Volume 60 — Pennsylvania Superior Court Reports

<p>Practice, C. P. — Trial—Allegata and probata — Review.</p> <p>■ 1. Where the attention of the trial court is not called to an alleged variance between the allegata and the probata by a point specifically presented for that purpose, and no step is taken to enable the plaintiff to amend or correct his statement, or permit the court below to examine the alleged variance, the question cannot be raised in the appellate court.</p> <p>Negligence — Conflict of testimony — Numerical number of witnesses— Interest of plaintiff — Charge—Master and servant.</p> <p>2. In an action by an employee against his employer to recover damages for personal injuries, sustained at a machine, where the plaintiff testifies that he had received no instruction as to the manner of operating the machine, but his testimony is uncorroborated, and is contradicted by five witnesses, and it also appears from his own testimony that he did' have some knowledge of the use of the machine and its possible dangers, and that before going to work at it he had demanded and received an entirely new set of punches and dies for its equipment, it is reversible error for the trial judge to omit to point out with definiteness the interest of the plaintiff, and suggest to the jüry the reasonable probabilities that might flow from such interests. ■</p>

<p>Divorce — Costs—Imposition of costs on wife — Execution.</p> <p>Costs in a divorce proceeding, when ordered to be paid by either party, may be recovered by the party in whose favor the order is made by the issuance of a fieri facias.</p>

Appeal, No. 180, Oct. T., 1914, by Robert G. Foster, from order of Q. S. Phila. Co., April T., 1914, No. 1, refusing application of license as a money lender. Petition for license as a money lender. The case turned upon the constitutionality of the Act of June 5, 1913, P. L. 429. Error assigned was order refusing the license.

Appeal, No. 64, Oct. T„ 1914, by plaintiff, from judgment of C. P. No. 1, Phila. Co., Sept. T., 1909, No. 2,695, on verdict for defendant in case of Patrick J. Whelan v. Land Title and Trust Company. Assumpsit to recover certain interest claimed by the plaintiff and alleged to have been wrongfully retained by the defendant.

Appeal, No. 194, Oct.' T., 1914, by defendant, from order of C. P. No. 1, Phila. Co., June T., 1914, No. 1,478 making absolute rule for judgment for want of a sufficient affidavit of defense in case of William Kelley v. Maryland Casualty Company. Assumpsit on a contract. Rule for judgment for want of a sufficient affidavit of defense. The facts are stated in the opinion of the Superior Court.

Appeal, No. 139, Oct. T., 1914, by plaintiff, from judgment of C. P. Northampton Co., Feb. T., 1914, No. 47, for defendant n. o. v. in case of J. J. McCabe v. The Northampton Trust Company and William E. Farrell, Intervenor. Feigned issue on a sheriff’s interpleader to determine the ownership of a planer. Before Stewart, P. J. The facts are stated in the opinion of the Superior Court. At the trial the jury returned a verdict for $1,200.

Appeal, No. 231, Oct. T., 1914, by defendant, from judgment of C. P. Clearfield Co., May T., 1913, No. 135, on verdict for plaintiff in case of Samuel D. Beyer et al., trading as F. D. Beyer & Company, v. Ella J. Mountz. Assumpsit on a building contract. Before Bell, P. J. At the trial it appeared that the contract in question was for remodeling and rebuilding defendant’s house at Janesville.

Appeal, No. 264, Oct. T., 1914, by defendant, from judgment of C. P. Carbon Co., Jan. T., 1913, No. 32, on verdict for plaintiff in case of Charles George v. Osville P. Kern. Trespass in the nature of a quare clausum fregit. Before Barber, J. At the trial it appeared that the plaintiff and defendant and their predecessors in title had maintained a fence between them for a distance of thirty rods for forty years or more.

Appeal, No. 184, Oct. T., 1914, by defendant, from judgment of Municipal Court March T., 1914, No. 460, for plaintiff on case tried by the court without a jury in suit of John Price Wetherill, Jr., et al., trading as Gibbons-Wetherill Service Co., v. The Williamsburgh City Pire Ins. Company. Assumpsit on a policy of automobile insurance.

<p>Public officers — County treasurers — Mingling of road funds with general funds — Treasurer not liable for acts of former incumbents.</p> <p>1. Where road funds collected by virtue of the acts of June 26,1895, P. L. 336, and May 11,1909, P. L. 506, have been mingled with general county funds in such a way that the road funds cannot be separated or distinguished, and this has continued during a period of nine years through the administration of three successive boards of county commissioners, three county treasurers and three boards of county auditors, and all accounts have been duly settled, a succeeding county treasurer who had no part in such mingling 'of funds cannot be held liable for their misappropriation.</p> <p>2. In such a case it is proper for the treasurer to pay warrants issued by the county commissioners for general purposes, out of any funds in his hands, although such funds in the aggregate may be in excess of the several road funds previously misappropriated.</p>

Appeals, Nos. 105 and 106, Oct.. T., 1914, by defendant, from judgments of C. P. No. 2, Phila. Co., Sept. T., 19Í3, Nos. 5,898, and 599 in cases of Alton T. Blaker et al. v. Philadelphia Electric Company. Trespass to recover damages for the death of one of plaintiff’s children and injuries to two others. Before Barratt, J. ■ The circumstances of the . accident are stated in the opinion of the Superior Court.

Appeal, No. 159, Oct. Term, 1914, by defendant, from order of C. P. No. 4, Phila. Co., March T., 1914, No. 2,899, making absolute rule for judgment for want of a sufficient affidavit of defense in case of A. H. Meyer Company v. Berl Segal, trading as Hotel Majestic. 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. 130, Oct. T., 1914, by defendant, from judgment of C. P. Chester Co., Aug. T., 1913, No. 62, on verdict for plaintiff in case of John Barrage v. Philadelphia & Reading Railway Company.</p> <p>Trespass to recover damages for personal injuries.' Before Johnson, P. J., specially presiding.</p> <p>The facts relating to the accident are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $600. Defend- , ant appealed.</p> <p>Errors assigned were (1) refusal of binding instructions for defendant and (2) in refusing defendant’s motion for judgment n. o. v.</p> <p>—There was no negligence shown: Politowski v. Burnham, 214 Pa. 165; Phila. & Reading Ry. v. Hummell, 44 Pa. 375; Keller v. Phila. & R. Ry. Co., 214 Pa. 82; Gallagher v. B. & O. R. R. Co., 52 Pa. Superior Ct. 569.</p> <p>Defendant was guilty of contributory negligence: Collins v. Second Ave. Traction Co., 7 Pa. Superior Ct. 318; Brague v. Northern Cent. Ry. Co., 192 Pa. 242; Bailey v. Lehigh Val. R. R. Co., 220 Pa. 516; McMullen v. Penna. R. R. Co., 132 Pa. 107; Cypher v. Huntingdon & Broad Top, etc., R. R. Co., 149 Pa. 359.</p> <p>The case was for the jury both on the question of negligence and of contributory negligence: Schum v. Penna. R. R. Co., 107 Pa. 11; Fisher v. Monongahela, etc., Ry. Co., 131 Pa. 293; Cramer v. Aluminum Co., 239 Pa. 120; Sulger v. Phila. & R. Ry. Co., 245 Pa. 128; Brown v. Lynn, 31 Pa. 510; Reeves v. Del., L., etc., R. R. Co., 30 Pa. 454; Carey v. Chicago, R. I. & P. R. Co., 46 L. R. A. (N. S.) 877; Bruce v. Michigan C. Ry. Co., 172 Mich. 441.</p>

Appeal, No. 232, Oct. T., 1914, by plaintiff, from judgment of Municipal Court, May T., 1914, No. 245, on verdict for defendant in case of Johanna Marie Scheel v. Arthur E. Shaw. Trespass to recover, damages for personal injuries. Before Knowles, J. ■ At the trial it appeared that the plaintiff' was struck by defendant’s automobile at about half past ten or eleven o’clock on the night of January 4, 1914, when it was very dark. .

<p>Appeal, No. 192, Oct. T., 1914, by Merchants’ Union Trust Company, Administrator c. t. a. of John Evans, deceased, and Sarah L. Yeager, from decree of O. C. Del. Co., dismissing exceptions to auditor’s report in Estate of Sarah Evans, deceased.</p> <p>Exceptions to report of Frank B. Rhodes, Esq., auditor.</p> <p>From the record it appeared that J. Evans- Eccles ■claimed before the auditor the sum of $744 for nursing, attention, and care of the decedent. It appeared that ■Mr.. Eccles was a nephew of decedent’s husband, and that he and the decedent had lived for a number of years in the same house, each paying one-half of the expenses. The evidence as to the services being rendered was not contradicted.</p> <p>The auditor allowed the claim.</p> <p>Exceptions to the auditor’s report were dismissed.</p> <p>Errors assigned were in dismissing exceptions to auditor’s report.</p> <p>Relationship either by consanguinity or affinity is a fact which tends to rebut the presumption which the law raises that a promise to pay is intended when personal services are rendered: Horton’s App., 94 Pa. 62.</p> <p>Claimant cannot recover against the estate in the absence of an express contract: Barhite’s App., 126 Pa. 404; Young’s Est., 148 Pa. 575; Lackey’s Est., 181 Pa. 638; Gerz v. Weber, 151 Pa. 396.</p> <p>The law presumes that claimant was to be paid- for his services, and those resisting his claim have shown nothing to overcome this presumption.</p> <p>The principle laid down in McConnell’s App., that domestic servants are presumed to be paid at regular intervals has no application to claims for nursing: Lewis Est., 156 Pa. 337; McTamany’s Est., 44 Pa. Superior Ct. 484; Bugh’s Est., 9 Pa. Dist. Rep. 276; Ranninger’s App., 118 Pa. 20.</p>

<p>Master and servant — Claim for services — Family relationship — Presumption of payment — Evidence.</p> <p>1. In an action by a sister-in-iaw against a brother-in-law for services as housekeeper, family relationship will not be presumed, but must be proven as a fact.</p> <p>2. In such a ease the issue must be submitted to the jury where the claimant’s evidence shows, as opposed to family relationship, that the service was rendered by request, that the claimant was not permitted to eat with the family at the common table, that the head of the family for years, never exchanged a kindly word with her, and rarely, if ever, purchased any clothing or medical supplies for her.</p> <p>Master and servant — Wages—Presumption of payment.</p> <p>3. In an action by a sister-in-law against a brother-in-law for services as a housekeeper after the death of defendant’s wife, evidence of certain periodic payments made monthly and semimonthly are not sufficient to raise a presumption of payment in full, where there is evidence to show an agreement for the payment of a monthly sum stated, and also evidence tending to show that the defendant regarded the sums paid to the plaintiff as not being in full for her services, and that he considered that she was entitled to something beyond the amounts paid.</p>

<p>Appeals, Nos. 200 and 201, Oct. T., 1914, by defendants, from decree of C. P. No. 3, Phila. Co., March T., 1911, No. 4,712, on bill in equity in case of John Wilson Brown, Jr., v. Sarah J. McCullough, Martha E. Taylor, The Mack Paving Company, The Tradesmen’s Trust. Company and the City of Philadelphia.</p> <p>Bill in equity for subrogation.</p> <p>McMichael, J., filed the following opinion:</p> <p>In order to have a complete understanding of this case the statement of the material facts is necessary. Matthew McCullough was the owner of several tracts of land situated in Germantown, described in the bill. He died intestate. Sarah J. McCullough, Martha E. Taylor and James A. McCullough inherited the land described from their father, Matthew McCullough, and held the land as tenants in common. No partition was had. The various tracts of land became subject to municipal liens for street improvements and to liens for unpaid taxes, amounting in all to over $3,000. After Matthew McCullough’s death, a number of judgments were entered against James A. McCullough. The earliest of the judgments was one of the firm of Thomas Kenworthy Sons for $13,274, entered April 2Q, 1907. James A. McCullough conveyed to Samuel Dotlow his one-third interest in this land by a deed dated February 21, 1911. Samuel Dotlow gave a judgment note to Bessie Sorin. The deed was recorded on March 8, 1911. Judgment was entered on the note of Bessie Sorin for the amount of $632.33 March 9, 1911. Execution was issued and a sheriff’s sale had thereon on April 3, 1911. The Kenworthy judgment was purchased by John Wilson Brown, Jr., the plaintiff in the present bill in equity. He placed it in the name of Jessie Leckie Hughes. At the sheriff’s sale on April 3, 1911, Sidney E. Smith was the first bidder. The amount of his bid was $7,600 and the property was knocked down to Sidney E. Smiths He deposited $125. Mark W. Collet entered his name as second bidder and paid $125 as a deposit. Sidney E. Smith was unable to raise the money to make good his bid of $7,600 and he applied to the Manayunk National Bank for a loan on the entire property. The bank agreed to loan the money provided that the deed for the one-third interest of the defendant in the execution was taken by Sidney E. Smith and held by him until such time as the principal advanced by them should be paid, and that the mortgage should cover the whole interest of all three owners.</p> <p>On or about May 3, 1911, Sidney E. Smith saw John Wilson Brown, Junior, the real owner of the judgment (although the fact of his ownership was unknown to Sidney E. Smith), and Mark W. Collet, who represented as attorney, according to the docket, the then holder of the judgment, Jessie Leckie Hughes, to whom the judgment had been transferred either upon the day of the sheriff’s sale or a day or two before, and Sidney E. Smith offered to buy the judgment. This offer was refused. In the meantime Mark W. Collet had had allowed a rule on the sheriff to deliver a deed to his client as the second purchaser.</p> <p>The recollections and statements of Mr. Smith and of Mr. Collet and of Mr. Brown and of Mrs. Hughes (who became Mrs. Collet about the time of the negotiations), differ radically. Mr. Smith says- that he told them he had borrowed the money; that one of the conditions the lender made was that he should hold the title until they were paid, and that the mortgage should cover the entire three-thirds interest.</p> <p>There , was another interview on May 5, according tp the testimony of Mr. Smith, and he says that Mr.. Collet told him that' he and Mr. Brown had come to the conclusion that they had better take the $3,50.0, but that they had been unable to get Mrs. Hughes to agree to it. As to this interview there were statements made by Mr. Smith and denied by Mr. Collet, and their statements are so radically divergent that it is not possible that the difference is one of recollection. One or the other of these men is not telling the truth but is fabricating a story to suit his own1 side of the case. But as this divergence of statement is not material to the determination of the facts and law, the court, after mature deliberation, has decided to express no opinion as to the truth of the statements.</p> <p>There is another statement with regard to which the difference is almost as radical, and that is the statement made by Mr. Smith (in this testimony on p. 4 of the testimony taken on December 11, 1913) as follows:</p> <p>“I made the proposition then to Mr. Collet on behalf of these sisters, that I would pay him a flat sum of $3,500, in full for a release by him, or a release by her, it was at that time, of all claims and demands she might have against this property and against the fund in the sheriff’s hands under1 that judgment.” It may be that Mr. Smith is stating accurately what occurred in the first interview, but the testimony is positive that the proposition made during the first interview was rejected. At this interview Mr. Smith denied any legal liability on the part of these two women to pay anything to the holder of the judgment by reason of the municipal claims. He said that he said he did not care anything about that phase of it; that he was there, if he could succeed, to make a settlement with them by the payment of $3,500, cash flat, and that he demanded an assignment of the judgment, and they declined to make an assignment because they wanted to pursue James A. McCullough further under the judgment, “and I said to him, if that was the only reason he had for retaining the judgment I would not insist on the assignment, but I would require an agreement from him that if we needed the judgment to protect our title as to the one-third he would allow us the use of it. He told me I could rely on his word as a member of the bar that he would do that at any time.” This statement of Mr. Smith’s is denied by the witnesses for the plaintiff, and the preponderance of the evidence is in their favor. On cross-examination Mr. Smith further stated that he made the condition to Mr. Collet, “that if it became necessary to protect our title thereafter, he should allow us to use that judgment for that purpose. And he assured me that he would do that and that I did not need any written agreement, but I could depend on his word as a member of the bar.” Mr. Smith was further asked on cross-examination whether he did not say to Mr. Collet, “That if some other creditor should later come in and attack this whole transaction, to wit, the conveyance by McCullough of his one-third interest to Dotlow and Dotlow’s confession of judgment and the subsequent sheriff’s sale as being a contrivance to defraud other creditors — 'that if that should be done they would use their judgments to protect you? Isn’t that the proposition that you had with Mr. Collet and the one you are referring to in your testimony in chief?” Answered, “I cannot answer that yes or no because two years and a half have elapsed since it happened.” As the case of the defendants depends largely upon their ability to show that Mr. Brown, the owner of the judgment, and Mr. Collet, representing the owner of the judgment, agreed with Mr. Smith that the money paid in should be in full for all demands and that there was a waiver and release of Brown’s right to substitution or subrogation as against the ladies who own the two-thirds interest in the land. The court is of opinion, and has so found in answer to requests for findings of fact, that there was no agreement by Brown to waive his right to subrogation. This in the opinion of the court is the crux or determining point of the controversy, for, under the law of Pennsylvania, it seems to the court to be an established rule of law that where there is a sale of an undivided interest in land, and taxes and municipal liens which are charged against the whole interest in the land are paid out of a one-third interest, that the judgment creditor whose fund is diminished by such payment of taxes and municipal liens out of the fund is subrogated to the right of the owner of the one-third interest to contribution for taxes and municipal liens as against the owners of the other two-thirds. The views of the court in this regard are stated categorically in the answers to the requests for findings of fact and law. The trial judge is of opinion that if the case were dependent upon Smith’s testimony alone his testimony would fail.to make out a sufficiently strong case for the defendants to deprive the plaintiff of his equitable right to subrogation, and, as the testimony of Smith was contradicted in all its essential points by two witnesses and in some essential points by three witnesses, the trial judge is of opinion that the preponderance of the evidence and the weight of the testimony is against the defendants.</p> <p>To resume the history of the case, after Mr. Smith had found that he was unable to purchase or control by transfer the Kenworthy judgment which was owned by Brown, he went with Mr. Collet to the sheriff’s office, and there gave Collet a certified check for $3,500 and offered to pay into the sheriff a check for $3,186.95, and the offer was that Collet, for Brown, should receipt for the balance of the bid. Mr. Russell, the sheriff’s solicitor, however, declined this, and after some colloquy, Collét, for Brown, paid in an amount sufficient to bring the payments to the sheriff up to the amount of the bid. There were some errors in calculation, Mr. Smith having overpaid somewhat, and this was adjusted later. Out of the fund were paid the costs, 4he taxes prior to 1911, $354.90, taxes for 1911, $129.50; a city claim C. P. No. 5, December T.; 1909, No. 1932, $1,339.06; city claim C. P. No. 5, December T., 1909, No. 1933, $1,196.43, and the balance, $4,365.05, was paid to Michael J. Ryan, attorney for John Wilson Brown, Junior, on account of the Kenworthy judgment owned by Brown.</p> <p>The bill in this case, asserting the right to subrogation, was filed on May 13, 1911, and the mortgage to the Manayunk National Bank was recorded subsequently on May 17, 1911.</p> <p>The facts have now been stated sufficiently at length to enable the court to give its views upon the questions of law and equity involved. Thére is no doubt that subrogation is an eqúitable right and will not be decreed where it works injustice; but the law of Pennsylvania in regard to subrogation in cases similar to the case the court is now adjudicating has been settled since the case of Moroney v. Copeland, 5 Wharton, 407, as long ago as 1839. In that case Sergeant, J., delivering the opinion of the Supreme Court, said: “The next question is as to the taxes, and the claim for iron pipes, filling, paving and curbing foot-ways, which by act of assembly are liens on the property in which Brown and Copeland had an equitable estate at the time they were assessed and incurred; The interest of Copeland was sold by execution on a judgment against him and the money was brought into court; and the question is, whether the whole of these claims are to be paid out of the purchase money, or only half of them or none of them? The general rule is, that with the exception of the first mortgage (which is exempted by act of assembly), a judicial sale converts the interest sold into money, and divests all liens on the land existing at the time of sale. The lien here resembles a judgment against both: it bound the interest in the whole land; the tenants in common being respectively entitled do an undivided moiety in the whole, neither having the whole of an undivided moiety. On a sale of the interest of one tenant in common by execution on a judgment against him, the lien of a prior judgment against both is payable out of the proceeds: and the lien of these taxes being against the land of both jointly, is in the nature of a joint judgment, and must be paid out of the proceeds of sale. But as the effect of such payment is to take the interest of one to pay the whole, he, or those who represent him, have a right of contribution from the other cotenant, to reimburse them the one-half thus paid. Copeland would lose one-half of this money now applied to the payment of Brown’s share of the taxes: and equity would seem to require, that he should be subrogated to the liens of these claims on Brown’s interest, so far as respects the half of them thus paid, according to the decision in Ramsey’s Appeal, 2 Watts, 228. The act of June 16, 1836, sec. 86, gives the court power in these cases of distribution of money raised by execution, ‘to hear and determine the same according to law and equity.’ It would be equitable in the present case to make such a decree.” This case announces a rule which has been followed in Pennsylvania ever since and which applies to the facts of the present case.</p> <p>In the case of Gearhart v. Jordon, 11 Pa. 325 (1849), the headnote states: “As between purchasers in common of an estate bound by a joint lien, each is bound to contribute only its proportion towards the discharge of the common burthen, and beyond this is to be considered simply as the surety of the remaining purparts. In this respect they are to be treated as the several estates of joint debtors, one being surety of the others; and if the purpart of one is called on to pay more than its proportion, the tenant or his lien-creditors are entitled to stand in the place of the satisfied creditor to the extent of the excess, which ought to have been paid out of the other shares.” In that case Bell, J., delivering the opinion of the court, said: “That case is identical in principle with Neff v. Miller, 8 Pa. 347. That determination, and the authorities upon which it is based, settle that subrogation is admissible wherever a joint creditor of two funds, belonging to different debtors, appropriates one of them in payment of his debts, in disappointment of another creditor of that fund.”</p> <p>In Cottrell’s App., Bower’s Est., 23 Pa. 294 (1854), Woodward, J., said: “Subrogation is founded on principles of equity and benevolence, and may be decreed where no contract or privity of any kind exists between the parties. Wherever one not a mere volunteer discharges the debt of another, he is entitled to all the remedies which the creditor possessed against the debtor. Actual payment discharges a judgment or other incumbrances at law, but where justice requires it we keep it afoot in equity for the safety of the paying surety.”</p> <p>In Douglass’s App., 48 Pa. 223, the headnote is: “In distributing the proceeds of a sheriff’s sale, the rights of claimants must be determined as they were at the time of the sale, the liens being divested by the sale, the lienholders are turned over to the proceeds, and no lien or right thereto can be afterwards acquired.”</p> <p>From these cases it would appear that the rule is correctly stated in the first request for finding of law submitted on behalf of the plaintiff and affirmed by the court as follows:</p> <p>“1. A judgment creditor of a tenant in common who has been compelled to receive at the distribution of a fund arising from a sheriff’s sale of an interest in com.mon of a debtor an amount less than his judgment because a portion of the fund arising from such sheriff’s sale of His debtor’s interest in the land being used to pay a municipal lien or claim against the whole premises is entitled to be subrogated against the other co-owners of the land to the rights of the lienors to the extent of the amount that should equitably have been paid by the said co-owners.”</p> <p>To defeat this right of the plaintiff the defendants have asserted in requests for findings of fact numbers 5 and 6, submitted on behalf- of defendants:</p> <p>“5. By an agreement of settlement entered into between the said Sidney E. Smith and the said Mark W. Collet, the said Collet agreed on behalf of his client to accept $3,500 in lieu of the somewhat larger sum which would otherwise be received by his client from the sheriff on account of the said judgment against James A. McCullough if the full amount of $7,600 bid by the said Sidney E. Smith, was paid by him in settlement with the sheriff.</p> <p>6. It was a term of the agreement of settlement made between Mark W. Collet and Sidney E. Smith, that the defendants, Martha E. Taylor and Sarah J. McCullough, should have the right at any time to use the judgment obtained by Kenworthy and others against James A. McCullough, to protect the said real estate described in the bill from any further claims of any kind by any creditor of James A. McCullough, including the . plaintiff.”</p> <p>The court, after a careful consideration of the testimony and of the briefs submitted, has declined to affirm either of these findings of fact.</p> <p>The defendants, Sarah J. McCullough and Martha E. Taylor, state in their answers, that they “negotiated with Jessie Leckie Hughes and John Wilson Brown for the purchase of the judgment held by her. These negotiations culminated in the payment by me and by my sister of the sum of $3,615 on May 5, 1911, to Jessie Leckie Hughes for a full release of the tract of land sold by the sheriff as aforesaid from the judgment held by her.” The proofs, however, do not sustain the allegations of the answer. As has been stated, the only evidence tending to establish these facts was given by Sidney E. Smith, and the court has already stated that in the opinion of the court his evidence is insufficient to establish these facts, and as it is met by the denial of two witnesses, perhaps of three witnesses, the preponderance and weight of the testimony is against him.</p> <p>The court does not think that the supplemental answers have probative valiie, because they were not sworn to positively by the defendants, but simply upon information and belief: Gantt v. Cox, 199 Pa. 208-215, opinion by Mitchell, J.; Riegel v. American Life Insurance Company, 153 Pa. 134-145; Bussier v. Weekey, 11 Pa. Superior Ct. 463.</p> <p>Another defense is presented. The defendants aver that a sum of money large enough to pay the sheriff and Smith’s fees and expenses was obtained from the Manayunk National Bank through a mortgage on the entire tract jointly, by the purchaser at the sheriff’s sale of Dotlow’s interest — Sidney E. Smith — and Miss McCullough and Mrs. Taylor. The court is of opinion and finds as a fact that no notice, either by record or parol, was given to the owners of the Kenworthy judgment of the mortgage to the Manayunk National Bank prior to the filing of the bill for substitution and subrogation. It may be that there was general talk about how the money was raised, but there was nothing disclosed which amounted to legal or equitable notice.</p> <p>Mr. Brown was asked (page 63):</p> <p>“Q. Did you at the time the settlement was made by the sheriff or at any previous time know, or were you informed, that part of the money paid to the sheriff was obtained from the Manayunk National Bank on a mortgage? A. I did not know it from any source at all. Q. Was the mortgage made to the Manayunk National Bank ever mentioned at any of these interviews with Mr. Smith? A. Not as the Manayunk National Bank. T understood the money was being raised by mortgage, but the name of the mortgagee was not given, nor was it inquired into.”</p> <p>The mortgagee took its mortgage without any release, written or oral, of the plaintiff’s right to be subrogated to the municipal liens or tax claims so far as the purparts of Miss McCullough or Mrs. Taylor were concerned. The Manayunk National Bank was not in any way misled by the plaintiff, Brown, by Collet, or by Mrs. Collet. It therefore took its mortgage subject to Brown’s rights of subrogation against the purparts of Miss McCullough and Mrs. Taylor. And no notice of this mortgage has been brought home to the plaintiff, John Wilson Brown, Junior, or to his attorney, Mr. Collet, prior to the recording of the mortgage on May 17, 1911.</p> <p>Another defense is that James A. McCullough was indebted. to each of his sisters, defendants in the bill, “In the sum of $2,450, received by him as my share of the damages awarded to me against the city of Philadelphia in the matter of the opening of Bowman Street through part of the land concerned herein, the amount of which damages were collected and retained by the said James A. McCullough and have never been paid over to me by him.” If this suit were by James A. McCullough to enforce his right of subrogation against his sisters the withholding of money by him for them might be asserted as a defense to his claim. But it does not appear when the money became due from James A. McCullough to his sisters or that it was prior to the judgment obtained by Kenworthy against McCullough and sold and transferred to the plaintiff, or prior to the sale by McCullough to Dotlow. It is an answer also to his defense that it was Dotlow’s land, not James A. McCullough’s, that paid the portion of the liens that were due by Miss McCullough and Mrs. Taylor. There is no right to a set-off against Dotlow, and, consequently, no right to a set-off against Brown’s right of abrogation. Besides, the right of subrogation is not a personal right and cannot be assigned or waived to the detriment of a lien creditor by the person primarily entitled to it. In Huston’s App., 69 Pa. 485, it was held that a surety whose land had paid a joint judgment against himself and his principal, could not assign his rights of subrogation against his principal under this judgment, to the detriment of one of his own lien creditors, whose judgment was immediately subsequent and had received less than its full amount at the same sale.</p> <p>It has been contended that the bill should be dismissed because the Manayunk National Bank has not been made a party. It is to be noticed that the Manayunk National Bank has not asked to become a party, and, under the evidence and the opinion stated by the court, it is not in the opinion of the court necessarily a party to this controversy. It may be that the security of the land for the value of the mortgage may be diminished somewhat if Sarah J. McCullough and Martha E. Taylor refuse to pay the loan which the court of equity finds that they owe, and it becomes necessary to enforce the decree of the court against the lands covered by the mortgage. But the interest of the Manayunk National Bank is so remote that we do not think the failure to include them as plaintiffs or defendants necessarily defeats the right of the plaintiff and requires that the bill be dismissed. .Counsel for plaintiff has called our attention to a case decided by the Supreme Court of Indiana, Chapman v. Sullivan, 120 Indiana, 50. That case was in its facts very like the present one. The question was as to the precedence between a mortgagee and a cotenant of the mortgagor, claiming subrogation to liens against the common property by reason of their payment by her, and it was decided by the Supreme Court of Indiana in favor of the claimant of subrogation.</p> <p>[The court is of opinion, therefore, that the plaintiff, John Wilson Brown, Junior, is entitled to subrogation or substitution to the tax claims and municipal liens, and is entitled to demand that they be paid as to one-third each by Sarah J. McCullough and Martha E. Taylor.]</p> <p>And now, to wit, July 3, 1914, upon consideration of the bill, the answers thereto and the amendments to the answers, replication and evidence taken in this case, the court orders and decrees as follows:</p> <p>1. That each of the defendants, Sarah J. McCullough and Martha E. Taylor, be ordered and directed to pay over to John Wilson Brown, Jr., the plaintiff, the sum of $1,006.37, and mterest thereon from May 13, 1911, the date of the distribution by the sheriff of Philadelphia county of the fund realized by the sale of the one-third interest of Samuel Dotlow in and to the following described lots or pieces of ground: ....</p> <p>2. That the plaintiff, John Wilson Brown, Jr., do recover from and out of the right and interest and estate of the defendant Sarah J. McCullough in the aforedescribed lots or pieces of ground, the sum of $1,006.37, and mterest thereon from May 13, 1911, and that the plaintiff, John Wilson Brown, Jr., do recover from and out of the right, and interest and estate of the defendant Martha E. Taylor, in the afore-described lots or pieces of ground, the sum of $1,006.37, with interest from May 13, 1911, and that a lien for these sums be imposed upon each of the said rights, interests and estates in favor of the plaintiff the said John Wilson Brown, Jr.</p> <p>3. That the plaintiff, John Wilson Brown, Jr., be subrogated to the rights and securities of the defendants, the city of Philadelphia, the defendant the Mack Paving Company, the defendant the Tradesmen’s Trust Company, against the interests, rights and estates of the said Sarah J. McCullough and Martha E. Taylor, in and to the lots or pieces of ground aforesaid, to the extent of the sum of $1,006.37, and interest from May 13, 1911, against the said interest, right and estate of Sarah J. McCullough and to the extent of the sum of $1,006.37, and interest from May 13,1911, against the said interest, right and estate of Martha E. Taylor.</p> <p>The bill should have been dismissed because of the nonjoinder as a party of the Manayunk National Bank, the mortgagee of the property against which the court’s decree operates to perpetuate (for the benefit of the plaintiff). certain prior liens, which had been previously paid out of the proceeds of the said mortgage. The right of the plaintiff, as a judgment creditor, to be subrogated to prior liens which were divested by the sheriff’s sale, was lost through the intervention of the right of the Manayunk National Bank as mortgagee, the proceeds of whose mortgage was utilized (with the knowledge of the plaintiff) to make the settlement with the sheriff in which the plaintiff participated as a distributee: Robeson’s App., 117 Pa. 628; Allegheny V. R. Co. v. Dickey, 131 Pa. 86; McGinnis’ App., 16 Pa. 445; Wallace’s Est., 59 Pa. 401; Hoff’s App., 84 Pa. 40; Gring’s App., 89 Pa. 336.</p> <p>The plaintiff, by reason of his prior negotiations with the defendants, and because his judgment debtor — in whose shoes he stands — was indebted to each of the defendants, in an amount in excess .of the money claimed by the plaintiff, is without equity to maintain this bill. This being a proceeding in equity for subrogation, the plaintiff is not entitled to a general decree for the payment of money, which the court below entered against the defendants: Iron City Tool Works v. Long, 44 L. I. 28; Hogg v. Longstreth, 97 Pa. 255.</p> <p>Plaintiff was entitled to contribution from appellants for their proportionate share of the taxes and liens against the whole tract, which were paid from the one-third interest against which his judgment was a lien and this contribution should be enforced by subrogating him to the liens. In no event should the bill be dismissed or remanded because of the mortgage to the bank, as the decree for subrogation can be so molded by. this court that the plaintiff’s subrogation shall be subordinate to the mortgage of the bank, in case the court reaches the conclusion that the mortgagee should have been made a party or that its equity is equal to that, of thé plaintiff. But apart from any waiver the decree should be affirmed because plaintiff’s rights are superior to those of the bank. Should it be decided, however, that the equity of the plaintiff is not superior to that of the bank, the decree can readily be molded by this court, so that the plaintiff’s subrogation shall be subordinated to the rights of the mortgagee: Bud v. Oliver, 148 Pa. 194.</p> <p>There was no waiver or release of either contribution or subrogation as a result of the negotiations between the parties. The personal indebtedness of James A. McCullough to his sisters cannot be set off against plaintiff’s claim against them for contribution: Huston’s App., 69 Pa. 485.</p> <p>Aside from the remedy by subrogation, the plaintiff is clearly entitled to a decree in equity for contribution against appellants out of their two-thirds interests in the land. Contribution is an equitable right, of which subrogation is but one means of enforcement, and it may exist independently of the subrogation. In this question, the mortgagee has no concern, as it does not affect his lien.</p>

Appeal, No. 217, Oct. T., 1914, by defendant, from judgment of Municipal Court, Phila. Co., March T., 1914, No. 371, on judgment for plaintiff on case tried without a jury in suit of Daniel F. Comly, trading as Wm. F. Comly- & Son, to use of Glauzer Brothers v. Amon Linton. Assumpsit for breach of contract. Before Knowles, J., without a jury. At the trial judgment was entered for plaintiff for $334.50. Defendant appealed. Errors assigned were as follows; 1.

<p>Negligence — Municipalities—Open trench in street — Contributory negligence — Case for jury.</p> <p>1. Where a city has by proper proceedings widened a street which was actually built up, and thereafter through a contractor opened a trench along the untraveled portion of the street for the purpose of constructing a sewer, and places temporary crossings over the trench in front of the houses, as an invitation to those occupying the houses and those visiting them to use the crossings, the city is bound properly to guard and light such crossing at night as will reasonably protect persons using them; and if a woman in the night-time attempts to use one of the crossings without negligence on her part, and falls into the trench and is injured, the city is liable to pay her for the injuries which she had sustained.</p> <p>2. In such a case if the woman has but a vague knowledge of the existence of the trench, and there is no light at the crossing to guide her, or barriers along the side to protect her, she cannot be charged with contributory negligence as a matter of law in attempting the crossing.</p> <p>3. Where a city lets out a contract for the construction of a sewer in a street, and the contractor opens a trench in the street, and a person is injured one week thereafter by falling into the trench a jury may find that the city had constructive notice of the existence of the trench.</p> <p>Negligence — Damages—Loss of earnings.</p> <p>4. In a negligence case failure on the part of the trial judge to charge as to the present worth of future earnings and how they may be arrived at, is not to be treated as an inadequacy of charge, but as reversible error, and this is the case although no request is made by either side for specific instructions on the subject.</p>

<p>Liquor laws — Peition for license for hotel — Averments of petition — Necessity—Refusal of license.</p> <p>It is reversible error for the Court of Quarter Sessions to refuse a retail liquor license merely because the petitioner in his application averred “that the place to he licensed is necessary for the accommodation of the public, and is suitable as well as necessary for the entertainment of strangers and travelers; that he has for their exclusive use at least twelve bed rooms and fourteen beds, and ample stabling accommodation for horses and vehicles,” and his certifiers testify that they signed the petition because of the need of. a hotel for the < traveling public, and that they would not have signed it if it hád'been merely an application to sell liquor.</p>

<p>Appeal, No. 197, April T., 1915, by plaintiffs, from order of C. P. Somerset Co., May T., 1915, No. 31, dismissing petition for mandamus in case of William Winters, et al., Supervisors of Somerset Township, v. Jacob Koontz, et al., Commissioners of Somerset County.</p> <p>Petition for mandamus. Before Ruppel, P. J.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was order dismissing the petition.</p> <p>cited Clarion County v. Clarion Twp., 36 Pa. Superior Ct. 302; Clarion County v. Clarion Twp., 222 Pa. 350; Dickinson Twp. Road, 23 Pa. Superior Ct. 34.</p> <p>cited: Kelly v. Cumberland County, 229 Pa. 289; Otto Twp. Road, 2 Pa. Superior Ct. 20; Dailey v. Potter County, 203 Pa. 593; Quinn v. Cumberland County, 162 Pa. 55; Sewickley Borough v. Sholes, 118 Pa. 165.</p>

Appeal, No. 171, April T., 1915, by Indian Brewing Co., from order of Q. S. Indiana Co., Dec. T., 1914; No. 31, refusing a liquor license in case of Indian Brewing Company’s Petition. Petition for liquor license. Before Telford, P. J. The opinion of the Superior Court states the case. Error assigned was the order refusing the license.

<p>Beneficial associations — Death benefits — Foreign attachment.</p> <p>Death benefits due from a beneficial association incorporated under the laws of Maryland to the widow of a member as sole beneficiary cannot be attached by a creditor of the widow where it appears that the contract of membership was made in Maryland, that the benefit funds of the association were kept in that state, that the certificate was payable in that state, and that under the laws of Maryland death benefits were not attachable for the debts of the beneficiary: Ogle v. Barron, 247 Pa. 19, followed.</p>

<p>Appeal, No. 178, Oct. T., 1914, by defendant, from judgment of O. P. No. 2, Philadelphia Co., Dec. T., 1913, No. 1514, on verdict for plaintiff in case of Joseph Cappuccio by his father and next friend, Antonio Cappuccio, and Antonio Cappuccio in his own right, v. Fayette R. Plumb.</p> <p>Trespass to recover damages for personal injuries. Before Staples, P. J., specially presiding.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $500. Defendant appealed.</p> <p>Error assigned was in refusing to enter judgment for defendant n. o. v.</p> <p>The defendant is not seeking a new trial; it is satisfied with the judgment if the case should have gone to the jury at all. The defendant asks for a reversal of the judgment and for the entry of judgment in its favor.</p> <p>The defendant was not negligent in failing to “properly guard” the circular saw, as required by the Act of May 2, 1905, P. L. 352, Section 11. No evidence was offered that the guard was improper, or that any other kind of a guard was known or was practicable. On the other hand, the evidence showed that the saw was as completely guarded as it could be, consistent with its operation, which the Supreme Court has held is all that is required: Wagner v. Standard Sanitary Mfg. Co., 244 Pa. 310; Shannon v. Carnegie Steel Co., 244 Pa. 346 ; Matlack v. Plumb Inc., 245 Pa. 150.</p> <p>The defendant company was not negligent in its alleged failure to instruct the plaintiff not to attempt to remove clogged wedges from the chute with his hands: Eisenberg v. Fraim, 215 Pa. 570; Long v. Folwell, 228 Pa. 314; Vant v. Roelofs, 217 Pa. 535; Smith v. Brown, 229 Pa. 147.</p> <p>There was no allegation in the statement of claim that the defendant was negligent in failing to give the plaintiff proper instructions. The negligence proved must be the negligence alleged. Recovery cannot be allowed on a ground of negligence not declared on in the statement of claim: McLean v. Schoenhut Co., 225 Pa. 100; Rodell v. Adams, 231 Pa. 284; Clark v. Garrison Foundry Co., 219 Pa. 426.</p> <p>The plaintiff was plainly and clearly guilty of the most, flagrant contributory negligence. He voluntarily took a risk which was apparent and obvious and which he knew to exist: Kirchner v. Oil City St. Ry. Co., 210 Pa. 45; Nagle v. Allegheny Valley R. R. Co., 88 Pa. 35; Devine v. Simons, 235 Pa. 336; Eisenberg v. Fraim, 215 Pa. 570; Long v. Folwell, 228 Pa. 314.</p> <p>The machine was not properly guarded: McCoy v. Wolf, 235 Pa. 571; Schæfer v. Consolidated Ice Co., 238 Pa. 367; Kelliher v. Brown & Co., 242 Pa. 499; Wagner v. Standard Sanitary Mfg. Co., 244 Pa. 310; Shannon v. Carnegie Steel Co., 244 Pa. 346.</p> <p>Where at the trial of a cause, evidence is admitted at variance with the statement of claim, and the defendant does not plead surprise nor ask for a continuance, he cannot take advantage of the variance after a verdict against him: Kirchner v. Smith, 207 Pa. 431; Elder Twp. Dist. v. Penna. R. R. Co., 26 Pa. Superior Ct. 112; Finkelstein v. Spatt, 50 Pa. Superior Ct. 293; Shaffer v. Bahr, 57 Pa. Superior Ct. 48.</p> <p>The question of contributory negligence was for the jury: Cramer v. Aluminum Co., 239 Pa. 120; Fortney v. Breon, 245 Pa. 47; Lodge v. Pittsburgh & Lake Erie R. R. Co., 243 Pa. 10; Mulligan v. Homestead Borough, 243 Pa. 361.</p>

<p>Insurance — Ewe insurance — Statement as to loss — Waiver.</p> <p>Where a policy of fire insurance provides that in case of fire, the insured shall give immediate notice of the fire to the company, and within sixty days furnish a sworn statement as to the time and origin of the fire, the cash value of the property, and as to the ownership, encumbrances, other insurance, and occupancy of the building, and the insured after a fire gives immediate notice of the fire, but' leaves the State without furnishing the statement, and, absents himself for months, he cannot recover on the policy, although there was a total loss, and the adjuster went to the premises, but made no adjustment because of tbe failure to find the insured and secure from him essential information relating to the property. ;</p>

<p>Taxation — Municipalities—Tax on gas companies — Constitutional law — Acts of May 28,1889, P. L. 287, and May 16,1901, P. L. 228.</p> <p>Under the Act of May 23, 1889, P. L. 287, as amended by the Act of May 16, 1901, P. L. 228, giving to cities of the third class the right “to levy and collect a license tax not exceeding one hundred dollars each annually on all contractors, bankers, brokers, ■ merchants of all kinds, grocers, confectioners, butchers, furniture dealers, jewelers, express companies, telegraph, telephone, steam-heating, gas, water, light and power companies,” a city of the third class has the right for general revenue purposes to enact by ordinance that “all gas companies or individuals furnishing light or heat thereby shall pay annually a license tax of one hundred dollars.”</p> <p>In a proceeding to enforce such an ordinance it is not error to exclude testimony tending to establish matters which, however pertinent in an inquiry as to the reasonableness of an attempted exercise of the police power, have no legitimate place in the determination of the validity of a tax.</p> <p>Such an ordinance does not contravene Article XI, Section 1, of the Constitution, relating to the uniformity of taxation because it assesses and levies a tax upon all gas companies doing business within the limits of the municipality without regard to the quantity of business done by each. Williamsport v. Wenner, 172 Pa. 173, distinguished.</p> <p>A gas company which manufactures its product within the limits of Pennsylvania and sells its entire product within the same limits to a railroad company and a sleeping car company for lighting cars, is not engaged in interstate commerce, although the cars themselves are operated in interstate traffic.</p>

Appeal, No. 104, October T., 1914, by defendant, from decree of .0. P. McKean Co., December T., 1910, on bill in equity in case of Augustus, W. Newell, et al., v. W. R. Case & Sons Cutlery Company. Bill in equity for an injunction. Before Bouton, P. J. From tbe record it appeared tbat the bill was filed to compel the defendants to remove a fence and other obstructions from a portion of Howard street north of State street in the City of Bradford.

Appeal, No. 248, October T., 1914,: by defendants, from order of O. P. Clearfield Co., September T., 1912, No. 212, refusing to strike off judgment in case of E. A. Hoyt v. D. J. Carson and John Carson, trading as D. J. Carson & Son. Rule to strike off judgment. Before Smith, P. J. The facts are stated in the opinion of the Superior Court.

Appeal, No. 247, October T., 1914, by plaintiffs, from judgment of C. P. Blair Co., March T., 1911, No. 181, for defendants on case tried by the court without a jury in suit of Josiah C. Stoddard and Douglass Stuart, Receivers of the Washington National Building and Loan Association, v. Charles M. Thomas and Nora B. Thomas. Scire facias sur mortgage. •The case was tried by Baldrige, P. J., without a jury under the Act of April 22,1874. .

<p>School law — School directors — Treasurer—Secretary—Division of compensation among directors — Equity—Findings of fact. ....</p> <p>■ Where a practice has existed during a period of years in a school hoard by which the salaried offices of treasurer and secretary were held in rotation by all of the directors, and the incumbents of such offices regularly divided their compensation among all the directors, a taxpayer has a standing in equity to enjoin the directors from the continuance of such a practice.</p> <p>Where in such a case the court below finds as a fact that the payments made by the two officers were purely voluntary, without any prearrangement or antecedent bargain or understanding among the parties, and such finding is based upon sufficient evidence, the appellate court will not reverse the finding, and decree an accounting in favor of the school district as to the funds distributed.</p>

<p>Contracts — Performance—Parol evidence — Affidavit of defense.</p> <p>In an action to recover tbe price of certain machinery delivered f: o. b.'cars at New. York in accordance with a written agreement, an affidavit of defense is sufficient which avers that defendant was induced to sign the written contract by an agreement on the part of the plaintiff’s agent to have the machinery set up on the defendant’s premises and put in satisfactory order before the price should be demanded, and further avers such facts as would warrant the inference that plaintiff’s agent intending to deceive and defraud had designedly omitted from the written contract the portion of the agreement relating to the setting up of the machinery, and then-induced the defendant who relied on the agent reading the contract to him, to believe the written contract exhibited the true agreement.</p>

<p>Appeal, No. 21, October T., 1914!, by plaintiffs, from judgment of C. P. Lancaster Go., September T., 1912, No. 7, on verdict for defendants in case of Daniel Buckwalter and H. S. Over v. The President and Managers of the Láncaster and Lititz Turnpike Road Company.</p> <p>Trespass to recover damages for injuries to land. Before Landis, P. J.</p> <p>At the trial the court gave binding instructions for defendant.</p> <p>Verdict and judgment for defendant. Plaintiffs appealed.</p> <p>Error assigned was in giving binding instructions for defendant.</p> <p>cited: Lancaster Ave. Improvement Co. v. Rhoads, 116 Pa. 377; Penna., Etc., Canal Co. v. Graham, 63 Pa. 290; Chestnut Hill, Etc., Turnpike Road Co. v. Piper, 77 Pa. 432.</p> <p>cited: Pinkerton v. Penna. Traction Co., 193 Pa. 231; Minnich v. Lancaster, Etc., Electric Ry. Co., 203 Pa. 632.</p>

Appeal, No. 228, October T., 1913, by defendant, from judgment of C. P. Bradford Co., December T., 1911, No. 39, on verdict for plaintiff in case of Coryl Herrington v. George R. Hill. Trespass to recover damages for personal injuries. Before Maxwell, P. J. The facts of the case are stated in the opinion of the Superior Court. When John A. Hill was on the stand he was asked this question: Q. John, you are the son of the defendant, George R. Hill? A. Yes, sir.

Appeal, No. 26, October T., 1914, by plaintiff, from judgment of C. P. Chester Co., August T., 1911, No. 31, for deféndant n. o. v. in case of Sarah A. Campbell v. Brandywine Summit Kaolin and Feldspar Company. Trespass to recover damages for injuries to land caused by a fire alleged to have been negligently started by defendants workmen. Before Butler, J. The opinion of the Superior Court states the facts.

Appeal, No. 93, October T., 1914, by plaintiff, from order of Q. S. Delaware Co., March Sessions, 1913, 102, quashing summary conviction in case of Haverford Township v. David Wilfong. Appeal from summary conviction. Before Broom-all, J. The case turned upon the validity of the ordinance quoted in the opinion of the Superior Court. Error assigned was the order quashing the conviction.

Appeal, No. 250, October T., 1914, by defendant, from judgment of C. P. Chester Co., January T., 1913, No. 11,,for plaintiff non obstante veredicto in case of Catasauqua National Bank v. Amos E. Miller. Assumpsit on a promissory note. Before Broom-all, J. At the trial the jury returned a verdict for defendant. Subsequently the court entered judgment for plaintiff for $843.02, non obstante veredicto.

Appeal, No. 112, October T., 1914, by plaintiff, from order of C. P. Delaware Co., March T., 1913, No. 193, making absolute rule to strike off judgment in case of Eva G. Dalton v. Philip S. Willingmyre. Rule to strike off judgment. Before Bromall, J. From the’ record it appeared that .judgment was entered under a warrant of attorney contained in a lease of chattels, the material provisions of which are quoted in the opinion of the Superior Court.

Appeal, No. 150, October T., 1914, by defendant, from judgment of Q. S. Philadelphia Co., January Sessions, 1914, No. 880, on verdict of guilty in case of- Commonwealth, v. William K. Hos-kins. Indictment for voluntary and involuntary manslaughter. Before Sulzberger, P. J. The opinion of the Superior Court states the case.

Appeal, No. 155, Oct. T., 1914, by defendant, from judgment of C. P. No. 1, Philadelphia Co., June T., 1912, No. 856, on verdict for plaintiff in case of Higdon P. Hall v. The Pennsylvania Railroad Company. Assumpsit to recover for the loss of two horses. Before Kinsey, J. The facts are stated in the opinion of the Superior Court. . '• Verdict and judgment for plaintiff for $252.25. Defendant appealed.

Appeal, No. 190, Oct. T., 1914, by plaintiff, from order of Q. P. No. 1, Philadelphia Co., June T., 1914, No. 97, quashing foreign attachment in case of Prank J. Willoughby v. Emma A. Barrett and Randolph. Barrett, defendant, and Farmers’ and Mechanics’ National Bank, Garnishee. Foreign attachment. The facts are stated in the opinion of the Superior Court. Error assigned was order quashing the writ.

<p>Appeal, No. 208, Oct. T., 1914, by defendant, from judgment pf C. P. May T., 1914, No. 146, on verdict for plaintiff in case of Alexander Torak v. Philadelphia & Reading Railway Company.</p> <p>Trespass for wrongful ejection from a train. Before Mellon, J.</p> <p>“Previous to the jury being sworn, counsel for the defendant addressed the court as follows:</p> <p>“Mr. Mason: I object to the jury being sworn in the present case and the trial proceeded with for the reason that the case is not at issue as no plea has been filed; a plea of “Not Guilty” having been tendered to the clerk of the Municipal Court and the clerk refusing to accept the same, the plea is now tendered for filing to bring the case at issue properly.</p> <p>“The Court: The plea tendered is refused.</p> <p>“Mr. Mason: Will your honor grant me an exception to that? Exception. (1)</p> <p>Plaintiff was asked the question:</p> <p>“Q. Sow many times did Dr. Goldfetter see you? Objected to by counsel for the defendant. Objection overruled. Exception. (2)</p> <p>“A. About two or three times.”</p> <p>“Plaintiff rests.</p> <p>“Counsel for defendant asks permission to make his speech at this time.”</p> <p>(Permission refused.)</p> <p>Exception noted for defendant by direction of the court. (3)</p> <p>“4. In rendering a verdict for plaintiff, you will award him the amount of the fare to which he was entitled to be carried, and the additional amount he was compelled to pay from Reading to Royersford, damages for the loss of time occasioned by the delay, and any other pecuniary loss caused to his person or health; and a substantial amount as compensation for the indignity, humiliation, , wounded pride and mental suffering involved under and resulting from such wrongful expulsion.</p> <p>“The Court: If this company was negligent and brought about the alleged things, such as taking the money and loss of time, then you will be justified in rendering against them a verdict; but as to the question of a. substantial amount, that is for you to decide, and this whole point depends on the proof that the defendant company alone was negligent and that Torak was not negligent at all.</p> <p>“Mr. Mason: I object to the affirmance of the plaintiff’s fourth point as qualified.</p> <p>“The Court: I will grant you an exception to that;” (4)</p> <p>“Mr. Mason: I ask also for a general exception to the charge.</p> <p>“The Court: That is refused, and I will grant you an exception to that.” (5)</p> <p>Verdict for plaintiff for $300 upon which judgment was entered. Defendant appealed.</p> <p>Errors assigned were (1-5) various rulings as above and (6) in permitting judgment to be entered in the full amount of the verdict after having directed that it should be reduced to $150.</p>

<p>Negligence — Municipalities—Sidewalk—Depression in sidewalk.</p> <p>Where a woman steps into a depression in the sidewalk of a city street during a dark night and in a locality with which she is not. familiar, and is injured, she may recover damages from the city by proof, that she fell at a point where a driveway to a garage crossed the sidewalk; that the difference in the levels of the sidewalk and driveway, was between three and four inches, and that there was no ordinance regulating the construction of. such a driveway.</p>

<p>Appeal, No. 272, Oct. T., 1913, by plaintiff, from judgment of C. P. Northampton Co., April T., 1912, No. 70, on verdict for plaintiff in case of Fruit' Dispatch Company v. Horace L. Magee, et ál., trading as Magee Brothers.</p> <p>Assumpsit for goods sold and delivered. Before Stewart, P. .'J.</p> <p>The court charged in part as follows:</p> <p>■ The action that you are .now trying is one brought by the Fruit Dispatch Company against the firm of Magee Bros. The suit is brought, in the first instance, to recover a bill for some cocoanuts and some bananas which were sold by the plaintiff to Magee Bros., and the date of that transaction is December 5th. The amount of the transaction is $199.87. There is no dispute about either date, December 5th, or the amount, $199.87, of that first transaction between these parties. But Magee Bros, had another transaction, and there is where the dispute comes in; and the defendants, the Magee Bros., now claim that by reason of the failure of the plaintiffs to fulfill their contract which took place on the 15th of December, that is, ten days after the one that I have first spoken of, they suffered damages.</p> <p>Now, it is undisputed in this case, from any point of view, as the court understands it, that there was some conversation, either over the ’phone, or by word of mouth, or in both ways, between Mr. Magee and Mr. Gallagher. There is no dispute about that. Mr. Magee, as the court remembers it, says that he called Mr. Gallagher up, had a conversation with him about the purchase of 500 bunches of bananas, and when he went to Philadelphia, at a place which he indicates and identifies, on the steps of the auction room, at an hour which he remembers, which was, as the coiirt remembers it, at a quarter of one, he would have you believe that he made a definite contract for these 500 bunches of bananas which were to be delivered to Mr. Magee to have them here on Saturday, and he has given you the reason why he wanted them — for his Christmas, trade.</p> <p>. Now, he says, that that was a verbal contract entered into between him and Mr. Gallagher acting for the plaintiff ;. and his position is that that is all there was in the matter; that it was begun and ended — it was a finished transaction. Now, are you satisfied, from all the evidence in the case, that that was the way this, matter, took place between the parties; because, if that was so, then the fruit company never delivered the goods, the bananas, to Mr. Magee at the time he stipulated, and I say to you, as a matter of law, that their defense that the weather was too cold is not a good defense. Impossibility of performance is not a defense. A man who enters into a bargain where the delivery depends upon weather conditions must be held to know that there are likely to be changes, and if he wants to relieve himself from the performance of his contract it is very easy to say so — very easy to put it in writing that he shall not be compelled to ship the bananas if the weather is too cold and the weather is going to destroy them. Nor do I find anything in these conditions which I have read over of these changes; because as I read these conditions, if the conditions are applicable, if they had shipped these bananas and they had frozen it would have been at the loss of the Magees. So I say to you, gentlemen of the jury, that that is not a defense, and so charge you as a matter of law. And when the court charges you as to what the law is, it is to be expected that you will take what the court says as being the law upon that subject. When it comes to matters of evidence, it is your recollection which is to govern and you are the judges of matters of fact, not my statements as to recollection of facts, but your recollection governs. In matters of law, you are expected to take the law as the court lays it down.</p> <p>[But, the plaintiff, the fruit company, in answer to .this claim, puts in another defense; and they say that Mr. Gallagher is not such an agent as would be entitled to make any contract, and that all contracts, as the court understands it, are subject, in the first place, to this paper which is marked Exhibit No. 1, and the significant words of that paper are, after acknowledging the receipt of a telephone order, “this memorandum is merely an acknowledgment and not an acceptance of your order .which is to be accepted only by shipment and upon and subject to the terms printed on the back hereof.” If you should find that that contract was entered into, as I said before, between Magee and Gallagher, and nothing was said about sending any memorandum, such as this is, they couldn’t send that memorandum to Magee and make it a part of the contract unless the Magees had bound themselves by something, either in writing or by a course of dealing, which would make a memorandum, such as this, a part of the contract. Therefore, it becomes important for you to consider whether they did so bind themselves.] . (2)</p> <p>It appears that some timé in March, 1909, on the 15th, that the Magees had signed this yellow paper, which is marked Exhibit No. 6, in the presence of Mr. Arnold, who lives in the Third Ward of the City of Easton, who happened to be in their room, and in the presence of Mr. Gallagher, and their names appear here as witnesses, That receipt refers to this book, and by the terms of this book the same wording that you find upon the back of the memorandum is made part of any contract which may be entered into at that time or in the future between the plaintiff and the defendant in this case.</p> <p>Now, it also appears, according, to the testimony of Mr. Magee, and according to the exhibit, which is No. 4, I think, that about a year afterwards, on May 1Ó, 1910, the Magees sent back this book, and substantially, as it appears from the contents of- the letter, said: “We return your code. We do not see any advantage in using the code at all, as you have never put any price in the telegram.” If they sent that back to the fruit company, and the fruit company received it, and there is a presumption of law if it was mailed to them and properly addressed they got it, then the Magees would not be bound by that code and by the conditions which are contained in the book, because it would be the duty of the fruit company if they intended to bind them to call their attention to the fact that they were sending back that which was a. part of the original contract. There is no evidence that there was any action of that kind taken by the Fruit Dispatch Company. But they say that irrespective of that the whole course of dealing, every one of their transactions, whether by ’phone or verbal, every single one of them, was subject to confirmation by memoranda that are similar to this one, and that the Magees knew that the only acceptance of the order would be by shipment; that is to say, until the fruit company actually shipped the goods, sent the goods on the car, that there was no order binding between the parties. If you believe there was such a course of dealing, that the Ma-gees knew or ought to know that every order that they placed with them would be subject to this condition and that there would be no contract until there was a shipment, then it would be your duty to find that the plaintiffs had sustained their claim in answer to the cláim for set-off.</p> <p>. Verdict and judgment for plaintiff for $61.64. Plaintiff appealed.</p> <p>Errors assigned were in refusing binding instructions for plaintiff and portion of charge as above quoting it.</p>

Appeal, No. 18, Oct. T., 1914, by plaintiffs, from order of C. P. Monroe Co., Sept. T., 1911, No. 31, discharging rule for judgment for… Held: that these words do not amount to a covenant by the grantor, that W., his father, was seized of an indefeasible estate in fee simple, and that the said estate was vested in him; but amounted to no moré thán a recital, and a continuation of the description of the land intended to be granted, more especially when that deed containéd a…

<p>Deeds — Revocation—Trusts and trustees — Resulting trust — Hus~band and wife.</p> <p>The evidence to establish a resulting trust must be clear, precise, convincing and satisfactory. It is not enough that it satisfies the jury. It must- also satisfy the mind and conscience of the court as a chancellor sitting and reviewing the testimony and if the evidence fails to satisfy in this respect, the evidence must be withdrawn from the jury.</p> <p>In-a'proceeding'by a purchaser of real estate at a sheriff’s sale to recover possession Under the Act of April 20, 1905,'P. L. 239, the person in possession who was the husband of the defendant in the execution, prayed-, a jury trial, and- at the trial testified that -the property had been bought with his own money, but that he was induced by the nagging, of his wife to put the property in her name so “that she should have a home if anything should happen to him,” •and that they might, as they thought, evade the payment of the collateral inheritance tax. He offered no testimony however, to show any understanding that the deed should not convey the absolute title to the wife, or that there were any conditions or trust imposed upon her in the title acquired by her. It appeared that the deed was delivered to the husband and that he retained it until his wife deserted him and took it, with her. It also appeared that he had put the deed on record. Held, (1) that the evidence was insufficient to sustain a resulting trust in favor of the husband; (2) that the husband after having secured a jury trial could not, after decision adverse to him, claim that he was not compelled to submit to a trial under the act.</p>

<p>Appeal, No. 96, October T., 1914, by defendant, from order of C. P. Schuylkill Co., January T., 1914, No. 13, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Blue Valley Creamery Co. v. W. J. Zimmerman.</p> <p>Assumpsit for goods sold and delivered.</p> <p>Plaintiff’s statement was as follows:</p> <p>The Blue Valley Creamery Company, a corporation duly incorporated under the laws of Illinois, plaintiff above named, brings this suit against Wallace J. Zimmerman of the Borough of Tamaqua, Schuylkill County, Pennsylvania, defendant above named, to recover from the said Wallace J. Zimmerman the sum of nine hundred and sixteen dollars and ninety-four cents with interest from the eighth day of May, 1913, and with one dollar added for costs of the probate of their account.</p> <p>The plaintiff avers that the said sum of nine hundred and sixteen dollars and ninety-four cents with interest . as aforesaid, is due and owing by the defendant to the plaintiff for butter sold and delivered by the plaintiff to the defendant, at the request of the defendant, at the time, in the amount, of the kind, and at the prices as set forth in the itemized, probated account of the plaintiff’s claim, together with protest charges upon a certain check given by the defendant to the plaintiff, and which protest charges were paid by said plaintiff on the 13th day of August, 1913. The probated account of the plaintiff’s claim is hereto attached and made part hereof.</p> <p>The plaintiff further avers that no part of the sum for which suit is brought has ever been paid or in any manner settled and that there are no offsets of any kind to which the defendant is entitled. Plaintiff also avers that demand has frequently been made by the plaintiff on the defendant for payment of the said account but the defendant has neglected or refused to pay the same, whereof the plaintiff brings this suit.</p> <p>Exhibit.</p> <p>W. J. Zimmerman,</p> <p>Tamaqua, Pa.</p> <p>Terms cash: All bills due Monday following date of purchase.</p> <p>1913.</p> <p>5 1 30-50 Cr. B. V. I C -1500 at 31i/2c.$472.50</p> <p>8 36-50 Cr. B. V. I C - 1500 at 29i/2c.;‘442.50</p> <p>8 13 protest fees A ,94</p> <p>$916,54</p> <p>. The affidavit of defense was as follows:</p> <p>1. The statement filed.by the plaintiff is insufficient to require the defendant to file an affidavit of defense because (a) it fails to allege that the said plaintiff, being a foreign corporation, incorporated under the State of Illinois, and before doing any business in the Commonwealth of Pennsylvania, complied with the provisions of the Act of Assembly of 1911, P. L. 710.</p> <p>. (b) It fails to set forth that'the said plaintiff before doing business in the Commonwealth of Pennsylvania, appointed, in writing, the secretary of the Commonwealth of Pennsylvania and his successor in office to be. its drue and lawful attorney and authorized agent as required by said act of assembly,</p> <p>(c) It fails to show that the alleged indebtedness which is sought to be recovered in this action was created within a period of six years prior to the date of issuing the summons herein.</p> <p>The said plaintiff failed to comply with the provisions of the Act of Assembly of 1911, P. L. .710, before instituting this action. ■ i</p> <p>, The said plaintiff before December, 1913, was.d'oing business in Pennsylvania and before doing any business ini the Commonwealth of Pennsylvania, failed to appoint, in writing, the secretary of the Commonwealth and' his successor in office to be its true and lawful attorney and authorized agent as required by the Act of Assembly of 1911, P. L. 710, and before it instituted this action. The said deponent is not indebted to the plaintiff in the sum of nine hundred, sixteen and 94-100 dollars for butter sold and delivered him by said plaintiff.</p> <p>The said plaintiff denies the existence of any such corporation as stated herein and states^ :íoí the best of his knowledge.au,d belief wkether there is any incorporation im relation to the subject matter of the action and the name and style of the corporation as alleged. All of which -deponent expects to be able to prove at the trial of this case. ssiuv.?</p> <p>The court. ;made' abMljiítíír^tefitdÉ judgment.for' want of a. sufficient. affidayátrQf'iid^í.tP^- Jattbi&A-; > •</p> <p>Error assigned was the order of the court,</p>

<p>Road law — Change of grade — Abolition of grade crossing — Depression of portion of street — Act of May 26, 1891, P. L. 117.</p> <p>The Act of May 26, 1891, P. L. 117, refers only to the assessment of damages for the opening or widening of a street, and does not refer to a change of grade of the street made subsequently' to the opening.</p> <p>Where a city in order to avoid a railroad grade-crossing depresses only that portion of the street actually opened and used by the public, an abutting owner is entitled to recover damages based only on the actual change in grade necessary for the improvement; and if the city thereafter changes the grade of the remainder of the street, such owner, or the party then having title, may recover additional damages, and the record of the first proceeding cannot be offered to bar such recovery.</p> <p>Road law — Change of grade — Evidence—Verdict.</p> <p>In a proceeding by a property owner against a city to recover damages for a change of grade of a street made to avoid a railroad grade-crossing, it is not error to permit witnesses to testify as to the number of trains which passed at grade over the street immediately before the time of the change of grade.</p> <p>In such a case the court commits no error in refusing to allow testimony offered by the plaintiff as to the vacancies of his houses, and the specific dropping of the rent.</p> <p>Road law — Verdict—Insufficiency of verdict — New trial.</p> <p>The appellate court will not reverse the action of the lower court in refusing to grant a new trial in a change of grade case, merely because the verdict was lower than the lowest estimate of any witness, where there was some evidence as to the cost of readjusting the properties to the changed conditions surrounding them, and the discrepancy in the verdict was not glaring.</p>

<p>Appeal, No. 239, October T., 1914, by defendant, from order of C. P. No. 3, Philadelphia Co., December T., 1911, No. 7239, M. L. D., discharging rule to strike off mechanic’s lien, in case of Pierce, Butler and Pierce Mfg. Co., Inc., v. Calvin W. Rogers, Owner or Reputed Owner and Contractor.-</p> <p>Rule to strike off mechanic’s lien.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was order discharging rule to strike off mechanic’s lien.</p> <p>The claim shows on its face that the claimant was not a contractor within the definition of the status.</p> <p>Even if the claimant had a right to file a claim as a contractor, yet the claim as filed is not self-sustaining and must be stricken off.</p> <p>The claim is filed for an obviously improper amount.</p> <p>The claim does, not exhibit a proper case for apportionment: Gordon v. Norton, 186 Pa. 168.</p> <p>The claim does not set forth the time when the materials were furnished for the house against which this claim is filed: Bradley v. Gaghan, 208 Pa. 511; Knelly v. Horwath, 208 Pa. 487.</p>

<p>. Mechanics’ liens — Subcontractors — Materials furnished — Date of delivery.</p> <p>A mechanic’s lien filed by a materialman who had a written contract with the contractor, will be stricken off as insufficient, where the various articles of material furnished and their price are averred but there is no averment as to the dates of the delivery of several specific articles, other than that “claimant first furnished and delivered the said goods and merchandise and materials on December 13, 1910, and last furnished and delivered said goods and materials and merchandise on October 28, 1911, and continuously from time to time between said dates.” Burrows v. Carson, 244 Pa. 6, followed.</p>

<p>Appeal, No. 241, October T., 1914, by plaintiff, from order of C. P. No. 5, Philadelphia Co., March T., 1912, No. 100, M. L. D., striking off mechanic’s lien in case of Crane Company v. Calvih W. Rogers, George B. Kilpatrick and Josephine L. Kennedy, Owners or Reputed Owners, and Alfred S. Powell, Contractor.</p> <p>Rule to strike off mechanic’s lien.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was order making absolute rule to strike off lien. ... ... ...</p>

<p>Master and servant — Contract not to continue business — Preliminary injunction — Equity.</p> <p>A preliminary injunction will not he granted on a bill in equity filed by an ice company to restrain one of its, drivers from continu? ing in the ice business within certain limits in violation of a written agreement not to do so for a year after the termination of his employment, where the answer sets forth that although no term of employment was fixed in the written contract, the writing was signed with the understanding and agreement made at the time it was executed, that the employment should continue as theretofore, as an employment from year to year, that the defendant had been an employee of the plaintiff for more than seven years prior to signing the writing, and that prior to the expiration of the year he had been improperly discharged, without any proper or reasonable cause therefor. - ■</p>

<p>Constitutional law — Bill of rights — Trial by jury — Police power —Special legislation — Fourteenth Amendment of the Constitution of the United States — Act of July 25, 1918, P. L. 1024 — Employment of female minors.</p> <p>Section 17 of the Act of July 25, 1913, P. L. 1024, does not violate ArticleT, Sections 8 and 9, of the Constitution of Pennsylvania.</p> <p>Sections 3 and 5 of the Act of July 25, 1913, P. L: 1024, do not violate Article III, Section 7, of the Constitution of Pennsylvania, nor the 14th Amendment of the Constitution of the United States.</p> <p>Justice of the peace — Record—Judgment—Employment of fer male labor — Act of July 25,1918, P. L. 1024■■ . •</p> <p>Where a judgment of a justice of the peace for a violation of the Female Employment Act. of July 25, 1913, P. L. 1024, shows on its’ face that a minor female was employed in violation of the act, the judgment will not be reversed because .the record does not show the day, month or year when the act was violated, nor because it does not show the sections of the act violated, nor because it fails to show what the business of the defendant was.</p>

<p>, ■ Insurance — Fire insurance — Reinsurance—Contract — Affidavit of defense. , •.</p> <p>In an action by one fire insurance company against another to recover a fire loss under a contract of reinsurance giving to the defendant the right to cancel “any individual risk for cause,” an affidavit of defense is insufficient which merely avers that the defendant had cancelled the individual risk in question “for cause.” In such a ease the affidavit of defense must set forth the facts from which the defendant drew the conclusion that it was warranted in cancelling the policy for cause.</p>

<p>Equity — Injunction—Remedy at. law — Restraining proceedings at law. • ,</p> <p>Proceedings against a city to recover damages for the opening of a street will not be enjoined at the instance of á third party by' a' suit in' equity, where it appears that' the plaintiff and defendant in the equity suit had an agreement relating to the opening of the street, that plaintiff’s rights depended upon the construction of thé agreement in his favor, and that the respective rights of the parties could be determined either in the proceedings against the city in which the plaintiff had intervened, or by a subsequent action at law by the plaintiff against the defendant after the termination of such proceedings. •</p>

<p>Appeal, No. 265, October T., 1914, by defendant, from judgment of C. P. No. 3, Philadelphia Co., September T.,-1912, No. 5180, on verdict for plaintiff in case of Mary F. Campbell, Executrix of William O. Campbell, to the use of H. S. J. Sickel v. Michael J. Hunt.</p> <p>Assumpsit on a promissory note. Before Ferguson, J.</p> <p>. The note in suit was as follows:</p> <p>“fl,200.00 . June 4th, 1912.</p> <p>“Two months after date I promise to pay to the order of J. P. Mulholland, one thousand two huildred dollars at The Kensington Nat. Bank, Philadelphia.</p> <p>“Without defalcation for valúe received.</p> <p>“With intérest.</p> <p>“M. J. Hunt.</p> <p>“Due August 4.”</p> <p>Endorsed: “J. P. Mulholland. Pay to order National Nassau Bank, Wm. O. Campbell. Pay any National or State Bank or order, Prior endorsements guaranteed, 1 Jul. 22, 1912, 40. The National Nassau Bank of New York, W. Gilbert, Cashier.”</p> <p>At the trial Benjamin Levine testified as to certain facts tending to show that William O. Campbell had knowledge of an infirmity in the note prior to his taking it. Subsequently the court struck out all of his testimony on the ground that he was an incompetent witness having an interest in the subsequent result of the case.</p> <p>Counsel for the defendant again offered to prove by the witness, Benjamin Levine:</p> <p>1. That the witness has no interest in this suit, or in the note in suit.</p> <p>2. That the witness was a partner of J. P. Mulholland in June, 1912, and that the partnership represented the defendant, Hunt, in the purchase of the iron on the demolition of the Hoffman House in New York, and also represented the defendant, Hunt, in the sale of said iron.</p> <p>3. That William O. Campbell was attorney-at-law in New York and witness was a client of his, and that it was through the introduction of witness that Mulholland met Campbell.</p> <p>.."4, That Campbell knew the connection-between the witness and Mulholland and Hunt.</p> <p>5. That witness knew the nature of transaction in which the note in suit was given by Hunt to Mulholland; that it was given to Mulholland to be discounted for Hunt’s benefit only in case certain of the iron purchased from the. Hoffman House should not have been previously sold.</p> <p>6. That in June, 1912, witness called on Campbell in consequence of a request to do so from Hunt, and that at that interview Campbell told witness that Mulholland had offered him (Campbell) $100.00 to discount the note; that the witness then informed Campbell that Mulholland had no right to discount the note, but that if he (Campbell) did take the note, he should send the proceeds or make the check payable directly to Hunt. Witness further told Campbell that the iron had been sold by witness, and there was no further need to discount the note, and the purpose for which it had been given had ceased.</p> <p>7. That Campbell at that time told witness he had not yet discounted the note.</p> <p>8. That as security for the payment of the note, Mulholland had delivered to Campbell two Otis elevators.</p> <p>9. That Campbell later told witness that he (Campbell). had sold these elevators.</p> <p>1-0. That these elevators were of the fair market value of about $2,000 at the time* when they were sold by Campbell.</p> <p>Objection. Objection sustained. (6)</p> <p>The court gave binding instructions for plaintiff.</p> <p>Verdict for plaintiff for $1,328.06 which was after-wards reduced by remittitur to $1,228.70, upon which judgment was entered.</p> <p>Errors assigned were rulings on evidence as above, quoting the bill' of exception and in giving binding instructions for plaintiff.</p> <p>The witness Levine had no such interest as to render him incompetent to testify: Sheetz v. Handbest, 81 Pa. 100; Sturgeon v. Stevens, 186 Pa. 350; Wolf v. Carothers, 3 S. & R. 240; Sommers v. Sommers, 1 Watts 303; Karns v. Tanner, 66 Pa. 297; Horne v. Petty, 192 Pa. 32; Metcalf v. Buck, 36 Pa. Superior Ct. 58; Compton’s Est., 30 Pa. Superior Ct. 605; Shrader v. U. S. Glass Co., 179 Pa. 623.</p> <p>The negotiation of the note from Mulholland to Campbell took place in New York, and under the law of that state the transfer was void: Hyde v. Goodnow, 3 N. Y. 266; Mott v. Wright, 4 Biss. 53; In re Dodge, 9 Ben (U. S.) 480; Orr v. Lacey, 4 McLean 243.</p> <p>A witness interested in the result of the suit against the endorsers upon a note (the maker being dead), was held incompetent: Foster v. Collner, 107 Pa. 305.</p> <p>Usury laws of New York do not apply: Nat. Bldg. Assn. v. Riley, 4 Pa. Dist. 663; Muller v. Tiffany, 1 Wall. 298; Jewell v. Wright, 30 N. Y. 259; Kellogg v. Miller, 13 Fed. Rep. 198.</p>

<p>Corporations — Foreign corporations — Doing business — Registration — Act of June 8,1911, P. L. 710.</p> <p>A foreign corporation may maintain a suit in Pennsylvania although it has not registered under the Act of June 8, 1911, P. L. 710, if it appears that it has no place of business in Pennsylvania, but merely solicits orders through salesmen and delivers the goods thus ordered to a common carrier in the state of its domicile, consigned to the purchaser at his place of business in Pennsylvania.</p>

<p>Appeal, No. 7, February T., 1915, by defendant, from judgment of C. P. Tioga Co., May T., 1914, No. 233, on verdict for plaintiff in case of Dunn-Salmon Company, Incorporated under the laws of New York v. Arthur Edwards.</p>

<p>Insurance — Fire insurance — Cancellation of policy — Evidence— Case for jury.</p> <p>A contract of insurance providing for notice cannot be can-celled without such notice. Where a policy has been delivered by the insured to the local agent at his request and the conditions as to this delivery is disputed as to whether it was so surrendered for cancellation or correction, the treatment of the policy raises a disputed fact which is properly for the jury.</p> <p>In such a case evidence is not admissible as to the endorsements made on the policy by the company after it had received it from its agent, and the action of the company in cancelling it.</p> <p>Practice, C. P. — Trial—Charge—Points.</p> <p>If instructions cover substantially everything that is asked for in points which are refused, it is not necessary for the trial judge to answer the points in detail even though it be conceded that they were correct propositions at law, and applicable to the facts of the case.</p>

<p>Landlord and tenant — Lease by executor — Power of sale — Written authority.</p> <p>A mere power of sale in a will does not give the executor power to lease real estate specifically devised by the will; if the executor executes a lease for more than three years without written authority from the devisees, the lease is void; and the acceptance of rent from the executor by the devisees will not be considered a ratification of the lease in the absence of a writing to that effect.</p> <p>Practice, C. 'P. — Amendment—Imposition of costs.</p> <p>Where a plaintiff at a trial asks permission to amend his statement, the trial judge in allowing the amendment, may impose as a condition that all the costs he paid by the plaintiff, if it appeared that through fault of the plaintiff there had been considerable delay in bringing the case to trial.</p> <p>Evidence — Cross-examination—Review.</p> <p>It is only in extreme cases where it is plain that the parties objecting to alleged improper cross-examination have been injured, that the appellate courts will reverse on such grounds.</p> <p>Landlord and tenant — Notice to quit — Authority of agent.</p> <p>' Where the evidence is conflicting' as to the authority of an agent to give a notice to quit, the question is for the jury.. .•: ' #</p> <p>Landlord and tenant — Wrongful ejection — Damages.</p> <p>In an action of trespass by a tenant for an alleged wrongful ejection, if the record shows that the plaintiff had continued in possession until March 30, 1912, the court cannot be convicted of error in limiting recovery to the time subsequent to that date.</p>

<p>Appeal, No. 23, March T., 1915, by . plaintiff, from judgment of C. P. Luzerne Co;, Feb. T., 1913, No. 286, on verdict for defendants in case of Marcella Wolongevicz v. Stegmaier Brewing Company and the Susquehanna Brewing Company and Michael Wolongevicz.</p> <p>Feigned issue to determine ownership of money paid into court. Before Boyle, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Errors assigned were in granting the interpleader issue, and in entering judgment on the verdict for the defendants.</p> <p>cited: Blumenthal’s Petition, 125 Pa. 412; Grimm’s Est., 181 Pa. 233; Meehan v. Owens, 196 Pa. 69; Paul v. Kunz, 188 Pa. 504; Barto’s App., 55 Pa. 386; Best v. Smith, 193 Pa. 89; Harlan v. Maglaughlin, 90 Pa. 293; Snyder v. Christ, 39 Pa. 499; Townsend v. Maynard, 45 Pa. 198; Westmoreland B. & L. Assn. v. Thomas, 207 Pa. 513; Savits v. Speck, 21 Pa. Superior Ct. 608.</p>

<p>Wills — Legacy—Legacy payable out of proceeds of land — Time of payment.</p> <p>Where a testator devises a farm to his wife for life and after her death to a son, and gives to a second son a money legacy “to be paid after the decease of my wife, or as soon as the farm is sold, if my wife and son, or either of them shall sell the farm that is here given or bequeathed to them,” the legacy is payable upon the death of the wife, and if the legatee makes no demand for. payment until the death of his brother and the sale of the farm forty years after the death of his mother, he will be barred from recovery by the Act of April 27, 1855, P. L. 369.</p> <p>Decedents> estates — Claims for domestic service — Other services —Presumption of payment.</p> <p>Where a woman makes a claim against the estate of a decedent for unpaid wages and it appears that in addition to rendering domestic services she acted as housekeeper, and clerk, bookkeeper and collector in the decedent’s business, she will not be bound by the legal presumption that her compensation had been regularly paid during the lifetime of the decedent.</p>

<p>Appeal, No. 1, March T., 1915, by defendant, from judgment of C. P. Luzerne Co., May T., 1911, No. 704, on verdict for plaintiff in case of Brown & Gates V. Exeter Machine Works.</p> <p>Assumpsit for drawings and specifications delivered by engineers. Before Garman, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Plaintiff presented the following point:</p> <p>1. “The uncontradicted evidence being that the defendant has retained the drawings and specifications furnished by the plaintiff without any offer to return the same and without protest, defendant is legally liable for the contract price and the verdict must be for the plaintiff.” Answer affirmed.</p> <p>Verdict and judgment for plaintiff for $1,190. Defendant appealed.</p> <p>Error assigned was in giving binding instructions for plaintiff.</p> <p>—The question as to whether separate drawings and specifications for a fifteen- (15) and for a twenty- (20) ton locomotive crane were to be delivered by the plaintiff, was under all the circumstances, a question for the jury.: Miller v. Eichberg, 41 Sup. Ct., 435; Nolt v. Crow, 22 Pa. Superior Ct. 113; Shaw v. Lewistown, Etc., Turnpike Co., 2 P. & W. 454; Crawford v. McKinney, 165 Pa. 605.</p> <p>The receipt of the goods becomes an acceptance if the right of rejection is not exercised within a reasonable time: American Watch Tool Co. v. Mfg. Co., 18 Pa. Superior Ct. 24; Baltimore Brick Co. v. Coyle, 18 Pa. Superior Ct. 186; Dailey v. Green, 15 Pa. 118; Werner Saw Mill v. Ferree, 201 Pa. 405; Krauskopf v. Yarn Finishing Co., 26 Pa. Superior Ct. 506.</p>

Appeal, No. 20, March T., 1915, by plaintiff, from judgment of C. P. Luzerne Co., Oct. T., 1910, No. 84, for defendants on case tried by the court without a jury in suit of Douglass Stuart and Josiah C. Stoddard, Receivers of the Washington National Building and Loan Association of Washington, D. C., v. Theodore Barry.

<p>Appeal, No. 36, March T., 1915, by plaintiff, from judgment of C. P. Lackawanna Co., Nov. T., 1910, No. 97, in case tried by the court without a jury in suit of Washington National Building & Loan Association, et al., Receivers, against Allie Blackman, et al.</p>

<p>Road law — Talcing over township road,s by taxpayer — Townships of first class — Acts of June 12, 1898, P. L. 451, and May 24, 1901, P. L. 297.</p> <p>The Act of May 24, 1901, P. L. 297, which was a supplement to the Township Act of April 28, 1899, P. L. 104, and which expressly provided that the provisions of the Act of June 12, 1893, P. L. 451, relating to the taking over of township roads by taxpayers should apply to townships of the^ first class, was not impliedly repealed by the Acts of June 7, 1901, P. L. 510; May 12, 1911, P. L. 307; June 15, 1911, P. L. 987, or May 23, 1913, P. L. 348, nor was it expressly repealed by the Acts of June 10, 1901, P. L. 637; April 22,1909, P. L. 117, or June 19,1913, P. L. 541.</p> <p>The Acts of June 12, 1893, P. L. 451, and May 24, 1901, P. L. 297, are mandatory. The good faith of the petitioner and the sufficiency of the petition, bond and notice having been established, the entry of a decree directing a contract to be entered into between the petitioner and the commissioners, necessarily follows.</p> <p>Statutes — Acts passed, at the same session — Repeal.</p> <p>Statutes enacted at the same session are to be construed to a certain extent as an entire act and therefore it is said that in order to make a later enactment repeal a former one passed at the same session there must be an express declaration or an absolute inconsistency; i. e., there is in such case probably a stronger presumption against an intention to repeal which is unexpressed, than in the case of statutes passed at different sessions.</p>

<p>Sunday law — Flaying of professional base ball — Act of April 22, 179k, S Sm. L. 177.</p> <p>A professional base ball game conducted in the central part of a large city immediately adjoining a main thoroughfare, is a violation of the Sunday Law of April 22, 1794, 3 Sm. L. 177, although the grounds were separated from the street by a. high and close board fence, and although no charge was made for admission, and there was no actual disorder when the game was stopped.</p>

<p>Appeal, No. 5, March T., 1915, by defendant, from decree of C. P. Lackawanna Co., Nov. T., 1910, No. 240, awarding divorce in case of Emile J. Renard v. Sarah J. Renard.</p> <p>Libel for divorce. Before Edwards, P. J.</p> <p>The facts are stated in the opinion of the Superior Court,</p> <p>Errors assigned were (1) refusal of jury trial and (2) decree of divorce.</p> <p>cited: Buys v. Buys, 56 Pa. Superior Ct. 334; Aikens v. Aikens, 57 Pa. Superior Ct. 424; Welfer v. Welfer, 54 Pa. Superior Ct. 215; Thompson v. Thompson, 59 Pa. Superior Ct. 159.</p>

<p>Appeal, No. 25, March T., 1915, by plaintiff, from judgment of C. P. Montour Co., Jan. T., 1913, No. 10, for defendant n. o. v. in case of Henry Cooper v. Ida R. Cooper, Executrix of William Y. Cooper, deceased.</p> <p>Assumpsit on a promissory note. Before Evans, P. J. The note in suit was as follows:</p> <p>$1,000.00. April 1, 1908.</p> <p>One year after date I promise to pay to the order of Henry Cooper one thousand dollars without defalcation, for value received, with interest at 4 per cent, per annum and further I do hereby authorize and empower any attorney of any court of record of Pennsylvania or elsewhere to appear for and to enter judgment against me for the above sum, with or without declaration, with cost of suit, release of errors and without stay of execution until date of payment aforesaid and with 10 per cent, added for collection fees; and I also waive right of inquisition on any real estate that may be levied upon to collect this note, and do hereby voluntarily condemn the same and authorize the prothonotary to enter upon the fi fa my said voluntary condemnation and I further agree that said estate may be sold on a fi fa and I hereby waive and release of relief from any and all appraisement, or exemption laws of any state now in force or hereafter to be passed.</p> <p>(Signed W. Y. Cooper (L. S.)</p> <p>On back of which note appears:</p> <p>April 1,1909. Ree’d $40.00 interest. March 26,1910. Ree’d $40.00 interest for 1910. April 1, 1912, $40.00 interest. April 1, 1911, $40.00 interest. Henry Cooper.</p> <p>Other facts appear by the opinion of the Superior Court.</p> <p>The jury returned a verdict for plaintiff for $1,162.56. Subsequently the court entered judgment for defendant n. o. v.</p> <p>Error assigned was in entering judgment for defendant n. o. v.</p> <p>The case was for the jury: Reel v. Elder, 62 Pa. 308; Dalmas v. Kemble, 215 Pa. 410; Paige v. Paige, 53 Pa. Superior Ct. 311; Strawbridge v. Hawthorne, 47 Pa. Superior Ct. 647; Batdorf v. Albert, 59 Pa. 59; Russell v. Church, 65 Pa. 9; Shoemaker v. Stiles, 102 Pa. 549; Eshelman’s Est., 143 Pa. 24; Jessop v. Ivory, 172 Pa. 44; Sheaffer v. Sensenig, 182 Pa. 634; Girard F. & Marine Ins. Co. v. Canan, 195 Pa. 589; Spittal v. Allee, 55 Pa. Superior Ct. 636; MacDonald v. Piper, 193 Pa. 312.</p> <p>A receipt in full is prima facie evidence of settlement and cannot be set aside except for weighty reasons, such as fraud, accident or mistake. Which must clearly be made to appear distinctly; if the evidence is evenly balanced the receipt must control: MacDonald, to use, v. Piper, 193 Pa. 312.</p>

<p>Appeal, No. 9, March T., 1915, by defendant, from judgment of C. P. Lackawanna Co., Oct. T., 1911, No. 613, on verdict for plaintiff in case of C. S. Turner, trading as C. S. Turner & Co. v. P. M. Koehler, trading as Koehler & Co.</p> <p>Assumpsit on a promissory note. Before Newcomb, J.</p> <p>The note in suit was as follows:</p> <p>f 717.24. . Scranton, Pa., April 8th, 1911.</p> <p>Three months after date we promise to pay to the order of C. S. Turner & Company, seven hundred and seventeen and 24-100 dollars, at the First National Bank of Scranton, Pa., without defalcation, for value received.</p> <p>Koehler & Co.</p> <p>Endorsed C. S. Turner & Co.</p> <p>At the trial the court admitted in evidence the note in suit. Exception (1).</p> <p>When the plaintiff was on the stand he was asked this question on cross-examination:</p> <p>“Q. What was Mr. Koehler indebted to you for?</p> <p>“Mr. Carey. The question is objected to as not cross-examination and as immaterial.</p> <p>“The Court. I guess the objection is good, isn’t it?</p> <p>“I will sustain the objection. Exception noted for the defendant.” (2)</p> <p>The court charged in part as follows:</p> <p>[“The note being in the possession of the plaintiff the law presumes that it stands for just what it purports to stand, namely, an obligation for that amount of money. The defense that Koehler makes being that there was a total failure of consideration, a total absence of any consideration, the law casts upon him the burden of proof. The burden of proof is upon him to make good by the fair preponderance and fair weight of the evidence that his version of the transaction is true. If the evidence in your judgment is equally balanced as between him on the one side, and the plaintiff, on the other, then your verdict will be for the plaintiff; much more so if the evidence in your judgment balance in favor of plaintiff will the verdict be in his favor. For, aside from the note which so far as it goes supports the plaintiff’s claim, you have the assertion of the defendant, on the one side, and the denial of the plaintiff, on the other, about it; and therefore it will be a pointed question for you to consider whether there is any preponderance of the evidence in favor of the defendant; bearing mind as I have stated to you that the burden of proof is cast by the law upon him.”] (3)</p> <p>[“Then, for the first time, says the plaintiff, he heard the suggestion of a note for double the amount of his claim, and that it came coupled with a request on the part of the defendant, not on his own but on the defendant’s part, that he take the note in that amount and get it discounted, so that he, the defendant, could share in the advantages of the proceeds of the discounted note. So, says the plaintiff, ‘I undertook to do that’ but the effort to discount the note failed and is a matter about which we needn’t waste any time.”] (4)'</p> <p>[“There in substance is the issue between these par- • ties, except this circumstance which I think is worthy of consideration: The note in suit had its origin, or, at least, the consideration therefor originated in three notes aggregating $358.62, which were then held by the plaintiff against the drug company, in which Koehler was considerably, if not chiefly, interested. There is evidence here tending to show that he was largely interested in the drug company, in both the original corporation and its successor, the limited copartnership; I don’t know but there is evidence to show that he was the principal factotum of both enterprises — at all'events, I think it is safe to say it appears that he was considerably interested.”] (5)</p> <p>[“It was in the indebtedness of the drug company to Turner that this present note had its origin. Holding those three notes aggregating $358.62 at the time when the parties met at Wilkes-Barre, the defendant produces the note now in suit already made out in his own handwriting and in double the amount of the claim of $358.62, which he explains in the way I have already detailed. It is undisputed that then and there when he gave the plaintiff this note in suit he. took from him a surrender of the three notes held by him against the drug company. If that was the basis upon which the parties dealt, if that was one of the terms upon which the defendant gave his note now in suit to this plaintiff, to wit, upon the consideration that the evidence of the indebtedness which Turner held against the drug company should be surrendered to him,. that would be a valid consideration for this note and would defeat the defense which the defendant sets up here, because that defense is absence of consideration, that the note was without consideration. If, I say to you, this plaintiff took defendant’s note upon that condition, if the note was given to him upon the condition that he would give up the notes which he held against the drug company, and they were so exacted by this defendant, then he cannot say the present note was without consideration, because in law it would be founded upon a valid consideration and would entitle the plaintiff to recover, namely, to recover the amount of the three notes which he gave the defendant which aggregate the figure I have mentioned.”] (6)</p> <p>Verdict and judgment for plaintiff for $416.54. Defendant appealed.</p> <p>Errors assigned were (1, 2) rulings on evidence quoting the bill of exceptions; (3-6) above instructions quoting them.</p>

<p>Road law — Construction of road — Diversion of water — Injuries to land — Evidence.</p> <p>Where supervisors in good faith and in the exercise' of reasonable discretion, in repairing a road, close artificial water breaks made by previous supervisors, and construct side ditches so as to conduct the surface water falling upon and draining onto the road, to a natural depression toward which the land naturally inclined, a land owner owning the land covered by the depression cannot recover damages from the township for injuries to his property, .if it appears that the work done by the supervisors did not precipitate upon his land a large body of water which did not naturally flow upon it.</p> <p>Where there are no streams and no defined water courses, but the flow is over the surface of a field or fields, a large discretion is vested in supervisors as to the most practicable and efficient method of disposing of it to the end that the roadbed may be protected from washing.</p>

<p>Municipal liens — Notice of intention to file lien — Failure to give notice — Pleadings—Evidence—Act of June k, 1901, P. L. 86k.</p> <p>■ On the trial of a scire facias sur municipal lien, it is reversible error for the court to refuse to permit the defendant to show that he had not been served by the use-plaintiff with notice of an intent to file the lien as provided by Section 9 of the Act of June 4, 1901, P. L. 364, because the defendant had raised no question as to lack of notice in his affidavit of defense, or by demurrer or motion to strike off the lien. The act does not require the notice to be averred in the lien. As to matters not alleged in the lien the defendant is not limited to the defense set forth in his affidavit.</p> <p>In an action by a use-plaintiff to enforce a municipal lien for paving, the defendant may show that the improvement was negligently made, and not completed, and that by such failure to complete the defendant suffered damages.</p> <p>In such a suit the defendant may set off money which the use-plaintiff owed him for stone purchased and delivered.</p>

<p>Divorce — Desertion—Absence of wife from husband’s home.</p> <p>Where in pursuance of an arrangement between a husband and wife prior to marriage, the wife at times absents herself from her husband’s home in order to care for an invalid mother, the husband will not be permitted to regard his wife’s absence as desertion and ground for divorce, unless he gives her due notice that her absence from his home will he treated by him as desertion, and that the arrangement which allowed her to he at her mother’s home will no longer be regarded. A mere refusal by her of a request to return home is not sufficient under the circumstances, unless the husband notifies her that such refusal would be considered by him an act of desertion.</p>

<p>Appeal, No. 4, March T., 1915, by plaintiff, from decree of C. P. Dauphin Co., No. 498, Equity Docket, dismissing bill in equity in suit of Adams Express Company v. City of Harrisburg and Owen M. Copelin.'</p> <p>Bill in equity for an injunction.</p> <p>Demurrer to bill.</p> <p>Bill averred that plaintiff is a joint stock association formed under the laws of the State of New York for the purpose of carrying on the business of express forwarding from, between and to any places of all manner of parcels, goods, &c., and that it is registered in the office of the auditor general in the State of Pennsylvania and authorized to do business within the State and within the territorial limits of the City of Harrisburg, a city of the third class; that plaintiff was the owner of eleven horses used in the City of Harrisburg for hauling its express wagons in the delivery of goods received by plaintiff as an express company and common carrier engaged in the forwarding of goods in both intra and interstate trade, and in the collection of goods to be so forwarded; that said plaintiff as a joint stock association made regular reports to the auditor general of the State of Pennsylvania, and annually pays to the State a capital stock tax, which is a tax upon all the property, including said horses, of plaintiff in the State of Pennsylvania; that in additionally plaintiff pays to the said State a tax upon the gross receipts of its business as an express company; that the horses aforesaid are indispensably necessary for the conduct of the business of plaintiff, and without them plaintiff would have been unable to perform the full requirements of its duties and responsibilities; that in the year 1910 the City of Harrisburg enacted an ordinance laying a tax of nine mills on taxable property in the City of Harrisburg, and that said tax was levied upon the eleven horses aforesaid and the assessment thereon was delivered to the collector of city taxes, which collector of city taxes was about to levy on and sell said horses and other personal property belonging to plaintiff for the purpose of collecting the said tax that amounted to $4.95. The bill prayed that the defendants be enjoined from the collection of said sum of $4.95, or any part thereof, and from levying upon or selling the horses or other property of plaintiff. The defendants demurred that plaintiff upon the face of the bill was not entitled to the relief claimed; that no cause was shown by the bill entitling plaintiff to the relief prayed and that plaintiff is not such an organization as will entitle it to exemption from local taxation.</p> <p>The court sustained the demurrer and dismissed the bill.</p> <p>Error assigned, was decree dismissing the bill.</p> <p>So much of the property of a joint stock association engaged in public service as is indispensable to the performance of its public duties is not subject to local taxation under the Pennsylvania Statutes: People’s Pass. Ry. Co. v. Taylor, 22 Pa. Superior Ct. 156; United States v. American Express Co., 199 Fed. 321; Schuylkill River Bridge v. Frailey, 13 S. & R. 422; Coatesville Gas Co. v. Chester County, 97 Pa. 476; Northampton County v. Pass. Ry., 8 Pa. C. C. R. 442; Scranton v. Scranton Electric Light & Power Co., 8 Pa. C. C. R. 626.</p>

<p>■ Appeals — Assignments of error — Insufficient assignment.</p> <p>An assignment of error which merely avers that “the court erred in entering a decree for complainant,” without setting forth the decree, violates Rule XIY.</p> <p>Deed — Description—Boundaries—Mistake as to quantity of land.</p> <p>Where a purchaser of land who has had an opportunity to see the visible boundaries on the ground, and to measure the property, accepts a deed and takes possession, he cannot thereafter refuse to pay the full amount of the purchase-money because the quantity of the land was less than that he had bargained for.</p>

<p>Appeal, No. 2, April T., 1915, by defendants, from judgment of C. P. Forest Co., May T., 1913, No. 10, on verdict for plaintiff in case of Elmer Walters v. J. F. Proper, et al., trading as Dunn, Landers & Co.</p> <p>Assumpsit on a quantum meruit for services in sorting lumber. Before Porter, P. J., specially presiding.</p> <p>At- the trial it appeared that in October, 1909, plaintiff entered into a contract with the defendants to haul and pile lumber for them for a compensation of one dollar per thousand feet. Subsequently he entered into another agreement with the defendants to sort the lumber which he was hauling and piling. The plaintiff recovered judgment for the amount due for hauling and piling, and subsequently brought the present suit for the sorting. The plaintiff testified that while he was employed in hauling and piling the lumber J. J. Landers, one of the defendants, “asked me how it would be if I would sort that. He said he didn’t want it piled along all together, all lengths, and I asked him what he would give me. He asked me what it was worth and I told him I didn’t know. He asked me if I wouldn’t do it. I said ‘yes’ and he said he would pay me what was right.”</p> <p>J. J. Landers testified that “Mr. Walters was teamster from the mill; the mill is about half a mile from the railroad. He was hauling the lumber to the railroad by contract, and that contract was that he was to haul the lumber and pile it as I should direct at the railroad. And at one time I was going through the yard and he spoke to me about sorting the lumber, that it was quite' a task to pile it as I wanted it done, each time, piled by itself, and thought he ought to have a little extra money for doing the sorting; and I told him that was the only way that we could have it piled there, and that if he would sort it, keep each sort by itself, we would allow him whatever it was worth extra for doing the sorting.” The court refused binding instructions for defendant.</p> <p>. Verdict and judgment for plaintiff for $237.42. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for defendant.</p> <p>The learned court below fell into error in holding that there were two separate and distinct contracts one for hauling and piling and the other for sorting: Logan v. Caffrey, 30 Pa. 196; Buck v. Wilson, et al., 113 Pa. 423; Hill v. Joy, 149 Pa. 243; Raisig v. Graf, 17 Pa. Superior Ct. 509; Rockwell v. Langley, 19 Pa. 502; Sykes v. Gerber, 98 Pa. 179; Schriver v. Eckenrode, 87 Pa. 213.</p> <p>Contracts frequently, when relating to the same subject matter, are severable, and a separate suit can be maintained for a breach of each item, and a recovery in one is no bar to a recovery on the other: Wolf v. Welton, 30 Pa. 202; Crawford & Moyes v. R. F. McKinney, 165 Pa. 605.</p>

<p>Beneficial associations — Death benefits — Beneficiary—Conflict between sister and niece — Evidence—Burden of proof — Case for jury.</p> <p>Ou a feigned issue between a niece and sister of a decedent, to determine the ownership of death benefits accruing from the defendant’s membership in a beneficial association where there is a conflict as to which one was the beneficiary not only as between the two books of the association offered in evidence, but also as between witnesses as to the declarations of the decedent upon the subject, and it appears that the niece was originally named beneficiary, the burden is upon the sister to show a change of beneficiary in her favor. On the conflicting testimony the case is for the jury. In such a case the court may admit in evidence an affidavit sworn to by the sister in answer to the claim of the niece against the society, in which the sister admitted that the original beneficiary was the niece. There is also no error in admitting in evidence the local lodge hook showing the name of the niece as beneficiary.</p> <p>Appeals — Assignments of error — Evidence—Answers to points.</p> <p>An assignment of error to the refusal to admit a paper in evidence will not he considered, where the paper in question is not printed in the paper-hook.</p> <p>An assignment of error to the refusal of a point will not be con1 sidered where the answer of the court is not printed in full.</p>

Appeal, No. 165, April T., 1915, by defendant, from judgment of C. P. Allegheny Co., April T., 1913, No. 1280, on verdict- for plaintiff in case of Sarab M. Jones v. Pennsylvania Company. Trespass to recover damáges for personal injuries. Before Carnahan, J. The circumstances of the accident are stated in the opinion of the Superior Court. Verdict'and judgment for plaintiff for f1,000. Defendant appealed. Error assigned was in refusing binding instructions for defendant.

<p>Appeal, No. 177, April T., 1915, by plaintiff, from judgment of C. P. Allegheny Co., April T., 1913, No. 1280, on verdict for plaintiff in case of Sarah M. Jones v. Pennsylvania Company.</p> <p>Trespass to recover damages for personal injuries. Before Carnahan, J.</p> <p>The opinion of the Superior Court states the case. See also Jones v. Pennsylvania Company, appellant, supra.</p> <p>Error assigned, among others, was in refusing new trial.</p>

<p>Appeal, No. 201, April T., 1915, by Jenner Brewing Company, from order of Q. S. Somerset Co., February Sessions, 1915, No. 70, refusing application for a brewer’s license.</p> <p>Petition for brewer’s license. Before Rtjppel, P. J.</p> <p>Error assigned was order refusing license.</p> <p>cited: Com. v. Johnson, 2 Pa. Superior Ct. 317; Com. v. Junkin, 170 Pa. 194; Garbracht v. Com., 96 Pa. 449; Com. v. Hess, 148 Pa. 98.</p> <p>There was no abuse of discretion in refusing the license: Windberg Brewing Co.’s No. 2’s License, 54 Pa. Superior Ct. 287; Moyer’s App., 8 Pa. Superior Ct. 475; Indian Brewing Co.’s License, 40 Pa. Superior Ct. 72; Indian Brewing Co.’s License, 58 Pa. Superior Ct. 183.</p>

<p>Appeal, No. 2, March T., 1915, by defendants, from order of C. P. Luzerne Co., March T., 1909, No. 503, making absolute rule for judgment for want of a sufficient affidavit of defense in case of John W. Moore, Receiver of the Asphalt Paving Co., of Georgia, v. John P. Schmidt and Joseph L. Dunn, Individually and Co-partners as Schmidt & Dunn and also trading sometimes as the Wilkes Barre Asphalt Company.</p> <p>Assumpsit to recover the price of certain machinery sold and delivered by the receiver to the defendants.</p> <p>The amended statement set forth the record of the Superior Court of Georgia showing the appointment of plaintiff as receiver, and authority to make the sale in question.</p> <p>The amended affidavit of defense after averring delay in the shipment and defects in the machinery further averred as follows:</p> <p>“It was stipulated and agreed in the fourth paragraph of the written contract for the purchase of said asphalt plant and machinery that the title to the same should not vest in the defendants above named until said sale was ratified and confirmed by the Superior Court of Fulton County, Georgia. And the said plaintiff agreed that he would procure an order from the said court confirming and ratifying said sa,le, and thereby vest the title to said property in the defendants. But he has failed and neglected to keep his promise in this respect, although the defendants have already paid the said plaintiff on account of said asphalt plant and machinery the sum of forty-two hundred 'dollars ($4,200). Your deponent, therefore, demands a rescission of the said contract made with the plaintiff as aforesaid for his failure to comply with the contract according to promise and agreement, viz: to secure the confirmation of the same by the Superior Court of Fulton County, Georgia, and declares the willingness of the said defendants to return the said asphalt plant and machinery to the said plaintiff upon the refunding of the defendants the sum of forty-two hundred dollars ($4,200) paid to him as aforesaid.”</p> <p>Error assigned was order making absolute rule for judgment for want of a sufficient affidavit of defense.</p> <p>The authorities are against the right of the court to enforce an order to file a supplemental affidavit of defense: Laird v. Campbell, 8 W. N. C. 134; Hill v. Gaw, 4 Pa. 493.</p> <p>The affidavit of defense was sufficient: Seldin v. Neemes, 43 Pa. 421; Andrews v. Blue Bidge Packing Co., 206 Pa. 370; Hardwick v. Pollock, 15 Pa. C. C. R. 161; Musser v. Stauffer, 178 Pa. 99; Allegheny City v. McCaffrey, 131 Pa. 137; Hutton v. McLaughlin, 1 Pa. Superior Ct. 642; Werner v. Gross, 174 Pa. 622; Lurch v. Lerch Hardware Co. First Natl. Bank, 16 W. N. C. 104; Hunter v. Reilly, 36 Pa. 509; McPherson v. Allegheny Nat. Bank, 96 Pa. 135; Bronson v. Silverman, 77 Pa. 94; Bryson v. The Soldiers’ Home, 168 Pa. 352.</p>

<p>Practice, O. P. — Amendment of statement — Supplemental affidavit of defense.</p> <p>Where the court permits a defective statement to be amended, the defendant should have notice of the amendment, and a copy of the amended statement, and should be given an opportunity to file an additional affidavit of defense if he so desires.</p> <p>It is proper practice for the court in its order allowing the amendment to be filed, to direct that the defendant file a supplemental affidavit'of defense if he so desires, and permitting the plaintiff to move for judgment for want of a sufficient affidavit within a reasonable length of time.</p> <p>In an action for goods sold and delivered, where there is no controversy over the quantity, quality or cost of the material, an affidavit of defense is sufficient which sets forth a complete denial of contractual relationship either by the defendant or any one for him, with the plaintiff.</p>

Appeal, No. 39, March T., 1915, by defendant, from judgment of C. P. Luzerne Co., June T., 1911, No. 181, on verdict for plaintiff in case of Ada Terry v. Delaware, Lackawanna & Western R. R. Company. Trespass to recover damages for death of plaintiff’s husband. > The facts relating to the accident are stated in the opinion of the Superior Court. Verdict and judgment for plaintiff for $1,000. Defendant appealed.

Appeal, No. 26, March T., 1915, by plaintiff, from judgment of Q. S. Lackawanna Co., June T., 1914, No. 6, sustaining appeal from magistrate in case of Scranton City, v. C. C. Rose. Appeal from judgment of magistrate. From the record it appeared that, The Delaware and Hudson Company operates three collieries, viz: the Marvine, Leggett’s Creek, and Yon Storch, which are wholly or in part located in the City of Scranton.

Appeal, No. 24, March T., 1915, by plaintiff, from decree of C. P. Lackawanna Co., June T., 1910, No. 3, dismissing bill in equity in case of Andrew R. Raub v. Lackawanna County, et al. Bill in equity for an injunction. Before O’Neill, J. The facts are stated in the opinion of the Superior Court. Error assigned was decree dismissing the bill. If the grantor cannot mine the coalj he has no dominion or use of it.

Appeal, No. 13, March T., 1915, by defendant, from judgment of C. P. Lackawanna Co., May T., 1911, No. 280, on verdict for plaintiff in case of Andrew Csizik, et al., v. Verhovay Sick Benefit Association. Assumpsit to recover death benefits. Before New-comb, J. At the trial the defendant alleged that the deceased and her husband had made misrepresentations as to her health contrary to the statement in the application that she was healthy.

Appeal, No. 44, March T., 1915, by defendant, from decree of C. E. Lackawanna Co., March T., 1914, No. 790, granting divorce in case of Eliza M. Tobin v. John J. Tobin. Libel for divorce. Before Edwards, P. J: The facts are stated in the opinion of the Superior Court. . Error assigned was decree of the court. .

Appeal, No. 310, Oct. T., 1914, by plaintiff, from order of C. P. Bradford Co., May T., 1914, No. 553, discharging rule for judgment for want of a sufficient affidavit of defense in case of Bradford County v. Estate of J. M. Beardsley, owner or reputed owner. Scire facias sur tax lien. Rule for judgment for want of a sufficient affidavit of defense.

Appeal, No. 159, April T., 1915, by plaintiff, from judgment of C. P. Crawford Co., Sept. T., 1914, No. 38, for defendant n. o. v. in case of Elizabeth Schreiber v. John A. Northam, Executor of Albert Fabel, deceased. Assumpsit for services. Before Prather, P. J. . The facts are stated in the opinion of the Superior Court.

Appeal, No. 55, April T., 1915, by defendant, from order of C. P. Allegheny Co., April T., 1914, No. 486, discharging rule to open judgment in case of A. H. Wanner for use of J. Emmet Nestor v. P. Franczak. Rule to open judgment.

Appeal, No. 99, April T., 1915, by plaintiff, from judgment of C. P. Allegheny Co., Jan. T., 1913, No. 173, on verdict for plaintiff in case of R, W. Friedsam v. Pittsburgh, Harmony, Butler & New Castle Railway Company. Trespass to recover damages for personal, injuries. At the trial the jury returned a verdict for plaintiff for $1,036. On a motion for a new trial, Reid, J., filed the following opinion: This is a motion ex parte plaintiff for a new trial.

Appeal, No. 47, April T., -; 1915, by defendant, from order of C. P. Allegheny Co., April T., 1914, No. 1467, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Caroline S. Carr v. H. W. Johns-Manville Company. Assumpsit for rent. Before MacFarlane, J. Rule for judgment for want of a sufficient affidavit of defense.

<p>Appeal, No. 43, April T., 1915, by defendant, from order of C. P. Allegheny Co., Jan. T., 1910, No. 105, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Elizabeth A. Taylor v. L. M. Allen.</p> <p>Assumpsit on a general warranty. Before Ford, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was order making absolute rule for judgment for want of a sufficient affidavit of defense.</p> <p>The tax liens complained of in this suit were not caused or suffered by the grantor, the defendant, but were existing prior to the inception of his title: Knepper v. Kurtz, 58 Pa. 480.</p> <p>The common clause of warranty does not cover encumbrances : Dobbins v. Brown, 12 Pa. 75; Patton v. McFarlane, 3 P. & W. 419; Stewart v. West, 14 Pa. 336; Scott v. Scott, 70 Pa. 244; Williams v. O’Donnell, 225 Pa. 321.</p> <p>The meaning of the covenant of warranty is not to. be extended by the courts; any extension must be by the legislature: Clark v. McAnulty, 3 S. & R. 363; McGrew v. Harmon, 164 Pa. 115.</p> <p>The taxes were an encumbrance within the meaning of the statute: Lafferty v. Milligan, 165 Pa. 534; Memmert v. McKeen, 112 Pa. 315; Large v. McClain, 4 Sadler 240.</p>

<p>Appeal, No. 58, April T., 1915, by plaintiff, from judgment of C. P. Allegheny Co., Jan. T., 1913, Docket “D” for defendant non obstante veredicto in case of William H. Brant v. J. Albert Hartrick and Lillian Brant Hartrick, Owners or Reputed Owners, and T. O. Reese & Brother, Contractors,</p> <p>Scire facias sur mechanic’s lien. Before Reid, J.</p> <p>The opinion of the Superior Court states the case.</p> <p>At the trial the jury returned a verdict for plaintiff for $19.98. Subsequently the court entered judgment for defendants n. o. v.</p> <p>Error assigned was in entering judgment for defendants n. o. v.</p> <p>cited: Mill Co. v. Greenawalt, 11 Pa. Superior Ct. 157; Burrows v. Carson, 244 Pa. 6; Sumption v. Rogers, 242 Pa. 348; Todd v. Gernert, 223 Pa. 103; Gordon v. Norton, 186 Pa. 168.</p> <p>cited: McFarland v. Schultz, 168 Pa. 634; Chapman v. Faith, 18 Pa. Superior Ct. 578; Breitweisser Lumber Co. v. Wyss-Thalman, 51 Pa. Superior Ct. 83; Crane Co. v. Rogers, 23 D. R. 583; Burrows v. Carson, 244 Pa. 6; Wilson v. Forder, 30 Pa. 129; Schively v. Radell, 227 Pa. 434; Ippolito v. Davidson, 23 D. R. 75; Page v. Carr, 232 Pa. 371; Miller v. Heath, 22 Pa. Superior Ct. 313; Fahnestock v. Speer, 92 Pa. 148; Shields v. Garrett, 5 W. N. C. 120.</p>

<p>Appeal, No. 68; April T, 1915, by defendant, from judgment of Q. S. Allegheny Co., March Sessions, 1913, No. 150, on verdict of guilty in case of Commonwealth v. William A. Coleman.</p> <p>Indictment, for obtaining a promissory note by false pretenses. Before Reid, J.</p> <p>The information was as follows:</p> <p>Commonwealth op Pennsylvania</p> <p>v.</p> <p>W. A. Coleman.</p> <p> County of Allegheny, ss: </p> <p>Before me, the subscriber, a committing magistrate in and for the County of Allegheny, personally came Y. J. Schmitt, who, upon oath duly administered according to law, deposes and says that at Pittsburgh, in the County of Allegheny, on the 24th day of February, A. D. 1913, defendant aforesaid did unlawfully and fraudulently represent to affiant that he ordered a car of “white pine” lumber for the firm of Young and Schmitt of the City of Pittsburgh, Pennsylvania, to be shipped from Cloquet, Minnesota, and that said car of “white pine” lumber was then upon the railroad in transit to said firm of Young and Schmitt to be delivered at Mc-Kees Rocks Yards, and did deliver to affiant a paper purporting to be an original invoice of said car of lumber, and upon the strength of the said representations and delivery of said purporting invoice, affiant did execute and deliver unto the said defendant a promissory note of said firm of Young and Schmitt, payable to the order of The Interstate Lumber Co., of which firm defendant was general manager, payable three (3) months after date from date, in the sum of five hundred and fifty-seven and 15-100 ($557.15) dollars, said note being payment in full of the said supposed shipment of lumber, said note being discounted by defendant at the Real Estate Savings & Trust Company, of the North Side, Pittsburgh, Pa., and subsequently renewed and paid in full by the said firm of Young and Schmitt.' Affiant further states that all said representations were false, malicious and fraudulent, and made for the purpose of deceiving, cheating and defrauding said firm of Young and Schmitt, as said car of lumber had not been ordered for said firm of Young and Schmitt, as represented by said defendant and said purporting invoice was not a true and correct invoice, but was a false and fraudulent one and was used for the sole purpose of misleading and deceiving affiant for the purpose of securing said note and the money procured thereby.</p> <p>Complainant therefore prays and desires that a warrant may issue, and that defendant may be arrested and held to answer this charge of false representation, and further deponent saith not.</p> <p>V. J. Schmitt.</p> <p>Sworn to and subscribed before me, this 24th day of February, A. D. 1913.</p> <p>John A. Martin, Alderman.</p> <p>The indictment following the information incorporated the date February 24,1913, as the date of the transaction.</p> <p>The defendant moved to quash the indictment on the ground of the variance between the date of the note and the date of the transaction as averred in the indictment. The court overruled the motion.</p> <p>At the trial the court refused to pérmit the defendant to show that at the time he secured the note Young & Schmitt were indebted to the Interstate Lumber Company of which company he was an officer, in a sum greater than the value of the note.-</p> <p>Verdict of guilty upon which judgment of sentence was passed. Defendant appealed.</p> <p>Errors assigned were various rulings and instructions and the refusal to quash the indictment.</p> <p>The allegation of a date is material and will be fatal if erroneous: Getty v. Shearer, 20 Pa. 12; Com. v. Miller, 6 Pa. Superior Ct. 35; Myers v. Com., 79 Pa. 308.</p>

Appeal, No. 184, April T., 1915, by plaintiff, from judgment of C. P. Allegheny Co., July T., 1913, No. 418, on verdict for defendant in case of Bridget Brady v. Mary Phillips. Trespass to recover damages for personal injuries resulting from assault and battery.

Appeal, No. 13, Oct. T., 1915, by defendant, from order of Municipal Court Philadelphia Co., Nov. T., 1914, No. 238, on proceedings for support in case of Commonwealth v. James N. Burson. Warrant for desertion and nonsupport. Before v Brown, P. J. The court entered an order upon the defendant to pay his wife sixty dollars per week. Error assigned was the order of the court..

Appeal, No. 203, April T., 1915, by defendant, from decree of C. P. Allegheny Co., July T., 1913, No. 598, on bill in equity in case of Lorenz Wagner v. Wilheimina Wagner. Bill in equity for an injunction. • Prom the record it appeared that the complainant owned a tract of land with a dwelling house thereon erected located in the Nineteenth ward of the City of 'Pittsburgh.

Appeal, No. 101, April T., 1915, by defendant, from judgment of C. P. Lawrence Co., June T., 1912, No. 79, on verdict for plaintiff in case of Zeb. B. Johnson and Mamie Johnson, his wife, v. Mahoning and Shenango Railway and Light Company. Trespass to recover damages for personal injuries. Before Porter, P. J. The circumstances of the accident are stated in the opinion of the Superior Court. Verdict and judgment for Mamie Johnson for $200, and for Zeb. R. Johnson for $100.

Appeal, No. 61, April T., 1915, by Butler, from order of C. P. Butler Co., Sept. T., 1913, No. 10, sustaining exceptions to report of viewers In re Washington Street, Butler Borough. Exceptions to report of viewers. The opinion of the Superior Court states the case.

Appeal, No. 127, April T., 1915, by defendant, from judgment of C. P. Allegheny Co., Nov. T., 1908, No. 603, on verdict for plaintiff in case of Daniel Waldschmidt, et al., v. Glenfield Borough. Trespass for the alleged taking and injury of plaintiff’s property by reason of the grading, paving and improving of Kilbuck street in the Borough of Glenfield. Before Ford, J. The facts are stated in the opinion of the Superior Court. Verdict and judgment for plaintiff for $350.

Appeal, No. 134, April T., 1915, by plaintiff, from order of C. P. Westmoreland Co., May T., 1913, No. 756, refusing to take off nonsuit in case of Conemaugh Brewing Company v. Everett Bennett. Assumpsit for beer sold and delivered. Before McConnell, J. The facts are stated iü the opinion of the Superior Court. The court entered a compulsory nonsuit which it subsequently refused to take off. Error assigned was refusal to take off nonsuit.

Appeal, No. 18, Oct. T., 1915, by William H. Stover, from order of Q. S. Franklin Co., Feb. Sessions, 1915, refusing a liquor license. Petition for retail liquor license. Before Gillin, P. J. The facts are stated in the opinion of the Superior Court. Error assigned was the order of the court refusing license.

<p>Corporations — Transfer of assets from one corporation to another —Debts of old company — Actions—Parties—Fraud.</p> <p>Where a new corporation has been formed, taking over the assets of an older corporation, and a creditor has a claim against the old company, the latter company and not the new company should be sued for tbe claim, and tbe bona tides of tbe sale of the assets to the new company worked out through subsequent proceedings.</p> <p>The mere fact that a corporation disposes of all of its assets to another corporation of similar name will not of itself raise a presumption of fraud. Especially is this true when it appears that the stockholders are not the same, and that all the debts of the old company have been paid, except one, which was not known to exist until two years after the new company had been in business, and that ample assets had come into the old corporation from the conveyance to the new, to meet this debt.</p>

Appeal, No. 181, April T., 1915, by defendant, from judgment of C. P. Allegheny Co., Jan. T., 1913, No. 2779, on verdict for plaintiff in case of Giacomo Blandi v. Narciso Pellegrini. Assumpsit for wine sold and delivered. Before Hay-maker, J. At the trial it appeared that plaintiff was a licensed manufacturer and seller of wines in the State of New York, and that the defendant was a resident of Pittsburgh, Pennsylvania.

Appeal, No. 93, Oct. T., 1915, by Robert B. Elzey, from order of Q. S. Montgomery Co., March T., 1915, No. 13, granting a retail liquor license in the Matter of the Petition of Louis Rein for a Retail Liquor License. Petition for a retail liquor license. The third clause of the petition was as follows: Third.

Appeal, No. 94, Oct. T., 1915, by Robert B. Elzey, from order of Q. S. March T., 1915, No. 95, granting a brewer’s license In re Petition of Froelich Brewing Company. Petition for brewer’s license. The facts appear by the opinion of the Superior Court. ' Error assigned was order granting the license.

<p>Appeal, No. 95, Oct. T., 1915, by Oliver K. Grimley, from order of Q. S. Montgomery Co., March T., 1915, No. 206, granting a liquor license In the Matter of Petition of Thomas A. Brown for a Retail Liquor License.</p> <p>Petition for a retail liquor license.</p> <p>The fourth clause of the petition was as follows:</p> <p>“Fourth. The premises to be licensed by Thomas A. Brown, the applicant, who resides thereon.”</p> <p>After the last day for the filing of the petition Brown presented a petition setting forth that he had been the owner of the property until August 6, 1912, when he executed a deed conveying it to the Adam Scheidt Brew-; ing Company. The facts set forth in the petition showed that this conveyance was virtually a mortgage.</p> <p>The prayer of the petition was.as follows:</p> <p>Your petitioner, therefore, showing to the court, that the legal title to the property is in the Adam Scheidt Brewing Company, whereas in the petition it appears as “Owned by Thomas A. Brown, the applicant, who resides thereon,” respectfully prays that he may have leave to amend his application for license so that paragraph four shall read as follows: “The premises to be licensed are owned by the Adam Scheidt Brewing Company, a corporation located at Norristown, Pa., legal owner with equitable ownership in Thomas A. Brown under agreement.”</p> <p>The court allowed the petition and granted the license.</p> <p>Error assigned was in allowing the amendment and granting the license.</p> <p>It was error to permit the amendment: Sherry’s License, 12 Pa. C. C. R. 129; Donmoyer’s License, 9 Pa. C. C. R. 303; Cramer’s License, 23 Pa. Superior Ct. 596; Forst’s License, 23 Pa. Superior Ct. 600; Kirsch’s License, 16 Pa. Superior Ct. 332; Matthews’ License, 213 Pa. 269.</p> <p>cited: Oberfell’s License, 28 Pa. Superior Ct. 68.</p>

<p>Appeal, No. 96, Oct. T., 1915, by Samuel Bobinson, from order of Q. S. Montgomery Co., March T., 1915, No. 211, granting a retail liquor license In the Matter of Petition Elizabeth S. Lentz.</p> <p>Petition for a retail liquor license.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was in granting the license.</p>

<p>• Ejectment — Mesne profits — Notice of claim — Bes adjudícala.</p> <p>Mesne profits may be claimed in an action of ejectment to the time of trial without any formal averment of a trespass and a continuance of such trespass;, but notice must be given within a reasonable time that such profits will be claimed.</p> <p>An averment by the plaintiff in his statement that he has brought suit for “the recovery of possession of said premises from which he has been so unlawfully dispossessed and ejected, and for the damages by him sustained,” is a sufficient notice to the defendant that damages for mesne profits would be. claimed to the day of-trial; but the mere allegation of such a claim does not estop subsequent proceedings for tbe claim supposed to be involved in such statement, if a doubtful record exists and it can be shown by evidence extrinsic to the record that such claim was not as a fact adjudicated.</p> <p>In án action for mesne profits the verdict and judgment in ejectment are conclusive of the right to recover only from the .time the action was commenced up to the time possession of the property was regained. If the plaintiffs claim beyond the date of the commencement of the action in ejectment, they must prove their title and right of possession.</p>

<p>Appeal, No. 126, April T., 1915, by defendant, from judgment of C. P. Beaver Co., March T., 1909, No. 174, on verdict for plaintiff in casé of Mary D. Parks, Administratrix of the Estate of James I. Parks, deceased, v. Pennsylvania Clay Company.</p> <p>Trespass for mesne profits. Before Holt, P. J.</p> <p>See Parks v. Pennsylvania Clay Company (No. 1), supra.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>When W. A. Park was on the stand he was asked this question:</p> <p>Q. Do you know, Mr. Park,. whether all of the clay that was manufactured by this plant was taken out through this shaft?</p> <p>A. It was.</p> <p>Q. What was this plant called there?</p> <p>A. No. 2 factory.</p> <p>Q. It was also called the upper — ?</p> <p>A. We always designated them as No. 2 and No. 3.</p> <p>Q. That was plant No. 2?</p> <p>A. That was plant No. 2 ;■ and on our books we just simply called it No. 2, in our pay rolls and so forth.</p> <p>Q. Were you connected with the operations of the North Shore Railroad?</p> <p>A. Yes, I was.</p> <p>Q. Did you make up this record here?</p> <p>A. I did.</p> <p>Q. You may give us by refreshing your recollection from that- record the product of that plant, or the amount of clay taken from it and shipped during the period you have testified to?</p> <p>Counsel for the defendant object, because it would not show, by any stretch of the imagination, what was taken out of this 65 acres. So that there be no misunderstanding, the access to this clay land was through the entry here, and it would be impossible to prove the different parts of the mine from which the clay was taken, the amounts and dates.</p> <p>By the Court: Of course, they will have to prove that the clay came from the Park land. We will require them to prove the clay that was taken from the Jámes I. Parks land.</p> <p>By Mr. Hogan: We are entitled to damages whether they took it from this land Or somebody’s else’s land; they took it over the mining facilities there, and they would have to pay mesne profits.</p> <p>The Court: You would have to show what they took out of it over those appliances, and show what that would be worth. '</p> <p>By Mr. Hogan: We can show the whole amount they took out. We are entitled to recover whatever the mesne profits for the use of our mining facilities and appliances ; and in addition to that we can show the actual value of the clay thát they took from the 63 acres and 120 perches; that they use the mine, and abandoned it, and the mine fell in; that the plaintiff has not been and is not able to make a survey; and we think the witness may show all these things.</p> <p>The Court: Your proof would be that you are undertaking to recover the mesne profits for the use of those appliances.. We will permit you to prove what depreciation there was; not for the purpose of enabling you to recover a distinct item, but as having a bearing on the value of the use of the property.</p> <p>By Mr. Hogan: We are seeking to recover the úse value of it.</p> <p>The Court: We will permit you to prove the use valúe, but not by proving the tons of clay that were brought out of the mine. We Avill permit you to-prove what the value of the use of those mining facilities was. I think I will permit you to prove what those appliances were reasonably worth by way of rental for the purpose for which they were used. We will permit you to show what was taken out of this land; and if part of it came from beyond the boundaries of this land, through this land, that may be a matter of defense. I said we would require them to prove what they took out of this land.</p> <p>By Mr. Moorhead: They’re not offering to prove that, they are offering to prove how much was hauled by the railroad.</p> <p>The Court: If the defense can show that there was a hauling not only of clay from this land but clay from other lands, I think we would have to hold that the plaintiff would have to separate the items, and show the value of the clay taken from this land.</p> <p>By Mr. Moorhead: That is the reason I object now.</p> <p>The Court: But until the defense comes in in an effort to show that clay was brought from other land, I think the plaintiffs would be entitled to prove what came out through this shaft. I think, Mr. Moorhead, we will hear the evidence as to the quantity which came out through this shaft; then if it should appear by. counter proofs that the clay came from other sources, the burden would be on the plaintiff to take it and separate it.</p> <p>By Mr. Moorhead: They are offering to prove what was hauled on a railroad, not what came through the mine.</p> <p>The Court: If you haul 100 tons of fire brick from a given location, it is not difficult to estimate the number of tons of clay required to make 100 tons of brick.</p> <p>By Mr. Moorhead: The plaintiff’s proof here is the quantities taken out; and we object to this sort of proof, for the reason that there would be no way to determine whether or not they were hauling brick that were made and stored there, or hauling clay brought in from other sources. We have no record. Mr. Park was running a railroad, and hie may have hauled great quantities of clay and brick. We do not know anything about' thati</p> <p>• The Court: There might be a way of determining the number of tons of clay coming from the mine, and the number of brick made out of it. The objection is overruled.</p> <p>An exception noted and bill sealed to the defendant. (7) ■ ■</p> <p>The court charged in part as follows:</p> <p>[“We say to you that under the facts in this case, as we view them, the declaration of forfeiture which was offered here,' standing alone, is not binding upon the estate of James I. Parks, deceased.”]</p> <p>. [“The claim here is for compensatory damages; that is damages or fair compensation for the .clay mined and taken away by the defendant; and as we have already said, in addition thereto, damages for the use of the shaft and certain fixtures connected with the mine, qnd also a claim which we have omitted heretofore to mention, for damages for letting water accumulate in the mine; and for otherwise permitting the shaft to fall into decay.”] (2)</p> <p>[“So we say to you, gentlemen, that you will dispose of this case, treating the shaft as the property of the estate of James I. Parks, deceased.”] ■ (7)</p> <p>/ Defendant presented these points: .</p> <p>1. Under all the evidence, the verdict must be for the defendant.</p> <p>Answer. That point is reserved. (4)</p> <p>2. Under all. the evidence, the verdict as to the claim for use of the-shaft must be for the defendant.</p> <p>- Answer.- That point is reserved. (5)</p> <p>/ 3. If .the-jury believe from-the evidence that clay had' not been mined, for a long time, over a year, then the verdict as,to. the claim for the shaft must be for-the defendant.</p> <p>> Answer.- :. That- point is reserved. (6) . .</p> <p>Verdict and judgment for plaintiff for $816.. Defendant appealed.</p> <p>. Errors assigned were above instructions and rulings.</p>

<p>Appeal, No. 170, April T., 1915, by plaintiff, from decree of C. P. Allegheny Co., April T., 1911, No. 651, on bill in'equity in case of J. J. McAllister v. Roy McGibbeny, et al.</p> <p>Bill in equity for an accounting.</p> <p>Macfarlane, J., filed tlie following opinion:</p> <p>FINDINGS OF FACT.</p> <p>First. In 19.07 J. H. Fetterman owned certain real estate in this county encumbered by a mortgage for $16,-000 to the Castle Shannon Savings and Trust Company, the. plaintiff being surety on the bond, a second mortgage to the plaintiff for $6,000, both due and payable, and a number of mechanics’ claims, not yet filed of record. An adjustment was made by all of the creditors, except one, and out of the agreements plaintiff claims a right to an account.</p> <p>Second. The defendants, A. G-. Breitweiser Company, George H. Soffel Company, Houston Brothers, William Murray, Jr., Joseph Woodwell Company, Adam J. Bart-hell, Johnson Brothers and Keystone Sand and Supply Company, mechanics claimants, on December 16, 1907, by writing constituted A. G. Breitweiser and Jacob Soffel their attorneys in fact with power to execute releases of liens and to enter into contracts with the Castle Shannon Savings and Trust Company, J. J. McAllister and J. H. Fetterman, “and to do such other things relating to the collection or securing of their respective claims as may be necessary.”</p> <p>Third. The creditors were desirous of avoiding a sheriff’s sale of the property, and after conferences the Castle Shannon Company and McAllister extended the time of payment of their mortgages for two years. Fetterman conveyed the property to Roy McGibbeny, representing the mechanics claimants, and the claimants, except the East. End Mantel and Tile Company, which did not become a party to the arrangement, executed waivers and releases of their right to file liens.</p> <p>, [Fourth. The terms under which McGibbeny took title and the obligations of the parties were all expressed in writings and there was no oral agreement.] (Sixth Assignment-of Error.)</p> <p>Fifth. McGibbeny gave Fetterman a declaration that he took title to collect the rent and to apply them to the payment of taxes, insurance, repairs and interest on the two mortgages or at his option to apply such part as he may deem proper to any mechanics’ liens reduced to judgment, with the right to sell the property, with a right in Fetterman to redeem the property within a year, and on the same day, January 29, 1908, being the day on which McAllister extended his mortgage, McGibbeny, by direction of Breitweiser and Soffel acting for the mechanics claimants, gave McAllister the following writing:</p> <p>“Whereas you have on record waived or extended time of payment of principal interest on $6,000 mortgage of J. H. Fetterman to you, covering 38th ward property, now, I, the said Roy McGibbeny agree, that, as soon as I have the money arising from the rents of the property after payment of interest to-the Castle Shannon Trust Company, taxes, repairs, and expenses, I will, on my part waive the provision in your mortgage extending time of payment of interest and will pay on account from time to time as 1.have the money.”</p> <p>.[This was the consideration for the extension by Mc-Allister. ] (Seventh Assignment of Error.)</p> <p>Sixth. McGibbeny took no further part in - carrying out the agreement but the whole matter was with his consent placed by Breitweiser and Soffel as agents for the mechanics' claimants in the hands of W. H. Lemon, Esq., an attorney-at-law, who received the rents and applied and distributed them, as is hereafter stated.</p> <p>Seventh. The East End Mantel and Tile Company, one of the -lien claimants filed its lien and McAllister, the Breitweiser Company, Soffel Company, Murray and Houston Brothers Company executed Exhibit No. 5, dated January 1,1908, being an agreement between them and Breitweiser and Soffel, trustees, reciting McAllister’s .mortgage and that the other parties of the first part held notes of Fetterman secured by a mortgage to the trustees and stipulating that if the East End Mantel and Tile Company secured final judgment the first parties would pay their proportional part of the same. Later, demand was made upon McAllister for payment of his share which was refused. There is no evidence that demand was made upon the others nor that they were willing to make payment.] (Eighth Assignment of Error.)</p> <p>Eighth. Rents in the sum of $5,068 were received from the property and after the payment of repairs and commissions a balance of $4,145.04 was in the hands of Mr-Lemon, which after the payment of interest on its mortgage to the Castle Shannon Trust Company was, after the sheriff’s sale later mentioned, distributed among, the creditors defendants except a sum sufficient to pay the interest on McAllister’s mortgage.</p> <p>Ninth. No taxes or city assessments were paid and for this failure the Castle Shannon Trust Company issued a scire facias on its mortgage and obtained judgment which was assigned to R. B. Mellon representing McAllister, execution issued and at sheriff’s sale the property sold to Mellon for McAllister for $22,000, distributed : $17,365, with sum interest, in credit on the mortgage; $2,485.15 municipal liens and taxes; and $1,-870.50 on account of McAllister’s mortgage.</p> <p>CONCLUSIONS OF LAW.</p> <p>[First. McGibbeny was not trustee for McAllister, and the.agreement, stated in finding fifth, is only that, when the rents were sufficient, after the payment of the Castle Shannon Company’s interest, taxes, repairs and expenses, McGibbeny would pay McAllister on account of interest on his mortgage. This was, in effect, giving him preference over the mechanics claimants , to that extent. There are no other damages.] Seventeenth Assignment of Error.)</p> <p>Second. There is no jurisdiction on the.ground of a trust or of an accounting. The plaintiff has a definite claim and the defense would be insufficient funds, or plaintiff could recover. Want of jurisdiction is raised .in all of the answers, except that of. Barthell, but, as there is no right of action against him. or the other individual defendants who were creditors, this exception is unimportant. The question was raised at the close of the .plaintiff’s case by motion to dismiss, so that defendants have not submitted to the jurisdiction under the Act of 1907. . The bill stated a case in equity and a demurrer would not prevail, but the case developed into one not cognizable in equity.</p> <p>■ [Third. The bill should be dismissed as .to A. G. •Breitweiser, George W. Soffel Company, Houston Brothers Company, William Murray, Jr., Joseph Wood-well Company, Johnson Brothers and Keystone Sand and Supply Company on the merits and for want of jurisdiction, as to Adam J. Barthell on the merits, and as to the other defendants for want of jurisdiction, all at the costs of the plaintiff.] (First Assignment of Error.)., •</p> <p>On exceptions to account Macfarlane, J., filed the following opinion:</p> <p>The plaintiff claims that McGibbeny, under the agreement found in paragraph fifth, is liable to pay the interest on plaintiff’s mortgage to the time of sheriff’s .sale on December 11, .1909, viz,: $872, the taxes on the property which he allowed to be in default and which were paid by plaintiff when he purchased the property at sheriff’s sale, and the costs of the sheriff’s sale. McGibbeny collected $4,694.94 and he paid interest on the Castle Shannon mortgage, repairs and $125 counsel fee and $5 for appraisement, a total of $2,200.68, which is a proper credit. [Out of the balance of $2,494.26 the interest on McAllister’s mortgage should have been paid, and plaintiff is entitled to a decree against McGibbeny, Soffel and Breitweiser for the payment of the sum of $872.</p> <p>McGibbeny’s agreement with McAllister did not make him liable for anything more. He took the legal title, to the real estate subject to the two mortgages. The.trust company and McAllister extended the time of payment for two years. McGibbeny promised to pay McAllister’s interest as soon as he had the money arising from the rents, the interest on the trust company mortgage, taxes, repairs and expenses to have priority. McGibbeny did not hold the title for McAllister, he was not his trustee, and the only personal obligation he assumed was that if he had the money he would waive McAllister’s extension of time of payment of interest and would pay it.] (Twenty-fifth Assignment of Error.)</p> <p>McGibbeny answered and we find that prior to the filing of the bill he had reserved a sufficient amount to -pay McAllister’s interest. McAllister had demanded his interest and had made no other demand before Mc-Gibbeny made distribution.</p> <p>While we hold that McGibbeny’s obligation to pay the taxes was not to McAllister, his failure to do so, with a consequent addition to the purchase-money at the sheriff’s sale justifies the imposition of costs.</p> <p>Our conclusions are, first, the second exception should be sustained in part, otherwise it and the third exception should be dismissed; second, a decree should be made that McGibbeny, Soffel and Breitweiser pay to the plain-. tiff the sum of $872; and, third, that they should pay the costs.</p> <p>Errors assigned were the decree of the court and the above findings.</p>

<p>Appeal, No. 183, April T., 1915, by James Brown, from order of C. P. Beaver Co., Dec. T., 1914, No. 3, dismissing exceptions to auditor’s report in case of John P. Willock v. Beaver Valley Railroad Company.</p> <p>Exceptions to report of Charles R. Eckert, Esq., auditor.</p> <p>Prom the record it appeared that John P. Willock was the owner of a lot of land fronting on Fifth street in the Borough of Beaver, his title to the fee extending to the center of the street. (See Willock v. Beaver Valley Railroad Company, 222 Pa. 590.) On January 21,1904, a judgment was entered in the Court of Common Pleas of Beaver County against the John P. Willock Estate and in favor of William S. Creese. Following the entry of the judgment, July of 1904, the Beaver Valley Railroad Company built a steam railroad in the center of the street along the' Willock property. On February 5, 1907, John P. Willock brought suit against the Beaver Valley Railroad Company and finally recovered damages in the sum of two thousand twenty-three dollars and fifty cents the damages being allowed because the railroad was partly built upon the fee and was an additional servitude thereon causing a special injury by way' of interference with access to the property.</p> <p>, On September 7,1907, the real estate together with all the other real estate of John P. Willock upon which the judgment of the said William S. Creese was a lien, was sold at sheriff’s sale, and the whole of the purchásemoney applied to liens that were prior to that of the said William S. Creese.</p> <p>. After final judgment, the Beaver Valley Railroad Gompany paid the fund into court, and on distribution thereof, the court through an auditor, Ordered the Creese judgment and a judgment of J; S. Stouffer to be paid out of the fund.</p> <p>.James,Brown the appellant claimed the fund through various assignments from the said John P. Willock.</p> <p>Other facts appear by the opinion of the Superior Court.</p> <p>. Error assigned was order dismissing exceptions to auditor’s report.</p> <p>The judgment creditors were not entitled to the fund: Knoll v. New York, Etc., Ry. Co., 121 Pa., 467; Philadelphia & Reading R. R. Co. v. Schuylkill Valley R. R. Co., 151 Pa. 569.</p> <p>After the sheriff sale the only security left for the payment of Creese’s judgment is the fund arising from the damages coming from the railroad and paid into court. His position is therefore different from one who holds a mortgage or judgment against land damaged by a railroad either, built upon the lot or on the street in front of the lot, claiming damages paid into court when the value of the land, after being, depreciated by the. railroad, is amply sufficient to secure payment of his lien. .</p> <p>If the lien which the law gave him on the entry of the judgment is to be made effectual he must be paid from the. fund: Reese v. Adams, 16 S. & R. 40; Philadelphia & Reading R. R. Co. v. Penna. Schuylkill Valley R. R. Co., 151 Pa. 569; Jackson v. Pittsburgh, 36 Pa. Superior Ct. 274; Mack v. Eastern & Northern R. R. Co., 10 Dist. Rep. 103.</p>

<p>Municipalities — Eminent domain — Condemnation of land for public library — "Municipal buildings” — Acts of March 26, 1908, P, L. 68, and March Uh 1907, P. L. 12.</p> <p>There is nothing in the Acts of March 26, 1903,' P. L. 63, and March 14, 1907, P. L. 12, which gives the right to the City of Philadelphia to take, through condemnation proceedings, a site for public library purposes. The words “municipal buildings” in the Act of 1903, does not cover a public library building.</p>

<p>Deeds — Boundaries—Courses and distances — Monuments on the ground.</p> <p>In an action of ejectment where the deeds from a common owner to the plaintiff’s and defendant’s predecessors in title called for a line described as passing through the centre of a pump, and a subsequent survey showed that the call of the previous line in the deeds would not reach the “line through the centre of a pump,” the position of the pump controls, and if,at the trial it no longer exists, it may be shown that its location was on the line of a fence in existence at the time of the trial, and that such fence was on the “line through the centre of a pump.”</p> <p>The courses and distances in a deed give way to the boundaries found upon the ground, or supplied by proof of their former existence when marks or monuments are gone.</p> <p>In an action of ejectment where a monument, called for in the deeds of both parties, has disappeared and an ambiguity in the courses and distances has been discovered by a subsequent survey, parol evidence is admissible to show that all the owners since the common owner, except the plaintiff, had recognized a fence existing at the time of the trial as controlling the line of their several holdings, and such evidence should be conclusive as .to what was originally intended by the deeds from the common owner.</p> <p>In an action of ejectment where the court has instructed the jury adequately on the law as it covered the facts as presented, the defeated party cannot complain that the trial judge failed to present other matters, if it appears that such party did not present requests for specific instructions as to such matters.</p>

<p>Insurance — Life insurance — Assignment—Fraud.</p> <p>Where a policy of life insurance payable to the insured’s executor, administrator or assigns,-was assigned by the insured to his adopted daughter, and the proceeds thereof paid to the daughter after the death of the insured, the executor of the insured cannot successfully maintain an action against the insurance company to recover the amount of the policy on the ground that the insured was insolvent at the date of the assignment, where there is no evidence whatever that the insurance company had any knowledge of the alleged insolvency, or of any fraud in the assignment.</p>

<p>Appeal, No. 175, Oct. T., 1914, by plaintiff, from decree of C. P. Delaware Co., Dec. T., 1912, No. 116, dismissing bill in equity in case of Delaware County Electric Company v. Colwyn Borough,</p> <p>Bill in equity for an injunction to restrain the defendant from interfering with the erection by the plaintiff of four electric light poles on Fourth street in Colwyn Borough.</p> <p>Broom all, J., filed the following opinion:</p> <p>This case is now ripe for final disposition on bill, answer and proofs. There is no dispute that the plaintiff is possessed of the franchise and municipal consent'to supply light, heat and power to the public in the defendant borough, together with the right to erect and maintain poles and string wires in the highways of the said borough. The municipal consent is evidenced by a borough ordinance approved July 28,1910. It is predicated upon being accepted by the company with an agreement to comply with its requirements and upon filing a bond; all of which were in due course done. The permission in the first section of the ordinance is “to enter upon and occupy and use the streets,......alleys and highways ......for the purpose of constructing, erecting, máintaining and operating wires, cables, poles, appliances, apparatus and services, overhead and underground, for the purpose of furnishing light, heat and power, or any of them, derived from electricity, to the public and to private individuals and corporations, under and subject to the terms and conditions hereinafter named.” The conditions referred to, that relate to this contention are two. The first is to be found in the second section in these words: “The location of all poles shall be subject to the approval of the Highway Committee”; and the second is to be found, in the seventh section in these words: “That the said Delaware County Electric Company......shall annually pay to the said Borough of Colwyn for poles hereafter erected on public highways in said borough and for wires placed on said poles, as a license fee, the sum of one dollar for each pole, and two dollars and fifty cents for each mile of wire,......Provided, however, that if a license be issued for new poles and wires erected between July 1, and December 31 in any year, the license fee for said poles for that year shall be fifty cents and for said wires shali be one dollar and twenty-five cents for each mile or fraction thereof.”</p> <p>The plaintiff assuming that it was necessary to obtain the permission or license of the borough council under the seventh section of the ordinance, applied to council for permission to erect four poles on Fourth street. This the borough council refused to grant, and having announced their intention of resisting the construction by force, this bill has been filed by the plaintiff to restrain such resistance.</p> <p>The ordinance having granted the use of the highways of the borough without limitation to less than the entire system, and provision having been made by the ordinance for the approval of the highway committee as to the location of the poles,, the only power which remained in the council was the exercise of the police power. .The function of the highway committee was a supervision of the particular places where the poles should be located, and of course after they should be licensed or permitted, for how could a pole be located until it was licensed? The borough council in refusing permission was exercising the police power, and the plaintiff in applying for permission recognized the existence of this power. The seventh section of the ordinance refers to this power in providing for a pérmission or license. The power to permit implies the power to refuse. Moreover the grant could not be made except subject to the police power. The particular question involved in this case is, whether the exercise of the police power with reference to a system of streets will admit of the exclusipn of the whole of a street from the occupation by poles. Where there is no restriction on the streets or localities to be occupied, the determination of what streets should be occupied is in the pole company, except possibly so far. as any particular street might be so exceptionally situ-, ated as to take it out of the general rule: Com., ex rel, v. Warwick, 185 Pa. 623. This is in effect that where the consent to the use of the streets is given without.limitation, the donee may use any or all of the streets, but this general rule is not universally applicable, because it is subject to the exercise of the police power, and such exercise may exclude a street exceptionally situated.</p> <p>The franchise of the plaintiff is to furnish electric light to its patrons in the Borough of Colwyn. This franchise is not affected by being required to use one street rather than another in the exercise of the right. The municipal consent to the use of any or all of the streets is in subordination to the authority inherent in the municipality to exercise reasonable regulations: New Castle City v. Telegraph Company, 207 Pa. 371.</p> <p>It is to be presumed that- tbe refusal of the borough council to permit the plaintiff to plant its poles in Fourth street was in good faith and was a proper administration of the police power. The good faith has not been assailed. They proffer the use of a small street or alley called Apple street, running parallel with and about 150 feet eastward from Fourth street. Every intendment should be accorded to the actions of local governments reasonably exercised.</p> <p>It follows that the prayer for an injunction must be refused, and the plaintiff’s bill must be dismissed.</p> <p>Under similar circumstances a similar conclusion was reached by Judge Bailey in Lewistown Borough v. Juniata, Etc., Telegraph Company, 10 Pa. Dist. Reps, 562.</p> <p>The court entered a decree dismissing the bill.</p> <p>Error assigned was decree dismissing the bill.</p> <p>Corporations not requiring municipal consent may be controlled in, but not prevented from, occupying the streets: Frankford, Etc., Ry. Co. v. Philadelphia, 58 Pa. 119; Beaver Valley Water Co. v. Conway Borough, 213 Pa. 225; Philadelphia Steam Heat Co. v. Philadelphia, 15 W. N. C. 57; Commissioners, Etc., of Northern Liberties v. Gas Co., 12 Pa. 318; Philadelphia v. Philadelphia City Pass. Ry. Co., 177 Pa. 379; Springfield Water Co. v. Darby, 199 Pa. 400.</p> <p>Corporations requiring, and with municipal consent, may be controlled but not prevented from occupying the streets: Pittsburgh v. Consolidated Gas Co., 34 Pa. Superior Ct. 374; Kittanning Borough v. Kittanning, Etc., Gas Co., 26 Pa. Superior Ct. 355; Edgewood Borough v. Scott, 29 Pa. Superior Ct. 156; Scranton Gas & Water Co. v. Scranton, 214 Pa. 586; Mountain Water Co. v. Emaus Borough, 43 Pa. Superior Ct. 179.</p> <p>The proposition that the borough may refuse consent, if it does not do it arbitrarily or capriciously can have no application under the police power to a case where the consent has already been given. That rule applies where application for consent is made to the borough, in the first instance: Central Dist., Etc., Tel. Co. v. Homer City Borough, 242 Pa. 597; Mountain Water Co. v. Emaus Borough, 43 Pa. Superior Ct. 179.</p> <p>The provision in the ordinance that “the location of all poles shall be subject to the approval of the highway committee” is lawful and valid: Lewistown Borough v. Juniata & Susquehanna Tel. Co., 10 Dist. Rep. 562; Edgewood Borough v. Scott, 29 Pa. Superior Ct. 156; Newcastle City v. Central Dist., Etc., Tel. Co., 207 Pa. 371; Cochranton Borough v. Cochranton Telephone Co., 41 Pa. Superior Ct. 146.</p> <p>Under the ordinance, the borough, or the highway committee thereof, has the right to refuse a permit to the electric light company to erect its poles on one of the main streets of the borough, where it is as reasonably convenient for the electric light company to locate its poles on an alley running near to, and parallel with the said main street when the said main street is now free of poles and wires and it is the desire of the authorities of said borough and of the residents on said street, to keep said street free of poles and wires: In Lewistown Borough v. Juniata & Susquehanna, &c., Co., 10 District Reports 562; Central Dist., Etc., Co. v. Clairton Boro., 51 Pa. Superior Ct. 649; Chester, Etc., Ry. Co. v. Darby Borough, 217 Pa. 275.</p> <p>Under such an ordinance, the electric light company is not entitled to relief in equity when it has made no application for the approval of the highway committee of the borough, as required by the terms of the ordinance : Chester, Darby, Etc., Ry. Co. v. Darby Borough, 217 Pa. 275; York Tel. Co. v. Keesey, 5 Dist. Rep. 366.</p>

<p>Appeal, No. 19, Oct. T., 1914, by plaintiff, from order of C. P. No. 3, Philadelphia Co., June T., 1911, No. 3706, entering judgment for defendant n. o. v., in case of Marie Boyajian v. Garabed Ohanian.</p> <p>Trespass for slander. Before Ferguson, J.</p> <p>At the trial the jury returned a verdict for plaintiff for $1,000. On a rule for judgment n. o. v. the court in an opinion by Ferguson, J., entered judgment for defendant on the ground of a fatal variance between the statement of claim and the proofs at the trial.</p> <p>Error assigned was in entering judgment for defendant n. o. v.</p> <p>cited: Wills v. Church, 5 S. & R. 190; McConnell v. McCoy, 7 S. & R. 222; Wallace v. Rodgers, 156 Pa. 395; Price v. Conway, 134 Pa. 340; Leitz v. Hohman, 16 Pa. Superior Ct. 276; Brown v. Gilmore, 92 Pa. 40.</p> <p>cited: National Bank v. Lake Erie Asphalt Block Co., 233 Pa. 421; Cooper v. Bruce, 2 Watts 109; Tipton v. Kahle, 3 Watts 90; Johnston v. Tate, 6 Binn. 121; Price v. Conway, 134 Pa. 340; Leitz v. Hohman, 16 Pa. Superior Ct. 276; Lewis v. Hevner, 38 Pa. C. C. R. 559; Naulty v. Bulletin Co., 206 Pa. 128; Goebler v. Wilhelm, 17 Pa. Superior Ct. 432; Good v. Grit Pub. Co., 36 Pa. Superior Ct. 238; McGreary v. Leader Pub. Co., 52 Pa. Superior Ct. 35.</p>

<p>Appeal, No. 99, Oct. T., 1914, by plaintiff, from order of C. P. No. 3, Philadelphia Co., March T., 1912, No. 314, refusing to take off nonsuit in case of Joseph Kleckner v. Hotel Strand.</p> <p>Trespass to recover damages for the loss of a traveling bag. Before Davis, J.</p> <p>The facts are stated in the opinion of the Superior Court.,</p> <p>■ At the trial the court entered a. compulsory nonsuit which it subsequently refused to take off.</p> <p>Error assigned was in refusing to take off nonsuit.</p> <p>The relation Of innkeeper and guest was not necessary to be shown to entitle the plaintiff to recovery: Hofford v. New York Cent., Etc., Co., 43 Pa. Superior Ct. 303.</p> <p>Even if the hotel was not a bailee for hire but merely a gratuitous bailee, its unexplained alleged loss of the bag and its contents raised a question of gross negligence that could not be disposed of by the court as a .matter of law but had to be submitted to the jury: Preston v. Prather, 137 U. S. 604; Baker v. Bailey, 145 Southwestern 532.</p> <p>“In determining whether a bailment is gratuitous or lucrative the inquiry must not be directed to the character or certainty of a benefit or profit to either party; ,but to whether it was accepted for the purpose of deriving the one or the other.' There is always a presumption that the bailment is one ■ for mutual benefit, although the question is always one of fact”: Woodruff v. Painter, 150 Pa. 91; Hunter v. Reed, 12 Pa. Superior Ct. 112; McCollin v. Reed, 16 W. N. C. 287.</p> <p>Where-property is received by the bailee in good, and returned- in bad, condition, or not returned at all, the bailee is presumed to have acted negligently: Logan v. Mathews, 6 Pa. 417; Hoyt v. Clinton Hotel Co., 35 Pa. Superior Ct. 297; Doyle v. Central, Etc., Co., 45 Pa. Superior Ct. 216; Mason v. Thompson, 9 Pick (Mass.) 280; McDaniels v. Robinson, 26 Vt. 316.</p> <p>In Russell v. Fagan, 7 Houst. (Del.) 389 (1886), it was held that a traveler who seeks and obtains Atable and provender for his horse for reward, although he himself lodges elsewhere, is a guest in the legal sense.</p> <p>The relationship of innkeeper and guest did not exist in this case; the appellee was simply the gratuitous bailee of the traveling bag for the accommodation or convenience of the appellant himself: Strauss v. County Hotel & Wine Co., 12 Law Rep. Queen’s Bench Division 27; Grinnell v. Cook, 3 Hill (N. Y.) 485.</p> <p>The relationship being that of gratuitous bailee, it follows that there is no liability on the appellee unless gross negligence or fraud be shown: Hibernia Bldg. Assn. v. McGrath, 154 Pa. 296; Tompkins v. Saltmarsh, 14 S. & R. 275; Hofford v. New York Central, Etc., Ry. Co., 43 Pa. Superior Ct. 303.</p> <p>There was no evidence here of gross negligence or fraud, and the nonsuit was properly entered: Hoyt v. Clinton Hotel Co., 35 Pa. Superior Ct. 297; Hofford v. New York Cent. & Hudson River R. R., 43 Pa. Superior Ct. 303; Farnham v. Camden, Etc., R. R. Co., 55 Pa. 53.</p>

<p>Divorce — Cruel and barbarous treatment — Refusal of intercourse —Nagging—Constructive desertion.</p> <p>Where a husband and wife before marriage entered into a vow of purity, which they understood to be an agreement to abstain from sexual intercourse, and they live together for twelve years without having had intercourse although occupying the same room and the same bed, the husband will not be entitled to a divorce on the ground of cruel and barbarous treatment, because his wife resisted his sexual advances, and his allegation that she kept up a constant nagging such as fault-finding and scolding, but never in the presence of third parties, will not bring the case within the statute.</p>

<p>Justice of the peace — Appeals—Defects in record — Laches— Waiver — Nonsuit.</p> <p>Where the transcript of an appeal froin a justice of the peace bears no certificate of the justice, and the affidavit made by the defendant is not accompanied by the jurat of the justice, the plaintiff cannot after the expiration of almost a year, object to such defects when the case is called for trial.</p> <p>Where a rule of court provides that all motions to set aside a nonsuit shall be made and filed within five days after the'trial, the plaintiff cannot ask, after the expiration of six months from the trial, to have the nonsuit set aside. ■ , ■'• ‘ ‘</p>

<p>Road law — Dedication of street — Evidence.</p> <p>Where an owner of a strip of land leases the strip to a street railway company reserving the right to dedicate it to public use, and providing that on such dedication no further payment of rent should be made, the lessee is entitled, in a subsequent suit for rent, to have the question of the actual dedication by the lessor submitted to the jury, where the evidence showed that the situation in the neighborhood of the proposed street had materially changed after the execution of the lease; that a large number of houses had been erected by the lessor or his successor, to the tenants of which a street would be a valuable, if not necessary appurtenance; that a fence on either side of defendant’s right of way had been moved so that the full width of tffe strip had been thrown open -to public use.; that sidewalks of a permanent character had been constructed; that grades had been fixed by the public authorities; and that poles carrying defendant’s wires had been removed to the sidewalks, where openings had been made for them by the lessor in the construction of the sidewalk.</p> <p>■ In such a case it is not necessary to show that the public use of the alleged street had continued for a period of twenty-one years and upwards. When dedication is clearly proved, it is as complete in one day as in twenty-one years.</p> <p>Dedication is a question of an intention. In some instances the owner, by a single act, has furnished such unequivocal' evidence of his intention to dedicate that he could not thereafter gainsay the fact. Rut the existence of the intention may he shown by a series of acts, all consistent with and pointing to the intention, even though no single act relied on would conclusively establish it.</p>