Volume 59 — Pennsylvania Superior Court Reports

<p>Principal and surety — Joint and several bond — Nonexecution by principal.</p> <p>1. A surety company is liable upon a bond which it gave although the principal did not execute the bond, where it appears from the very words of the bond itself that the bond was severable in character.</p> <p>2. The failure of the principal to execute a joint and several bond does not invalidate the same as to the surety, unless there was an express agreement that the bond was not to be valid until so executed.</p> <p>3. An obligation in writing reciting that one person as principal, and another as surety are held and firmly bound to a third person in a sum stated “for the payment whereof said principal binds himself, his heirs, executors, administrators and assigns, and the said surety binds himself and his successors firmly by these presents,” is a joint and several obligation.</p>

<p>Contract — Sale—Acceptance of goods.</p> <p>Where goods are sold under an agreement, that vouchers should be delivered with the goods “showing that the merchandise had been manufactured in a union factory,” and the goods are delivered as ordered, except that they were not accompanied by union vouchors, and the purchasers accept the goods and make no objection of the absence of the vouchers until an action for the purchase price was brought four months afterwards, the plaintiff will be entitled to recover the contract price of the goods; and there is all the more reason for such recovery if it appears that the defendants on the admission of a new partner into their firm requested the plaintiff to rebill the goods to the new firm without reference to the vouchers, and that such rebilling was done by the plaintiff as requested.</p>

<p>Appeal, No. 71, Oct. T., 1914, by W. Lewis Tallman, from decree of O. C. Phila. Co., July T., 1911, No. 82, sustaining exceptions to adjudication in Estate of Henry Hudson Smith, deceased.</p> <p>Exceptions to the adjudication of Gummey, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Errors assigned were in sustaining exceptions to the adjudication.</p>

<p>Appeal, No. 100, Oct. T., 1914, by defendant, from order of C. P. No. 5, Phila. Co., Dec. T., 1913, No. 492, making absolute a rule for judgment for portion of claim as to which the affidavit of defense is insufficient in case of James A. Tanner, Receiver of the Liberty Mutual Fire Insurance Company of Philadelphia, v. O. M. Weber Company, Inc.</p> <p>Assumpsit to recover assessments levied by a mutual insurance company.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>Rule for judgment for that portion of claim as to which the affidavit of defense is insufficient.</p> <p>The facts are stated in the opinion of .the Superior Court.</p> <p>Error assigned was order making absolute rule for judgment for portion of claim as to which the affidavit of defense is insufficient.</p>

<p>Appeal, No. 54, Oct. T., 1914, by William F. Brennan, Executor, dismissing exceptions to adjudication in Estate of John O’Brien, deceased.</p> <p>Exceptions to adjudication.</p> <p>The adjudication filed by Gummby, J., was in part as follows:</p> <p>Objection was also made to the commissions credited in the account in the sum of $1,207.32, being five per cent on $24,146.31, of which $17,500 represents 175 shares of stock of the American News Company, appraised at the par value of $100 per share. The services rendered by Mr. Brennan are set forth in his statement hereto annexed, from which it appears that he rendered no unusual services except in connection with the contest over the probate of the alleged codicil above referred to and the making of careful inquiry into the value of ten shares of stock of the Columbus Securities Company and ten shares of stock of the Burgoyne-Bingham Company, the latter company being in process of liquidation and the former having had receivers appointed for it subsequent to testator’s death. While commissions are frequently, indeed usually, allowed upon unconverted securities, yet the fact that they have not been converted is to be taken into consideration in determining the rate at which commissions should be allowed. In the present instance, as the stock is specifically bequeathed, whatever commissions are allowed must be borne by the residuary legatees, or rather by the trust estate for John O’Brien, as there are not sufficient assets to pay in full the bequest for his use. The chief responsibility which an executor must assume with respect to stock belonging to his testator’s estate is in ascertaining, first, whether the stock is of such a character that it should be held or sold, and if the latter, then to exercise discretion in determining the time to sell; but in the present instance responsibility is reduced to a minimum, the only obligation imposed on the accountant being to keep the stock safely and to transfer it (all except five shares), to himself as testamentary trustee. Counsel for the accountant urges that the auditing judge should take into consideration, in fixing the compensation to be allowed the accountant, the fact that upon the termination of the trust he will not be entitled to any further commissions on principal. This may be conceded as being the usual rule, but here, again, the services to be rendered by the trustee are not likely to be very burdensome, so far as principal is concerned, as the trust has less than four years to run; and so far as income is concerned, the accountant will, of course, be entitled to commissions on any dividends received while the trust continues. Commissions of two and one-half per cent are usually allowed for responsibility (Oliver’s Estate, 20 W. N. 318; Wooten’s Estate, 21 Pa. Dist. Rep. 1035), and if to this is added one-half of one per cent the auditing judge is of the opinion that the accountant will be amply compensated for services rendered and to be rendered in connection with this stock; and with regard to the other assets, the auditing judge believes that commissions should be allowed at the usual rate of five per cent; awards will therefore be made accordingly. In reaching this conclusion the auditing-judge assumed that the stock is worth its appraised value, no testimony having been submitted to show the contrary.</p> <p>On exceptions Anderson, J., filed an opinion as follows:</p> <p>Exceptions were also filed on the subject of commissions, by the executor against the reduction of commissions to three per cent, and by the pecuniary legatee against the allowance of any commissions on the specific legacies on the ground that no services had been rendered with respect thereto that justified compensation at this time.</p> <p>The argument on behalf of the accountant was founded largely on the fact that as trustee he would hold the stock for five years, and under the act of assembly would be unable to get other commissions than those now allowed. We think, however, that the question here is not one of commissions, but rather compensation under the peculiar facts of this case. The specific legacy on which the commissions were claimed has not been, and in all probability will not be, converted by the executor either as executor or as trustee. As said by Mr. Justice Strong in McCauseland’s Appeal, 38 Pa. 466, “Commissions are given as a compensation for labor and responsibility, and where neither the one has been performed, nor the other incurred, there is nothing to be compensated.” And by Mr. Justice Gordon, in Montgomery’s Appeal, 86 Pa. 230, “The compensation of a trustee of any character may be arrived at, as a matter of convenience, by way of a percentage on the amount of the receipts and disbursements. But after all, on all authorities, it is a question not of percentage but of compensation. . . . Whilst a percentage is constantly spoken of and used because of its convenience, yet, it is compensation, nothing more or less, that is steadily kept in view.” See also Taylor’s Estate, 17 Pa. Dist. Rep. 395. We think under the circumstances of this case, the sum of $250 would fully compensate the trustee for any labor and responsibility in reference to the stock to be retained by him as trustee. As to the specific legacy deliverable to the legatee, we think the compensation allowed by the auditing judge, three per cent of the appraised value, is neither too large nor too small for the trouble which the accountant will have in transferring the stock.</p> <p>Errors assigned were in dismissing exceptions to adjudication.</p>

<p>Appeal, No. 160, Oct. T., 1914, by Charles H. Lafferty et al., Trustees under will of Charles Lafferty, deceased, from decree of O. C. Phila. Co., Oct. T., 1886, No. 587, sustaining exceptions to adjudication in Estate of Charles Lafferty.</p> <p>Exceptions to adjudication.</p> <p>From the record it appeared that Charles Lafferty, by his will, proved October 27, 1885, devised and bequeathed the residue of his estate to his executors, to hold the same during the life of his children and thenceforth until the youngest grandchild living at the decease of his surviving child should arrive at lawful age, in trust, out of the income thereof to pay certain annuities unto his several children, free from liability to the debts, contracts or engagements of the annuitants or of any of their husbands or to any execution or attachment against them.</p> <p>He provided that in case of the death of any child without leaving issue to survive, the share of such child should be held as part of the original trust estate for the increase of the annuities of the surviving children and their issue, subject to the same restrictions, limitations and exemptions from liabilities, and directed that the executors should hold the said residuary estate and the accretions thereto, as to any of his children, who should leave issue living at his or her death, subject to his or her disposal by will “of such share of the residuary estate, original or accrued, of which under the limitations of this will he or she was at his or her death entitled to the rents and income, to and among his or her child, children or issue, in such shares, proportions and estates, absolutely or upon trusts, as he or she may so will or appoint, but subject to the trusts of this will during the time limited as aforesaid for the same to endure and the limitations over to the surviving children or the issue of deceased children; that is, during such trust the annuities shall be subject to the disposal of my children as aforesaid, and the shares of the residuary estate to take effect in possession at the expiration of the trust.”</p> <p>He further provided as follows:</p> <p>“Eighth: — -But should any of my children die leaving issue him or her surviving and make no appointment or disposal of my estate as authorized aforesaid, then my Executors shall hold the share he or she might have so willed or appointed, in trust for the child, children or issue of such decedent or decedents, living at his, her or their death, and the issue of any deceased child or descendant, in equal shares, so however that such issue or descendant shall take equally only the proportion that their deceased parent would have taken if then living; but subject to the trust hereinbefore created, until the hmitation thereof shall expire, and subject to said restrictions and conditions, as to liability to contracts and debts, and exemptions from executions and attachments as aforesaid, and to the limitation over as above said in case of all of the issue of any of my children dying in their minority without issue.”</p> <p>Two of the testator’s children are still living and the trust is therefore in full force.</p> <p>Patrick Lafferty, a son of the testator, died in 1905, without exercising the power of appointment given him by his father’s will, but leaving to survive him six children, one of whom, John Lafferty, died in 1909, intestate and without issue. All of the other five children of Patrick Lafferty are still living, except Francis P. Lafferty, who died September 14, 1912, leaving a widow, Margaret S. Lafferty, one of the two appellees, and a daughter, Margaret Frances Lafferty, whose guardian is the other appellee. Francis P. Lafferty at the date of his death was receiving one twenty-fifth of the net income of the estate of his grandfather, Charles Lafferty. Pie left a will, by which he provided, inter alia, as follows: “And' as to any income from the said estate, prior to the distribution of the principal thereof, which I may also be entitled to dispose of by will, I direct that the same shall be divided equally between and paid to my said wife, Margaret S. Lafferty, and my said daughter, Margaret Frances Lafferty, share and share alike, upon and after the death of either of them, the entire amount of said income to be paid to the survivor of them.</p> <p>“Item Two. The rest, residue and remainder of my estate, which shall be held to include the entire estate of which I shall die seized or possessed or to which at the time of my death I shall be in any manner entitled, in possession, expectancy, remainder or reversion, not herein otherwise disposed of, I give, devise and bequeath as follows, to wit, one-third (1/3) thereof to my said wife, Margaret S. Lafferty, for and during the term of her natural fife, upon her decease the entire, principal thereof to pass to, vest in, and be paid to my said daughter, Margaret Frances Lafferty, absolutely and in fee simple, and the remaining two-thirds (%) of the said residue to my said daughter, Margaret Frances Lafferty, to have and to hold to herself, her heirs and assigns forever.”</p> <p>He also appointed his wife executrix.</p> <p>By' the adjudication on the twenty-fifth account of the appellants the auditing judge awarded one twenty-fifth of the income of the trust estate, which had accrued since the death of Francis P. Lafferty, to his only child, Margaret Frances Lafferty, as the sole representative of her father’s line of descent-'■ffrom his father, Patrick Lafferty, a ’child of the original testator, in accordance with "the directions contained in the eighth paragraph-of the testator’s will. A. majority of the court in banc, however, sustained exceptions to this adjudication and awarded one-third of this one twenty-fifth of the income to Francis P. Lafferty’s widow and the remainder to his daughter.</p> <p>Gest, J., filed the following opinion:</p> <p>The exceptions filed by Margaret S. Lafferty, executrix of the will of Francis P. Lafferty, and by the guardian of his minor child, to the adjudication upon the twenty-fifth account, raise a serious question as to the construction of the will.</p> <p>Francis P. Lafferty was one of six children of Patrick Lafferty, a son of the decedent, the said Patrick having died without having exercised the power of appointment given to him by the testator’s will, and, as Francis P. Lafferty died after the filing of the twenty-fourth account, a question arose at the audit of the twenty-fifth account as to the distribution of the income which accrued since his death. This makes it necessary for us to determine whether his share of the income vested in his executors or whether, under the limitations of the will of Charles Lafferty, the issue of Francis P. Lafferty, one child, a daughter, took his share as substituted legatee.</p> <p>The intention of the testator on this point is obscure, but the general scheme of the will is clear. By the fifth clause he gave and devised his residuary estate, real and personal, to his executors during the lives of his six children named in the will and the life of the survivor, and thereafter until the youngest grandchild living at the death of the surviving child should arrive at lawful age or would be of such age if dying after said event, in trust to pay annuities of $2,000 to each of his seven children, providing further that if the income should not suffice to pay the annuities in full they should abate pro rata, and should they enable his executors to pay more than the said annuities they should be increased accordingly. The principal purpose of this somewhat unusual provision was probably to ensure, as far as possible, a regular yearly income to the seven children; but practically it was equivalent to a gift to each of them of one-seventh of the annual income for their respective lives. In the sixth paragraph the testator provided that should any one or more of his children die and leave no issue living at his or her death the share or shares of such should be held and applied as part of his original trust residuary estate for the increase of the annuities of his surviving children and the issue of any of them, then deceased. And in the seventh paragraph the testator provided that in the event of any of his children dying and leaving issue living at his or her death, the executors should hold the residuary estate subject to the disposal of the child so dying as to such share of the residuary estate of which under the will such child was at his or her death entitled to the rents and income, to and among his or her child, children or issue, in such shares, proportions and estates as he or she might will or appoint.</p> <p>As Patrick Lafferty left issue, but made no appointment, neither of these clauses directly applies to this case, which is governed by the eighth clause as follows: “But should any of my children die leaving issue him or her surviving, and make no appointment or disposal of my Estate as authorized aforesaid, then my Executors shall hold the share he or she might have so willed or appointed, in trust for the child, children or issue of such decedent, or decedents, living at his, her or their death, and the issue of any deceased child or descendant, in equal shares, so however that such issue or descendants shall take equally only the proportion that their deceased parent would have taken if then living; but subject to the trust hereinbefore created, until the limitation thereof shall expire, and subject to said restrictions and conditions, as to liability to contracts and debts, and exemptions from executions and attachments as aforesaid and to the limitation over as above said in case of all the issue of any of my children dying in their minority without issue.”</p> <p>It is contended on behalf of the trustee that the testator by the added words “and the issue of any deceased child or descendant in equal shares” intended that on the death of each child leaving issue, but without exercising the power of appointment, his child, children or issue should receive his share of the income, and as each child or other descendant should from time to time die, during the period of the trust, his or her children should take the income by way of substitution. The learned counsel for the widow and child of Francis P. Lafferty, however, in his able argument, maintained that on the death of Patrick Lafferty, his children, among whom was Francis P. Lafferty, became entitled to Patrick Lafferty’s share of the estate, and that, until the termination of the trust, Francis P. Lafferty was entitled to a vested interest in the income, which income passed under his will, and, consequently, his widow is entitled, according to his will, to one-third of his share of the income for her life. A careful consideration of the will of Charles Lafferty has convinced the majority of the court that this is the correct construction of it. The eighth paragraph of the will provides that upon the death of a child without leaving issue him or her surviving and without, having exercised his power of appointment the executors should hold the share he or she might have appointed in trust, etc. What is the share he or she might have appointed appears by reference to the preceding paragraph — -the seventh — to be the share of which he or she was at his or her death entitled to the income. That is, a certain share of the principal or corpus is distinctly directed to be held in trust “for the child, children or issue of such decedent or decedents living at his, her or their deaths.” That the death of each child fixed the time at which his child, children or issue were to be ascertained and take seems to be clear, Pepper’s Appeal, 120 Pa. 230, and no doubt could arise had not the testator added the words “and the issue of any deceased child or descendant in equal shares,” by which, it is argued, the testator intended the issue of a child or descendant who died or was “deceased” after the death of its ancestor, the child of the testator. The phrase used is undoubtedly perplexing, but we are of opinion that this was not the testator’s intention. No special significance is to be attached to the word “descendants,” which means merely issue, that is, offspring or posterity in general: Wain’s Estate, 189 Pa. 631; Gormley’s Estate, 154 Pa. 378; and the phrase was, we think, added by the testator, after his description of persons who were to take, viz., “child, children or issue of such decedent or decedents living at his, her or their death,” to show clearly the distributive proportions in which those persons were to take, viz., the issue of any deceased child or descendant” (i. e., issue in general) taking “so, however, that such issue or descendants shall take equally only the proportion that their deceased parent would have taken if then living;” the last words referring clearly to the same period of time already fixed for the vesting, the death of a child of the testator, and rendering unmistakable the stirpital character of the interests vesting at that time.</p> <p>There is nothing whatever in this clause of the will to show, as in Rowland’s Est., 141 Pa. 553; 151 Pa. 25, and Babcock’s Est., 18 Pa. Dist. Rep. 453, that the testator intended the income to be distributed among a fluctuating class of issue or descendants who might be living at successive periods of distribution; indeed, there is no direction at all for the payment of the income except such as would necessarily follow from ‘the ownership of the corpus, nor is there anything restricting the interests of the children or issue of a deceased child of the testator to life estates, the case being similar in this respect to Little’s Appeal, 81 Pa. 190; Leech’s Est., 228 Pa. 311, and Murphey’s Est., 21 Pa. Dist. Rep. 1103.</p> <p>The construction which we have given to this eighth paragraph is moreover entirely consistent with the general scheme of the will. The testator first provided for the death of the children without leaving issue. In this case their “shares” are to be applied for the increase of the “annuities” of the surviving children and their issue. He next provided for the death of his children leaving issue. In this case the child so dying is given the right of disposal by will of “such share of which he or she was at his or her death entitled to the rents or income;” this right of appointment was an exclusive right, but restricted to children or issue, and, if the child so dying disposed of or appointed his or her “share,” it is obvious that he or she would or could dispose of his or her “share” of the principal at the termination of the trust, and the income meanwhile. The object of the eighth clause was to provide, in case such appointment was not made by will (which might or might not be preferential as the testator might determine), that the share of the child so dying should at once vest in his children or issue equally and per stirpes, as they were ascertained at his death, and not to provide for an entirely different and fluctuating distribution of income until the termination of the trust and for distribution of the principal at that time among a class which until the arrival of that time would be entirely contingent.</p> <p>It was suggested that the prior decisions of the Supreme Court in this case should or might affect our determination of this question, and we shall briefly refer to them, premising that this case concerns the interest of Patrick Lafferty, whereas the prior decisions of this court and of the Supreme Court, reported in 12 Pa. Dist. Rep. 281, affirmed in 209 Pa. 44; and 19 Pa. Dist. Rep. 504, reversed in 230 Pa. 496, concerned the interest of Francis Lafferty, a brother of Patrick. Francis died in 1896, and by his will gave his estate to his three children, one of whom was Rose Carr. The latter died in 1901, leaving a will, by which she bequeathed .certain annuities and the residue to her children. The auditing judge awarded Rose Carr’s share of the income to her executor, basing his opinion, however, upon an erroneous assumption that Francis Lafferty’s power of appointment was general instead of the special power above recited. Judge Penrose said: “We think, however, that the share of income belonging to the estate of Rose E. Carr should be awarded to her executor and not to the guardian of her children. Under the will of her father exercising the power of appointment given to him by the will of his father — the present testator — she acquired the absolute ownership of the share appointed to her, though possession of the legal estate cannot be had until the termination of the trust created by the grandfather’s will. But in the meantime her share of the income must go as she has directed by her will, viz., to her executors, whom she charged with the payment of the annuities there provided for — the residue only, after such payment, passing to the guardian of her children.” In reality it made no difference whether Francis Lafferty’s share passed to his children through the exercise of the power of appointment under clause 7 of Charles Lafferty’s will, or whether they took directly in default of such exercise under clause 8. However, it being afterward observed that Francis Lafferty’s power was special, and his exercise of it therefore not affected by the Act of June 4, 1879, sec. 3, P. L. 88, Stew. Purd. 5145, this court, at the audit of a subsequent account in Lafferty’s Est., 19 Pa. Dist. Rep. 504, in the endeavor to correct what appeared to be an error in the prior distribution, awarded Rose Carr’s share of the income to those who were supposed to be entitled in default of Francis Lafferty exercising his power of appointment, i. e., to Rose Carr’s issue. But this was reversed by the Supreme Court in Lafferty’s Est., 230 Pa. 496, on the ground that their prior decision in 209 Pa. 44, established the law of the case.</p> <p>Now the distribution decreed in that case was, as we now construe the will of Charles Lafferty, exactly right. It was there held that thé share of the income to which Rose Carr, daughter of Francis Lafferty, was entitled under the wills of Charles Lafferty and Francis Lafferty, should be awarded to her executor and not to her children. Here we hold that the share of Francis P. Lafferty, son of Patrick Lafferty, passes under his will because it was vested in him. The only difference is that we are of opinion that this distribution is correct under clause 8, because both Francis and Patrick left issue and neither exercise their power of appointment, whereas it was supposed in the first decision that Francis had exercised his power under clause 7.</p> <p>But assuming that there is any inconsistency in our present decision with the prior decisions of the Supreme Court, so far as they involved the construction of the will of Charles Lafferty, it is obvious that the doctrine of res adjudicata has no application. To make a prior decree the law of the case, it is necessary, under the fundamental principles of the law of estoppel by judgment, that the subject-matter should be the same and that the parties should be the same. Neither element exists here. The subject-matter is not the same, because Lafferty’s Est., 209 Pa. 44, and 230 Pa. 496,- concerned the construction of the wills of Charles Lafferty, Francis Lafferty and Rose E. Carr, while this litigation concerns the wills of Charles Lafferty, Patrick Lafferty and Francis P. Lafferty. So the parties are not the same. Rose Carr died in 1901, and the contest arose over her share of the income and was decided by the Supreme Court in 209 Pa. (1904) and in 230 Pa. (1911), whereas Francis P. Lafferty did not die until September 14,1912, and the rights of the present litigants did not arise until then. It cannot then be said that his widow and child are concluded by the litigation which concerned another branch of the estate and to which they were not and could not have been parties. Grothe’s Est., 237 Pa. 262, is directly in point.</p> <p>It is true that a proceeding for the probate of a will is an action in rem and is therefore binding on all the world, Wills v. Spraggins, 3 Gratt. 555, and in this state it has been held to be conclusive on infants and lunatics, unless contested within the time and in the manner provided by statute: Folmar’s Appeal, 68 Pa. 482; Miller’s Est., 166 Pa. 97; but that is a very different thing from the judicial construction of the instrument where, as in other cases, the parties whose rights are to be determined must be properly before the court: Black on Judgments, sec. 638a; Shipman v. Rollins, 98 N. Y. 311. The decision in Devine’s Est., 199 Pa. 251, depended on the identity of the parties, to which may be added McCown’s Est., 221 Pa. 324, and Lightner’s Est., 187 Pa. 237; and the recent decisions of Bower’s Est., 240 Pa. 388, and Kellerman’s Est., 242 Pa. 3, while involving different questions recognize the same principle.</p> <p>In Weidman v. Marsh, 16 Pa. 505, an ejectment was brought for a fraction of a tract of land, the title to which depended upon whether the widow of the deceased owner took a fee or a life estate. The court held that she took a life estate only and entered judgment for the plaintiff. In Schriver v. Meyer, 19 Pa. 87, another ejectment was brought for another fraction of the same land by another person interested under the same will, and the Supreme' Court, being of opinion that the prior decision was wrong, decided that the widow took a fee and entered judgment for the defendant. The Supreme Court held that they were not bound by the former decision, when other interests came up for discussion.</p> <p>We are accordingly of opinion that the distribution of the income of the share of Francis P. Lafferty, awarded by the auditing judge, proceeded upon an erroneous construction of the will, and that it should have been awarded, in accordance with his will, one-third to his widow, Margaret S. Lafferty, for life, and the remainder to his daughter. The exceptions are sustained and the award of income is amended accordingly.</p> <p>Of course the scope of our decree is limited to the distribution of income only, and the rights of the parties who may be entitled ultimately to the principal of the estate are not hereby determined.</p> <p>Error assigned was in dismissing exceptions to adjudication.</p>

<p>Husband and wife — Desertion—Municipal court — Court of quarter sessions — Jurisdiction—Retrospective legislation.</p> <p>The municipal court of Philadelphia has jurisdiction, to issue an attachment against a husband to compel him to comply with an order made by the court of quarter sessions directing him to make a weekly payment to his wife, although such order was made by the quarter sessions prior to the date of the statute creating the municipal court.</p> <p>The act creating th° municipal court is not open to the objection that it is retrospective legislation in so far as it confers upon that court, power to enforce an order of support in a desertion case,, made by the quarter sessions prior to the creation of the municipal court.</p>

<p>Road law — Change of grade — Municipal ordinance — Pleading.</p> <p>1. An agreement of counsel to waive pleadings does not relieve a plaintiff from proving his case with the same measure of proof necessary to establish it as if such agreement had not been entered into.</p> <p>2. On an appeal from an award of viewers in a change of grade proceeding, where counsel have agreed to waive pleadings, and it appears that all the plaintiff was required to do was to show that the work was actually done pursuant to some existing municipal authority, the production of an unrepealed ordinance, meeting the situation, is all that is required to show existing municipal authority.</p> <p>3. If in such a case the city alleges that the work was done under a later ordinance, it must produce in evidence such ordinance.' The mere testimony of a clerk that the contract for doing the work was let under the later ordinance, is insufficient.</p> <p>4. An ordinance is not an enactment of which judicial notice may be taken. The existence of the ordinance must be proved like any other fact.</p> <p>5. On the trial of an appeal from an award of viewers in a change of grade proceeding, evidence is admissible to show what uses the property was capable of, and how such uses had been interfered with.</p> <p>6. In such a case the amount and cost of filling required to make the lot conform to, or be available for use at the new grade are competent, not as independent items of damages, but as elements to be taken into consideration by the jury, together with the other circumstances, in determining the market value of the property before and after the change of grade.</p> <p>Practice, C. P. — Trial—Withdrawal of juror — Continuance of case— Discretion of court.</p> <p>7. The appellate court will not review the discretion of the trial judge in overruling a motion to withdraw a juror and continue the case, because a witness who had testified adversely to plaintiff at a previous trial failed to appear and testify for the defendant at the subsequent trial, where it appears that the plaintiff’s counsel had advised the witness that he had not been legally subpoenaed, but also advised him to appear, and that the reason for the witness not being present was on account of an injury received shortly before the case went to trial on the second day, and that he had no intention to disobey the subpoena.</p>

<p>Appeal, No. 58, Oct. T., 1914, by defendant, from judgment of C. P. No. 4, Phila. Co., Dec. T., 1912, No. 3,749, on verdict for plaintiff in case of Harry Greenblatt v. Joseph M. Fox.</p> <p>Assumpsit to recover commissions on sale of real estate. Before Willson, P. J.</p> <p>At the trial it appeared that plaintiff was employed by defendant to secure a purchaser for a row of houses. On June 14, 1912, through plaintiff’s efforts, defendant signed a contract of sale for the houses, which provided for a settlement within sixty days and a deposit of $1,000, the selling price being $57,500. This agreement was signed as follows:</p> <p>Frank Montgomery, Joseph M. Fox, [seal.]</p> <p>H. Greenblatt. Louis Greenblatt,</p> <p>Attorney in fact for M. Bristol.</p> <p>Louis Greenblatt was plaintiff’s son. M. Bristol was a man of straw for the real estate firm of Mastbaum & Fleischer. When the contract was signed defendant gave plaintiff the following writing:</p> <p>“June 14, 1912.</p> <p>“Dear Sir: — On completion of the transaction entered into with you this day, I agree to pay 'you one percentum (1%) on the purchase money of houses that is the sum of five hundred and seventy-five ($575) dollars.</p> <p>“Very truly,</p> <p>“To Mr. H. Greenblatt. “J. M. Fox.”</p> <p>Mostbaum & Fleischer never completed the purchase, and $1,000 paid as a deposit was forfeited. There was no evidence to show that plaintiff knew that M. Bristol was not the real purchaser.</p> <p>The court charged in part as follows:</p> <p>[Well, I do not know that it can be said that there is any dispute in this case about the plaintiff having brought to the defendant the man with whom a contract of sale was entered into. It is true that contract was not made personally with the purchaser who is named in it as being the purchaser. It is true that that contract was signed by an attorney in fact. There is nothing in the case to show — there is no controversy about the question as to whether or not the attorney in fact, Louis Greenblatt, had authority, and proper authority, from the person whose attorney he was to enter into the agreement. It may be assumed, I think, that he had such authority.] [2]</p> <p>[Now, who was responsible for the transaction not being completed? If it was the defendant who was responsible for it, if he chose to say, “I will not carry out this contract,” if he subsequently received a better offer and so was unwilling to make conveyance of the property to the purchaser named in that contract, why, of course, he could not charge that upon the plaintiff. There is no evidence to show what the reason was that this contract was not carried into execution according to the expectation of the parties and the contract of the parties as expressed in the articles of agreement. There is not any evidence that the purchaser named in that contract ever declined to take and pay for the property. It does not follow because a man is a barber that such a contract could not be made, and if the fact was, as you would infer from the testimony of one of the sons of the plaintiff, that he was put forward as representing other people, that would not necessarily show that the contract was not one which could not be enforced. Contracts of that sort, in which people are put forward as representing others, although they may be called straw men, the contracts are not necessarily invalid. They may be executed in good faith and carried out in good faith.] [3]</p> <p>[Now, it is possible to interpret that letter of June 14, 1912, as referring to a condition of things which had already taken place, by “on the completion of the transaction.” I am not undertaking to say to you what that letter means. I will leave it to you to determine. But there is certainly a possible interpretation, which you may or may not give to it, which will amount to this, that the completion of the transaction was the making of the agreement, and that that agreement having been made, the right of the plaintiff to commissions at once came into existence.] [4]</p> <p>[Now, the position which the defendant takes in regard to that is, that the words “on completion of the transaction” referred to the money being paid, the property being transferred and the $56,500 which remained of the purchase money had passed into the hands of the defendant. Even if that were a proper interpretation to be given to that letter, it would still remain true that if the defendant was the one that caused the failure to complete the transaction in that way, according to that view of the case he could not put the results, the responsibility of the failure to complete the transaction, upon the plaintiff. As I have already said to you, the evidence in the case does not throw any light whatever upon the question as to whether it was the defendant who caused the contract not to be carried out, or whether it was Bristol, who was named in the agreement as the party purchasing the property.] [5]</p> <p>Verdict and judgment for plaintiff for $631.64. Defendant appealed.</p> <p>Errors assigned were (2-6) above instructions, quoting them.</p>

<p>Husband and wife — Married women — Feme sole trader — Separation ■ — Reconciliation—Interest of husband in wife’s estate — Acts of April 88, 1718,1 Sm. Laws, 99, and May 4,1855, P. L. 430.</p> <p>A certificate of a wife as a feme sole trader, which covers the authority contained in sec. 2 of the Act of May 4, 1855, P. L. 430, in so far as it relates to the will of a wife denying to her husband any of her estate, is overcome by a reconciliation which has taken place some time before her death in good faith; and in such a case the husband is entitled to take against the will of the wife as though the certificate were not in existence.</p>

<p>Appeal, No. 59, Oct. T., 1914, by defendant, from judgment of C. P. No. 2, Phila. Co., June T., 1913, No. 1,137, on verdict for plaintiff in case of Sarah E. Gary v. Oehrle Brothers.</p> <p>Trespass to recover damages for personal injuries. Before Barratt, J.</p> <p>The circumstances of the accident are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $1,500. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for defendant.</p>

<p>Appeal, No. 88, Oct. T., 1914, by defendant, from order of the Municipal Court of Philadelphia, Feb. T., 1914, No. 46, refusing to vacate order of support in case of Commonwealth ex rel. Sarah E. Parker v. Horace L. Parker.</p> <p>Rule to vacate order of support.</p> <p>The facts are stated in the opinion of the Superior Court.1</p> <p>Error assigned was order refusing to vacate decree.</p>

<p>Vendor and vendee — Sale of land — Construction of contract.</p> <p>1. An agreement for the sale of real estate signed by the purchaser as agent without disclosing a principal contained a provision that “the. premises are to be conveyed clear of incumbrances, except that the party of the first part assumes no liability to deliver the property free from the possession of its present occupants. The title is to be good and marketable, and such as will be insured by any reputable title insurance company.” There was evidence that several trust companies had refused to insure the title, but the evidence was conflicting as to whether it was due to a defect in the title, or was due to an objection based on the possession of the present occupants. The defendant presented a point attempting to give the gist of the agreement, but failing to embody the provision as to the title insurance. The object of the point was to secure a construction of the agreement. The plaintiff testified that he was acting for himself, had paid his own money as hand money, and had no principal. In an action to recover back the hand money Held (1) that the case was for the jury; (2) that there was no sufficient evidence to warrant a submission of the question of agency to the jury and (3) that the defendant’s point was properly refused.</p> <p>2. In the above case it appeared that both plaintiff and defendant signed a receipt for the hand money, the receipt embodying the provision “title to be good and marketable. . . . Purchaser to take subject to possession of present occupants.” The money paid was to be refunded if no settlement was made. There was evidence that the parties regarded the receipt as only temporary, and was to be followed by a formal agreement. Held (1) that there was nothing inconsistent between the receipt and the agreement; (2) that the agreement took the place of the receipt; and (3) that the agreement was not nudum pactum.</p>

<p>Municipalities — City of Philadelphia — Fairmount Park Commission— Appointment of park guards — Civil service — Acts of March 26, 1867, P. L. 647, April 14,1868, P. L. 1088, June 1, 1886, P. L. 39, and March 6, 1906, P. L. 88.</p> <p>Under the Acts of March 26, 1867, P. L. 547, and April 14, 1868, P. L. 1083, the Bairmount Park Commission has full authority to appoint members of the park guard without respect to the civil service provisions of the Act of June 1, 1885, P. L. 39, known as the Bullitt Bill and the Act of March 5, 1906, P. L. 83, entitled “An Act to regulate and improve the Civil Service in cities of the first class;” and this is the case although the act of April 14, 1868, gives to the mayor of the city control over the park guard “in case of emergency.”</p>

Appeal, No. 65, Oct. T., 1914, by Hettie A. Witherspoon, from decree of O. C. Fulton Co., directing payment of legacy charged on land in Estate of William Patterson, deceased. Rule to pay over legacy charged on land. Before Swope, P. J. The facts are stated in the opinion of the Superior Court.

Appeal, No. 49, Oct. T., 1914, by defendant, from judgment of C. P. No. 4, Phila. Co., Dec. T., 1912, No. 1,931, on verdict for plaintiff in case of Barnett J. Medoff v. Louis Effenberg and Abraham Korobov, trading as Diamond Knitting Mills. Assumpsit by an architect for compensation for services.

Appeal, No. 168, Oct. T., 1914, by John Z. Faust, from decree of O. C. Franklin Co., dismissing exceptions to auditor’s report in Estate of Anna Barbara Brubaker, deceased. Exceptions to supplemental report of A. G. McLanahan Esq., auditor. From the record it appeared that William Brubaker in 1893, entered a judgment against his wife, Anna Barbara Brubaker, in the sum of $520, to secure a loan which he made her.

Appeal, No. 111, Oct. T., 1914, by defendant, from judgment of C. P. No. 4, Phila. Co., Sept. T., 1913, No. 1,077, overruling demurrer to statement in case of Fanny H. Platt v. Christian S. Fisher. Assumpsit against a surety on a lease. Demurrer to statement of claim. Willson, P. J., filed the following opinion: The plaintiff demised certain real estate premises to the Eureka Enameling Company, for the term of one year, beginning November 15, 1908.

Appeal, No. 114, Oct, T., 1914, by defendant, from judgment of Municipal Court, Phila. Co., Jan. T., 1914, No. 126, for plaintiff on case tried by the court without a jury in suit of Strause Gas Iron Company v. Western Union Telegraph Company. Assumpsit for failure to deliver a telegraph message. Before Gilpin and Wheeler, JJ.

Appeal, No. 127, Oct. T., 1914, by plaintiff, from order of C. P. No. 3, Phila. Co., Dec. T., 1913, No. 1,653, discharging rule for judgment for want of a sufficient affidavit of defense in case of Oliver H. Bair v. William Jackson. Assumpsit for cost of a funeral. The facts are stated in the opinion of the Superior Court. Error assigned was order discharging rule for judgment for want of a sufficient affidavit of defense.

Appeal, No. 140, Oct. T., 1914, by defendant, from judgment of C. P. No. 1, Phila. Co., March T., 1912, No. 3,896, on verdict for plaintiff in case of Gustave Welke v. Emma C. Bergdoll. Trespass to recover damages for personal injuries. Before Brégy, P. J. The facts are stated in the opinion of the Superior Court. Verdict and judgment for plaintiff for $300. Defendant appealed. Error assigned was in refusing binding instructions for defendant.

<p>Landlord and tenant — Fraudulent debtors’ attachment — Bulk Sales Act of March 28,1905, P. L. 62 — Trespass—Interpleader—Damages.</p> <p>1. Where a tenant of a leased store sells in bulk his stock of goods and delivers them to the purchaser at a time when he owes no rent to his landlord, the latter has no right to issue an attachment under the Fraudulent Debtors’ Act, and attach the goods in the hands of the purchaser on the ground that the purchaser and tenant had violated the Bulk Sales Act of March 28, 1905, P. L. 62, by failure on their part to notify the landlord of the sale.</p> <p>2. In such a case the purchaser of the goods may maintain an action of trespass against the landlord for abuse of civil process, without being required to prove malice and want of probable cause; and he can maintain such an action although he has intervened in interpleader proceedings to test the title to the goods, and such proceedings are undetermined when the trespass suit is tried.</p> <p>3. The measure of damages in such a case, is the expenses and loss the plaintiff has been put to in getting his property back, including any loss incurred by its seizure and detention.</p>

<p>Appeal, No. 213, Oct. T., 1914, by defendant, from judgment of C. P. No. 4, Phila. Co., Sept. T., 1910, No. 393, on verdict for plaintiff in case of Abraham Wax and Louis Lenenberg, trading as Camden Iron & Metal Works, v. Roydhouse Arey Company.</p> <p>Assumpsit for breach of contract. Before AudenRIED, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $684. Defendant appealed.</p> <p>Error assigned was refusal to enter judgment for defendant n. o. v.</p>

Appeal, No. 85, Oct. T., 1914, by defendant, from judgment of C. P. No. 4, Phila. Co., Sept. T., 1912, No. 5,631, on verdict for plaintiff in case of J. Henry Beck v. Philadelphia Automobile Trade Association. Assumpsit for the recovery of commissions on the profits of an automobile show. Before Audenried, J. The facts are stated in the opinion of the Superior Court.

<p>Appeal, No. 165, Oct. T., 1914, by defendants, from judgment of. Municipal Court, Pbila. Co., April T., 1914, No. 6, on verdict for plaintiff in case of William J. Irwin and William J. Irwin, in his own right, v. Leuten Brick Company.</p> <p>Trespass to recover damages for personal injuries. Before Crane, J.</p> <p>At the trial it appeared that plaintiff, a boy seventeen years old, was injured on March 21, 1913, while working at a clay mixer in defendant’s brick manufacturing plant.</p> <p>The circumstances of the accident are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for William J. Irwin, Jr., for $750, and verdict for William J. Irwin for $125, on which judgment was entered for $100, all above that amount having been remitted.</p> <p>Errors assigned were (1) the action of the trial judge in reading a portion of the plaintiff’s statement to the jury; (2) alleged variance between the allegata and probata; (3) refusal of binding instructions for defendant.</p>

<p>Banks and banking — Collection of promissory note — Negligence of notary — Failure to give notice — Damages—Nominal damages — Practice, on appeal.</p> <p>1. Where a person who for a long period has been a depositor in a bank deposits a promissory note for collection in the same city in which ■ the bank does business, and the bank places the note in the hands of a competent notary public to protest it, and the notary loses the note and does not protest it, the bank, while not liable for failure to protest the note will be liable to its depositor if it neglects for an unreasonable time to give him notice of the loss of the note; but if the depositor in a suit against the bank does not offer any evidence as to the solvency or insolvency of the maker of the note, or any evidence of pecuniary loss, the bank will be entitled to have answered in the affirmative a point to the effect that the plaintiff is entitled to nominal damages only. If the court refuses the point and the jury returns a verdict for the plaintiff, and the court thereafter enters judgment for defendant n. o. v., the appellate court will reverse the judgment and remit the record to the court below with direction to enter such judgment as law and right require; the court below will then enter judgment for plaintiff for nominal damages.</p> <p>2. Where a bank fails to notify a depositor promptly of the negligent act of its notary in losing a promissory note deposited for collection, the measure of damages is not the face value of the note, but the actual damages; and if the depositor in an action against the bank fails affirmatively to prove actual damages he will be entitled to nominal damages only.</p>

<p>Bills of lading — Passing of title — Carriers—Banks and banking.</p> <p>Where an owner of automobiles, a corporation in Indiana, on April 15, 1911, bills a car of such automobiles to itself at Philadelphia with notice to a partnership doing business in that city and then makes a draft on such partnership and sells the draft to a bank in Indiana with the bill of lading indorsed and turned over to the bank, and the latter credits the proceeds to a special account of the shipper from which account the shipper has a full right to cheek, the title to the goods passes to the bank, and it may maintain its right of ownership to them as against the partnership in Philadelphia, which has refused to accept the draft, and has seized the goods under a foreign attachment on a claim against the shipper. Such a case comes within the terms of the Act of September 24, 1866 (P. L. 1867), 1363, then in force.</p>

<p>Evidence — Credibility of witness — Docket entries in criminal case— Verdict without judgment.</p> <p>1. On the trial of a civil suit the plaintiff will not be permitted in rebuttal to offer in evidence the transcript of the docket entries in a criminal case to impeach the credit of a witness who had testified for the defendant, where the offer does not embrace the indictment, and the docket entries show that while there was a verdict of guilty, no judgment had been entered thereon.</p> <p>Evidence — Cross-examination—Rebuttal—Testimony on former trial.</p> <p>2. Where upon the trial of a civil suit the defendant on cross-examination is interrogated as to his having given certain testimony on a former trial, the plaintiff may in rebuttal offer parts of such testimony as to which the defendant had been interrogated specifically on cross-examination. An offer of the whole of the testimony is not necessary.</p> <p>Promissory notes — Protest—Mailing notice — Evidence.</p> <p>3. In an action against the indorser of promissory notes where the defendant denies receiving notice of protest, and his testimony is to some extent corroborated by a clerk who opened his mail, and the maker of the notes testified that the notices to the defendant came in an envelope addressed to himself, and that he had not notified the defendant that he had received them, it is not error for the court to refuse a point as follows: "Even though the notaries did not expressly say that the notices of dishonor or nonpayment sent to the defendant were addressed by them to the place where he resided, or had his place of business, the legal presumption is that the notaries did all that the law required of them as an officer or agent.”</p> <p>Appeals — Assignments of error — Improper assignment.</p> <p>4. An assignment of error in the following form is improper: “No evidence was offered upon the trial of this case upon which a verdict for the defendant can be sustained.”</p>

<p>Beneficial associations — Constitution and by-laws — Arrearages—Nonbeneficidl period — Notice.</p> <p>1. A beneficial association may provide in its constitution that a member in arrears “for thirteen weeks shall not be entitled to benefits until four weeks after all such arrearages have been paid in full.” If a member has been in arrears for thirteen weeks and has at the expiration of such time renewed the payment of dues, but at the time of his death the probationary period of four weeks has not elapsed, no death benefits can be paid by reason of his death.</p> <p>2. In such a case the association is not required to give notice to a member before he would cease to be beneficial, if no such notice is required by the by-laws.</p> <p>3. A section of the by-laws provided that “all members thirteen weeks or over in arrears, after being notified, neglecting to pay a sufficient amount to reduce their arrearages to less than thirteen weeks in four weeks thereafter, shall be declared suspended for nonpayment of dues if not otherwise ordered.” Held that such section did not apply to the nonbeneficial period, but only where the association contemplated a suspension of the member. In the latter case notice was necessary.</p>

<p>Divorce — Nonresidence of libelant — Evidence—Domicile.</p> <p>1. A libel for divorce will be dismissed because of the nonresidence of the libelant, where it appears that the libelant left the state of Pennsylvania twenty years before the libel was filed, that with the exception of occasional visits to relatives and a stay of three months long before the libel was filed, he had never returned to the state, that he had served for ten years in the militia of another state, had voted at a municipal election therein, and that when he enlisted as a soldier in the Spanish war he gave his residence as in New York.</p> <p>2. The presumption is that where a person lives, there is his domicile, especially where he has no family elsewhere, and while no particular length of residence is necessary to fix a person’s domicile, yet in the absence of any avowed intention and of acts which indicate the contrary intention, a long continued residence is regarded as a controlling circumstance in determining the question of domicile.</p>

<p>Appeal, No. 56, Oct. T., 1914, by Harry Owens, from judgment of Q. S. Potter Co., March Sessions, 1914, Nos. 9 and 111, on verdict of guilty in case of Commonwealth v. Clifford Trembley, Ernest Carpenter and Harry Owens.</p> <p>Indictment for forcible entry and larceny. Before Heck, P. J.</p> <p>The opinion of the Superior Court states the case.</p> <p>Errors assigned were in overruling motions to quash and in arrest of judgment.</p>

<p>Principal and surety — Judgment note — Extension of time — Discharge of surety — Principal and agent — Banks and hanking.</p> <p>1. A judgment entered against a surety on a judgment note will be opened, where it appears that when the note was about to become due, notice of that fact was given to both principal and surety, that the latter gave verbal instructions to the payee to proceed and collect the note from the principal, that instead of doing this the payee without the knowledge or consent of the surety, on five different occasions, extended the time of payment at the instance of the principal alone, who on each occasion paid in advance a valuable consideration for such extension, and that by reason of these extensions the note was carried along for about fifteen months after it had become due according to its terms.</p> <p>2. In such a case where it appears that the note in question was given to a private bank owned by a single person, the business of which was conducted by another known as the cashier, the owner of the bank cannot claim that the cashier was without authority to grant the extension, where it appears that the cashier was the sole agent and representative of the owner in all matters relating to the business of the bank, that he made the loan in question on his own judgment, and that no part of the remuneration which the bank received for the several extensions had ever been returned or offered to be returned.</p>

<p>Liquor law — Refusal of licenses — Associate judges — Bias of judges.</p> <p>The action of a license court consisting of a president judge and two associate judges unlearned in the law in refusing a liquor license will not be reversed by the appellate court, because of a charge that prior to the election of the associate judges, newspaper advertisements and other publications had been issued to the effect that the candidates, if elected, would refuse all liquor licenses, where there is no evidence to show that such publications had been authorized by the candidates or made with their sanction, and the associates deny that they were biased, and assert that they had done nothing to disqualify themselves and the president judge finds that they were not biased, by refusing an order to disqualify them.</p>

<p>Appeal, No. 75, Oct. T., 1914, by Martin Grube, from- order of Q. S. Huntingdon Co., Feb. Sessions, 1914, No. 6, refusing a distiller’s license In re Application of Martin Grube.</p> <p>Petition for a distiller’s license.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was the order quoted in the opinion.</p>

Appeal, No. 245, Oct. T., 1914, by defendant, from order of C. P. Northumberland Co., Equity Docket No. 381, awarding injunction in case of Katharine A. Leisenring v. Pennsylvania Lighting Company. Bill in equity for an injunction. Moser, J., filed the following opinion: On April 26, 1913, the plaintiff purchased a cigar and confectionery store, with fixtures, from Gertrude M. Farley, wife of Eugene A. Farley.

Appeal, No. 246, Oct. T., 1914, by defendant, from judgment of O. & T. Huntingdon Co., Feb. Sessions, 1914, No. 5, on verdict of guilty in case of Commonwealth v. Blain H. Nace. Indictment for highway robbery. Before Woods, P. J. The facts are stated in the opinion of the Superior Court. Verdict of guilty, upon which judgment of sentence was passed. Errors assigned were various instructions, quoting them.

Appeal, No. 157, Oct. T., 1914, by defendant, from order of C. P. Berks Co., Jan. T., 1914, No. 93, making absolute rule for judgment for want of a sufficient affidavit of defense in case of O. W. Ketcham v. Odd Fellows Hall Association of Reading. Assumpsit upon an award of arbitrators. Rule for judgment for want of a sufficient affidavit of defense.

Appeal, No. 89, Oct. T., 1914, by plaintiff, from order of Q. S. Lancaster Co., Jan. T., 1914, No. 40, sustaining demurrer to indictment in case of Commonwealth v. Charles Falk. Indictment for unlawfully driving a' diseased animal.

Appeal, No. 91, Oct. T., 1914, by plaintiff, from order of Q. S. Lancaster Co., Jan. T., 1914, No. 43, sustaining demurrer to indictment in case of Commonwealth v. S. E. Weber. Indictment for failing to report a diseased animal.

Appeal, No. 76, Oct. T., 1914, by The American Bank, from order of C. P. No. 3, Phila. Co., Sept. T., 1912, No. 5,090, dismissing exceptions to auditor’s report in case of Nellie Gallagher v. Bernard Stern. Exceptions to report- of Horace Haverstick, Esq., auditor.

Appeal, No. 1, Oct. T., 1914, by Salome E. Jones, Guardian of the Estate of Ruth and Mina Elliott, from decree of O. C. Potter Co., No. 448, dismissing exceptions to auditor’s report in Estate of Hattie E. Hellwig, deceased. Error assigned was decree of the court.

Appeals, Nos. 120 and 121, Oct. T., 1914, by defendant, from judgment of C. P. Northumberland Co., Sept, T., 1912, No, 194, on verdiet for plaintiff in case of Isaac Long, in his own right and as father and next friend of Richard Norman Long, a minor, v. Greenough Red Ash Coal Company. Trespass to recover damages for personal injuries.

Appeal, No. 264, Oct. T., 1913, by defendant, from judgment of C. P. Berks Co., Aug. T., 1909, No. 92, on verdict for plaintiff in case of Exchange Mutual Fire Insurance Company v. Mutual Fire Insurance Company of Reading. Assumpsit to recover the losses on policies issued by the defendant company reinsuring the plaintiff company.

Appeal, No. 131, Oct. T., 1914, by defendant, from judgment of Q. S. Lancaster Co., Nov. Sessions, 1913, No. 103, on verdict of guilty in case of Commonwealth v. C. H. A. Dissinger. Indictment for larceny as bailee. Before Hassler, J. The court charged as follows: Gentlemen of the jury: The defendant here is charged with larceny as bailee. The indictment charges that-, being the bailee of two promissory notes signed by Schultz & Son and payable to C. H. A. Dissinger & Bro.

Appeal, No. 253, Oct. T., 1913, by plaintiff, from judgment of C. P. Lancaster Co'., Oct. T., 1910, No. 186, on verdict for defendant in case of I. U. Wolf and Harry R. Wolf, doing business as I. U. Wolf & Son, v. C. Solomon. Assumpsit for goods sold and delivered. Before Landis, J. At the trial the plaintiffs claimed that the goods had been sold and delivered to the defendant.

Appeal, No. 124, Oct. T. 1914, by defendant, from judgment of G. P. Lancaster Co., Sept. T., 1911, No. 24,' on verdict for plaintiff in case of Charles C. Lentz v. Samuel Raum. Trespass for false arrest. Before Hassler, J. At the trial it appeared that the defendant, a policeman, arrested the plaintiff, a huckster, on the night of August 19, 1911, for blowing a horn after ten o’clock at night.

<p>Road law — Appointment of reviewers — Supervisors—Mandamus.</p> <p>A mandanus to compel township supervisors to appoint a reviewer will not be granted where it appears that the supervisors had in fact appointed a reviewer who had all the necessary qualifications, except that he had acted as a reviewer in a previous proceeding for laying out the same proposed road; and such refusal is all the more proper where there is evidence tending to show that the petitioners for the mandamus had selected a person as a reviewer who was open to the same objection, and that they had waived the objection to the appointee of the supervisors. The question raised by such a petition may be considered in proceedings under the Act of July 2, 1901, P. L. 607.</p>

Appeal, No. 52, Oct. T., 1914, by defendant, from judgment of C. P. Bradford Co., Sept. T., 1911, No. 59, on verdict for plaintiff in case of F. E. Smith et al., trading as Smith, Miller & Wright, v. National Bank of Sayre. Assumpsit to recover $600, voluntarily paid by the plaintiffs to the defendant on account of a promissory note signed by the plaintiffs. Before Maxwell, P. J. The facts appear by the former report of the case in 53 Pa. Superior Ct. 368.

Appeal, No. 38, Oct. T., 1914, by plaintiff, from decree of C. P. Bradford Co., Sept. T., 1913, No. 361, dismissing libel in divorce in case of William H. Mauser v. Catherine Mauser. Libel in divorce. Maxwell, P. J., filed the following opinion: Subpoena in divorce issued August 26, 1913, returnable to the second Monday of October, 1913. Said subpoena served, personally, upon respondent, at Danville, Pa., August 30, 1913.

Appeal, No. 66, Oct. T., 1914, by defendant, from judgment of C. P. No. 4, Phila. Co., Sept. T., 1911, No. 2,924, on verdict for plaintiff in case of John H. Hinkle, trading as J. H. Hinkle and Company, v. Central Trust & Savings Company. Assumpsit on a contract. Before Willson, P. J. At the trial the jury returned a verdict for plaintiff for $459.05 upon which judgment was entered.

<p>Liquor laws — Selling without license — Husband and wife — Answer to points — Charge.</p> <p>1. On the trial of an indictment against a husband and wife for selling liquor without a license the trial judge cannot be convicted of reversible error in refusing to submit to the jury the question whether the wife had acted under the compulsion of her husband, where the agent of a brewing company testified, without contradiction, that he had been delivering beer to the establishment conducted by the defendants for about five years, that eighty-seven dozen bottles of beer were below the average monthly delivery, that the wife always ordered the beer, and always paid for it after having it charged to her on the books of the company.</p> <p>2. While a party is entitled to a clear statement of the law in answer to every point properly drawn that is material and applicable to the case, and warranted by the facts and the evidence, if not fully covered in the general charge, yet, when the facts to which the points relate are free from dispute and the subject-matter of the point is fully and adequately covered in the general charge, the omission to read and answer the points does the defendant no injury.</p>

<p>Decedents’ estates — Claim for nursing — Evidence.</p> <p>A claim for nursing against a decedent’s estate will not be allowed where it appears that the decedent had boarded with the claimant for about fifteen years, paying a weekly sum therefor, but being regarded practically as a member of the family, that there was nothing to show that the claimant’s services for nursing were not voluntarily performed, and there was no evidence offered to support a contract other than loose expressions of gratitude and appreciation by the decedent, and the hope that he might live to see the day when claimant would be compensated.</p>

<p>Contract — Sales—Breach of contract — Measure of damages.</p> <p>1. Where goods, not specially manufactured, are ordered by description to be sent from a distance, are separated from bulk, appropriated for the purpose of the vendee, and delivered to a common carrier with bill of lading to the vendee, and the vendee inspects and refuses to accept the goods because of alleged short weight and promptly notifies the vendor, who declines to take them back and the goods are sold by the carrier, the measure of damages in an action brought by the vendor against the vendee, is the contract price of the goods.</p> <p>2. In an action to recover the price of a quantity of a dustless sweeping compound it appeared that the order of the defendant for the goods was “70 bbls. 200 lbs., 70 bbls. 100 lbs. and 50 kegs 50 lbs.” When the goods arrived at defendant’s station and were weighed, it was found that the weights of the barrels and kegs had been included with the contents in the weight as specified in the order. The defendant averred that the inducement to enter into the contract was an oral understanding that the weight of the packages should be excluded from the weights mentioned in the order. This was denied by the plaintiff. A part of the arrangement was that one of the plaintiff’s experienced employees should work up a trade and sell the compound for the defendants. The defendant offered to prove that this salesman was in fact an agent of the plaintiff, and that he had sold a number of persons on the defendant’s account a quantity of the compound at a certain price per pound without reference to the weight of the barrels. Held, that it was reversible error for the court to reject such an offer.</p>

<p>Appeal, No. 233, Oct. T., 1914, by defendant Elizabeth B. Palmer, from order of support of Municipal Court of Philadelphia Co., March T., 1914, No. 202, in case of Commonwealth v. Elizabeth B. Palmer and Ella O. Benners.</p> <p>Petition for order for support.</p> <p>From the record it appeared that in March, 1912, Mary I. Palmer petitioned the court of quarter sessions for an order of support against the defendants, her children’s maternal and paternal grandmothers. The court dismissed the petition and subsequently on a second application marked the case “continued indefinitely.” In 1914, the petitioner without filing a new petition ordered the case on the municipal court list, and the following order was made:</p> <p>And now, to wit: August 11, 1914, the court having carefully considered the testimony offered in the above stated case wherein the petitioner, Mary I. Palmer, mother of the minor children, Elizabeth Palmer aged four years and Irene Palmer aged two years, petitions this court for an order upon Elizabeth Palmer, paternal grandmother of the said minor children, and Ella O. Benner, their maternal grandmother, for their support.</p> <p>It is therefore ordered and decreed by the court that an order be entered against the said Elizabeth Palmer and Ella O. Benner, paternal and maternal grandmothers of the said minor children, for the sum of $2.50 a week for each of the two minor children.</p> <p>Error assigned was the order of the court.</p>

Appeal, No. 269, Oct. T., 1914, by defendant, from order of C. P., No. 3, Phila. Co., June T., 1914, No. 2,953, making absolute rule for judgment for want of a sufficient affidavit of defense in case of William H. Jones, Trustee, v. Thomas J. Carrigan, trading as The Somer Salt Company. Assumpsit for goods sold and delivered. Rule for judgment for want of a sufficient affidavit of defense. The opinion of the Superior Court states the case.

<p>Appeal, No. 271, Oct. T., 1914, by plaintiff, from order of C. P. No. 3, Phila. Co., March T., 1914, No. 4,989, discharging rule for judgment for want of a sufficient affidavit of defense in case of Frederick E. Meehan v. Antoni S. Smolczgnski, Alexsander Dutkiwicz, Stanislaw J. Cienkowski, Wm. L. Raczynski and Joseph Witkowski.</p> <p>Assumpsit for goods' sold and delivered.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>Attached to the statement of claim was the following instrument in writing:</p> <p>“Philadelphia, Pa., Aug. 30, 1912.</p> <p>“I, F. E. Meehan, agree to furnish to the Polish Publishing Co., N. W. Corner of Richmond Street and Indiana Ave., the following:—</p> <p>1 Cox Duplex, 4 page, 8 column with Folder............................ $700.00</p> <p>One 29x42 Cottrell..................... 350.00</p> <p>One 12x18 Gordon with fountain, side • steam fixtures, impression throw-off, 6 roller stocks, riders and wrenches .... 200.00</p> <p>One 8x12 Improved Gordon with side steam fixtures, impression throw-offs, 6 roller stocks, riders and wrenches ... 60.00</p> <p>One 30“ Sanborn Gem Paper Cutter..... 80.00</p> <p>1 self-inking Proof Press (Wesel)........ 50.00</p> <p>1 Brehmer Wire Stitcher................ 50.00</p> <p>2 imposing stones with stands........... 20.00</p> <p>Type, cases and stands (8 stands and contents) 1 galley rack, 1 lead case and contents, 2 furniture cases, 1 ink and roller closet, 1 lead and rule cutter, 2 composing sticks, 1 mallet, planer, benzine can................. 500.00</p> <p>Shafting, pulleys, hangers and collars put up............................ 50.00</p> <p>$2,060.00</p> <p>“Terms: — $100.00 cash to bind agreement; $930.00 when machinery is put on floor; and balance in sixty days if plant is running satisfactory.</p> <p>“Any of the above can be returned, if not satisfactory.</p> <p>Witness:</p> <p>Antoni S. Smolczgnski W. L. Raczynski</p> <p>Alexsander Dutkiewicz Joseph Witkowski.”</p> <p>Stanislaw J. Cienkowski</p> <p>The affidavit of defense averred, inter alia, as follows: That the plaintiff, Frederick E. Meehan, did enter into an agreement with the Polish Publishing Company of the city of Philadelphia, located at the northwest corner of Richmond street and Indiana -avenue, to furnish the machinery and articles set forth in said agreement, for the price therein mentioned, viz.: $2,060, in accordance with the terms of said agreement, and all of the defendants did enter into said agreement as a committee authorized by the board of directors of The Polish Publishing Company to purchase said machinery by virtue of a resolution passed by the board of directors of the said Polish Publishing Company at a meeting thereof held on August 29, 1912; said committee having been appointed by virtue of a resolution passed by the board of directors of the said Polish Publishing Company held on August 27, 1912; which facts were made known by one of the members of this committee to the said plaintiff, Frederick H. Meehan; that neither did the said deponents, or either of them, nor any of their codefendants in any wise personally enter into any agreement with the said plaintiff for the purchase of said machinery, or any part thereof, or any of the articles set forth in said agreement, but did purchase said machinery and articles and signed said agreement to purchase as a committee appointed by the said Polish Publishing Company under the direction of the resolution passed by the board of directors.</p> <p>The court discharged the rule for judgment for want of a sufficient affidavit of defense.</p> <p>Error assigned was the order of the court.</p>

<p>Road law — First pavement — Repaving—Affidavit of defense.</p> <p>1. A first pavement in the legal sense, which exempts the abutting property owner from liability for any subsequent improvement, may be defined generally as one that is put down originally or adopted or acquiesced in subsequently, by the municipal authority, for the purpose and with the intent of changing an ordinary road into a street. It may be of macadam or of anything else. That is a matter of evidence only. If the purpose and intent be wanting, a mere surfacing of the road, however carefully or expensively done, will not be a paving, but if the intent and purpose are present, or to be fairly inferred, then there is a paving whatever the material may be.</p> <p>2. In an action by a city to the use of a contractor to recover the cost of a macadam pavement laid on a cartway abutting on defendant’s property, an affidavit of defense is sufficient which avers that the city nine years previously had converted the street from its former character of a road into a public highway or city street, by laying upon it an original paving composed of material technically termed “Telford”; that this said “Telford” pavement is composed of materials of a much heavier character than those composing the pavement technically known as “Macadam” and that the manner in which “Telford” pavement is laid as opposed to the manner in which “Macadam” pavement is laid constitutes “Telford” pavement a much more enduring permanent and city street-like pavement than a “Macadam” pavement.</p> <p>3. In such a case the defendant cannot set up against the use plaintiff, as a counterclaim, the value of certain granite blocks which the defendant had laid in front of his premises, and which plaintiff had removed.</p>

<p>Execution — Sheriff’s interpleader — Claimant’s bond — Notice and schedule.</p> <p>1. Where a claimant of goods levied upon by the sheriff files a bond equal to the value of all of the goods levied upon, but in his notice and statement of claim limits his claim to certain of the goods, and the sheriff is not directed by tho execution creditor to sell the goods not claimed, the latter cannot at the trial of an interpleader claim a money verdict for the value of the goods not claimed, merely because the bond covered all of the goods'levied upon. In such a case the limit of the demand is controlled by the notice to the sheriff and the statement filed.</p> <p>2. Whore goods leased under bailment are levied upon together with other goods of the defendant in the execution, and the lessor serves a notice on the sheriff of the goods claimed by him and enumerates such goods in his statement of claim, and there is subsequently a trial on the sheriff’s interpleader, the judge at such trial cannot be convicted of error in rejecting the sheriff’s appraisement as evidence of the value of goods not claimed, where an inspection of the appraisement shows a lumping valuation of all of the articles levied upon irrespective of their ownership.</p>

<p>Appeal, No. 153, Oct. T„ 1914, by plaintiff, from order of C. P. No. 4, Phila. Co., March T., 1913, No. 4,467, dismissing motion in arrest of judgment in case of Thyele M. Lamb, trading as Lamb & Company, v. Martin E. Greenhouse.</p> <p>Assumpsit to recover the purchase price under articles of agreement for the sale of real estate.</p> <p>The defendant’s affidavit of defense denied liability upon the ground that the plaintiff’s title was defective by reason of the widening of Arch street under ordinance of city councils of 1886, whereby Arch street was widened and three feet of the southernmost part of the lot was thereby carried into the bed of the street. By reason of these facts the defendant claimed to be entitled to the return of his deposit money of $250, for which sum he asked for a certificate in his favor.</p> <p>About a year after the suit was brought the plaintiff paid the costs and discontinued it of record with notice to the defendant, but without any express leave of court.</p> <p>When the case was called for trial the court gave binding instructions for defendant.</p> <p>Certificate for defendant for $250. Subsequently the plaintiff moved in arrest of judgment. This motion was dismissed.</p> <p>Error assigned was in dismissing plaintiff’s motion in arrest of judgment.</p>

<p>Appeal, No. 228, Oct. T., 1914, by defendant, from decree of C. P. No. 5., Phila. Co., March T., 1914, No. 1,027, awarding preliminary injunction in case of Harry L. Bobrow and Charles Bobrow, copartners trading as Bobrow Brothers, v. Harry Manekin.</p> <p>Bill in equity for an injunction.</p> <p>Staake, J., filed the following opinion:</p> <p>This cause came before the court on Friday, March 27, 1914, on the hearing of a rule on the defendant to show cause why a preliminary injunction should not issue against him, as prayed in the bill of complaint.</p> <p>It appeared, from the evidence submitted to the court, that the plaintiffs, on or about April 1, 1908, had adopted for their own exclusive use on a certain quality and character of cigars manufactured by them, a certain trade-mark, consisting of the arbitrary word or symbol “BOLD” printed upon a label pasted or affixed to the cover of each box in which the cigars of that certain quality and character were packed for sale. There was also stenciled upon the outside of the cover leaf of the box and on one or more sides of the box, and also upon a small label affixed to one end of the box, the same word “BOLD.” It appeared that the label containing the word “BOLD” ran diagonally across from the lower left-hand corner to the upper right-hand corner of the label in gold letters on a shaded background, with certain scroll work on the label and with the monogram of the plaintiffs on the label. This word “BOLD,” with the scroll work, was registered by the plaintiffs as a trade-mark in the United States Patent Office under serial number 32393 on July 8, 1913.</p> <p>In the year 1908, it appeared, the plaintiffs manufactured, approximately, 60,000 cigars, known as “BOLD” cigars. Thereafter, their business steadily increased, until, from April 18, 1913, to March 27, 1914, the plaintiffs manufactured 18,000,000 such cigars.</p> <p>It further appeared they had expended large sums of money in advertising the label device and the name, so that the brand of cigars known as the “BOLD” cigars became well known to the wholesale and retail trade, and was recognized by the name, design and label, which recognition became a large and valuable good will to the plaintiffs.</p> <p>It further appeared that in and about the month of October, 1913, the defendant, a manufacturer of cigars, adopted the word “GLAD” as a trade-mark and then began to manufacture cigars and box and sell them with a label containing the word “GLAD” in gold letters running from the lower left-hand corner to the upper right-hand corner of the label, with defendant’s monogram on this label.</p> <p>The defendant, since October 19, 1913, conducted his cigar business, manufactured and does now manufacture and sell cigars known as “GLAD” cigars, designated and marked with this label.</p> <p>The plaintiffs claimed that the defendant had adopted his label, mark and brand with the intention to deceive the public and the buyers of cigars by giving the defendant’s box and label such a general appearance as would confuse the ordinary buyer and have him purchase defendant’s cigars, believing that he was purchasing the well-known cigars of the plaintiffs.</p> <p>The plaintiffs further claimed that the adoption by the defendant of the particular and peculiar arrangement of his label was for the evident purpose of deriving benefit from the plaintiffs’ good will, which the plaintiffs had acquired by a large expenditure of money in the advertising of their cigars, as well as in maintaining the character and standard of the cigars produced.</p> <p>It must be admitted that the evidence submitted to the court on this hearing showed a very generous amount of expenditure by the plaintiffs in the creation and use of various advertising devices, including one by which some 3,000,000 bags for the holding of five cigars were freely distributed to their customers.</p> <p>The case was not prosecuted by the plaintiffs before the court on the ground of a right acquired by virtue of the United States trade-mark of the plaintiffs, but it was urged that the use which was made by the defendant of the word “GLAD” in the manner of such use was an unfair, unjust and unlawful use in competition with the business of the plaintiffs.</p> <p>The defendant admitted that the plaintiffs used their label referred to in paragraph 2 of the bill of complaint, and which was exhibit “A” in the evidence, and, further, that he, defendant, conducted the business of manufacturer and wholesale dealer in cigars in the city of Philadelphia and had for eight months past manufactured and sold cigars in boxes labeled as exhibit “B,” attached to the plaintiffs’ bill of complaint, which cigars were contained and sold in boxes stamped with the word “GLAD,” but that such stamping of the label upon defendant’s box would not deceive any person of ordinary intelligence using ordinary caution in purchasing the same.</p> <p>Defendant denied, in his answer, that he had applied the label or the “impressions upon the said boxes and said cigars for the purpose of injuring the plaintiffs in their trade or business, or for the purpose of destroying the plaintiffs’ good will and business, nor for the purpose of palming off the goods-of defendant as the goods of plaintiffs.”</p> <p>Defendant further denied this use of his label exhibit “B” had injured or damaged the plaintiffs’ trade or business in any respect whatsoever.</p> <p>Defendant further denied he used his label with the intent to deceive the purchaser of cigars, or that the label exhibit “B” was in any manner a close imitation of the plaintiffs’ label and box, averring that the label would not in any manner whatsoever deceive a person of ordinary intelligence using ordinary precaution in purchasing cigars of either brand of plaintiffs or defendant.</p> <p>The defendant denied any manner of infringement upon any rights of the plaintiffs.</p> <p>At the hearing plaintiffs’ counsel averred that the controlling question before the court on the hearing of the rule for a preliminary injunction was not- the violation of the plaintiffs’ trade-mark, but was whether the defendant was purposely using the name, which was printed in such a way as to deceive a person of ordinary intelligence, by making such person using ordinary caution believe that he was purchasing the plaintiffs’ product. It could hardly be successfully contended that the word “GLAD” as a name alone could be taken by any one for the word “BOLD,” notwithstanding both are words of four letters and that each word contains the letters “L” and “D.” It would appear, however, that it was not the word “GLAD” which was alone complained of as being evidence of unfair competition by the defendant, but it was the manner in which the word “GLAD” was used by placing it on the label in such a position or manner by having the word running diagonally across the label from the lower left-hand comer to the upper right-hand corner thereof in such letters and which such a shaded background with such scroll work upon the label, together with the placing of the defendant’s monogram also upon the said label.</p> <p>Three witnesses were called by the plaintiffs in support of their contention. Frederick Horn, who had been in the tobacco business about twenty-five years, testified that the box of “GLAD” cigars shown to the court would be likely to deceive an ordinary purchaser; that it would deceive him. It appeared he had been offered the “GLAD” cigars for purchase by him, and he did not buy any, but that at the time they were offered to him it deceived him right away as soon as he saw the label. He claimed that if he came in a store in a hurry and the box was handed to him, he asking for a “BOLD” cigar, it would deceive him; but “if a customer came in and had lots of time and you showed him the two boxes of ‘BOLD’ and ‘GLAD’ cigars, and he could read and write and had his vision,” he would also be deceived, notwithstanding he had been in the retail business some twenty-five years.</p> <p>Adolph Loub saw a boy in a' trolley car who had a bundle of cigars in five boxes, the outside label of which attracted his attention, the label on the outside lid “being so close to the ‘BOLD’ I thought it was the ‘BOLD.’” Addressing the court, this witness stated: “The label on the outside lid, the outside label, so attracted my attention that I thought it was a ‘BOLD,’ until I looked further, and then I thought it was an imitation.” But, testifying further, the same witness said: “It was the lettering on this label, just exactly the lettering of this label, that attracted me.” The lettering, he stated, was “very much alike;” in fact, “the lettering in the whole word;” but the “general appearance” of the end of the word is very much alike. If people were in a hurry, a “GLAD” cigar might be substituted for a “BOLD.” The lettering of the whole word “GLAD” was, in the opinion of this witness, an imitation of the lettering of the word “BOLD.”</p> <p>Samuel H. Del. Statius, a salesman for Lewis Stein & Co., manufacturers of silk petticoats, stated he had entered the Penn Square Building on a business matter and asked a cigar salesman standing there on the corner for two “BOLD” cigars, and he was just about to pick the cigars out of the box, when he noticed it was not the “BOLD,” but the man was offering him the “GLAD.” At the start it looked like a “BOLD” to him, until he looked the box all over thoroughly. At first glance “it looked like the ‘BOLD.’” On cross-examination, this witness said that if he would ask for a “BOLD” cigar and the seller handed him a “GLAD” cigar box filled with cigars, it would deceive him; although the color scheme of both is different, some of the letters are the same. He admitted if he had an opportunity to look at the box, he could see the difference, but that he would be deceived at the first glance; that when he had asked for a “BOLD” cigar and took a “GLAD” cigar he did not at first notice it, saying: “You know, you don’t always look in the box; you tell the clerk and you put your hand in the box and pull them out;” that “if you ask for a ‘BOLD’ and he pushes the ‘GLAD’ to you, you have no suspicion that it is a ‘GLAD’ cigar.” 'Being asked, “If you had an opportunity to look at the box, would that deceive you if they sold you a ‘GLAD’ cigar?” he answered, “It would; yes, sir.” This witness, under cross-examination, insisted that if he went to an ordinary cigar case, knowing the difference in color of the two boxes, one a blue and the other a sort of grayish, the difference in the monogram, the shaping of the letters and the names, and he being accustomed to the “BOLD” box, at first it would “fool” him, and that if he “wanted a ‘BOLD’ cigar and they lifted up the lid of the case” for him to help himself, the resemblance was such that he believed he would be deceived by it.</p> <p>Undoubtedly, for many years, it was assumed by the courts that “unless a technical trade-mark were violated, no relief could be had,” but it was “soon demonstrated that the acceptance of any such rule opened the door to all manner of commercial knavery, and at an early day judges with consciences and a proper sense of sportsmanship began to decide cases in favor of the complainant which were in no sense trade-mark cases, but where the defendant’s conduct involved precisely the same wrong — the sale of one trader's goods as those of another — the result being accomplished by some ingenious contrivance, the deceptive use of personal, geographical or descriptive names, imitated labels or form of package or some of the infinity of ways which enable one trader to represent his goods as those of a competitor whose reputation is better and whose trade he covets:” Harvard Law Review, December, 1913, page 139.</p> <p>In Perry v. Truefitt, 6 Beav. 66 (1842), Lord Lang-dale said (page 73):</p> <p>I think that the principle on which both the courts of law and of equity proceed in granting relief and protection in cases of this sort is very well understood. A man is not to sell his own goods under the pretense that they are the goods of another man; he cannot be permitted to practice such a deception nor to use the means which contribute to that end. He cannot, therefore, be allowed to use names, marks, letters or other indicia by which he may induce.purchasers to believe that the goods which he is selling are manufactured of another person. I own it does not seem to me that a man can acquire a property merely in a name or mark; but whether he has or not a property in the name or the mark, I have no doubt that another person has not a right to use that name or mark for the purposes of deception and in order to attract to himself that course of trade, or that custom which, without that improper act, would have flowed to the person who first used, or was alone in the habit of using, the particular name or mark.”</p> <p>In Croft v. Day, 7 Beav. 84 (1843), Lord Langdale said (page 88):</p> <p>It has been very correctly said that the principle in these cases is this — that no man has a right to sell .his own goods as the goods of another. You may express the same principle in a different form and say that no man has a right to dress himself in colors, or adopt and bear symbols to which he has no peculiar or exclusive right and thereby personate another person for the purpose of inducing the public to suppose, either that he is that other person, or that he is connected with and selling the manufacture of such other person, while he is really selling his own. It is perfectly manifest that to do these things is to commit a fraud, and very gross fraud.”</p> <p>“Unfair competition” covers the class of cases of which the one now before the court is one, and this includes not alone “passing off” one article for another, but any conduct on the part of one trader which tends unnecessarily to injure another in his business. The question really is whether or not the defendant’s conduct is calculated to deceive the public into the belief that his goods are the plaintiffs’. If such a false representation is actually made, the plaintiffs would certainly be damaged, for they would be in danger of having their customers decoyed away from them by the defendant’s intentional misrepresentation, and it would be a case in which the custom and advantages to which the enterprise and skill of the first appropriator had been given, and which had given him a just right, would be abstracted for another’s use by deceiving the public and inducing it to purchase goods and manufactures of one person, supposing them to be of another: Canal Co. v. Clark, 13 Wall. (U. S.) 311, 322 (1871).</p> <p>The act of the defendant, however innocent, is considered constructively fraudulent if the result would tend to unfair trade, to confusion of goods and to interference with the rights of another: Manitowoc Pea Packing Co. v. Numsen, 93 Fed. Rep. 196 (1899).</p> <p>It is very clear, from a consideration of all of the cases, and they are now many, that “not only words, but things, such as the nature of the wrapper, the mode in which the goods are made up, and so on, may go to make up a false representation; but it is not "necessary to establish fraudulent intention in order to claim the intervention of the court: Cellular Clothing Company v. Maxton & Murray, 16 R. P. C. 397, 404 (1899).</p> <p>The court recognizes that if a man has uniformly manufactured a thing of a certain quality under a certain name, of good material, in such a way as to realize a good profit from it and to give it a distinct commercial value by the creation of the demand for it upon the part of the public, he may acquire a right to the name, marks and form of construction or in a method of advertising even without a registered trade-mark, because the intentional violations of such an acquired right would be, in the eye of the law, unfair competition, it being an intentional injury of the person who had acquired the right, as well as a deception and a fraud of and upon the general public. Such a deception and fraud would undoubtedly injure the business of the manufacturer, who, by continuous trading and by keeping up the standard of his article, had acquired a reputation and fame for the article of his particular manufacture.</p> <p>Other cases in favor of the contention of the plaintiffs in this cause are:</p> <p>Arthur, trading as Green Chemical Company v. Instantine Chemical Company, 19 Pa. C. C. Rep. 81, in which the plaintiff was the owner of the word “INSECTINE” when used as a trade-mark on its liquid preparation intended to destroy noxious insects. The defendant put up a like preparation under the name of “INSTANTINE” and had imitated the style of the bottles and labels thereon and the color of the preparation of the plaintiff in order to induce the public to purchase the product as the preparation of the plaintiff and to deceive and mislead. The defendant put up their preparation in a bottle of the same size and shape, with a similar sprinkler, with the word “INSTANTINE” printed in black type on bright yellow paper. The name was divided into three panels, like that of the plaintiff, and the reading matter bore certain distinct resemblances to that of the plaintiff’s label. The court granted the injunction prayed for.</p> <p>Portuondo v. Portuondo, 222 Pa. 116, was an appeal from the court of common pleas, No. 3 of this county, in which that court held:</p> <p>“A dealer or manufacturer will be enjoined from using trade mark, labels and invoices where they bear such resemblance to those of another manufacturer that it is impossible to reach any other conclusion than they were designed from those of the other manufacturer, with not too much variation to prevent them from being accredited by the unobservant and unwary to the other dealer or manufacturer and with just enough variation to distinguish one from the other when a comparison is made between them.</p> <p>“The general rule is that anything done by a rival in the same business by imitation or otherwise designed or calculated to mislead the public in the belief that in buying the product offered by him for sale they were buying the product of another manufacturer, is in fraud of the other’s rights, and will afford just grounds for equitable interference.”</p> <p>The appeal in this case was dismissed by the Supreme Court.</p> <p>In Pratt’s App., 117 Pa. 401 (1887), it appeared that the plaintiffs were farmers, residing in Delaware county, engaged in the dairy business since 1810, until 1873, when defendant began to make butter. The plaintiff adopted a certain stamp, with a peculiar print, claimed as a trade-mark, the distinguishing features of which are a cornucopia and the name of “DARLINGTON.” The defendant owned a farm in the same neighborhood and also made butter for the market since 1873 and used for some years a stamp for his butter having on it “PRATT” and the words “CUMBERLAND DAIRY 333.” Later this was changed and he used the cornucopia and stamped the butter with his name, “PRATT.” In this case the court below granted the injunction prayed for and the appeal to the court above was dismissed. The court held:</p> <p>“If the defendant’s print is an imitation of that of the plaintiff, if it is calculated to deceive and mislead, the motive of the defendant in adopting it is not material, so far as the law of the case is concerned. The protection which equity extends in such cases is for the benefit of the manufacturer, and to secure to him the fruits of his reputation, skill and industry. The question is whether the defendant’s label or mark is calculated to deceive the public and to lead them to suppose they are purchasing an article manufactured by the complainant, instead of the defendant.”</p> <p>The distinguishing feature of the plaintiff’s trade-mark was the cornucopia. It is a symbol, a device, which the plaintiff had adopted to mark this butter. The court said:</p> <p>“Though the two devices constituting trade-marks, when placed side by side, present points of dissimilarity, and the distinctive name of each party appears upon the one he uses, yet if the distinguishing features of the plaintiff’s trade-mark had been appropriated in that of the defendant, the latter will be restrained by injunction.”</p> <p>See also Hires Company v. Hires, 182 Pa. 346, where it appeared that the defendant was a kinsman of the complainant — that he had the same name of Hires— and in cartoon, its color, the substance of the printed matter, the bottle, the indicated designation or title, all of which slightly varying from the plaintiff’s device, make up a trade commodity, which, except to the sophiscated or closely inquisitive, would be taken to be a like article to the plaintiff’s.</p> <p>See further, Morse v. Conwell, 2 W. N. C. 12; Witthaus v. Wallace, 2 W. N. C. 610; Wamsutta Mills v. Allen et al., 6 W. N. C. 189; Gowans v. Ahlborn Bros., 4 Kulp, 31; Lorillard v. Wight, 15 Fed. Rep. 383.</p> <p>Having carefully examined the cases submitted by the learned counsel for the defendant, namely, Heinz v. Lutz, 146 Pa. 592; Brown v. Seidel, 153 Pa. 60; Lafean v. Weeks, 177 Pa. 412, and the other cases submitted in the defendant’s brief, the majority of which are cited in this opinion, we find that many of them are distinctly trade-mark cases, and not those involving the question of unfair competition.</p> <p>The cases submitted both on behalf of plaintiffs and defendant undoubtedly involve the question whether there is or is not such resemblance between the two labels as to deceive a purchaser using reasonable caution; that is, whether there is such a combination of script, lines, colors or arrangement as would deceive any person using ordinary caution. That is, would the defendant’s device likely deceive a person of ordinary intelligence?</p> <p>These cases also held that it is only where there is a manifest intent upon the part of one manufacturer to sell his goods as the goods of another manufacturer, that the aid of equity has been successfully invoked to restrain it. We repeat that if the case at bar was before the court upon the question of violation of trade-mark alone, the court might have some hesitation in granting an injunction, but as the case is before the court on the statement of plaintiffs’ counsel as a case of unfair competition alone, the court is convinced that, applying the principles of the cases of unfair competition, there can be no doubt in the present case that the similarity of labels shown in the case would deceive a person of ordinary intelligence using ordinary caution.</p> <p>It is also very clear that where the party charged with imitation has adopted a like style of putting up the packages, such adoption is some evidence upon the question of intention. We are convinced that the defendant has evidenced a “manifest intent” to so arrange the matter upon his label as to the number of letters in the name, in the style of printing the name “GLAD” at an angle and in the similarity of the letters used, and in the general arrrangement of the same, running from the lower left-hand corner to the upper right-hand corner of the label, and with the placing of the defendant’s monogram on the label, to have said label be an imitation of the label, mark and brand of the plaintiffs.</p> <p>Strictly speaking, the article produced should create its own market — this is, as to the material used and the form and shape of cigar, and the care taken in its manufacture, but when there is a use of good material and the care taken in the manufacture, it gives it a reputation among smokers of cigars which creates the good will which is the valuable possession of the maker. Anything which is done by another manufacturer which will tend either to deceive the public or to injuriously affect the reputation of the product of the original manufacturer would be such unfair competition as would warrant the interposition of the restraining hand of the court.</p> <p>We repeat, the court is convinced from the evidence that the label, mark and brand of the defendant are an imitation of those of the plaintiffs, and that they were adopted with the intention of deceiving the public and the buyers of cigars; that this imitation label, mark and brand are calculated to deceive persons purchasing cigars, and that they were adopted by the defendant for the purpose of deriving benefit from the plaintiffs’ good will which plaintiffs had acquired in the manufacture and sale of the brand known as “BOLD” cigars in the manner in which they were sold as to label, mark and brand by the plaintiffs.</p> <p>The conclusion of the court, therefore, is that the use of said label, mark and brand by the defendant in the maimer now used and complained of by the plaintiffs constitutes unfair trade competition as against the plaintiffs, and that an injunction should be issued restraining the defendant from using the word “GLAD” as a brand for cigars manufactured by him or sold by him in such a way as to imitate the labels of the plaintiffs used by them upon their brand of cigars known as “BOLD” cigars; that a preliminary injunction should be issued restraining the defendant until final hearing from using the word “GLAD” as a brand for cigars manufactured by him or sold by him in such a way as to imitate the labels of plaintiffs used upon the brand of cigars known as “BOLD” cigars.</p> <p>And now, to wit, August 5, 1914, upon consideration of the bill of complaint and findings by the court in favor of the complainants on June 26, 1914, it is ordered and decreed that the defendant, Harry Manekin, be restrained from using the word “GLAD” on the label, mark and brand of cigars manufactured and sold by him, constituting unfair trade competition as against the plaintiffs. That a preliminary injunction should be issued restraining the defendant until final hearing from using the word “GLAD” as a brand of cigars manufactured and sold by the defendant. That the defendant is not to use the word “GLAD” or other similar words upon cigars or the boxes containing same in imitation of the complainants’ trade-mark “BOLD,” and that he should not further use in unfair competition the label exhibit “B, ” or any substitute label similar thereto, in fraudulent imitation of complainants’ said label exhibit “A.”</p> <p>Security to be entered in the sum of $200.</p> <p>Error assigned was decree awarding preliminary injunction.</p>

Appeal, No. 3, Oct. T., 1914, by David U. Wagner et al., from decree of O. C. Lebanon Co., July T., 1910, No. 4, sustaining exceptions to auditor’s report in Estate of Gideon Wagner, deceased. Exceptions to report of A. Stewart Ulrich, Esq., auditor. From the record it appeared that Gideon Wagner died on May 2, 1910, intestate. Lydia Wagner, his widow, was appointed executrix of his estate, and subsequently trustee in partition proceedings.

Appeal, No. 181, Oct. T., 1914, by Kate Long et al., from decree of O. C. Lebanon Co., July T., 1910, No. 4, dismissing appeal from Register of Wills in Estate of Gideon Wagner, deceased. Appeal from register of wills. From the record it appeared that the appeal was from the decision of the register of wills appointing Amos Wagner, the eldest son of Gideon Wagner, administrator d. b. n. of his father’s estate.

Appeal, No. 103, Oct. T., 1914, by the Title Guaranty & Surety Co., from order of C. P. Blair Co., In Equity No. 653, discharging rule to pay certain premiums on receiver’s bond in case of Joseph W. Bain v. Ben’s Creek Coal & Coke Company, et al. Rule on Altoona Trust Company to show cause why it should not pay certain premiums due to the Title Guaranty & Surety Company, on the bond of William D. Laughman, receiver of the Ben’s Creek Coal & Coke Company.

Appeal, No. 108, Oct. T., 1914, by Eber E. Hilton, from decree of O. C. Lancaster Co., April T., 1911, No. 9, directing payment of amount due on legacy in Estate of Margaret A. Wilson, deceased. Rule to pay amount due on legacy. Before Smith, J. The opinion of the Superior Court states the case. Error assigned was the decree directing payment by the executor.

Appeal, No. 95, Oct. T., 1914, by defendant, from judgment of C. P. Lehigh Co., Sept. Term, 1914, No. 9, on verdict for plaintiff in case of Herbert DeLong v. Lehigh Valley Transit Company. Trespass for an alleged wrongful ejectment of a passenger, and malicious prosecution.

Appeal, No. 255, Oct. T., 1914, by Joseph R. Summers, from decree of O. C. Phila. Co., Oct. T., 1909, No. 687, sustaining exceptions to adjudication in'Estate of I. Newton. Snively, deceased. Exceptions to adjudication. The facts are stated in the opinion of the Superior Court. Error assigned was in dismissing exceptions to adjudication.

Appeal, No. 270, Oct. T., 1913, by defendant, from order of C. P. No. 2, Phila. Co., March T., 1913, No. 205, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Edward T. Brackett v. Howard M. VanCourt, E. Clarence Miller and Henry E. Woodman. Assumpsit for moneys expended. The opinion of the Superior Court states the case. Error assigned was order making absolute rule for judgment for want of a sufficient affidavit of defense.

Appeal, No. 94, Oct. T., 1914, by Magdalina Bowit, from order of C. P. No. 3, Phila. Co., Dec. T., 1913, No. 198, quashing writ of foreign attachment in case of Mary Sobern v. Stanislaw Liepicz. Motion to quash writ of foreign attachment. From the record it appeared that Magdalina Bowit by her next friend, Mary Sobern, began a suit for breach of promise of marriage against Stanislaw.

Appeal, No. 169, Oct. T., 1914, by plaintiff, from decree of C. P. No. 1, Phila. Co., Dec. T., 1912, No. 548, dismissing libel in divorce in case of Charles P. Randolph v. Lillian E. Randolph. Libel for divorce. The opinion of the Superior Court states the case. Error assigned was decree dismissing the libel.

Appeal, No. 110, Oct. T., 1914, by plaintiff, from judgment of C. P. Lancaster Co., Jan. T., 1913, No. 88, on verdict for defendant in case of Harry Edelson v. The Norwich Union Fire Insurance Company, Limited. Assumpsit on a policy of fire insurance. Before Hassler, J. The court charged in part as follows: The policy of insurance, under which the plaintiff claims in this case, provides that he shall do two things, among others, when there is a fire.

Appeal, No. 164, Oct. T., 1914, by defendant, from judgment of C. P. No. 5, Phila. Co., March T., 1912, No. 3,205, on verdict for plaintiff in case of Daniel Ferguson v. Barber Asphalt Paving Company. Trespass for malicious prosecution. Before Ralston, J. At the trial it appeared that the defendant had caused the arrest of the plaintiff on the charge of the larceny of certain bags of cement.

Appeal, No. 92, Oct. T., 1914, by Charles L. Wahler, from decree of O. C. Phila. Co., Jan. T., 1896, No. 271, dismissing exceptions to adjudication in Estate of Simon Muhr, deceased. Exceptions to'adjudication.- At the audit Ida Wahler presented a claim for $3.00 per week from June 3, 1913, out of an annuity of $200 per year payable under testator’s will to Charles I. Wahler, her former husband.

Appeal, No. 15, March T., 1914, by defendant, from order of O. & T. Columbia Co., Dec. Sessions, 1910, No. 2, resentencing prisoner in case of Commonwealth v. Elmer Halderman. Proceedings to re-sentence prisoner. Before ■ Evans, P. J. Error assigned was the sentence of the court.

Appeal, No. 179, Oct. T., 1914, by defendant, from order of C. P. No. 5, Phila. Co., Dec. T., 1913, No. 544, making absolute rule for judgment for want of a sufficient affidavit of defense in case of William W. Elzea v. Herbert H. Brown, trading as P. F. Brown & Company. Assumpsit for eggs sold and delivered. Rule for judgment for want of a sufficient affidavit of defense. The defendant filed two affidavits of defense.

Appeal, No. 33, Oct. T., 1914, by defendant, from judgment of C. P. No. 2, Phila. Co., Dec. T., 1912, No. 3,167, on verdict for plaintiff in case of Mary Lawler v. Home Life Insurance Company of America. Assumpsit upon a policy of life insurance.

<p>Appeal, No. 97, Oct. T., 1914, by defendant, from judgment of Municipal Ct., Phila. Co., Jan. T., 1914, No. 96, on verdict for plaintiff in case of Philadelphia & Gulf Steamship Company in the hands of S. P. Wetherill, Jr., Receiver, v. Charles E. Clark.</p> <p>Assumpsit to recover an unpaid balance of stock subscription. Before Bonniwell, J.</p> <p>Prom the record it appeared that on November 5, 1909, the defendant agreed in writing to subscribe for fifteen shares of the capital stock of the Philadelphia & Gulf Steamship Company for which he agreed to pay $50.00 per share. At the time of the subscription he paid $150, and suit was brought for $600 unpaid.</p> <p>S. P. Wetherill, Jr., was appointed receiver of the steamship company by a decree of the United States district court for the eastern district of Pennsylvania, dated September 27, 1912. On October 16, 1913, the receiver was authorized and directed to collect the balance remaining unpaid on the subscription to the stock of the company.</p> <p>The defendant alleged that he was induced to subscribe to the stock by misrepresentations of the company’s agent as to the earnings of the company.</p> <p>When William S. Dowdy, secretary and treasurer of the steamship company, and a witness for plaintiff was on the stand, he was asked this question:</p> <p>“Q. Do you know, as treasurer of the company, whether any money was ever paid to the state of Pennsylvania in the nature of a tax or fee for authorizing the company to do any business in Pennsylvania?”</p> <p>Objected to as not proper cross-examination. Objection sustained. Exception for defendant. [3]</p> <p>“Q. At the time of the making of the contract between the plaintiff company and the defendant, on November 6, 1909, was the company being operated at a profit or at a loss?”</p> <p>Objected to. Objections sustained. Exception for defendant. [4]</p> <p>When the receiver was on the stand he was asked this question:</p> <p>“Q. Were you the chairman of the stockholders’ committee of the Philadelphia & Gulf Steamship Company, plaintiff in this case, which obtained from Lawrence E. Brown & Company, certified public accountants in this city, a statement of the assets and liabilities and conduct of the business of the company as to the profits and loss during its life? During the life of the Philadelphia & Gulf Steamship company?”</p> <p>Objected to.</p> <p>Mr. Griffith: I propose to show by this circular, which was distributed by the witness, that Lawrence E. Brown & Company made a report showing during the entire period from 1908 until 1911, this company instead of making money, lost $155,000. I want to show by this witness that he had prepared by certified public accountants a statement of the assets and liabilities, of its methods of operation, a statement which was sent out by this witness, in which it is stated that during a period of time covering the subscription for this stock, that instead of making 40 per cent, which Mr. Clark testified they said they were then making, that the company lost $155,000. This is for the purpose of proving that at the time that statement was made to my client, the company, instead of making forty per cent on its stock, was actually losing money. Objection sustained. Exception for defendant. [5]</p> <p>“Q. Did you have an examination of the books of the Philadelphia & Gulf Steamship Company made by Lawrence E. Brown &-”</p> <p>Objected to. Objection sustained. • Exception for defendant. [6]</p> <p>“Q. Did you distribute the report addressed to you, Mr. Samuel P. Wetherill, Jr., chairman of the stockholders’ committee, dated February 15, 1912, from Lawrence E. Brown & Company, showing a loss by the Philadelphia & Gulf Steamship Company, of $155,000 between its incorporation and December 31, 1911?”</p> <p>Objected to. Objection sustained. Exception for defendant. [7]</p> <p>Mr. Conlen: I also object to the form of question, as the form of the question was calculated to make the court think that this account indicated that there was a loss at the period named, whereas the account simply showed the balance representing the company’s loss from these operations to December 31, 1911.</p> <p>“Q. Did you verify the report made by Lawrence E. Brown & Company, referred to in the previous question?” Objected to. Objection sustained. Exception for defendant. [8]</p> <p>“Q. Can you tell me whether from an examination of the books of the company, as receiver or as a member of the board of directors, the company was actually earning dividends at the time of the subscription to this stock?”</p> <p>Objected to. Objection sustained. Exception for defendant. [9]</p> <p>“Q. Can you tell me whether the company ever was making any money?”</p> <p>Objected to. Objection sustained. Exception for defendant. [10]</p> <p>“Q. At the time you became a director of the corporation (February, 1911) was the company operating its business at a’profit?”</p> <p>Objected as immaterial what they were doing in 1911. Objection sustained. Exception for defendant. [11]</p> <p>Verdict and judgment for plaintiff for $745.40. Defendant appealed.</p> <p>Errors assigned were (1, 2) that the decision of the court contained no separate findings of fact and conclusions of law as required by the Act of April 22, 1874, P. L. 109; (3-11) rulings on evidence, quoting the bill of exceptions; (15) in dismissing rule for judgment for defendant n. o. v.</p>

<p>Courts — Municipal courts — Trial of case by jury — Appeals—Assigrvments of error — Review.</p> <p>1. Where a case is tried in the municipal court of Philadelphia county without a jury, and counsel for the defendant without presenting points or requests for special findings, asks the trial judge at the conclusion of the evidence “to find a verdict for defendant,” and no exception is taken to the implied refusal of this request, and the judgment subsip quently entered, and errors assigned on appeal are (1) “not finding a verdict for defendant as requested” and (2) “finding a verdict in favor of the plaintiff and entering judgment thereon,” the only question legitimately raised by the assignments is whether the judgment is regular and responsive to the issue presented by the pleadings.</p> <p>Corporations — Receiver—Foreign corporations — Registration—-Stock subscription — Interstate commerce — Defenses.</p> <p>2. In an action by a receiver of a foreign corporation to recover on a stock subscription if it appears that the only business of the company was that of interstate commerce, the defendant cannot set up as a defense that the company had not been registered in compliance with the Pennsylvania statutes.</p> <p>3. In such a case the defendant cannot sot up as a defense “that the company was incorporated under the laws of the state of Delaware not for the purpose of conducting any business in Delaware, but for the purpose of avoiding the laws of the state of Pennsylvania.”</p> <p>4. To obtain a charter under the laws of another state because it can be obtained easier and with less expense, is not a fraud which vitiates the charter and opens it to collateral attack in an action brought upon an otherwise valid contract.</p>

<p>Deeds — Covenants—Alleys—Extension of alley — Building line.</p> <p>Where an owner conveys by ground rent deed an unimproved city lot contiguous to his own on which is a dwelling not built up to the building line, and gives to the grantee a right to build over an alley on the grantor’s lot, and the grantee covenants to build on the lot conveyed “on a line in front with the grantor’s adjoining lot,” the fee in the alley remains in the grantor, and the latter has the right to extend the alley when he moves his front out to the building line, or to abandon it, and close it up. Therefore, in extending the alley he has a right to build over the extension of the alley to the exclusion of the grantee, who has no ground to complain.</p>

<p>Municipalities — Nuisance—Ordinance—Keeping hogs in city’s limits.</p> <p>1. An ordinance of a city “declaring it to be a nuisance, and making it unlawful to keep hogs and swine in the city, except in certain limits; or in any part thereof, excepting in a sanitary manner; and providing penalties in violation of the ordinance,” is a proper and legal ordinance, and is not rendered invalid by the fact that the ordinance prescribed the limits by the designation of certain streets or lines in which hogs may be kept, and forbidding them to be kept in other parts of the city.</p> <p>2. A city by ordinance may prohibit the keeping of hogs in a section which theretofore was rural, and in which the business of raising hogs was harmless, but by reason of the city’s progressive growth the locality has been changed by the general municipal development so that the vicinity is altered from rural to built up conditions.</p>

Appeal, No. 69, Oct. T., 1914, by defendant, from decree of O. C. Northumberland Co., Sept. T., 1912, No. 19, dismissing exceptions to auditor’s report in Estate of John Harvey, deceased. Exceptions to report of Jefferson Shipman, Esq., auditor. The opinion of the Superior Court states the case. Error assigned was the decree of the court.

<p>Public officers — Sheriffs—Audit of accounts — Conclusiveness of audit— Interest on deposits — Fees.</p> <p>1. The county controller’s audits of the accounts of the sheriff are, in the absence of fraud, final and conclusive after the lapse of time allowed for appealing therefrom as to all matters which might have been contained in them.</p> <p>2. A county cannot claim interest allowed and paid over to a sheriff by a bank on moneys belonging to litigants deposited in the name of the sheriff. The county, however, may claim the interest earned on the deposit of fees belonging to the county. The mere fact that the sheriff does not keep a separate account of the moneys of the county and of the moneys of litigants does not entitle the county to claim all the interest accruing on the* whole account.</p> <p>3. The sheriff of Allegheny county is not chargeable with the sum of $2.50 for the use of the county in each case of interpleader, and of appraisement under the exemption act.</p> <p>4. The county of Allegheny is not entitled to the moneys paid to a deputy sheriff for serving copies of plaintiff’s statements in civil cases.</p>

<p>Appeal, No. 87, Oct. T., 1914, by plaintiff, from judgment of C. P. Lancaster Co., Oct. T., 1913, No. 45, on verdict for defendant in case of A. Belle Hilton v. The Liebig Manufacturing Company.</p> <p>Sheriff’s interpleader to determine the ownership of certain personal property levied upon as the property of Eber E. Hilton, husband of A. Belle Hilton, plaintiff. Before Hassler, J.</p> <p>At the trial the plaintiff produced evidence tending to show that the property was hers, and that she had acquired it during coverture from the proceeds of estates which she had inherited from her relatives.</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Error assigned among others was the affirmance of defendant’s second point quoted in the opinion of the Superior Court.</p>

Appeal, No. 129, Oct. T., 1914, by plaintiff, from decree of O. C. Lancaster Co., May Term, 1913, No. 47, dismissing exceptions to adjudication in case of Reuben Dague, Executor of the will of Louisa Laub, v. Sue E. Whitaker, administratrix d. b. n. of Elizabeth Ann Whitaker, and John S. Livers, administrator d. b. n. c. t. a. of Geo. W. Laub, deceased. Exceptions to adjudication.

<p>Decedents’ estates — Claim against estate — Boarding and lodging— Contract — Evidence.</p> <p>Where at the audit of an executor’s account, it is established that a contract was made whereby decedent promised to pay to her son-in-law $100 a year for board and lodging, and that the services were performed, and the son-in-law claims for several years’ board and lodging, his claim will not be allowed where there is no competent testimony to determine what was the amount due, and the only witness for claimant is his daughter who testified that when she was nine years old her grandmother had $1,250 in bank certificates drawing four per cent interest, and that when she left claimant’s home she still had $1,105, but without any statement that the certificates were the decedent’s only source of income. In such a case the evidence is insufficient to overcome the presumption of payment.</p>

<p>Railroads — “Stop, look and listen” — Grade crossing.</p> <p>In an action against a railroad company to recover damages for personal injuries, the plaintiff is guilty of contributory negligence where the evidence shows that at the time of the accident plaintiff approached a grade crossing, that although he looked before he came to the track, he afterwards proceeded and was struck either before he reached the track, or as soon as he came to the first rail, that the engine that struck him was going at the rate of five miles per hour, and that the view of the plaintiff was unobstructed for 121 feet, and any glance in the direction of the engine would have prevented the accident.</p>

Appeal, No. 242, Oct. T., 1913, by defendant, from judgment of C. P. Del. Co., June T., 1910, No. 264, on verdict for plaintiff in case of Sarah M. McCaslin v. Metropolitan Life Insurance Company. Assumpsit on a policy of life insurance. Before Broomall, J. At the trial the jury returned a verdict for plaintiff for $571.25.

<p>Appeal, No. 61, Oct. T., 1914, by defendant, from judgment of C. P. Bradford Co., Feb. T., 1913, No. 121, on verdict for plaintiff in case of Mary Marshall v. George R. Hill.</p> <p>Assumpsit for family washing. Before Whitehead, P. J.</p> <p>At the trial it appeared that the work was done for defendant’s wife while she was living separate and apart from her husband. The evidence tended to show that the wife’s separation from her husband was justifiable.</p> <p>The plaintiff offered in evidence a letter addressed to Mrs. Hill by defendant’s attorneys. The material portions of this letter were as follows:</p> <p>“To wand a, Pa., Apr. 22, 1912.</p> <p>“Mrs. George R. Hill,</p> <p>“Towanda, Pa.</p> <p>“Madam: — Air. Hill states to us that you have not indicated where or how you are supported other than the $80.80 provided by him for you several years ago and still being received by you monthly and he has been unable to obtain definitely information on the subject. That yourself and the children may be sufficiently provided for and that you may not feel delicate in applying for assistance and that Mr. Hill may not in any way fail in doing all that any man can be expected to do, you are informed that Mr. Hill has arranged without charge and free to you with Finney & Matchett to pay room rent at the Griffith residence if you are stopping there, credit with Mr. I. P. Spalding for groceries and other things in his line and with Mr. T. R. Braund for meats, vegetables, etc., in his line and provisions for you and the children if you are providing for yourself. • He also arranged with the manager of the Ward Hotel Co. for the room and board at Ward House here of yourself and children at any time that you- may see fit to go there. If you desire a servant Mr. Hill is willing to employ such for you if necessary and upon application of Mr. Hill he will also furnish all necessary clothing for the children and yourself and will pay bills promptly submitted to him for all things that may be necessary.”</p> <p>Verdict and judgment for plaintiff for $34.65. Defendant appealed.</p> <p>Errors assigned amongst others were in admitting in evidence the letters of Mrs. Hill, and in refusing judgment for defendant n. o. v.</p>

<p>Appeal, No. 243, Oct. T., 1914, by defendant, from judgment of Q. S. Northumberland Co., May Sessions, 1913, No. 9, on verdict of guilty in case of Commonwealth v. Mark L. Swab.</p> <p>Indictment for aiding and abetting and being an accessory in the embezzlement of public funds by the county treasurer. Before Cummings, P. J.</p> <p>At the trial it appeared that William M. Lloyd, the treasurer of Northumberland county, had been convicted of embezzling 119,497.38 of the public funds. The evidence showed that the defendant was deputy treasurer under bond, and that he had entire charge of the office and book accounts of the treasurer and had paid out moneys by direction of the treasurer.</p> <p>At the trial counsel for the commonwealth proposed to prove by William C. Miller, a witness upon the stand, that he is justice of the peace of the borough of Milton and was for some time prior to February 10, 1910; that as such justice of the peace he had a claim of the Hastings Publishing Co. against Wm. M. Lloyd, as an individual; that said claim either after or before being put in judgment was paid by check signed by Wm. M. Lloyd’s name by the defendant and drawn upon the funds of the county of Northumberland. This for the purpose of showing guilty knowledge on the part of the defendant and also in support of the first, third and fourth counts in the indictment. Counsel for the commonwealth further proposes to show check No. 41, dated February 10, 1910, drawn on the Guarantee Trust & Safe Deposit Company of Mt. Carmel for the sum of $25.56, and ask him whether such check was given to him in payment of the claim of the Hastings Publishing Co.</p> <p>Mr. Schaffer: This is objected to by the counsel for the defendant for the following reasons:</p> <p>1. It appears by the date of the check that it was drawn on February 10, 1910, more than, two years prior to the bill of indictment in this case and an offense, if any, is therefore barred by the Statute of Limitations.</p> <p>2. For the reason that it is not proposed to be shown by the offer, or to be followed by evidence, that the check was paid with county funds.</p> <p>3. For the reason that the check is no evidence of the making and drawing of the same by Mark L. Swab, the handwriting not having been proven.</p> <p>Judge Auten: This to be followed by evidence that the check is in the handwriting of Mark L. Swab, the defendant, and that the signature of Wm. M. Lloyd thereto, followed by the initials of M. L. S., in the handwriting of the defendant..</p> <p>Mr. Schaffer: Counsel for the defendant further objects because there is nothing upon the check, nor is there any evidence in the case thus far, to show that Mark L. Swab did bear any official relation to the county during the tenure of office of Wm. M. Lloyd; nor is there any evidence in the case thus far to show that he was an employee in the office of the county treasurer.</p> <p>For the further reason that there is no evidence in the case that the defendant, Swab, was an agent or employee of the county of Northumberland, of whose funds it is charged he aided, abetted and was accessory to the embezzlement or the default of failure to turn over, as charged in the first, third and fourth counts of the indictment.</p> <p>For the further reason, that it is not proposed to be followed by evidence showing that Wm. M. Lloyd was not carrying any account in the bank on which this check was drawn, or his own private funds in the same bank.</p> <p>The Court: The objections are overruled, evidence admitted and bill sealed for the defendant. [11]</p> <p>William M. Lloyd was asked this question:</p> <p>“Q. Do you say now that Mark L. Swab was not responsible for any of this shortage?”</p> <p>Mr. Schaffer: Objected to.</p> <p>The Court: Objection overruled, evidence admitted and bill sealed for the defendant.</p> <p>“Q. Do you say to this court and jury that Mark L. Swab is not responsible for any of this shortage? A. If there is any shortage of any money taken-”</p> <p>Mr. Schaffer: Objected to.</p> <p>The Court: Objection overruled, evidence admitted and bill sealed for the defendant.</p> <p>“Q. Go on. A. If there is any shortage or any money taken from that office there Mr. Swab is the best man to answer that question, because he had absolute control in that office for the three years he was in there.”</p> <p>Mr. J. A. Welsh: Objected to and request that it be stricken from the record because, it is not under the indictment,</p> <p>The Court: The request is refused and bill sealed for the defendant. [10]</p> <p>Defendant presented these points:</p> <p>5. That the commonwealth has not offered a scintilla of evidence to show that there were any county funds in the William M. Lloyd, Treas. account at the time the expenditures complained of were made, and the commonwealth having failed to establish this fact beyond a reasonable doubt the defendant must be acquitted. Answer: Refused. [1]</p> <p>11. Thé burden is upon the commonwealth to prove beyond a reasonable doubt, that at the times the defendant drew the several checks and made the several payments proved by the commonwealth he, the defendant, knew that the moneys were being paid out of county funds and that he, the defendant, further knew that the treasurer had no commissions earned to meet the checks; if the commonwealth fails in this the defendant must be acquitted. Answer: Refused. [2]</p> <p>12. If the jury believe that Swab, the defendant, at the time he drew the checks and made the payments proved by the commonwealth, believed or had reasonable cause to believe that the treasurer had earned commissions sufficient to meet the checks and make the payments in question, then he cannot be convicted under this indictment. Answer: Refused. [3]</p> <p>13. If the jury find that the defendant issued checks without the knowledge or consent of the county treasurer, or even appropriated moneys which he received for the treasurer, to his own use this would constitute a distinct and substantive offense for which defendant could not be convicted under this indictment. Answer: Refused. [4]</p> <p>15. The defendant cannot be convicted on both the first and third counts of the indictment: Com. v. Mentzer, 162 Pa. 646. Answer: Refused. [5]</p> <p>16. Whether Swab had formed a criminal intent to aid, abet or become an accessory must be determined by the jury from the facts existing at the several times he drew the checks or made the payments proved by the commonwealth in this case. Answer: Refused. [16]</p> <p>17. The indictment in this case having been found September 24, 1913, the jury cannot consider any acts of Swab prior to September 24, 1911, in passing upon the guilt or innocence of the defendant. Answer: Refused. [7]</p> <p>The court charged in part as follows:</p> <p>[I say further to you, gentlemen of the jury, that if Mark L. Swab actually took these funds himself, granting that Wm. M. Lloyd never knew anything about it, if Mark L. Swab actually took these funds himself, and so taking these funds made it physically impossible for Wm. M. Lloyd, the county treasurer, to turn over to the county the funds due and owing it, then Mark L. Swab would be guilty under this indictment of aiding and abetting Wm. M. Lloyd in the conversion of the funds, in being a defaulter and in not paying over to the county the funds of the county on demand.] [8]</p> <p>[The question is solely for you to, consider and decide as to whether there was a shortage, whether Mark L. Swab aided, abetted or assisted in the manner I have described to you in causing this shortage, knowingly and intentionally, and whether he has satisfactorily explained this transaction away to your entire satisfaction. It he has, then he should be found not guilty.] [9]</p> <p>Verdict of guilty, upon which judgment of sentence was passed.</p> <p>Errors assigned were (1-9) above instructions, quoting them; (10,11) rulings on evidence, quoting the bill of exceptions.</p>

<p>Appeal, No. 182, Oct. T., 1914, by defendants, from judgment of C. P. Bradford Co., Dec. T., 1913, No. 223, for plaintiff on case stated in suit of David J. Armstrong v. George N. Bird et al., Commissioners of Bradford County.</p> <p>Case stated to determine liability for the payment of a bounty for the killing of a fox:</p> <p>Maxwell, P. J., filed the following opinion:</p> <p>It is agreed by the case stated, that the defendants are, and on January 1, 1913, were the county commissioners of the county of Bradford, and state of Pennsylvania.</p> <p>That the plaintiff was a resident of Herrick township, on January 1, 1913, upon which date he killed a fox, and thereafter, to wit: on the same day, and in order to secure the reward or bounty named, and provided for by sec. 1 of the act of the general assembly of the commonwealth of Pennsylvania, approved April 10, 1907, produced the entire pelt before P. D. Hurley, justice of the peace in and for said county, and then and there made an affidavit before the said justice, that he killed the said fox, at the time and place aforesaid. Whereupon, the said justice of the peace, in the presence of the plaintiff, and of an elector of the said county, cut off the ears of said pelt and burned the same, all of which was done in conformity to the provisions of sec. 2 of the act of assembly of April 10, 1907.</p> <p>It was further alleged in said case stated, as follows:</p> <p>3. That upon the destruction of said ears the said justice of the peace gave to the plaintiff a certificate for the killing of said fox directed to the commissioners of said county, setting forth clearly the facts, that the provisions of said act of assembly had been complied with, naming the kind of animal killed, the name of the person who killed it, the time it was killed and the name of the place in the said commonwealth where it was killed: that such certificate was in proper form, and in all respects agreeably to and in conformity with the requirements and provisions of said act of assembly.</p> <p>4. That the plaintiff on or about the same day on which he received the said certificate presented it to the defendants at and in their office and demanded an order in his favor on the county treasurer of said county directing the payment of the reward and bounty provided for by the said act of assembly for killing said fox by him, to wit, the sum of $2.00.</p> <p>5. That the defendants refused to accept said certificate, and to draw an order on the county treasurer for the payment of the said bounty and reward in favor of the plaintiff.</p> <p>6. The defendants now contend and aver, inter alia, in answer to the plaintiff’s claim of right to a writ of mandamus, that the said act of assembly, approved April 10, 1907, was and is repealed by the act of the general assembly of the commonwealth of Pennsylvania, approved July 25, 1913, and that no duty of the defendants to issue orders for the payment of bounties or rewards for killing noxious animals under the act of 1907, now exists, or has since the passage of the act of 1913.</p> <p>7. If the court be of the opinion that under the foregoing statement of facts, agreed upon, it was the duty of the defendants to issue an order, drawn upon the county treasurer, in favor of or payable to the plaintiff, directing the payment of $2.00 to him for killing one fox under the provisions of the act of assembly approved April 10, 1907, when he presented the certificate mentioned in the foregoing statement of facts to them, and that they have not been discharged or relieved from its performance by the passage of the act of general assembly approved July 25, 1913, then and in that case an order and decree shall be made and entered by the court granting and awarding a peremptory mandamus against the defendants, commanding and requiring them to issue the same to the plaintiff for the sum of $2.00, for killing the one fox mentioned in the foregoing statement of facts, otherwise the court is to enter judgment in favor of the defendants, costs to follow the judgment, order or decree, and each party reserves the right of appeal from such judgment, order or decree to the Superior or Supreme Court, either or both, of the commonwealth of Pennsylvania.</p> <p>The right of plaintiff to recover in this case, arises entirely under and by virtue of the provisions of the act of April 10, 1907, providing for the payment of bounties, for the killing of noxious animals, and prescribing the manner of proof necessary to procure the same from the county, and the county in turn from the commonwealth.</p> <p>It will not be denied, that if the act of April 10, 1907, is repealed by implication, by the act of July 25, 1913, the plaintiff has no case, as the following afithorities establish: Com. v. Beatty, 1 Watts, 382; Abbott v. Com., 8 Watts, 517; Fenelon’s Petition, 7 Pa. 173; North Canal Street Road, 10 Watts, 351; Com. v. Leech, 24 Pa. 55; Grim v. Weissenberg School Dist., 57 Pa. 433.</p> <p>The act of July 25, 1913, provides for future cases, and of course, repeals all inconsistent laws; but this does not avoid the liability of the county under the former act of April 10, 1907, as to rewards and bounties earned prior to July 25, 1913. Neither is there any language or provisions in the latter act, to indicate that the legislature intended any such application.</p> <p>The liability of the county, in the first instance, has not been taken away, the form of procedure and remedies, are not changed. The liability, if any, under form, directed by the new act, where it applies, is the same as under the old law.</p> <p>So far as wild cats, gray foxes and weasels are concerned, the latter act may be regarded as repealing the former. As to those killed after July 25, 1913, it provides for the payment of same bounties on wild cats and gray foxes, as the act of 1907, and on weasels increases the bounty from $1.00 to $2.00. It omits mink from its bounty list, but includes hawks and owls. The bounty claimed in this case, is for the killing of a fox, on January 1, 1913, and manifestly, the plaintiff’s right to it, under the act of 1907, is not affected by the act of 1913.</p> <p>The bounties for killing foxes before the act of 1913 was approved, must be paid just the same as if the latter act had never been passed. This act only deals with animals killed after its passage.</p> <p>Implied repeals are not favored. If the two statutes can stand together, the latter does not abrogate the former: Erie v. Boots, 72 Pa. 196; Com. v. Vetterlein, 21 Pa. Superior Ct. 587.</p> <p>The leaning of the court is strongly against repealing the positive provisions of a former statute by construction. To repeal the prior statute by implication, there should be such a manifest and total repugnancy in the provisions of the new statute as to lead to the conclusion that the latter abrogated, and was designed to abrogate the former: Hendrix’s Account, 146 Pa. 285; In re Contested Election of Barber, Prothonotary, etc., 86 Pa. 392.</p> <p>Where a late statute is absolutely repugnant to a former one only in part, it repeals the former one, only so far as the repugnancy extends, and leaves all the remainder in force: In re Contested Election of Barber, Prothonotary, etc., 86 Pa. 392.</p> <p>It has been said that an act repealing or anywise modifying the remedy of a party by action or suit, should not be construed to affect actions or suits brought before the repeal, or modification. Whilst this statement is probably too broad, it is nevertheless true, that, where the effect of the new legislation is not to take away the jurisdiction or right previously existing, nor to deny a remedy for its enforcement, substantially like the one previously allowed, but merely to change the remedy, the right and the jurisdiction continuing under the former, directed by the new act, where it applies, or else under the old law: Endlich on Interpretation of Statutes, sec. 482.</p> <p>Where a proceeding founded upon one act of assembly, is commenced, and while pending another act is passed, taking away the jurisdiction, the proceedings fail; but where the remedy only is changed, it continues under the form directed by the new act, where it applies, or else under the old law: The Hickory Tree Road, 43 Pa. 139; Uwehlan Township Road, 30 Pa. 156.</p> <p>There is but slight difference between the act of April 10, 1907, and the act of July 25, 1913.</p> <p>Section 1 of the act of July 25, 1913, fixes the amount of the reward or bounty, to be paid for each wild cat, and for each fox, the same as the act of April 10, 1907; for each weasel, it doubles the amount of the bounty, and omits all bounties for killing of minks, and also provides for each goshawk or sharp shinned hawk, the sum of fifty cents, and for each gray horned owl, the sum of fifty cents.</p> <p>Sections 2 and 3 of above acts, are substantially the same in their provisions. Section 4 of the act of July 25, 1913, provides for the payment of the bounty by the state, out of the funds realized from hunters' licenses. The same section of the act of 1907, required an appropriation by the legislature, to reimburse the different counties. This is substantially the only difference there is, between these two sections, in the different acts.</p> <p>Section 5 of the two acts, relates to the penal provisions for violation of the act, and while they do not read alike, yet the provisions are substantially the same. Therefore, we cannot see wherein the act of July 25, 1913, is in any way repugnant to the act of April 10, 1907, so far as bounties for killing foxes prior to July 25, 1913, are concerned. While sec. 1 extends the provisions of the bounty to noxious birds, and increases the bounty upon weasels, yet the procedure provided ip secs. 2 and 3 of the act of 1913, is really a reenactment of the provisions contained in the act of 1907. The form of proof, and the liability of the county, in the first instance, is the same.</p> <p>The act of 1907, required an appropriation from the legislature, to reimburse the counties, for the money paid out, and the act of 1913, provides that the counties shall be reimbursed from the money received by the state, from hunters’ licenses. Therefore, we can see no repugnance between the two acts.</p> <p>While it is true that for all noxious animals killed prior to July 25, 1913, the party claiming the bounty must proceed under the act of 1907, and for all noxious animals killed after the approval of the act of 1913, proof must be made under the provisions of the latter act, yet in each instance, the liability of the county is the same and the form of the records, and the requisition of the county, upon the state, for reimbursement, is substantially the same. All the difference there is, the state reimburses the county from a different fund than it did under the act of 1907.</p> <p>The more natural, if not necessary inference, in all such cases, is that the legislature intended the new law to be auxiliary to and in aid of the purposes of the old law. There should therefore be such a manifest and total repugnancy in the provisions of the new law, as to lead to the conclusion that the latter abrogated, and was designed to abrogate the former: Hendrix’s Account, 146 Pa. 285.</p> <p>There appears to be no such repugnancy between the provisions of the act of 1913, and those of the act of 1907, so far as bounties for killing foxes prior to July 25, 1913. These two acts may well stand together. They are not inconsistent, at least to this extent.</p> <p>We are therefore of the opinion, that the act of July 25, 1913, P. L. 1036, does not repeal the act of April 10, 1907, either by express provisions, nor by implication, so far as the claim of the plaintiff in this case is concerned, for the bounty for the killing of one fox, on January 1, 1913.</p> <p>The sole purpose of the act of July 25, 1913, as we view it, was undoubtedly to extend the law to cover certain noxious birds, and to raise the bounty on weasels, from $1.00 to $2.00, and to discontinue the bounty on mink, and to provide a permanent fund, out of which the counties could be reimbursed, by the state. The legislature surely knew of the existence of the act of April 10, 1907, and if it intended the repealing of the act of 1907, it could easily have provided for its repeal. The whole naturally, if not necessary inference in all such cases, is that the legislature intended the new law to be auxiliary to and in aid of the purpose of the old: Com. v. Vetterlin, 21 Pa. Superior Ct. 587.</p> <p>And now, to wit: June 24, 1914, upon consideration of the foregoing facts, we are of the opinion that the plaintiff is entitled to recover in this case, from the county of Bradford, the $2.00 claimed for the bounty for one fox killed on January 1, 1914.</p> <p>It is therefore ordered, that a peremptory writ of mandamus issue in the above case, directed against the defendants as county commissioners of Bradford county, requiring them to issue to the plaintiff, an order upon the county treasurer of Bradford county, Pa., for $2.00 bounty, due and payable to him, for the killing of one fox, on June 1, 1913, as required by the provisions of the act of assembly of the commonwealth of Pennsylvania, approved April 10, 1907, and that the county of Bradford pay the costs.</p> <p>Error assigned was the judgment of the court.</p>

<p>Negligence — Street railways — Passenger—Alighting from car — Ice on steps — Case for jury.</p> <p>In an action against a street railway company for personal injuries to a passenger, the case must be submitted to the j ury where the plaintiff testifies that in alighting from a car she slipped on hardened snow or ice which had accumulated on the step from a storm that ended some hours before the accident, although several witnesses for the defendant testified that a snowstorm was going on at the time the plaintiff slipped.</p>

<p>Appeal, No. 223, Oct. T., 1914, by defendant, from judgment of C. P. No. 2, Phila. Co., June T., 1909, No. 5,65.2, on verdict for plaintiff in case of Andrew J. Yeager, etc., trading as Lewistown Garage, v. Winton Motor Carriage Company.</p> <p>Trespass for injuries'to an automobile received in a collision with defendant’s machine. Before Staples, P. J.</p> <p>At the trial the case turned on the measure of damages.</p> <p>On this subject the court charged as follows:</p> <p>In addition to this you may consider the question of whether or not the market value of the Mitchell automobile owned by the plaintiffs was lessened by the damages done to it, notwithstanding it was repaired. You have heard testimony in that respect. Both plaintiffs testify that the market value before the accident was, or what they paid for it was, one said $1,200 and the other said $1,250. It seems that the plaintiffs do not contend for its market value, but only what they paid for it. Its market value, it was testified, was $1,500. They further testify that its market value after the repairs was $750. That would make a difference between the two market values of $450 or $500, as you should find.</p> <p>Verdict for plaintiff for $732.07, on which judgment was entered for $500, all above that sum having been remitted.</p> <p>Error assigned was portion of charge as above, quoting it.</p>

Appeal, No. 172, Oct. T., 1914, by defendants, from, judgment of C. P. No. 4, Phila. Co., March T., 1913, No. 4,786, on verdict for plaintiff in case of Joseph W. Jackson v. David Hillerson and Theodore M. Boyer. Trespass for malicious prosecution. Before AudenRIED, J. At the trial it appeared that on March 20, 1913, the plaintiff found in the office of the Northwestern Trust Company of Philadelphia, a paper package containing forty uncut diamonds.

<p>Appeal, No. 215, Oct. T., 1914, by defendant, from judgment of Municipal Court Phila. Co., March T., 1914, No. 345, for plaintiff on case tried by the court without a jury in suit of Commonwealth v. Abraham Novek.</p> <p>Assumpsit on a recognizance of bail for appearance in the oyer and terminer and quarter sessions.</p> <p>Gilpin, J., filed the following opinion:</p> <p>This suit is brought to recover the sum of $400, with interest thereon from July 26, 1912, on a forfeited recognizance executed by defendant on June 21, 1912, for the appearance of one Ittel Brod, at the next term of the court of oyer and terminer and quarter sessions of the peace for the county of Philadelphia, “to be holden on the first Monday of July, 1912, then and there to answer all such charges as may be preferred against said defendant.” This recognizance was taken before George K. Hogg, magistrate of court No. 11, in the county of Philadelphia, duly filed in the office of the clerk of the court of quarter sessions for said county, and on July 26, 1912, as appears by the records of said office, said recognizance was declared and adjudged to be forfeited.</p> <p>The return of the magistrate and the papers filed in his office show that Brod was arrested on a warrant charging him with desertion and nonsupport, the affidavit of Brod’s wife, on which said warrant was issued, charging, “That the said Ittel Brod has failed and neglected for a period of six months to support deponent and her child.”</p> <p>It also appears that the recognizance was lost after filing in the office of the clerk of the court of quarter sessions.</p> <p>The trial judge finds from the testimony offered by plaintiff and the admissions of defendant both on the stand in this case and in proceedings in the court of quarter sessions, that he did, on June 26, 1912, execute a recognizance in the sum of $400, for the appearance of Ittel Brod in the court of quarter sessions of Philadelphia county not to answer the specific offense set out in the complaint of his wife, but, “to answer all such charges as may be preferred against the defendant,” and that such recognizance was declared and adjudged to be forfeited by the court of quarter sessions on July 26, 1912, for the nonappearance of defendant on the charge of desertion, which was one of the charges for which the defendant Brod was held to appear at court by the magistrate, the other being nonsupport.</p> <p>Novek, the defendant in the present proceeding, claims that the recognizance was discharged by the appearance of Brod in court to answer the charge of nonsupport, which was heard by the court and an order made, Brod being released on his own recognizance.</p> <p>The court is of opinion and finds that the charges of desertion and nonsupport, for which Brod was held for court, were both within the jurisdiction of the magisstrate, the scope of the recognizance was not confined to the specific offense of nonsupport, and that any question as to the validity of the bond should have been raised by the surety at the time the forfeiture was acted upon by the court of quarter sessions.</p> <p>As the record is sufficient it is conclusive and cannot be impeached, the whole matter of the recognizance and its forfeiture is res ad judicata and the binding force of the recognizance cannot be attacked in this proceeding. The court therefore finds in favor of the plaintiff for $447.40, the amount of the recognizance, with interest from July 26, 1912, to July 17, 1914; judgment to be entered sec. reg.</p> <p>Error assigned was the judgment of the court.</p>

<p>Appeal, No. 5, Feb. T., 1915, by Charles Schanbadher, from order of C, P. Tioga Co.-, Jan. T., 1914, No. 102, refusing to discharge from confinement In re Charles Schanbacher, an insolvent.</p> <p>Petition for discharge of an insolvent from confinement. Before Cameron, P. J.</p> <p>The court filed an opinion the material portion of which was as follows:</p> <p>The prosecutrix contended that the petitioner had not been in actual confinement. The evidence showed that within three months immediately preceding his application he had been allowed to go at .large during the day; that he made various trips to different parts of the county. The district attorney testified that after the first two weeks, from his commitment, he was not confined at all during the daytime; that he was on the streets almost constantly, attended entertainments, visited hotels and pool rooms and public offices, coming and going at his own pleasure. This was not actual confinement if regard be had for the meaning of the word “actual.” Webster defines actual to be: existing in act or reality; something actually received; real as distinct from estimated; not theoretical, hypothetical, nominal or constructive. If the words are to be construed as contended by the petitioner’s counsel there is no force in the words of the sentence “stand committed till the sentence be complied with.” The pleasure of the sheriff would take the place of the sentence of the court and he would have power to say what the person sentenced should undergo.</p> <p>The force of law consists in the uniformity of its application to cases and the certainty of its effect on individuals. It would lose both these elements if the pleasure of the sheriff could be substituted for the order of court; the degree of confinement would be as variable as the disposition, of the public officer, This should be avoided if possible. Fortunately there is no difficulty in the way by giving the words of the statute their generally received meaning — that is that actual confinement means confinement in fact in the jail of the county. Taking that view of the matter, we must refuse the discharge prayed for.</p> <p>Error assigned was the order of the court.</p>

<p>Negligence — Municipalities—Hole in sidewalk of street — Contributory negligence.</p> <p>1. One is not required in walking along a traveled highway, to keep his eyes fastened upon the ground continually to discover points of possible danger, nor is it necessary that he should in order to avoid exposed pitfalls lying directly in the path before him; but the law does require that he be observant of where and how he is going, so as to avoid dangers which ordinary prudence would disclose.</p> <p>2. In an action against a city .to recover damages for personal injuries sustained by stepping into a hole in a sidewalk, the evidence showed that on a clear day with a crowded pavement before him, the plaintiff ran close to the curb line for some distance and then left the sidewalk to go diagonally across the street to get on a street car. In leaving the pavement he stepped on the side of a hole which was in the sidewalk and next to the curb, which was about six inches wide, twelve inches long and six inches deep, and situated five or six feet distant from an iron pole eight inches in diameter, which it is urged, obstructed his view, as he was coming from the opposite direction. After passing the hole, he made one clear step and while taking the second met with the accident for which he claimed damages. Held, that the plaintiff was not entitled to recover.</p>

<p>Appeal, No. 43, March T., 1915, by plaintiff, from order of 0. & T. Lackawanna Co., Oct. T., 1912, No. 25, arresting judgment in case of Commonwealth v. Alex Duchnicz.</p> <p>Indictment for common-law rape. Before Pbatheb, P. J., specially presiding.</p> <p>The record showed that the defendant'at the trial was convicted of the offense charged. Subsequently the court arrested the judgment upon the sole ground that the evidence was insufficient in law to sustain the verdict.</p> <p>Error assigned was the order arresting the judgment.</p>

<p>Appeals — Assignments of error — Practice, Supreme Court.</p> <p>1. There is no rule of law which makes it imperative upon a party to move for a new trial in the court below because of erroneous instructions contained in the charge. If a defendant has excepted to the charge he cannot be deemed to have waived his right to object to such instructions upon appeal.</p> <p>2. Where a defendant withdraws a motion for a new trial and relies in the court below on his motion for judgment non obstante veredicto, the withdrawal of the motion for a new trial does not constitute a waiver of errors in the charge which are made the subject of assignments of error on a subsequent appeal.</p>

<p>Negligence — Railways—Street railways — Collision between car and wagon — Contributory negligence — Case for jury.</p> <p>In an action against a street railway company to recover damages for personal injuries sustained in a collision between a car and carriage, it appeared that at the time of the accident plaintiff was driving a carriage on the side of the street on which the defendant maintained a double-track street railway. Plaintiff turned out of the side of the street on account of .a wagon and drove on the track. Hearing a car coming, and seeing a mortar box a short distance ahead, and thinking she could not pass the mortar box before the car reached her, she pulled the horse’s head into the corner formed by the curb and the mortar box, “as far as she could get.” She then turned and looked towards the motorman who nodded his head and came on with the car which struck the carriage and caused the injury. There was evidence, although contradicted, that the horse backed the carriage into the side of the car. Held, that the question of both the motorman’s negligence and plaintiff’s contributory negligence was for the jury, and that a verdict and judgment for plaintiff should be sustained.</p>

<p>Appeal, No. 1, March T., 1915, by Hattie M. Anstadt, from decree of O. C. York Co., dismissing exceptions to auditor’s report in Estate of Henrietta M. Fickes, deceased.</p> <p>Exceptions to report of Richard E. Cochran, Esq., auditor.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was decree dismissing exceptions to adjudication.</p>

Appeal, No. 24, Oct. T., 1914, by defendant, from judgment of C. P. Blair Co., Jan. T., 1914, No. 10, on verdict for plaintiff in case of Barney Eriedland v. Altoona and Logan Valley Electric Railway Company. Trespass to recover damages for personal injuries. Before Baldrige, P. J. At the trial it appeared that on October 9, 1912, plaintiff was injured while driving a horse and buggy on the tracks of the defendant company on Seventeenth street in the city of Altoona.

Appeal, No. 231, Oct. T., 1913, by defendant, from judgment of C. P. No. 2, Phila. Co., June T., 1912, No. 1,353, on verdict for plaintiff in case of Aaron Knoller v. Everett Realty Company. Rule to show cause why case should not be reconsidered and judgment modified. See Knoller v. Everett Realty Company, 57 Pa. Superior Ct. 269.

<p>Divorce — Master’s r&port — Findings of fact — Duty of appellate court to review the evidence — Testimony of hired detectives.</p> <p>1. The findings of fact of a master in divorce do not have the same force as the report of a referee in a civil case, or the decision of the court in a case tried by the court without a jury; but the appellate court is bound to give the evidence a careful consideration in order to ascertain whether it does in very truth establish the statutory grounds for a divorce. This principle applies whether the master’s report be in favor of or against the granting of the divorce.</p> <p>2. While it is true that it is the duty of the court to give consideration to the opinion of a master in divorce, particularly where the veracity of the witnesses is involved, even then the court must exercise its judgment from an examination and consideration of the evidence, and is in no sense bound to adopt the finding of the master or to treat it as easting the burden on the party excepting to his report.</p> <p>3. Where a master’s findings of fact are not distinctly based upon his belief or disbelief of the witnesses, but upon a supposed policy of law affecting their credibility, the court is as well able as he, to judge of the extent to which this supposed policy of law should be carried in determining their credibility.</p> <p>4. The statement of a master in divorce, that his reason for recommending that the libel be dismissed, was based upon the fact that the testimony for the libelant consisted mainly of that of hired detectives, does not disclose a proper ground for his decision, inasmuch as there is no fixed rule of law or public policy which forbids the granting of a divorce upon the testimony of hired detectives.</p> <p>5. The testimony of hired detectives in a divorce case should be scrutinized with great care, but the court will act upon it, if, by reason of its volume, its clear, distinct and positive nature, the harmony of each of its parts with the others, and its harmony as a whole with the other facts in the case, it induces an abiding conviction of its truth.</p> <p>Divorce — Counsel fee — Expenses.</p> <p>6. In the absence of a plain abuse of discretion by the lower court in refusing to allow a wife’s claim in excess of a certain amount as counsel fee and expenses, the appellate court will not review a decree on the subject made by the lower court.</p> <p>7. Where a lieutenant in the United States Army has secured a decree in divorce, an order will not be made upon him for the payment of expenses incurred by the wife where it appears that he has paid her alimony pendente lite, also a considerable amount as counsel fee, and all the costs of the case including master’s and stenographer’s charges, and the expense of taking testimony on behalf of the respondent, as well as in his own behalf, in other states.</p>

<p>Appeals, Nos. 43 and 44, Oct. T., 1914, by defendant, from judgments of C. P. Schuylkill Co., Nov. T., 1911, No. 126, on verdict for plaintiffs in case of James Hilbert and Mary Hilbert, his wife, v. Township of New Castle.</p>

<p>Divorce — Desertion—Separation.</p> <p>1. Although a wife may leave her husband-without his consent and against his wish and without abusive treatment on his part to justify her leaving, yet, if within two years, she returns and makes an offer in sincerity and good faith to live with him, and he refuses, such separation is not such a willful and malicious desertion persisted in, without cause, for two years, as will entitle the husband to a divorce.</p> <p>Divorce — Alimony—Counsel fee.</p> <p>2. An allowance for counsel fees and expenses in favor of the respondent in the case of a proceeding in divorce by a husband against his wife, will be decreed, but in determining the amount, the ability of the libelant will be considered.</p>

<p>Evidence — Form of question to witness — Explanatory answer — Motion to strike out testimony.</p> <p>1. Where a question is put to a witness which cannot be answered as put, without including in the answer a statement of a fact as explanation, complaint cannot be made that the witness added the necessary explanation or qualification.</p> <p>2. A motion to strike out an entire answer of the witness is properly overruled where it appears that material portions of the answer were proper and legitimate.</p> <p>Criminal law — Assault—Evidence—Weapons.</p> <p>3. On the trial of an indictment for assault and battery where a policeman called as a witness produces certain weapons and states that they were handed to him by another officer when the defendant was arrested and the victim of the assault was lying a few feet distant, such weapons are properly admitted in evidence if it appeared that there was fresh blood on one of them, that they corresponded with the weapons which a witness described as having been used, and that the appearance of the wounds inflicted indicated that such weapons had been used.</p> <p>Appeals — Assignments of error — Evidence.</p> <p>4. Assignments of error to the admission of evidence which do not quote the answers of the witnesses to the questions propounded will not be considered.</p> <p>Criminal law — Evidence—AssawZi and battery — Participation in strike.</p> <p>5. Where on the trial of indictment for assault and battery committed during a strike, a witness for the defense is asked on cross-examination whether he had been arrested during the strike, and he answered that he had been, and objection is made that the question was irrelevant and not proper cross-examination, the court cannot be convicted of reversible error in overruling the objection, and especially so if it appears that the error, if any, was rendered harmless by the subsequent statement of the witness admitted without objection, and not contradicted, that he was duly tried and acquitted of the charge.</p> <p>Trial — Improper remarks by the trial judge — ^Withdrawal of juror— Review — Practice, C. P.</p> <p>6. Where a trial judge makes remarks to the jury in ruling upon questions of evidence, and such remarks are claimed to be improper, the proper practice is to except to the remarks as a basis of assignments of error on appeal, and not to move to withdraw a juror and continue the case.</p> <p>Criminal law — Improper remarks of counsel for defendant — Comment by the court.</p> <p>7. A trial judge in a criminal case cannot be charged with error in adversely commenting upon a statement made by counsel for the defendant to the effect that if a certain person had been produced as a witness, he would have given certain testimony.</p> <p>Criminal law — Alleged improper remark of the court — Trial judge.</p> <p>8. On the trial of three persons for assault and battery the trial judge cannot be convicted of error in stating to the jury that the defendants were indicted before the jury “for aggravated assault and battery and other crimes,” where it appears that the indictment contained three counts charging other offenses than the one mentioned.</p> <p>9. In such a case the court cannot be charged with error in saying to the jury “the doctrine of reasonable doubt is the one which is usually relied on for clearing anybody, however obviously guilty. Why? Because it leads to confusion of thought and terms. Reasonable doubt means if you examine all the circumstances of the case and weigh all the evidence, and are then satisfied that that man did it, and that man helped him, then you have no reasonable doubt.”</p> <p>Criminal law — Assault and battery — Strikes—Labor unions — Improper charge.</p> <p>10. A conviction for assault and battery committed during a strike will be set aside where it appears that the trial judge in commenting upon the credibility of the witnesses for the defendants called to prove an alibi, assumes as a fact, what had not been proven by the evidence, that an agreement existed among the strikers to prevent others from working by intimidation and violence, and that this unlawful mode of making the strike effective was in accord with the general rules, principles or laws of the labor union which had ordered it.</p>

Appeal, No. 122, Oct. T., 1914, by defendant, from judgment of Municipal Ct., Phila. Co., on verdict for plaintiff in case of Jacob G. G. Weikel and Abraham Weikel, Copartners trading as Weikel Brothers, v. Pullman Taxicab Company. Trespass to recover damages for injuries to a wagon. Before Gilpin, J. At the trial it appeared that about four o’clock in the morning of January 10, 1914, plaintiff’s milk wagon was run into by a taxicab and damaged.

Appeal, No. 113, Oct. T., 1914, by defendant Robert Greig, from order of C. P. No. Phila. Co., March T., 1914, No. 722, making absolute rule for judgment for want of a sufficient affidavit of defense in suit of George B. R. Umstad v. J. J. McNamara and Robert Greig. Assumpsit'on a promissory note. Rule for judgment for want of a sufficient affidavit of defense. The opinion of the Superior Court states the facts. Error assigned was order making absolute rule for judgment.

Appeal, No. 254, Oct. T., 1914, by defendant, from order of C. P. No. 1, Phila. Co., March T., 1914, No. 4,128, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Farmers and Breeders Mutual Reserve Fund Live Stock Insurance Company of the United States v. Derr. Assumpsit to recover a premium upon an insurance policy. Rule for judgment for want of a sufficient affidavit of defense. The opinion of the Superior Court states the case.

Appeal, No. 203, Oct. T., 1914, by plaintiff, from order of C. P. No. 1, Phila. Co., Sept. T., 1912, No. 3,498, discharging rule for judgment for want of a sufficient affidavit of defense in case of Norfolk & Western Railway Company v. Swift & Company. Rule for judgment for want of a sufficient affidavit of defense. See Nor. & West. Ry. v. Swift & Co., 56 Pa. Superior Ct. 471. The opinion of the Superior Court states the case.

Appeal, No. 289, Oct. T., 1914, by defendant, from judgment of Q. S. Lancaster Co., Sept. T., 1914, No. 187, on appeal from summary conviction in case of Commonwealth v. E. E. Evans. Appeal from summary conviction. Before Landis, P. J. The defendant presented the following reasons for appeal: 1.

Appeal, No. 106, April T., 1915, by defendant, from order of C. P. Allegheny Co., Oct. T., 1914, No. 850, refusing appeal from County Court in case of A. Weinberger v. E. L. Suess. Rule for the allowance of an appeal from the county court. Petition for the allowance of an appeal from the county court.

Appeal, No. 169, April T., 1915, by plaintiff, from order of C. P. Allegheny Co., Oct. T., 1914, No. 2,248, discharging rule for judgment for want of a sufficient affidavit of defense in case of John A. Williams v. Universal Life, Health and Accident Insurance Company. Rule for judgment for want of a sufficient affidavit of defense. Error assigned was order discharging rule for judgment for want of a sufficient affidavit of defense.

Appeal, No. 1, Feb. T., 1916, by F. N. English, from order of Q. S. Tioga Co., Jan. Sessions, 1915, No. 1, refusing a liquor license In the Matter of Application of F. N. English for retail liquor License at Nauvoo, Liberty Township, Pa. Petition for a retail liquor license. Before Cameron, P. J. The questions involved turned upon the sufficiency of the petition.

<p>Liquor law — Petition for retail liquor license — Averment as to other business — Surety—Statutes—Construction of.</p> <p>1. A petition for a retail liquor license need not aver that the applicant “is not engaged in the manufacture of spirituous, vinous, malt or brewed liquors.” These words in the act apply to sureties for the applicant, and not to the applicant himself.</p> <p>2. In general, where the words of a statute are plainly expressive of an intent, not rendered dubious by the context, they are not to be departed from merely because the court may be of the opinion that a different provision would more effectively accomplish the general purposes the legislature had in view.</p>

Appeals, Nos. 64 and 65, April T., 1915, by Mary and Jacob Meyer, from decree of O. C. Allegheny Co., March T., 1914, No. 53, dismissing exceptions to adjudication in Estate of Lena Henkel, deceased. Exception to adjudication. Over, P. J., filed the following opinion: Lena Henkel died testate January 6, 1913, leaving to survive her a husband but no issue.

Appeal, No. 95, April T., 1915, by plaintiff, from, judgment of C. P. Greene Co., Dec. T., 1912, No. 86, on verdict for defendant in case of Borough of Waynesburg v. J. W. Ray et al. Scire facias… Held: to interfere with vested rights. To give the property of A. to B. is clearly beyond legislative authority. Suppose, after title acquired to a tract of land by the act of limitations, the legislature should extend the time; or suppose a writ of error barred by lapse of time.

Appeal, No. 48, April T., 1915, by plaintiff, from judgment of C. P. Allegheny Co., April T., 1912, No. 599, on verdict for plaintiff in case of Mary Ann Ford v. Milton Neely and Emma Neely, his wife. Assumpsit to recover for plaintiff’s interest in certain hay alleged to have been cut on a farm in which plaintiff and Emma Neely had an ownership in common, subject to the dower rights of Katie Jones.