> <p>1. A railroad company is not liable in damages- for an unlawful arrest for an offense against the laws of the commonwealth alleged to have been committed upon or along the line of the railroad, or the premises of the company, where such arrest was made by a policeman appointed and commissioned upon the application of the company under the Act of February 27, 1865, P. L.-225, where such policeman holds no other position under the company, and where'the arrest was not directed or instigated by any officer or employee of the company.</p> <p>2. Where a railroad policeman makes an unlawful arrest while he is at the time engaged in special service for the company, such as guarding its property, or enforcing obedience to its rules, and it appears that the wrongful act was within the scope of such special service or employment, the fact that he also holds a commission from the state will not bar recovery from the company.</p> <p>3. A railroad company may be held liable for the -wrongful act of a railroad policeman, if such act is instigated by the company or by some of its officers or employees acting within the scppe of their employment. Thus where a person lawfully at a station is wrongfully arrested for trespassing on a train, by a railroad policeman, he may recover damages from the company, if it appears that the arrest was made at the instigation of a baggageman who was on duty at the station at the time.</p> <p>4. Where a railroad policeman after having made a -wrongful arrest at the instigation of an employee of a railroad wantonly, and without excuse or provocation strikes the person arrested a heavy blow on the head, after the arrest, the company -will not be liable for such act of the officer if it appears that it was not instigated by the company’s employee.</p>

<p>Appeal, No. 45, April T., 1914, by defendant, from judgment of C. P. Allegheny Co., Fourth Term, 1909, No. 158, on verdict for plaintiff in case of H. Erwood Kohlmeyer and Mary S. Kohlmeyer v. Ohio Valley Water Company.</p> <p>Trespass to recover damages for death of a child. Before Swearingen, J.</p> <p>At the trial, Dr. W. H. Oyer was asked this question:</p> <p>Mr. Thomson: “Q. Assuming it to be true that in January, 1909, the sewage in the city of Pittsburg was discharged into the Monongahela and Allegheny rivers by a system of sewers, about 150 in number, of varying sizes from eight inches up to twelve feet in size; that the amount of sewage so deposited into the streams within the city limits was about 100,000,000 gallons a day, and that that condition existed on January 15,1909; that on the evening of January 15, 1909, about five o'clock in the evening, the defendant company, that was supplying water to Bellevue and other boroughs, turned a six-inch pipe of water directly from the Ohio river into their cistern from which the water was pumped into other water directly into the system of the defendant company and it was forced to the residences of the persons being supplied with water in Bellevue and the other boroughs; that this child drank of this water on at least the morning of January 16, which was Saturday, and through and at different times during Saturday and Sunday and Monday morning, and on Monday morning the water taken from this system was boiled and then given to the child all through Monday and Monday night and Tuesday up until Thursday at the time of your second visit, when it was discontinued, and filtered water used thereafter; that the child was a normal and healthy child for at least a year prior to January 15, and that the beginning of this sickness was about noon on Sunday, January 16, and continued showing a loose condition of the bowels and an affection of the bowels up until the time of your first visit. Now, if these conditions are true, and assuming them to be true, and basing your judgment on those facts and also what you observed of the child, its condition, and to these and the progress of the disease resulting in its death, what, in your opinion, was the cause of this condition which you say was enteritis or inflammation of the bowels?”</p> <p>Objected to, first, as incompetent, irrelevant and immaterial. Second, it is a hypothetical question which is improper in form. Third, it does not contain a statement of all the material facts either proven or necessary to be proven to entitle the plaintiff to a recovery in this case. Fourth, the witness cannot express an opinion with regard to the cause of this child’s death based upon the facts stated in the hypothetical question and based upon his knowledge of medicine owing to the fact that enteritis may be due to so many different causes and it is impossible for the witness to express a specific opinion to a reasonable certainty as to the cause of this enteritis.</p> <p>Objection overruled and bill sealed for defendant. Answer: I think this water materially contributed to the child's condition. [3]</p> <p>Practically the same hypothetical question was asked several other physicians, all of whom answered to the same effect. [4-8]</p> <p>Verdict and judgment for plaintiff for $1,459. Defendant appealed.</p> <p>Errors assigned were (1) refusal of binding instructions for defendant; (2) refusal to enter judgment for defendant n. o. v.; (3-8) rulings on evidence, quoting the bill of exceptions.</p>

<p> Negligence—Master and servant—Employee of contractor—Case for jury. </p> <p>1. The owner of a building is liable for the negligence of his servants which causes an injury to the employee of a contractor at work in the building.</p> <p>2. In an action against the owner of a manufacturing plant by an employee of a contractor, to recover damages for personal injuries, it appeared that the plaintiff was injured while working as a painter along the runway of an electric crane. The evidence tended to show that the operator of the crane could have seen the plaintiff before moving the crane, if he had not been engaged in reading a newspaper. The operator had been notified by the plaintiff’s employer to watch out for the painters. No signal of starting the crane was given, and its movement was so quiet, that according to the plaintiff's testimony, he had no notice of its approach until too late to extricate himself from the dangerous place at which he was working. There was testimony that the plaintiff could have escaped by sliding down a column, if he had had sufficient warning. The plaintiff had had considerable experience in working about electric cranes. Held, that the whole question of defendant’s negligence, and plaintiff’s contributory negligence was for the jury, and that a verdict and judgment for plaintiff should be sustained.</p>

<p> Will—Denise—Pecuniary legacies—Charge on real estate. </p> <p>Testator gave to Ills widow a life estate in Ms entire estate. After her death Ms executors were directed to divide “the rest and residue” of the estate. To certain of his eMldren he bequeathed sums of money as their full share of Ms estate and directed that “the personal and moveable property then remaining” was to be divided equally between two of his sons, naming them. ' He then devised Ms real estate to the same two sons, particularly describing each one’s portion. There was a deficiency of personal assets to pay the pecuMary legacies. Held, that pecuniary legacies were not to be charged on the real estate devised to the two sons.</p>

<p>Appeal, No. 112, April T., 1914, by defendant, from judgment of C. P. Allegheny Co., Dec. T., 1911, No. 837, on verdict for plaintiff in case of Frances Moore v. W. E. Minor, Administrator of the Estate of Eliza J. Moore or Lydia J. Moore, deceased.</p> <p>Assumpsit for board and nursing. Before Evans, J.</p> <p>The opinion of the Superior Court states the facts.</p> <p>Verdict and judgment for plaintiff for $600. Defendant appealed.</p> <p>Error assigned among others was in refusing binding instructions for defendant.</p>

<p>Appeal, No. 116, April T., 1914, by defendant, from judgment of C. P. Allegheny Co., April T., 1913, No. 2,781, on verdict for plaintiff in case of Carson N. Reed v. Philadelphia Life Insurance Company.</p> <p>Assumpsit to recover premiums paid on policy of life insurance.</p> <p>At the trial the court returned a verdict for plaintiff.</p>

<p>Appeal, No. 118, April T., 1914, by plaintiff, from order of C. P. Allegheny Co., Oct. T., 1913, No. 2,198, discharging rule for judgment for want of a sufficient affidavit of defense in case of John W. Jamison v. John M. Tarpy.</p> <p>Assumpsit on a bond.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>The averments of the statement of claim and the 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>Appeal, No. 142, April T., 1914, by plaintiff, from decree of C. P. Allegheny Co., July T., 1913, No. 1,877, on bill and cross bill in equity in case of Leon Thurston, I. Leonard Aronson, Martin Burke and B. B. Wechsler v. Assets Realization Company.</p> <p>Bill in equity to enjoin certain actions of assumpsit on promissory notes.</p> <p>The defendant filed a cross bill, praying for a determination of the liability of the plaintiffs on the notes in question.</p> <p>Evans, J., found the facts to be as follows:</p> <p>1. The notes held by the defendant, the Assets Realization Company, and upon which they seek to recover against the several plaintiffs to this bill, were obtained originally by J. D. Easter, treasurer of the Mt. Washington Savings & Trust Company, on the false and fraudulent representation that the notes in question were received as payment for the subscription to capital stock of the Mt. Washington Savings & Trust Company.</p> <p>2. At the time that Easter obtained the several original notes, of which the notes sued upon are renewals, there was no treasury stock of the Mt. Washington Savings & Trust Company open to subscription and the makers of the several notes never received any consideration for the notes which they executed and gave to Easter. The original notes were given in December, 1907, and at a meeting of the board of directors of the Mt. Washington Savings & Trust Company on April 24, 1908, renewals of the original notes were presented to the board of directors for purchase by the bank as follows: I. Leonard Aronson, $400; I. Leonard Aronson, $300; I. Leonard Aronson, $300; E. B. Wechsler, $125; Leon Thurston, $500. By resolution of the board these several notes were purchased and paid by the bank by its check on the Cosmopolitan National Bank of Pitts-burg, but it does not appear to whom the money was paid. The proceeds of the several notes, however, were never paid to the Mt. Washington Savings & Trust Company, nor did the" board of directors know anything about the circumstances under which the notes had been originally given. At the board meeting of the said bank on May 5, 1908, a renewal note of Martin Burke for $1,000 was presented to the board of directors for purchase by the bank and by resolution of the board the said note was purchased and paid for by its check on the Cosmopolitan Bank, but to whose order that check was made does not appear. The bank, however, never received any of the proceeds of the discount of that note and no knowledge upon the part of the directors of the circumstances of the execution of the original note appears. The purchase of these several notes was before their maturity and in the regular course of business.</p> <p>3. Some time in the fall of 1903 the Mt. Washington Savings & Trust Company went into liquidation and the notes in question were purchased from the Mt. Washington Savings & Trust Company by the Assets Realization Company for a valuable consideration, and with the consent of the board of directors and a majority of the stockholders. There was no conspiracy or fraud on the part of either the officers or stockholders of the Mt. Washington Savings & Trust Company or the officers of the Assets Realization Company.</p> <p>CONCLUSIONS OF LAW.</p> <p>1. The knowledge of J. D. Easter, Jr., the treasurer and executive officer of the Mt. Washington Savings & Trust Company, of the fraud which he himself had committed in obtaining the notes from the several plaintiffs to this bill, was not notice to the Mt. Washington Savings & Trust Company of the fraud in obtaining the notes.</p> <p>2. The Mt. Washington Savings & Trust Company purchased the notes in question for a valuable consideration, before maturity, in the regular course of business, and without knowledge of any defense.</p> <p>3. The Mt. Washington Savings & Trust Company, having purchased the several notes before maturity, the fact that it sold the notes to the Assets Realization Company after maturity does not bar the latter’s right to recover on the notes because of the fraud practiced by Easter in obtaining the notes.</p> <p>4. Judgment for the Assets Realization Company, the plaintiff in the cross bill, should be entered against I. Leonard Aronson, E. B. Wechsler, Leon Thurston, and Martin Burke.</p> <p>Error assigned was the decree of the court.</p>

<p>Appeal, No. 94, April T., 1914, by defendant, from judgment of C. P. Allegheny Co., March T., 1912, No. 48, on verdict for plaintiff in case of Thomas Nicholson v. Pittsburg Railways Company.</p> <p>Trespass to recover damages for personal injuries. Before Evans, J.</p> <p>At the trial it appeared that the plaintiff, Thomas Nicholson, and his wife, Catharine Nicholson, were injured in a collision between one of defendant’s cars and an automobile owned and driven by Mr. Nicholson. The accident happened at Race street and Swissvale avenue near Edgewood station. The circumstances of the accident are stated in the opinion of the Superior Court.</p> <p>Mr. and Mrs. Nicholson brought separate suits which, however, were tried together. A stipulation filed of record shows that no record or paper-books were to be printed on appeal in Mrs. Nicholson’s case.</p> <p>Verdict and judgment for plaintiff. The defendant appealed in both cases.</p> <p>Errors assigned were in submitting the cases to the jury.</p>

Appeal, No. 122, April T., 1914, by plaintiff, from order of C. P. Allegheny Co., Oct. T., 1913, No. 1,443, discharging rule for judgment for want of a sufficient affidavit of defense in case of Margaret A. Schwarzwaelder v. Eugene G. Schwarzwaelder. Assumpsit to recover an alleged loan. Rule for judgment for want of a sufficient affidavit of defense. The opinion of the Superior Court states the case.

<p> Negligence—Obstruction of street—Coasting on street—Contributory negligence—Case for jury. </p> <p>1. Coasting upon a street which is not put to much public use, when not expressly prohibited by ordinance, is not necessarily a nuisance, nor is it an unlawful act, nor is it per se negligence.</p> <p>2. When under the undisputed facts coasting upon a street is clearly and manifestly dangerous it may be the duty of the court to so declare as matter of law. But where the evidence is conflicting and the inferences to be drawn from it are not clear, the question whether a plaintiff has exercised such care and diligence to avoid danger, while coasting, as was to be expected of a reasonably careful and prudent person under such circumstances, is for the jury.</p> <p>3. In an action by a boy to recover damages for personal injuries sustained while coasting in a city street, the question of defendant's negligence and plaintiff's contributory negligence is for the jury, where it appears that the accident happened at a point in the street where the defendant had for at least one month maintained, contrary to ordinance, in the cartway of the street, a pile of scrap iron, that the iron at the time was partly covered with snow, that at this point children were in the habit of coasting, and the evidence is conflicting as to whether a light had been placed upon the obstruction, and also as to whether the plaintiff had knowledge of the existence of the obstruction.</p>

<p>Appeal, No. 127, April T., 1914, by plaintiff, from order of C. P. Allegheny Co., Jan. T., 1913, striking off mechanic’s lien in case of J. J. Seelar, doing business as Seelar Elevator Works, v. East End Mantel & Tile Company, Lessee, and James R. Mellon et al., Trustees of Thomas Mellon, deceased, owners<or reputed owners.</p> <p>Rule to strike off mechanic’s lien.</p>

Appeal, No. 53, April T., 1914, by defendant, from judgment of C. P. Somerset Co., Dec. T., 1912, No. 23, on verdict for plaintiff in case of S. G. Braucher v. Somerset Borough. Appeal from award of jury of view. Before Rtjppel, P. J. The facts are stated in the opinion of the Superior Court. Verdict and judgment for plaintiff for $1,065.23. Defendant appealed. Error assigned was portion of charge quoted in the opinion of the Superior Court.

Appeal, No. 119, April T., 1914, by defendant, from judgment of C. P. Somerset Co., Sept. T., 1913, No. 78, on verdict for plaintiff in case of J. R. Robinson v. Listonburg Coal Mining Company. Trespass to recover the price of a ventilating fan. Before Ruppel, P. J. At the trial the court charged as follows: The plaintiff brings this suit to recover for the price of a fan which he sold to the defendant.

Appeal, No. 138, April T., 1914, by defendant, from judgment of C. P. Cambria Co., March T., 1911, No. 243, on verdict for plaintiff in case of Charles Rose v. The Southern Cambria Railway Company. Trespass to recover damages for injuries to a team and wagon.

Appeal, No. 117, April T., 1914, by plaintiff, from order of C. P. Indiana Co., Dec. T., 1912, No. 242, striking off judgment in case of James A. Manupelli v.' Jacob G. Geib. Motion to strike off judgment. From the record it appeared that the judgment in question had been entered for want of a plea without any previous rule to plead having been filed. The court made an order striking off the judgment. Error assigned was the order of the court.

Appeal, No. 35, April T., 1914, by defendant, from judgment of C. P. Westmoreland Co., May T., 1910, No. 785, on verdict for plaintiff in case of Elizabeth Kuhns, in own right and for her own use, and as Executor of the Estate of Ralph B. Kuhns, v. Peter Loetzbier and Emma Loetzbier. Assumpsit for breach of a covenant in a contract. Before McConnell, J. The facts are stated in the opinion of the Superior Court.

Appeal, No. 27, April T., 1914, by defendant, from order of C. P. Allegheny Co., Oct. T., 1910, No. 766, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Pennsylvania Railroad Company v. Waverly Oil Works Company. Assumpsit for demurrage. Before Davis, J. Rule for judgment for want of a sufficient affidavit of defense.

Appeal, No. 100, April T., 1914, by Harry H. Willoek et al., from decree of O. C. Allegheny Co., Sept. T., 1913, No. 71, dismissing exceptions to adjudication in Estate of S. M. Willoek. Exceptions to adjudication of Miller, J. The facts are stated in the opinion of the Superior Court. Errors assigned were in dismissing exceptions to adjudication.

<p> Constitutional law—Title' of act—Proceedings to dispossess—Act of March SI, 1905, P. L. 87. </p> <p>1. The Act of March 31,1907, P. L. 87, entitled, “An Act to provide for notice in the recovery of the possession of premises .... in all cases where the tenant holds for a term less than a year either by license or lease for an indeterminate period,” sufficiently states its purpose in its title, and is not unconstitutional.</p> <p>Landlord and tenant—Vendor and vendee—Proceedings to dispossess— Act of March St, 1905, P. L. 87.</p> <p>2. The holding over by vendors of real estate after the purchase money has been paid and the deed has passed, is a privilege leave or license on the part of the vendee; and, unless other agreement be shown, it will be so considered by the courts. A vendor holding over under such circumstances may be dispossessed by proceedings under the Act of March 31, 1905, P. L. 87.</p>

<p>Appeal, No. 60, April T., 1914, by defendant, from judgment of C. P. Somerset Co., Sept. T., 1912, No. 294, on verdict for plaintiff in case of Elizabeth Robinson v. Boynton Coal Company.</p> <p>Trespass for injuries to surface. Before Ruppel, P. J.</p> <p>The court charged in part as follows:</p> <p>The plaintiff, Mrs. Robinson, brought this suit to recover damages to her property, and she alleges that this defendant company mined and took away some coal from under the surface of her little lot of ground over in Elk Lick township, and thereby caused the surface to break and subside and cave in, and that that did damage to her property, and that is one of her claims for damages. The other is, she claims that she had the right to the use of the water of a spring on adjoining property formerly owned by Mrs. Mull, and that by mining and removing the coal from under that property that spring was destroyed, and that is another claim for damage in this case. It seems that this farm, a large farm of which this property in dispute is a part, at one time belonged to one, Wm. Flickinger. Now a good many years ago Wm. Flickinger sold to Judge W. J. Baer the entire farm. W. J. Baer sold the surface to David Hay, but retained the coal and minerals. That caused a severance of the minerals from the surface in the title of this property and henceforth there became two owners, one owner to the surface and one owner to the mineral. The surface owner had the superior right, and while the owner of the minerals had the right to take out the coal under the deed in the case, but whoever took out the coal by virtue of the title to the coal was bound to leave sufficient support of the surface. David Hay’s heirs conveyed this surface, just as David Hay was getting it, to Wm. H. Hay. Wm. H. Hay sold a few acres to Mrs. Mull, something over five acres. Mrs. Mull afterwards sold sixty-one perches of this, with a house thereon which had been erected I believe by her son, to the plaintiff, Mrs. Robinson. Mrs. Robinson therefore became the owner of the surface subject to the rights and privileges of the owners of the coal. Now the coal was transferred by W. J. Baer to one corporation and then to another by some sheriff’s sales, etc., and finally became vested in H. C. Shaw. He became the owner of the coal under the five acres and under the sixty-one perches, and under some adjoining lands, and he acquired by virtue of these conveyances from the coal companies all the rights that W. J. Baer retained or reserved when the severance was made between the surface and the coal. H. C. Shaw also bought from Mrs. Mull, after she had sold off this sixty-one perches, the remainder of this five acres and some perches, and whatever rights H. C. Shaw had under both conveyance of coal and surface became vested in the defendant, the'Boynton Coal Company.</p> <p>[The deed from Mrs. Mull to Mrs. Robinson contains a couple of clauses that are somewhat ambiguous. After speaking of ffhe reservation of the minerals, which seems to be almost precisely in the words of the reservation in the original grant when the severance was made, there is this clause: “Without any recourse for damages by the owner of said surface.” Squire Hay, who wrote this deed, has been called to explain that, and he says that Mrs. Mull was fearful that by reason of the mining of the coal some damage would be done to the surface and that this plaintiff, Mrs. Robinson, would probably try to fall back on her for damages and that this clause was put in for that purpose.] [3] . . . .</p> <p>[Now, in mining this coal it was the duty as I said before of the mine operator to leave coal enough standing to support the surface. They had a right to take out all the coal if they would do so and leave the surface up, but they had no right to remove the pillars in that mine and remove the coal in such a way as to cause the surface to subside, and if they did they are liable in damages.] [4]</p> <p>Verdict for plaintiff for $359, upon which judgment was entered for $225, all above that amount having been remitted. Defendant appealed.</p> <p>Errors assigned among others were (3, 4) above instructions, quoting them.</p>

<p> Liquor law—Brewing company—Application for license—Disqualification of applicant. </p> <p>1. Where an application for a liquor license is refused, and the court of quarter sessions files an opinion giving the grounds for refusal, the facts as found by the court below must be accepted as final by the appellate court, and it is only by reviewing the reasons given by the lower court that the appellate court can determine whether the license was refused on other grounds than those defined by statute.</p> <p>2. The refusal of a license to a brewing company will be sustained on appeal where it appears that the reason for the refusal of the license was based on findings that the company had sold and distributed through its agents quantities of beer largely in excess of what the purchasers could possibly use for themselves and their families, and had thus promoted and made easy unlawful sales, not only to individuals, but as well, to crowds of persons, without regard to place or sale, age, sex or habit of the customer, and that, too, in a township where there had been no licenses to sell liquor by retail for forty years.</p> <p>3. The controlling proof as to the unfitness of an applicant for a liquor license need not be of such degree and quantity as would justify a verdict of guilty if the applicant were on trial for a violation of the liquor laws. The forum is entirely different; in the one guilt must be established beyond a reasonable doubt; in the other the question is the good faith compliance by a licensee of a special privilege granted by the court.</p>

<p>Appeal, No. 145, April T., 1914, by defendant, from judgment of Q. S. Indiana Co., Dec. Sessions, 1913, No. 83, on verdict of güilty in case of Commonwealth v. Geo. M. Coshey.</p> <p>Indictment for selling liquor without a license. Before Telford, P. J.</p> <p>The court charged in part as follows;</p> <p>[The defendants, James Dunn, George Coshey, A. A. Stickle, D. G. Halferty and Joseph McMasters, are charged in this indictment, which you will have under consideration, in two counts, each count being a charge of selling liquor without a license. The defendants are employees of the Loyalhanna Brewing Company. This brewing company has a license in the county of Westmoreland, but not in the county of Indiana. However, it is claimed that for the past two years it has been engaged through its employees, the defendants, in taking orders, collecting the price and delivering beer in large quantities in the borough of Blairsville, in the county of Indiana.</p> <p>Such sales, the commonwealth contends, were unlawful. If unlawful, then the defendants who aided in such unlawful sales, either by taking orders, delivering the beer, or by authorizing or directing such sales, are alike guilty of such violations of law.</p> <p>By the act of July 30, 1897, distillers and brewers are, “permitted to deliver their product within the county where the license is granted, and all wagons used for the purpose of delivering spirituous, malt, or brewed liquors or any admixture thereof, shall have marked on the side thereof, the name of the. licensee, and the number of his license in letters and figures not less than four inches in length.”</p> <p>In reading this clause of the act, we must conclude that if it means anything, it means that a brewing company was thereby permitted to deliver in its own marked wagons within the county of its license, and no place else.] [11]</p> <p>The court was perhaps wrong in suggesting the name of the Loyalhanna Brewing Company. We generally speak of it in that term. However, the evidence in the case indicates as the counsel suggests, that the Loyalhanna Brewery is the property of the Independent Brewing Company of Pittsburg.</p> <p>By the decision of the Star Brewing Company’s App., reported in 43 Pa. Superior Ct. 577, it was decided that:</p> <p>“Where a brewing company having a license to sell beer only at its brewery in a certain borough, employs agents in other places to take orders for beer, and agrees to deliver, or cause to be delivered beer to purchasers at the town or place where the order is given, the contract is executed only when the beer is delivered to the purchaser at the place where the order was given, and the company in making such a sale, is guilty of selling without a license.”</p> <p>This was a case of deliveries within the county of the license, and declared that the place of delivery was where the order was taken when the vendor agrees to make the delivery.</p> <p>[If this be true in the county of the license, it should certainly apply to cases such as is raised by the evidence here, where the delivery is made out of the county of the license.] [12] [In the trial of this case certain orders were offered in evidence in the following form:</p> <p>“For Beer ordered to be delivered by Brewery wagon.</p> <p>“English. No. — - Independent Brewing Co. of</p> <p>Pittsburg, Sup’t. in charge, Loyalhanna Brewery at Latrobe, Westmoreland County, Pa. Herewith find ..........Dollars, for which please furnish me 1/i—Vs cases beer. It is understood that I purchase the beer ordered as above at your brewery and by this order. When this order is accepted by you there is sold to me the contents of the package above specified at your brewery, and when the package is marked for delivery, as hereinafter specified, at your brewery, the contents thereof become my absolute property. The marking of the package and the setting aside of the same in accordance with this order to be regarded by your company and myself as the delivery of the contents of said package purchased as aforesaid at your brewery.</p> <p>“Please deliver by your wagon the beer so purchased to me at ............(Address).”</p> <p>It seems to us in examining this paper, that the clauses relating to delivery are so inconsistent that they cannot both be applied, and the reasonable construction seems to us to .be that which the evidence seems to indicate was followed, in practice at least, by some of those signing orders and approved by the company’s solicitor, that is, to request verbally a delivery at a particular address in Blairsville, which direction was inserted in the order.] [13]</p> <p>[As we view the law, the Loyalhanna Brewing Company, has no authority of law to deliver beer in the county of Indiana, by its wagons, marked or unmarked.] [14]</p> <p>[If it does make such deliveries, the place of delivery in Indiana county is the place of sale, and being unauthorized by the brewing company’s license, the sale is in violation of law.] [15] [Even if our construction of this order were incorrect, it would remain a question for the jury, whether in the cases in evidence the persons signing the orders in all cases understood the orders or knew what the orders contained when they were signed. Some of these witnesses used a foreign language. If they were not informed, understanding the contents of the order, they could not be said to have assented to it. And also whether the plan of distribution in evidence by defendants in this case was not an effort, to evade the liquor laws, rather than as the defendants’ counsel contend, an effort to' obey the law in the conduct of the brewery, and to determine this fact, you will consider all the evidence in the case, the circumstances of soliciting and delivery and general plan of distribution.] [16]</p> <p>[If you find that the defendants, as employees of the Loyalhanna Brewing Company, made deliveries of beer within the borough of Blairsville, in the marked wagons of the brewery, or that Mr. Coshey, solicitor of the company, took orders with knowledge that it was to be so delivered, or that- Mr. James Dunn, manager, authorized or directed such deliveries in Indiana county, then you may find the defendants respectively guilty of the offenses charged, namely, sales of intoxicating liquors without a license in Indiana county.] [17]</p> <p>If you do not find the facts that would justify a verdict of guilty against anyone, then your verdict will acquit that defendant.</p> <p>[There is no evidence that Mr. Coshey, the solicitor for orders, ever participated in the delivery of the beer except on one occasion to which Mr. Ferguson testifies and which Mr. Coshey denies.</p> <p>If you find that he was with the delivery wagon, as he testifies at the time when deliveries were not being made, and not for the purpose of aiding in, or directing-delivery, then his presence there could not affect this case. If, however, you find that he was with the delivery wagon when deliveries were being made, it is for you to determine whether or not he aided by his presence,- direction or otherwise in such delivery, and if so, this act on his part, would constitute the sale unlawful, since not only the taking of the order and the payment, but the delivery all then under his direction occurred in the county of Indiana, which constitutes a sale there.] [18] [Aside from this alleged instance of violation of the law, if the plan of the brewing company’s distribution in Blairsville was unlawful, and he knowing the plan and methods of delivery, aided in such distribution by the taking of orders in a prohibited territory, or territory in which his employer had no license to sell, his conduct in aid of a violation of the license law, would justify you in finding him guilty of the charge contained in the indictment.] [19]</p> <p>There is no evidence that the manager, James Dunn, participated in any act of distribution, except the approval or disapproval of orders called to his attention, the general business being done by employees under him by his direction.</p> <p>[If, however, you find that illegal sales were made by those under his control and direction who acted under his authority, or that such illegal acts were approved by him, and occurred in pursuance of a plan of sale and distribution agreed upon by the officials of the brewery and put into execution by Mr. Dunn, superintendent, or manager, his connection, with such illegal sales as occurred by or under such plan or authority, would fix his responsibility for the illegal act.] [20]</p> <p>Three of these defendants, Mr. Halferty, Mr. McMasters, and Mr. Stickle, were drivers of the brewery wagons. They can only be held responsible for such deliveries as the jury find were illegal under the evidence and in which they severally participated.</p> <p>Verdict and judgment of guilty, upon which judgment of sentence was passed.</p> <p>George M. Coshey appealed.</p> <p>Errors assigned among others were (11-20) above instructions, quoting them.</p>

<p> Wages—Master and servant—Execution —Notice of wages claim. </p> <p>1. The notice of a preferred claim for wages must be sufficiently full and clear to show the officers and others interested that the labor was performed within the time limited by the act; the business defined therein; the sum due; and the property subject to preferred lien. These four ingredients are necessary to bring the claim within the protection of the statute, and must appear in some form in the notice served; but an honest mistake in stating the amount of the claim will not deprive the claimant from participation in the distribution of the fund to the extent of the amount to which he'is justly entitled.</p> <p>2. The fact that a wages claimant has included in his notice the costs of procuring a judgment before a'justice of the peace for the amount of his claim, will not defeat his right to participate in the fund for distribution to the actual amount of the claim irrespective of the costs. The inclusion of the costs is not under such circumstances a constructive fraud.</p>

<p> Contract—Sale—Option—Parties—Damages. </p> <p>Where a person who has sold to two others different amounts of the stock of a corporation, addresses a joint letter to the purchasers, giving them an option to sell back to him at the end of one year the amount of stock which they had respectively purchased at a price named, and the purchasers exercise the option within the year, a binding agreement based ixpon the consideration of the mutual promises is created when the option is exercised, and the two purchasers may unite in a joint action to recover the amounts respectively due them. If in such an action there is nothing to show that the stock was of any value at the time of the breach of the contract, the plaintiffs will be entitled to recover the amounts respectively due to them under the agreement to repurchase.</p>

Appeal, No. 20, April T., 1914, by plaintiff, from decree of C. P. Allegheny Co., April T. 1913, No. 1,764, dismissing libel in divorce in case of Ernest August Zeiler v. Clara Louisa Zeiler. Libel for divorce on the ground of desertion.

<p> Liquor law—Refusal of license—Necessity—Misconduct of applicant. </p> <p>1. The law relating to the granting of liquor licenses requires that the court shall have due regard to the number and character of the petitioners for and against the application in determining the question of necessity; but this does not imply that the question is to be determined in favor of the side presenting the weightiest petition in number and character of signers.</p> <p>2. The words “due regard” in the act mean such regard as the circumstances of the case demand, and these circumstances include the knowledge possessed by the court, facts whereof judicial knowledge should be taken, the testimony of witnesses and the opportunities of petitioners and remonstrants for knowing the things about which they volunteer information.</p> <p>3. The judgment of the court as to the personal fitness of the applicant for a liquor license involves consideration amongst other things of his conduct of the business under the license he had during the preceding year.</p> <p>4. If it appears that an applicant, through his bartenders, had frequently and at different times sold liquors to minors whose appearance showed that they were minors, the application will be refused, although the applicant testifies that he had warned his bartenders not to sell to minors.</p>

<p> Trespass—Deceit—Pleadings—Evidence. </p> <p>In an action of deceit for trespass in order to entitle the plaintiff to recover, he must aver in his pleadings that the defendant made certain false statements, and prove at the trial, not only that the statements were made as averred in the pleadings, but also that the statements were false, and that he was deceived by them.</p>

<p> Railroads—Negligence—Sparks—Damages. </p> <p>1. In an action against a railroad company to recover damages for loss by fire resulting from sparks, no presumption of negligence arises simply from the fact that the defendant’s locomotive communicated fire to the plaintiff’s premises; the plaintiff must go further, and show by evidence direct or circumstantial, not only that the sparks from the defendant’s engine communicated the fire to his premises, but that they were emitted by reason of the defendant’s negligence.</p> <p>2. In such a case the testimony of one of plaintiff’s witnesses that he saw red-hot sparks of the size of á ten-cent piece or larger, being emitted from the locomotive on the afternoon of a clear day, -will, not be rejected by the court as contrary to well-known natural laws. The credibility of such a witness, like that of all the other witnesses in the case, is for the jury.</p> <p> Negligence—Compensation for delay—Interest—Damages. </p> <p>3. In an action of trespass for negligence interest is not recoverable as such, and the allowance of compensation for delay depends on the circumstances and must, therefore, be determined by the jury.</p> <p>4. In such a case it is reversible error for the court to charge as follows: “It would be your duty to allow such additional sum as would compensate plaintiff for the detention from that date up to the time of trial, and whilst you may not call it interest, you may rate it on a percentage basis not exceeding six per cent, and if you find for the plaintiff you will add whatever sum you find would compensate him for the detention to the present time, and your verdict will be in a round sum.”</p> <p>5. If the. jury has allowed interest for the full period under such instructions, but the defendant has filed a remittitur for the whole of such portion of the verdict, the appellate court will not reverse the judgment, but will direct that it be reduced by the amount specified in the remittitur, and thereupon affirm it.</p>

<p> Negligence—Railroads—“Stop, look and listen"—Evidence. </p> <p>1. In an action against a railroad company to recover damages for the death of a horse, a verdict and judgment for plaintiff will be sustained where the testimony tends to show that the plaintiff stopped, looked and listened before approaching defendant's tracks at the usual point for such observation, but that the view on that day was somewhat obstructed by freight cars; that before entering on the first track he again looked, but did not see or hear a train approaching around a curve; that he then passed the first track and had started to cross the second track when he first saw the train; that he then endeavored to back his team, and had so far succeeded that his wagon, himself and one horse had reached a place of safety, but that the rapidity of the train which approached without warning left him no time to get the other horse to a place of safety, and that it was killed.</p> <p> Practice, C. P.—Trial—Answer to points. </p> <p>2. It is the duty of a trial judge to affirm a specific prayer for instruction that exhibits a correct statement of a legal principle applicable, but it does not follow that this duty can be discharged only by the use of the word “affirmed.”</p> <p> Negligence—Damages—Compensation for delay. </p> <p>3. In personal injury cases damages are assessed as of the date of the trial, and not of the injury. If through a mistake or an error in the charge, the jury is led to depart from this rule and award interest instead of compensation for delay, but the defendant files a remittitur for the sum awarded as interest, the appellate court will not reverse the judgment, but will reduce it by the amount remitted.</p>

<p> Railroads—Freight—Classification—Scrap iron—Erroneous charge. </p> <p>In an action by a railroad company against a gas company to recover a sum of money representing the difference between a freight rate actually paid on scrap iron according to a classification given by the shipper, and a higher rate on a classification which was alleged to be the correct one, it appeared that the rate had been charged under a schedule applicable “upon scraps or pieces of iron or steel which have value for remelting purposes only.” The evidence strongly tended to show that the defendant by cutting off broken ends and joints of the sections of pipe, had relaid it and was actually using it as a pipe line for the transportation of gas. The court in its charge used language which tended to indicate that the jury might disregard the evidence that the pipe had been used for other purposes than that of remelting. The jury returned a verdict for the defendant. Held, that the judgment on the verdict should be reversed.</p>

<p>Poor laws—Dependent children—Mother and child—Juvenile court—■ Ads of April 88,1903, P. L. 874, May 8,1918, P. L. 177, July 18,1918, P. L. 711, and July 85,1913, P. L. 1039.</p> <p>There is nothing in the Acts of April 23,1913, P. L. 274, May 8,1913, P. L. 177, July 12, 1913, P. L. 711, and July 25, 1913, P. L. 1039, conferring jurisdiction on the municipal court of Philadelphia county to make an order on the county commissioners for the payment of a given sum per week for the support of dependent children remaining in the home of their widowed mother.</p>

<p> Criminal law—Waiver of action by grand jury—Pleading guilty—Act of April 15,1907, P. L. 62. </p> <p>• 1. Where a prisoner has in pursuance of the Act of April 15, 1907, P. L. 62, waived the finding of the grand jury and pleaded guilty to an indictment drawn in the usual form and signed by the district attorney, he cannot after a sentence has been imposed upon him, complain in habeas corpus proceedings, that the sentence was in violation of sec. 10, art. 1, of the constitution of Pennsylvania, which provides that “no person shall for any indictable offense be proceeded against criminally by information, except,” etc.</p> <p>2. The Act of April 15, 1907, P. L. 62, is constitutional.</p>

<p>Petition of J. Frederick Dougherty for habeas corpus against John Franeies, warden of the Western Penitentiary of Pennsylvania. Miscellaneous Docket No. 26.</p>

<p>Petition for habeas corpus against John Francies, Warden of the Western Penitentiary of Pennsylvania. Miscellaneous Docket No. 27.</p>

<p>Petition for habeas corpus proceedings against John Francies, Warden of the Western Penitentiary of Pennsylvania. Miscellaneous Docket No. 30.</p>

<p> Liquor laws—Order refusing license—Hearing—Record—Review. </p> <p>1. An order refusing a liquor license in the following words: “after full hearing and due consideration, the within application is refused” raises the presumption that the applicant and the persons objecting to the application were accorded such a hearing as the statute entitled them to have—that is a hearing by evidence, petition, remonstrance and counsel, at a time duly fixed by rule or standing order of the court. The fact that the order does not set forth the court’s reasons for refusing the application, is not an irregularity or defect; nor does it furnish any legitimate basis for withholding altogether, or denying full force to the presumption that the court performed its duty to hear and decide according to law.</p> <p>2. The appellate court has no power to review proceedings relating to the granting or refusing of liquor licenses upon their merits. The appellate court can only consider the record; but if the lower court sets forth in its final order or in an opinion accompanying the same the reason for which it refused the application, thus making it part of the record, and the reason thus set forth, is not a legal reason, its action will be set aside as being an abuse of discretion, and therefore not according to law.</p> <p>3. An order refusing to grant any liquor licenses in a county will not be reversed as an abuse of discretion where the judge of the quarter sessions states his ground for refusal as follows: “A consideration of the question with due regard to the number and character of the petitioners for and remonstrances against such applications, the evidence and arguments of counsel presented on full hearing, and the facts which are known to the court and common knowledge in the communities affected, has led to the conclusion that in the exercise of the discretion vested in it by law, the court should refuse all such applications and orders will accordingly be indorsed upon them, respectively, to this effect.”</p> <p>4. In such a case the fact that there existed in the county two cities and a borough constituting populous communities, is not in itself evidence that the court of quarter sessions in refusing licenses for the whole county proceeded upon an erroneous theory as to its discretionary power, or as to what constitutes legal necessity for a license.</p>

<p> Criminal law—Conspiracy—Definition—Testimony of accomplice. </p> <p>1. The crime of conspiracy is a combination between two or more persons to do an unlawful act. After the conspiracy is formed, it makes no difference which one of the conspirators performs the unlawful act; all who conspire are guilty of conspiracy.</p> <p>2. A conviction of conspiracy may be had upon the testimony of an accomplice without corroboration, but the jury should be advised that it is unsafe to convict on such testimony. A conviction will not be set aside if the court in commenting upon the testimony of a conspirator tells the jury that it should “scrutinize such testimony carefully, and it ought to be corroborated by other witnesses, or by circumstances.”</p> <p> Practice, C. P.—Trial—Improper remarks of counsel. </p> <p>3. Where on a trial, objection is made to the remarks of counsel, and a dispute arises as to what was actually said, and the trial court is asked to decide between the conflicting statements, the version adopted by that court will not be disturbed in the appellate court unless clear mistake is shown.</p> <p> Practice, C. P.—Trial—Charge—Points and answers. </p> <p>4. Points and answers as to the law governing a case on trial are part of the charge, and must be so considered upon complaint of its inadequacy. When they are so considered and deemed complete, the complaint of inadequacy of the instructions as to the law is groundless.</p>

<p> Constitutional law—Title of act—Private coal companies—Condemnation of land—Police power—Act of June 9, 1911, P. L. 756. </p> <p>The first and fourth sections of art. 12 of the Act of June 9, 1911, P. L. 756, giving to private corporations organized for the purpose of mining coal the right to condemn land of another for the purpose of constructing a tramway thereon, or to locate an entry to its property, are unconstitutional, inasmuch as their purpose is not disclosed in the title of the act which is as follows: “An Act to provide for the health' and safety of persons employed in and about the bituminous coal mines of Pennsylvania, and for the protection and preservation of property connected therewith.” Such sections are not a proper exercise of the police power, and are contrary to sec. 10, of art. 1, of the constitution of the commonwealth.</p>

<p>Appeal, No. 73, April T., 1914, by defendant, from judgment of C. P. Westmoreland Co., May T., 1913, No. 47, on verdict for plaintiff in case of Conrad Steinogle v. Pittsburg, McKeesport & Youghiogheny Railroad Company.</p> <p>Trespass for injuries to real estate in the borough of Webster. Before McConnell, 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>[Then we have another thing that is mentioned in the testimony, the drainage of the cellar. It is claimed that that has been interfered with to some extent by reason of the road being built over it, and the plaintiff says that it is crushed in. There is some difficulty about that question which is pretty hard to solve. Whether that tile drain was a trespass upon some other person’s property rights, or whether it was a permissible use of the thing that is called Water street by the township authorities, is a matter of some doubt. If it is a thing that was permitted by the township, an owner of a lot could drain across Water street, and if Water street was taken by the railroad and this drainage was interfered with, that might be an injury to his rights. That would have to be a thing that was permitted though by public authority, because we cannot get at the existence of such a right by simply looking at the plan of lots. A plan of lots with streets marked on it does not prima facie indicate that on those streets you may erect drains of that character. As I say, it is rather a difficult question to deal with and to ascertain whether that is really a right that he had, or whether it was something that trespassed on the rights of others in so using this thing called Water street. If he had that right, if he was -vested with that right, and that was interfered with, why of course that would be an injury to him that he would be entitled to recover as much compensation for as would reasonably make him whole.] [2] We will have something to say on this question in connection with another branch of the case.</p> <p>[Another thing that adds to this difficulty of determining what his right is, has relation to the rights of parties in a plan of lots. The right of an owner of a lot in a borough or in a city is one thing; out in the country, disconnected with other lots, it is quite a different thing. The right which a person in the country has to his land with respect to water flowing over it, is expressed in this rule:</p> <p>“Water runs, and has a right to run where it has been accustomed to run. This is true of surface drainage as well as of running streams.”</p> <p>So that where one man owns a piece of ground on a high level, and another man adjacent to him owns another piece of ground on a lower level, it is the right of the owner of the piece on the upper level to have the surface drainage flow down over the ground below. If the person below would dam the water back and thus injure the upper property owner’s land, he would be liable to an action for damages. So that if we were considering a case in which that rule was applicable, and it appears in the evidence that the surface drainage was interfered with by the structure placed upon this space by the railroad company,—if the drainage from the surface of the plaintiff’s lot was interfered with, and that damaged the lot, that would be a legitimate ground of complaint on the part of the owner of a lot. We have this further to say on that subject, that the rule in towns and boroughs and in cities is different from the rule in the country with respect to drainage. In boroughs and towns it is expected that provisions will be made for carrying off the water, and it is expected that lots will be built upon, and all that a lot owner needs to do is to take care of the water that falls on his own lot and conduct it to some safe place where a sewer or something of that nature, or drain carries it off. There is no right there to insist that surface water shall flow as it has been accustomed to flow. That rule is invaded where lots are in boroughs and towns. In boroughs and towns a man can use his lot just as he pleases, if he carries the surface water that falls on that lot so that it will not go upon his neighbor. In cities and towns each man must take care of the water that falls on his own lot. Lots in such localities are not subject to the same kind of rule that would apply out in the country. Now this is not a borough, it is not a city; it is out in the township of Rostraver, and the difficulty I spoke of a while ago is to know just what rule should be applied in the measurement of the rights of the parties here,—whether the rule that ordinarily prevails in cities and towns with respect to lots should apply, or whether the rule that ordinarily applies in the country should prevail. We have no conclusive ruling on that question by our appellate court, so that we have no guide to go by in determining that question in a case of this kind. We are inclined to consider the rights of the parties as is the fact here, that these respective properties are in the country, and therefore, if the surface drainage from the plaintiff’s lot has been interfered with, that would be a subject of complaint. If the erection of this railroad on this space has the effect of preventing the water from finding its usual outlet down directly towards the river, that would be an interference with the plaintiff’s right for which he should receive compensation to the extent of the injury to his lot.] [3]</p> <p>Verdict and judgment for plaintiff for $1,225.50. Defendant appealed.</p> <p>Error assigned was portion of charge as above and answer to points.</p>

<p> Courts—Allegheny county court—Common pleas—Appeals—Review by Superior Court. </p> <p>1. Under the Act of May 5, 1911, P. L. 198, as amended by the Act of May 23, 1913, P. L. 310, relating to the county court of Allegheny county, and appeals therefrom to the common pleas, a party who has had a jury trial is not entitled to appeal, unless a retrial of the issues of fact is necessary to prevent injustice. The application for appeal is not an ex parte proceeding in which the allegations of the petition must be taken as verity. The adverse party has a right not only to be heard upon the question of their sufficiency, but to controvert them by answer; and the court of common pleas is to exercise a sound judicial discretion on due consideration of the relevant matters properly brought before it, and may refuse the appeal if, upon such consideration, it is not satisfied that a trial is necessary to prevent injustice.</p> <p>2. An appeal having the scope of a common-law writ of certiorari lies from an order of the court of common pleas refusing an appeal from a judgment of the county court of Allegheny county; but in considering such an appeal the Superior Court can only go by the record of the common pleas, for that is all that is brought up for review by the certiorari.</p> <p>3. On such an appeal the evidence taken at the trial cannot be considered where it was not brought upon the record of the common pleas by incorporating in, or attaching to the petition, a transcript of it, or in any other manner. The appellate court cannot consider selected excerpts from the evidence printed in the appellant’s paper-book, if the appellee objects.</p>

<p> Contract—Agreement—Banks and banking—Impaired capital—Evidence. </p> <p>After the federal authorities had notified a national bank that its capital was impaired, and that certain of its securities should be charged off, three persons interested in the bank agreed to advance the sum necessary to make good the capital. Thereupon certain of the stockholders agreed in writing to pay in cash, on demand, thirty per cent of the par value of the stock of the bank held by each, or any proportional part thereof that might be required to reimburse the parties who made the advance. The agreement further stated: “It is understood that the securities charged are to be applied first to repayment of the money advanced to lift said securities, and then to be divided pro rata among those who pay under the agreement.” Some years later the three parties who had made the advances sued one of the stockholders under the agreement. In their statement of claim they did not set out the holdings of stock of the other parties in the agreement, or that the securities were worthless. They averred, however, that they had made faithful efforts to collect the securities, but denied that there was any obligation upon them to collect and realize on the securities. The affidavit of defense denied liability until proof should have been made of the amount realized on the securities, or that they were worthless. At the trial no proof was offered as to the holding of the other parties to the agreement, or that any effort had been made to collect the securities, or that the securities were in fact worthless. Held, that a nonsuit was properly entered.</p>

Appeal, No. 27, April T., 1914, by plaintiff, from decree of C. P. Clarion Co., Feb. T., 1913, No. 2, sustaining demurrer to bill in equity in case of A. H. Whitmore et al. v. W. S. Heeter. Bill in equity for an injunction. The bill averred that the plaintiffs are the owners of a certain tract of land containing forty-three acres and twenty-one square perches, situate in the township of Salem, county of Clarion, Pa., and was duly and properly conveyed to them.

<p>Appeal, No. 137, April T., 1914, by Mrs. Charles A. Abrams, Guardian of George Thorp, a minor, from decree of O. C. Butler Co., June T., 1907, No. 5, refusing to set aside the confirmation of the sale of real estate In re Estate of George Thorp, a minor.</p> <p>Rule to set aside confirmation of sale of real estate.</p>

<p> Liquor law—Granting license—Record—Review. </p> <p>1. An order of the quarter sessions granting a liquor license will not be reversed on appeal, where the record of the lower court shows that after hearing by evidence, petition, remonstrance and arguments of counsel, and due consideration given thereto, the license was granted as prayed for, and the bond approved; and there is nothing on the record to show that the hearing was not regularly conducted in accordance with law.</p> <p>2. In such a case the appellate court cannot review the procedure in the court below as disclosed by the evidence.</p> <p>3. The refusal of the court below to find as a fact that a majority of the signers to the petition of the applicant did not appear and were hot sworn in open court to the truth of the petition and the necessity for the license, is not a ground for reversing an order granting the license.</p> <p>4. The fact that the quarter sessions received a petition in support of an applicant after the time fixed by a rule of court limiting the date of such filing, is not a ground for reversal, where such action is not assigned as error, and it appears that the petition in question was not one in support of the applicant, but was rather a mere withdrawal of a remonstrance previously entered against him.</p>

<p>Appeal, No. 29, April T., 1914, by W. L. Amo and O. G. Moore, Remonstrants, from order of Q. S. Clarion Co., Feb. T., 1914, No. 8, License Docket, granting a retail liquor license.</p> <p>Petition for a retail liquor license.</p> <p>Error assigned was order granting the license.</p>

<p>Criminal law—Fornication and bastardy—Bond—Death of defendant— Principal and surety.</p> <p>1. Where a person who has been convicted of fornication and bastardy enters a bond with surety conditioned to pay a weekly sum for five years for the maintenance of the child, and about a year after the filing of the bond, dies, the surety will not be liable for any weekly payments maturing after the death of the principal.</p> <p>2. In such a case where the defendant is sentenced to pay the usual fine, the costs of prosecution and $2.50 per week for five years for the maintenance of the child, and to enter into a bond with surety in the sum of $500, the portion of the sentence fixing the sum to be paid and appropriating it to the maintenance of the child cannot be separated from the rest of the sentence. The liability of the defendant and his surety is not a debt in the ordinary sense, but is created by the sentence, and as death revokes the sentence, the liability is also revoked.</p> <p> Practice, C. P.—Demurrer—Affidavit of defense. </p> <p>3. In an action on a bond where a demurrer is overruled with leave to the defendant to file an affidavit of defense, the order of the court is not a final judgment for the plaintiff, and the defendant may raise in the affidavit of defense the same legal question raised by the demurrer.</p>

<p>Statute of frauds—Promise to pay debt of another—Oral agreement— Mechanic’s lien.</p> <p>1. Where a person holding a recorded mortgage on a building in course of construction, and still retaining in his possession a large portion of the mortgage money, agrees orally, to pay the claim of a subcontractor or material man, if he will not file a mechanic’s lien, which at the time the latter has a right to file, the agreement will not be construed as one to pay the debt of another, and consequently will not be held to be within the statute of frauds.</p> <p> Courts—County court of Allegheny county—Appeal to common pleas —Allowance of appeal—Discretion of court. </p> <p>2. On an application to the court of common pleas óf Allegheny county to allow an appeal from the county court of the county, the court of common pleas is to exercise a sound judicial discretion upon due consideration of the allegation of the petition and the relevant matters brought before it, and may refuse the appeal if, upon such consideration it is not satisfied that a retrial is necessary to prevent injustice. An appeal will not be allowed merely because the evidence was in conflict, and there was evidence which if believed by the jury, would have sustained a different verdict, or merely because the court of common pleas would have arrived at a different conclusion upon the issues of fact if it were the province of that court to decide them.</p>

<p> Bailment—Innkeeper—Loss of contents of trunk—Gratuitous bailee. </p> <p>1. Where a traveling salesman, in 1910, forwarded his trunk to a hotel twelve days before his arrival, requested the hotel, by mail, to take care of it, and the trunk was received and deposited in the baggage room, the location of which was known to the traveler, the hotel proprietor was merely a gratuitous bailee of the trunk, and was not liable, in the absence of proof of gross negligence, for the contents of the trunk, removed while the trunk was in the baggage room.</p> <p>2. In such a ease the relation of guest and innkeeper did not arise until the actual arrival of the owner of the trunk at the hotel.</p>

<p>Appeal, No. 140, April T., 1914, by defendant, from order of C. P: Allegheny Co., April T., 1914, No. 780, refusing to allow an appeal from the County Court in case of Ira D. Findley v. William A. Bryans.</p> <p>Petition for leave to appeal from judgment of the county court on verdict for plaintiff.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was in refusing to allow an appeal.</p>

<p> Contract—Building contract—Bond—Principal and surety. </p> <p>1. Where a building contractor obligates himself to furnish “a satisfactory bond of the full amount of the contract,” and the condition of the bond furnished is, .that if the obligors shall pay or cause to be paid unto the owner a sum stated “for the completion of a building, as per plans and specifications and articles of agreement for” the owner in a borough specified “without fraud or further delay, then this obligation to be void,” the owner may, in an action upon the bond, introduce oral testimony to the effect that the agreement was that the bond was to furnish indemnity to the owner against claims of subcontractors and material men, and was not given merely to insure the completion of the building.</p> <p>2. In such a case the owner may recover not only the amount of liens filed against the building, but also amounts which he had voluntarily paid to material men, without waiting for them to file liens, where it appears that such payments were made on a written ox-der from the contractor in which it was stated that the amounts were, due, and that the owner would have to take care of them as the contractor was without money so to do.</p> <p>3. A provision in such a contract empowering the owner to retain a sufficient amount out of the contract price to indemnify himself against liens or claims, but without any provision requiring him so to do, is in relief of the owner, and is not intended for the protection of the contractor's surety. If the owner chooses to pay amounts due on the contract to subcontractors or material men, he may do so without waiting for claims or liens to be actually filed.</p>

<p>Appeal, No. 143, April T., 1914, by plaintiff, from order of Q. S. Greene Co., Dec. Term, 1913, No. 3, quashing indictment in case of Commonwealth v. Timothy J. Ross, Lisbon Scott and George White.</p> <p>Motion to quash indictment.</p>

<p>Appeal, No. 132, April T., 1914, by defendant, from judgment of C. P. Allegheny Co., July T., 1912, No. 820, on verdict for plaintiff in case of David E. Park and the Farmers’ Loan & Trust Company, as Trustee under the last will and testament of William G. Park, deceased, v. Kansas City Southern Railway Company.</p> <p>Appeal from judgment of county court.</p> <p>From the record it appeared that the case originated in the county court at July Term, 1912, No. 820. In that court judgment was rendered in favor of the plaintiff for $552. On petition an appeal was allowed to the common pleas, and the case was there tried resulting in a verdict for plaintiff for $638.27.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The case was tried before Reid, J.</p> <p>Errors assigned were (1) refusal of motion for nonsuit; (2) refusal of binding instructions for defendant, and (3) refusal of judgment for defendant n. o. v.</p>

<p> Appeals—Interlocutory order—Allowance of appeal from summary conviction. </p> <p>An order of the court of quarter sessions allowing an appeal to that court from a judgment of a justice of the peace in a summary conviction proceeding or an order refusing to strike off such appeal after it has been allowed, is an interlocutory order from which no appeal lies to the Superior Court.</p>

Appeal, No. 242, Oct. T., 1914, by Thomas J. Norris et al., from order of Q. S. Phila. Co., June T., 1914, Docket No. 3, disapproving report of commissioners and dismissing petition in the Matter of the Petition for the Division of the Forty-Sixth Ward of the City of Philadelphia. Petition for the division of a ward.

<p> Appeals—Interlocutory order—Order refusing to quash indictment. </p> <p>An order refusing to quash an indictment is an interlocutory order from which an independent appeal does not lie.</p>

Appeal, No. 101, April T., 1914, by defendant, from judgment of C. P. Allegheny Co., July T., 1912, No. 799, on verdict for plaintiff in case of Mrs. H. Abel v. M. H. Pickering Company. Trespass for an alleged illegal taking of property. Before Brown, J. The facts are stated in the opinion of the Superior Court.

Argued April 30, 1914. Appeal, No. 87, April T., 1914, by Andrew Mason, John F. Provan and J. W. Warrick, from order of C. P. Allegheny Co., Nov. T., 1910, No. 583, refusing to set aside receiver’s sale in case of C. W. Barclay v. Pittsburg Home Building Company. Petition to set aside receiver’s sale of-real estate. The petition averred that the petitioners were creditors of the Pittsburg Home Building Company.

Argued May 5, 1914. Appeal, No. 103, April T., 1914, by plaintiff, from order of C. P. Clarion Co., Dec. T., 1908, No. 174, making absolute rule to open judgment in case of Earl Everhart to use of D. A. Everhart v. Charles Fulmer and Mary Whitmer. Rule to open judgment entered on a judgment note. The note in question was as follows: “$300.

Appeal, No. 84, April T., 1914, by plaintiff, from decree of C. P. Indiana Co., Dec. T., 1911, No. 3, dismissing bill in equity in case of H. E. Clark v. James Edwards. Bill in equity for specific performance. Telford, P. J., after formal rulings on requests, found as follows: We have found that the defendant in this action agreed on the receipt of $125 from the plaintiff, H. E. Clark, to assign to the plaintiff, the judgment in controversy.

Appeal, No. 9, March T., 1914, by William Daley, from judgment of Q. S. Mifflin Co., Jan. Sessions, 1914, No. 1, imposing a fine on appellant in case of Commonwealth v. Clint. Dunn. Indictment for selling liquor without a license. The facts are stated in the opinion of the Superior Court. Error assigned was in imposing the fine referred to in the opinion of the Superior Court.

<p>Appeal, No. 3, Feb. T., 1915, by defendant, from judgment of C. P. Clinton Co., Oct. T., 1913, No. 8, affirming judgment of justice of the peace in case of Mary R. Miller v. Metropolitan Life Insurance Company.</p> <p>Motion to quash appeal.</p>

<p>Appeal, No. 236, Oct. T., 1914, by plaintiff, from order of Q. S. Phila. Co., Aug. Sessions, 1914, No. 1, refusing petition for habeas corpus in case of Commonwealth ex rel. Thomas M. Thompson v. Superintendent of House of Correction.</p> <p>Petition for habeas corpus.</p> <p>The transcript of the committing magistrate was as follows:</p> <p>Arrested the defendant Thomas M. Thompson of 1748 North Ninth street with being a vagrant August 14, 1914, on oath of Traffic Officer Holton who, having been duly sworn according to law, did depose and say that he verily believes and expects to be able to prove that Thomas M. Thompson of No. 1748 North Ninth street, did beg, solicit alms from the pedestrians, and, etc., on the public highways, contrary to act of assembly, May 8, 1876, the said offense being committed on August 14, 1914, at Eleventh and Girard streets in the city of Philadelphia, contrary to the form of the act of general assembly of May 8, 1876, in that case made and provided, which said act of assembly, among other things, provides that persons soliciting alms, and begging on the public highways, etc., shall be committed to the house of correction and further deponent saith not.</p> <p>And now August 15, 1914, the defendant arrested and brought before me to answer and make defense.</p> <p>NAMES OF WITNESSES ADDRESSES OF WITNESSES</p> <p>Traff. Officer Holton Mtd. Traffic Squad</p> <p>Agent Frank Yon Bevern 419 South Fifteenth street</p> <p>Thos. M. Thompson 1748 North Ninth street</p> <p>Hose D. Thompson 1748 North Ninth street</p> <p>The above witnesses, after having been duly sworn, testified in substance that Thomas M. Thompson, No. 1748 North Ninth street did, on August 14, 1914, at Eleventh and Girard streets, Philadelphia, solicit on the public for alms and did beg on the public highways, contrary to act of assembly, May 8, 1876.</p> <p>The defendant was given an opportunity to examine witnesses, and was heard in own defense.</p> <p>And, therefore, it is considered and adjudged that the said defendant Thomas M. Thompson is guilty of being a vagrant and that he shall for this offense serve three months in the house of correction as provided for in the act of assembly of May 8, 1876.</p> <p>Defendant committed to the house of correction, three months.</p>

<p> Negligence—Municipalities—Defect in street—Contributory negligence—Case for jury. </p> <p>In an action by a woman against a city to recover damages for personal injuries, the question of the plaintiff’s contributory negligence is for the jury, where the evidence tends to show that plaintiff leading a little child and incumbered with parcels, stepped into a pool of water in the cartway of a street, that the pool was about twenty inches in diameter and about eighteen inches deep, that it had been left after certain street repairs had been made, and in no way indicated on its surface anything more than a pool produced by a rainfall, that plaintiff knew nothing of the depth of the pool, and that she did not go around it because other persons were crossing at the same time on both sides of her.</p>

<p>Negligence—Master and servant—Dangerous work—Duty to instruct. 1. When an inexperienced employee is placed in charge of dangerous machinery, or a method of doing particular work with the use of which he is unacquainted, it is the positive duty of the employer to instruct and properly qualify him for such services, and warn him of such dangers as are not apparent.</p> <p>2. If the master gives the servant to understand that he does not consider the risk one which a prudent person should refuse to undertake, the servant has a right to rely upon his master’s judgment, unless his own is so greatly opposed thereto that he does not in fact rely upon the master’s opinion.</p> <p>3. Where a woman employed as a common laborer to repair canvas strainers through which a chemical has been strained, is not warned of any danger, and after a while finds that her finger ends are becoming sore and notifies the superintendent of this fact, but he tells her to go on with her work as there is nothing to harm her, she may recover damages from her employer for the loss of a finger resulting from her continuance at the work.</p>

<p> Evidence—Cross-examination—Latitude of cross-examination—Bes gestee—Discretion of court. </p> <p>The range of a cross-examination must, to a very great extent, be left to the sound discretion of the trial judge, and unless that discretion has been plainly abused, to the injury of the party complaining, it is not ground for reversal; and this is particularly the case where the alleged new matter developed is but a part of the res geste.</p>

Appeal, No. 119, Oct. T., 1914, by defendant, from judgment of C. P. No. 1, Phila. Co., March T., 1913, No. 1,093, on verdict for plaintiff in case of Lydie A. Fell v. William A. Aull. Issue to determine the ownership of $1,000, proceeds of a policy of life insurance, on the life of David H. Fell. Before Patteeson, J. The opinion of the Superior Court states the case. Verdict and judgment for plaintiff. Defendant appealed. Errors assigned were in the following form: 1.

<p>Appeal, No. 90, April T., .1914, by defendant, from judgment of C. P. Allegheny Co., April T., 1912, No. 1,385, on verdict for plaintiff in case of William Norwood v. Dr. Oscar H. Goeddel.</p> <p>Trespass to recover damages for personal injuries.</p> <p>At the trial it appeared that the defendant on September 23, 1911, was a practicing dentist in the city of Pittsburg, and had practiced dentistry for about a year prior to that date. The plaintiff complained that owing to the negligence of the defendant in operating upon him, an abscess had developed in his jaw which resulted finally in necrosis of the jaw requiring an operation by which a portion of the jaw was removed. The facts relating to the alleged negligence are fully stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $1,025. Defendant appealed.</p> <p>Errors assigned were (1) refusal of binding instructions for defendant and (2) refusal of motion for judgment for defendant n. o. v.</p>

<p> Criminal law—Statutory rape—Reputation—Good character—Evidence. </p> <p>1. On the trial of a prosecution for statutory rape and bastardy evidence of specific acts tending to show the bad character of the prosecutrix are inadmissible. The evidence must be confined to the general reputation. The words “not of good repute” in the proviso of sec. 1 of the Act of May 19, 1887, P. L. 128, mean the reputation of the person for chastity in the community in which she lives; that is, what she is reputed to be, not what she actually is.</p> <p> Evidence—Good character—Substantive evidence. </p> <p>2. The evidence of good character is substantive and must be treated as such. It is not a mere makeweight to be thrown in to determine the balance in a doubtful case, but it may of itself by the creation of a reasonable doubt produce an acquittal.</p>

<p>Appeal, No. 31, Oct. T., 1914, by defendant, from order of C. P. No. 4, Phila. Co., June T., 1911, No. 514, refusing to continue case of Silas A. Birdsong et al., trading as Birdsong Brothers, v. Henry P. Polinsky.</p> <p>Assumpsit for goods sold and delivered. Before Audenried, J.</p> <p>From the record it appeared that the case was tried in the absence of the defendant. The plaintiffs offered in evidence a copy of the book of original entries and closed. The jury rendered a verdict for plaintiffs for $274.88, upon which judgment was entered. Subsequently the defendant filed the following reasons in support of a motion for a new trial:</p> <p>1. Because the case was tried in the absence of the defendant and his witnesses, notwithstanding the fact that the defendant, having a full and just defense to the whole of plaintiffs’ claim, and always being anxious and willing to try the case, was, at the time of said trial, together with his witnesses, actually on the street cars in this city, on the way to City Hall to attend said trial, but was taken by surprise, in that twelve cases preceding this case on the list of January 7, 1914, were passed without trial upon the call between ten and eleven o’clock a. m. of said January 7; the defendant having been advised in the afternoon of January 6, 1914, by his counsel, Edwin C. Freeman, Esq., that said twelve cases were undisposed of, and that this case, in all likelihood, would not be reached until late in the day of said January 7; but, as a matter of fact, it was the first case tried on said last-named date, the trial thereof lasting only a few minutes.</p> <p>2. Because, unless permitted by your honorable court, to defend this case, the defendant will be compelled to pay plaintiffs’ claim of $374.88, which he does not owe, and against which he expects to be able, if permitted, to successfully defend himself, for the reason that because of plaintiffs’ breach of contract and without any fault on the part of the defendant, he never received any of the merchandise claimed for by the plaintiffs, and never received any consideration or anything of value whatsoever from the plaintiffs.</p> <p>Depositions taken in the case tended to support the grounds alleged for the defendant’s failure to appear with his witnesses when the case was called.</p> <p>Errors assigned were in permitting the case to go to trial and in refusing a new trial.</p>

Appeal, No. 102, Oct. T., 1914, by defendant, from order of C. P. No. 2, Phila. Co., March T., 1913, No. 3,349, discharging rule to enter security for costs in case of Charles E. Baxter v. John Davenport. Rule on nonresident to enter security for costs. Error assigned was order discharging the rule.

Appeal, No. 166, Oct. T., 1914, by plaintiff, from decree of C. P. No. 5, Pliila. Co., Sept. T., 1913, No. 1,993, dismissing bill in equity in case of Minna Franz v. Mary Bernhard et al. Bill in equity for discovery. The opinion of the Superior Court states the case. Error assigned was decree dismissing the bill.

<p>Divorce—Desertion—Defense by loife—Evidence—Burden of proof—■ Cruel and barbarous treatment.</p> <p>1. Where a husband files a libel against his wife for divorce on the ground of desertion, and the respondent in her answer avers that she was compelled to abandon her husband’s home by reason of his cruel and barbarous treatment and indignities to her person, the burden of proof is upon the wife, and in order to prevail she must establish by the preponderance of the evidence a state of facts that will entitle her to a decree of divorce on the grounds advanced in her answer.</p> <p>2. In such a case the husband will be entitled to a decree where the testimony of the wife merely tends to show that he frequently refused to talk with her; that on one occasion some years before he pointed a revolver at her, although he offered no threat that he would use it; that he would remain away from home until late at night, and sometimes all of the night leaving her a prey to anxiety for his safety and apprehension for her own; but without any proof that he violated his marital obligations, struck her, or made false accusations against her, or used opprobrious language towards her.</p>

<p>Appeal, No. 262, Oct. T., 1913, by defendant, from order of C. P. No. 5, Phila. Co., Sept. T., 1913, No. 2,273,' making absolute rule for judgment for want of a sufficient affidavit of defense in case of United Shoe Machinery Company v. Morton Winston.</p> <p>Assumpsit on a check.</p> <p>The check was as follows:</p> <p>“No. 6 Philadelphia, Aug. 27, 1913.</p> <p>“National Bank op Germantown 3-53</p> <p>“Pay to......John A. Jackson..........or order</p> <p>One Hundred & Fifty......................Dollars</p> <p>$150.00.</p> <p>“ (Sgd.) Morton Winston.</p> <p>“Indorsed:</p> <p>“John A. Jackson “Pay to Central Trust & Saving Co.</p> <p>“or order</p> <p>“United Shoe Machinery Co.</p> <p>“George H. Gifford,</p> <p>“Agent.”</p> <p>The affidavit of defense was as follows:</p> <p>That on August 27, 1913, one John A. Jackson came to the deponent and made representations that he, the said John A. Jackson, could get a note discounted in the Penn National Bank in the amount of $150, provided the deponent would accept his note and indorse the same so that he, the said John A. Jackson, could have the same discounted, and provided further, that the deponent would lend the use of a check for the same amount, which would not be cashed but would simply be held by the bank as collateral for the note.</p> <p>That the deponent not being indebted to the said John A. Jackson, but wishing to accommodate him as aforesaid, indorsed the note which said John A. Jackson had drawn to deponent’s order for $150 and payable at the Penn National Bank on December 27, 1913, and at the same time loaned the said John A. Jackson the check in question for the same amount, with the warning that the same was not to be used, there not being sufficient funds to meet it, but only to be held by the bank which discounted the note as collateral.</p> <p>That notwithstanding the facts above referred to, the said John A. Jackson on the same day mailed the deponent the above-mentioned note, stating that “my machine company cashed the check,” and advising the deponent to take the note to the “bank in Germantown.” Upon receipt of the letter containing said note the deponent forthwith called up the National Bank of Germantown, and informed them that the check had been wrongfully and fraudulently obtained and used, and advising them not to honor the same if presented for payment. That subsequently the deponent informed the United Shoe Company of the facts above mentioned and advised them to proceed against John A. Jackson, who had defrauded them.</p> <p>The court made absolute rule for judgment for want of a sufficient affidavit of defense.</p> <p>Error assigned was the order of the court.</p>

<p>Contract—Written instrument—Parol evidence—Landlord and tenant— Lease. *</p> <p>An affidavit of defense is no't a sufficient answer to a claim for rent of the months of November and December, 1913, under a written lease for one year from November 1, 1912, at 1420 a year “payable monthly” in sums of 135.00, rent to begin from January 1, 1913, and the lease to continue from year to year, where such affidavit alleges an oral agreement that the rent on renewals should be $350 a year in ten monthly installments omitting the months of November and December, without any averment of fraud, accident or mistake as to the omission of the alleged oral agreement.</p>

Appeal, No. 25, Oct. T., 1914, by defendant, from judgment of C. P. No. 1, Phila. Co., Dec. T., 1910, No. 3,447, for plaintiff n. o. v. in case of Jacob Haimowieh v. William H. McLaughlin. Assumpsit on a check.

<p> Landlord, and tenant—Lease—Waiver of right of appeal—Rule to strike off—Rule taken as of course—Practice, C. P. </p> <p>Where a landlord recovers a judgment before a justice of the peace in a suit to recover the cost of certain repairs which he was compelled to make after the tenant had left the premises, and it appears that the lease contained a covenant for repairs and a waiver of a right of appeal, and these facts appear in the record, an appeal taken by the tenant will be stricken off on a rule taken as of course by the plaintiff without any petition or preliminary order.</p>

<p> Appeals—Assignments of error—Evidence—Offer. </p> <p>Where an assignment of error complains of the action of the court in sustaining an objection to a single detached question insufficient in itself,-and unaccompanied by an offer, there is nothing before the appellate court by which it can determine whether the party asking the question had been injured, and the assignment will be overruled as insufficient in substance.</p>

Appeal, No. 88, April T., 1914, by defendant, from judgment of C. P. Allegheny Co., Sept. T., 1911, No. 512, on verdict for plaintiffs in case of Joseph Frank and Lydia E. Frank, his wife, v. Allegheny Valley Street Railway Company. Trespass to recover damages for death of a child of tender years. Before Shafer, J. The facts relating to the accident are stated in the opinion of the Superior Court. Verdict and judgment for plaintiff for $1,000. Defendant appealed.

Appeal, No. 67, Oct. T., 1914, by John M. Burroughs, trading as William Penn Bazaar, Garnishee, from judgment of C. P. No. 2, Phila. Co., March T., 1908, No. 2,822, on verdict for plaintiff in case of Edward Powell v. D. J. Spilane. Issue in attachment execution to determine the ownership of six horses. Before Staples, P. J., specially presiding. At the trial it appeared that the plaintiff obtained judgment against D. J. Spilane and issued an attachment execution against.

Appeals, Nos. 115 and. 116, Oct. T., 1914, by defendant, from judgment of C. P. No. 2, Phila. Co., Sept. T., 1913, No. 138, on verdict for plaintiff in case of Benjamin F. Kerbaugh and Rebecca T. Kerbaugh, his wife, v. United States Express Company. Trespass to recover damages for personal injuries. Before Sulzberger, P. J. The facts are stated in the opinion of the Superior Court.

Appeal, No. 224, Oct. T., 1914, by defendant, from judgment of C. P. Wyoming Co., Oct. T., 1912, No. 136, on verdict for plaintiff in case of James A. Miller v. Lehigh Valley Railroad Company. Trespass to recover damages for personal injuries, and for injuries to a horse and wagon. Before Terry, P. J. At the trial the jury returned a verdict for plaintiff for $1,000.

Appeal, No. 135, Oct. T., 1914, by plaintiff, from order of C. P. No. 3, Phila. Co., June T., 1907, No. 2,747, discharging rule for judgment and interest in case of Delia Dougherty v. Philadelphia Rapid Transit Company. Rule for judgment and interest. The opinion of the Superior Court states the case. Error assigned was order discharging rule for judgment and interest.

Appeal, No. 265, Oct. T., 1913, by defendants, from order of C. P. No. 1, Phila. Co., Sept. T., 1913, No. 3,388, discharging rule to open judgment in case of Italian Co-operative Banking Association v. Joseph La Spada and Ralph Laura. Rule to open judgment. The opinion of the Superior Court states the facts. Error assigned was the order of the court discharging rule to open judgment.

Appeal, No. 10, April T., 1914, by defendant, from judgment of C. P. Beaver Co., Dec. T., 1910, No. 268, on verdict for plaintiff in case of N. Martin v. Ambridge & Baden Street Railway Company and the Beaver Valley Traction Company. Trespass to recover damages for an alleged loss of profits. Before Galbreath, P. J., specially presiding. From the record it appeared that the plaintiff claimed damages in the sum of $7,000.

<p>Appeal, No. 222, Oct. T., 1914, by defendants, from order of C. P. Northumberland Co., Sept. T., 1914, No. 347, to turn over books in case of David M. Maurer and John M. Eilenberg, Auditors of the School District of Coal Township, v. Edward Brennan, John A. Aadamiak, Wm. A. Mangle, M. J. McBride, P. T. Ryan, A. L. Broskey, Directors of said School District.</p> <p>Petition for production of books.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was the order of the court which was as follows:</p> <p>And now, to wit, August 6, 1914, the court being satisfied that, in order that an audit be made of the accounts of the school district of Coal township, and in order to assist the auditors in the rapid performance of their duties, that it is necessary for the books and papers in the hands of the officers of the board to be turned over to the auditors; the school directors of Coal township are hereby directed and ordered to comply with the former order of the court and turn over the books and papers in their hands asked for by the auditors, within twelve hours from twelve o’clock noon of this day.</p>

<p> Criminal law—Perjury—Evidence—Stenographer’s notes—Refreshing memory—Certification of transcript—Act of May 11,1911, P. L. 280. </p> <p>1. On the trial of an indictment for perjury, the stenographer who took the testimony at the trial at which the defendant was charged to have committed perjury, may use the transcript of his notes to refresh his memory where he has previously testified that the notes were correct, that the transcript was made by some one else, but that he had carefully gone over the notes and transcript so that he was able to testify to their accuracy. In such a case it is immaterial that the transcript had not been certified as provided by the Act of May 11, 1911, P. L. 280, and that only a portion of the testimony taken at the trial had been used by the witness.</p> <p>2. Where on the trial of an indictment for perjury the testimony given by the defendant at a former trial is read to a witness who was asked whether the testimony was true or false, the answer of the witness is not open to the objection that it is the expression of an opinion and a conclusion, where it involves an assertion that the testimony was false, and a narration of the facts within the personal knowledge of the witness of the transaction involved.</p> <p>3. On the trial of an indictment for perjury the materiality of the testimony must be decided by the court, but if the court leaves such question to the jury and the jury properly decides that the testimony is material, the error of the court in referring these matters to the jury is not harmful error and is no ground for reversal.</p> <p>4. On the trial of an indictment for perjury where it appears that the defendant was charged with giving false testimony in a foreclosure suit on a mortgage, testimony against the defendant is material, which tends to show that he was an intermediary in negotiating the mortgage, and that he falsely swore in the foreclosure suit that he had no authority from the mortgagors to act for them. In such a case a written statement and affidavit by the defendant as to the property he owned is also material, if such papers throw light upon the purpose of his negotiations and his interest in the matter.</p> <p> Criminal law—Perjury—Indictment—Different counts. </p> <p>5. Where two of the counts in an indictment for perjury merely present different phases without charging separate offenses, an improper conviction on one of the counts, will not relieve the defendant from sentence, if he has been properly convicted on the other count.</p> <p>6. In such a case the trial judge cannot be convicted of error in charging: “The whole case is for you, you are the judges of the law as well as the facts, but you ought to accept as the law the instructions that the court has given you.” The use of the word “ought” does not render the instruction erroneous.</p>

<p>Food law—Adulteration of vinegar—Act of May 21,1901, P. L. 275— Criminal law.</p> <p>1. A person may be convicted of violating the Act of May 21, 1901, P. L. 275, relating to the sale of apple or cider vinegar, where it appears that he sold a product containing approximately twenty per cent of water not derived from the apple, but added to the vinegar by the maiiufahturer in the process of manufacturing.</p> <p>2. - Pure cider vinegar within the meaning of the act must be the legitimate product of pure apple juice; it must-be made exclusively of apple cider; and having these qualities it must contain no foreign substances, drugs or acids.</p> <p>3. On the trial of an indictment for a violation of the Act of May 21, 1901, P. L. 275, relating to the sale of apple or cider vinegar, the court properly excludes evidence as to the process of manufacturing the vinegar in question, where the defendant admits that twenty per cent of water had been designedly added to the apple juice produced through the mechanical and chemical appliances of his factory. In such a case it is immaterial that the use of water was necessary to reduce the acetic acid content as it came from the convertors in order to make the vinegar more palatable and salable. It is no answer to say that after such manipulation the article offered for sale was just as good as that produced by the older and simpler processes.</p>

<p> Sales—Contract—Manufacture and delivery of goods—Measure of damages—Evidence—Case for court. </p> <p>1. Where a vendor agrees to manufaetnm.ari.rL dallyor goods within a time specified, and after the first shipm®^fflf^B¿® notifies him not to complete the balance of order because of misunderstanding as to price, but the vendor does complete the order making the last delivery after the expiration of the time limit, the vendee will be bound to pay the contract price, if it appears that he accepted the goods and retained possession of them without any complaint as to the time of the delivery until the day of the trial of an action for the price.</p> <p>2. In an action for goods sold and delivered where the defendant admits the acceptance and possession of the goods, and it appears that the questions involved depended upon writings, and that the only purpose of the oral testimony admitted, was to complete the matters called for in the writings, the case is for the court and not for the jury.</p> <p>3. In an action for goods sold and delivered under a written contract, the defendant cannot assert that he understood the word “gross” to mean “dozen” and on that basis made the contract.</p>

<p> Practice, C. P.—Pleading—Amendment of statement—Cause of action —Trespass-Shooting by policeman. </p> <p>1. In an action of trespass against a policeman to recover damages for the death of plaintiff’s son, where the statement of claim charges that while the deceased was lawfully-upon a public street, the defendant discharged a number of shots from a revolver “willfully and maliciously into the body” of the deceased, the court commits no error in permitting the statement to be amended so as to substitute the word “negligently” for the words “willfully and maliciously.”</p> <p> Appeals—Assignments of error—Exceptions to charge of court. </p> <p>2. A stenographer’s transcript of a charge was immediately followed by these words “counsel for defendant excepts to the charge of the court and the answer to point.” The formal bill of exceptions, after-, wards sealed by the trial judge, and approved in writing by counsel of both parties recited (after setting forth the charge, and the foregoing notation by the stenographer that) that “the counsel for the defendant did then and there except to the aforesaid charge.” Held, (1) that it would be presumed that this general exception was taken immediately after the charge was delivered, and by “leave of the court,” and (2) that under such an exception the defendant had a right to assign all actual errors of law contained in the charge.</p> <p> Negligence—Policeman—Shooting by policeman. </p> <p>3. In an action against a policeman to recover damages for the killing of plaintiff’s son, a verdict and judgment for the plaintiff will be sustained, where it appears that at the time of the occurrence the defendant was in citizen’s clothes; that the defendant seized and arrested the deceased, who broke away; that the defendant fired three shots, the last of which took effect, the bullet penetrating the deceased’s spine below the shoulder; and there is nothing in the testimony to warrant the finding that deceased had committed or attempted to commit a felony, or that defendant had reasonable and probable cause for believing that he had done so.</p> <p>4. In such a case, the defendant cannot complain of a portion of the charge in which the trial judge stated that the defendant was guilty of having negligently shot the deceased, where the evidence shows that the pistol must have been pointed directly at the deceased, or at such an angle that the bullet glanced from the pavement in his direction.</p>

<p> Insurance—Fire insurance—Policy—Typewritten and printed portions—Repugnancy—Chattel mortgage—Deed of trust. </p> <p>1. Where a typewritten slip is pasted on a printed policy of fire insurance, and the slip is repugnant to the printed portion of the policy, the printed form must yield to the typewritten provision.</p> <p>2. Where the printed form of a fire insurance policy provides that the policy shall be void “if the interest of the insured be other than unconditional and sole ownership; or if the subject of insurance be personal property and be or become incumbered by a chattel mortgage,” but a typewritten slip pasted on the policy expressly provides that the insurance shall cover property held by the company in trust for others, and property sold by the company, but not delivered, and the company sets up as a defense, a deed of trust “in fee simple forever” covering real and personal property as security for a debt, the insured may show that under the laws of the state where the trust deed was executed and delivered, a trust deed was not a chattel mortgage.</p> <p> Evidence—Depositions—Signature of witness. </p> <p>3. It is not a sufficient ground for rejecting a deposition taken under a commission that it was not signed by the witness, if it appear in the body of the certificate that he was sworn.</p> <p>4. The failure of a witness to sign his depositions is an irregularity which may be taken advantage of at the proper time, but it is one of those irregularities which can be waived, and which must be deemed as waiver by the unexplained failure to object as provided by the rule of court.</p> <p>5. An unsigned deposition will be admitted at the trial where it appears that upon the return of the commission no exceptions had .been filed to it, and it appears from the body of the deposition that the witness had been sworn by the commissioners.</p>

Appeal, No. 66, Oct. T., 1913, by defendant, from judgment of C. P. No. 5, Phila; Co.,-Sept. T., 1904, No. 2,620, on verdict for plaintiff in case of Thomas Dyer v.. Philadelphia Rapid Transit Company. - Trespass to recover damages for personal injuries and for .injuries to a wagon and harness. Before. Rals.ton, J. ’ ■ ; The circumstances of the accident are stated in the opinion of the Superior Court. . .• •Verdict and judgment for plaintiff for $400. Plaintiff appealed.

<p>Appeal, No. 37, Oct. T., 1914, by defendant, from decree of C. P. No. 4, Phila. Co., Dec. T., 1911, No. 2,445, for libelant in case of David •Henry Reighter v. Elizabeth H. Reighter. ■</p> <p>Libel for divorce on the ground of adultery. Before Audenried, J.</p> <p>Error assigned was the decree awarding divorce.</p>

<p>Appeal, No. 9, Oct. T., 1914, by defendant, from judgment of C. P. No. 2, Phila. Co., June T., 1913, No. 1,721, on verdict for plaintiff in case of Emilia Rufo v. Philadelphia.</p> <p>Trespass to recover damages for death of plaintiff’s husband. Before Omerod, P. J., specially presiding.</p> <p>At the trial it appeared that the deceased, Donato Rufo, was killed on March 3, 1913, while driving a team of two horses westward on Callowhill street between Sixty-third street and Gross street. Along the north side of the cartway of Callowhill street were trenches dug to the middle line of the street. These had been in existence for some time. The south part of the cartway was safe, and had been used by the deceased and the public generally to the time of the accident. As Rufo neared Gross street an automobile came close to his wagon from the rear, and at the same time another automobile coming south on Gross street proceeded to turn eastward into Callowhill street. There was evidence although contradicted that - the horses took fright. They at all events moved to the right, causing the front wheel of the wagon to go into the trench. Rufo was pitched from his seat and killed. There was also evidence, although contradicted, that the deceased did not have the reins in his hand when the accident happened, but that they were wrapped around the brake handle. The court submitted the case to the jury.</p> <p>Verdict and judgment for plaintiff for SI,000. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for defendant.</p>

<p>Appeal, No. 48, Oct. T., 1914, by defendant, from judgment of C. P. No. 1, Phila. Co., Dec. T., 1911, No. 1,113, on verdict for plaintiff in case of Robert Humes v. Philadelphia Rapid Transit Company.</p> <p>Trespass to recover damages for personal injuries. Before Patterson, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $500. Defendant appealed.</p>

<p>Liquor law—Brewing companies—License—Violation of Premium Act of June 12, 1913, P. L. 490—Payments to the state treasurer— Acts of June 21,1897, P. L. 176, and July SO, 1897, P. L. 464-</p> <p>1. An incorporated brewing company may be convicted of violating the act of June 12, 1913, which prohibits the offering of premiums “by any person,' partnership or corporation licensed to sell vinous, spirituous, malt or brewed liquors,” for the return of caps, stoppers, corks, stamps or labels, although the company has not received a license from the court of quarter sessions, if it appears that it has availed itself of the provisions of the Act of June 21, 1897, P. L. 176, and has paid into the state treasury the fees required to be paid by manufacturers for the purpose of obtaining the benefits of the Acts of June 21,1897, P. L. 176, and July 30, 1897, P. L. 464. Such a company is “licensed” within the meaning of the Act of June 12, 1913, P. L. 490.</p> <p>2. The Act of July 30, 1897, P. L. 464, does not repeal the Act of June 21, 1897, P. L. 176, but both acts must be construed in pari materia.</p> <p>3. The Act of June 12, 1913, P. L. 490, is a penal act and to be strictly construed; its scope is not to be enlarged or extended to cases not obviously within its words.</p> <p> Constitutional law—Personal rights of citizen—Liquor law act of June 12,1918, P. L. 490. </p> <p>4. The Act of June 12, 1913, P. L. 490, prohibiting the offering or giving of premiums by licensed liquor dealers for the return of caps, stoppers, corks, stamps or labels is not unconstitutional as class legislation, nor as an invasion of the personal rights of a citizen.</p>