Volume 61 — Pennsylvania Superior Court Reports

Appeal, No. 202, Oct. T., 1914, by plaintiff, from order of O. P. Schuylkill Co., Sept. T., 1908, No. 222, refusing to take off nonsuit in case of George Gallagher and Thomas Shovelin v. Silver Brook Coal Company. Assumpsit to recover the contract price of cutting twenty-five hundred carloads of coal in defendant’s mine in the autumn of 1901.

<p>Will — Charge on land — Funeral expenses and nursing — Tes'taior’s widow — Sale of land — Jurisdiction of Orphans’ Court — Act of Feb. m, 188P. L. 70.</p> <p>Where a testator by his will gives a small piece of land to his wife for life and directs that the funeral expenses and two tombstones for himself and his wife shall “be paid from the whole estate,” and that nursing and care if required for himself and his wife should also he paid, a son of the testator who, in the absence of personal property, has paid for the funeral expenses and the tombstone of the widow, and wife of the son who nursed the widow, may after the death of the widow petition the Orphans’ Court under the Act of February 24, 1834, Section 59, P. L. 10, to sell the land, and the Orphans’ Court has jurisdiction to decree such sale upon the ground that the expenses in question were charged upon the land by the testator’s will, and should he paid out of the proceeds of the sale.</p>

<p>0ontract — Sale—Substantial performance.</p> <p>Where in a contract for automobile axles which are to be manufactured by the seller, the specifications call for dimensions to the fraction of an inch, and it appears that the axles were to be used by the purchaser with other automobile parts, literal and not substantial performance will be required of the seller, excépt as to slight variations which will not interfere with the use or efficiency of the axles.</p> <p>If in such a case the purchaser does not reject the axles, which he has a right to do, he must pay the contract price, less such deductions as.will pay for making the axles useful, or the price of new axles to take their place, or the value on the market, if he has not attempted either of the two foregoing alternatives.</p>

<p>Appeal, No. 235, Oct. T., 1914, by Mary H. Tomlinson and William H. Gaskill, Executors under the will of Albert S. Tomlinson, deceased, from decree of O. 0. Philadelphia Co., Jan. T., 1910, Ho. 571, dismissing exceptions to adjudication in Estate of Isaac W. Tomlinson, deceased.</p> <p>Exceptions to adjudication.</p> <p>The material portions of the will of Isaac Tomlinson were as follows:</p> <p>I direct my executor hereafter named to have placed at my grave head and foot stones, with date of birth and death, marked thereon; and also after the death of my wife the same kind of stones placed to her grave, the same to be like what are now placed at the grave of my deceased wife. I give and convey in trust to the WiL liam Penn Cemetery Company three hundred dollars, the income from it to be used in keeping my burial lot in fair condition and also the lot of Henry Mason near by, the said bequest not to begin during the lifetime of my wife.</p> <p>I give to my nephew, Isaac Tomlinson, my gold watch and chain. I give and bequeath to my wife Hannah C. Tomlinson if living at the time of my death all of my household goods and furniture, also my horse and carriages and harness and contents of the barn.</p> <p>I also give her my wearing apparel to do with as best-suits her.</p> <p>My will is that my wife if living after my death is to have the use or income of the house and grounds where we now live; and also the rents from the house and lots at Somerton during her lifetime. If I have not fully settled up the estate of my deceased wife, Deborah Tomlinson, my executor will complete the settlement-.</p> <p>I give my executor the right to change any of my investments that may be for the best interests of my estate. I give and bequeath to my wife, Hannah C. Tomlinson if living at the time of my death all the income both real and personal during her lifetime to be paid to her as often as she may require it, if the income is not enough to properly care for her my executor will pay her in addition the sum of two hundred dollars each and every year during her life. I direct my executor to attend to a life insurance policy and make the annual payments until the policy ends or my estate is to be fully settled and if policy is not ended my executor is to do the best he can with it.</p> <p>As some of my investments are not at present in a good financial condition, I give my executor two years after the death of my wife if it is thought best to settle up my estate. After the death of my wife Hannah 0. Tomlinson my will is that my estate be divided equally between my nephews and nieces and the heirs of those who are deceased, the heirs of those who are deceased to have the parents’ share. My meaning is that the children of my brothers Watson, Spencer and John shall each share alike.</p> <p>I name and appoint for executor of this my last will and testament The Provident Life and Trust Company, No. 409 Chestnut street, Philadelphia.</p> <p>From the record it appeared that Albert S. Tomlinson a nephew of deceased died during the widow’s lifetime testate and leaving minor children. The question before the court was whether the children of Albert S. Tomlinson took their father’s share under the will of Isaac W. Tomlinson, or whether the share went to the executors of Albert S. Tomlinson as an interest which had vested in Albert S. Tomlinson in his lifetime.</p> <p>In the appellant’s history of the case the following statement is made:</p> <p>“In this connection, it may be proper to state that ' this proceeding is a friendly one, taken by the executors under the belief that it is really more for the interest of the minor children, as their father viewed it, that this share of personal estate and a further interest in unsold real estate, shall pass under his will, in relief of his partly encumbered valuable real estate, (of which his estate consisted almost entirely) so that it may not become necessary to further encumber or sacrifice part of it, but preserve it as much intact as possible for equal division among his children under his will, subject to the life interest of his widow, upon whom they are dependent for support and education.”</p> <p>The auditing judge awarded the fund to the children. On a readjudication the same action was taken.</p> <p>On exceptions to the readjudication Andebson, J., filed the following opinion:</p> <p>After certain provisions for his widow out of the income of his estate, testator directed as follows:</p> <p>“After the death of my wife, Hannah 0. Tomlinson, my will is that my estate be divided equally between my nephews and nieces and the heirs of those who are deceased, the heirs of those who are deceased to have the parents’ share. My meaning is that the children of my brothers, Watson, Spencer and John, shall each share alike.”</p> <p>The language of the will speaks explicitly of a division of the residue, after the death of the widow. Knowing that one nephew and one niece had already died and foreseeing that the same thing might happen as to others of his nephews and nieces during his wife’s lifetime, the testator provided that in such case “the heirs” of those who are deceased should take — the use of the word • “heirs” is in the sense of “children” being indicated by saying that they are to have the parents’ share, thus showing a clear intention that the children of deceased nephews and nieces should participate with the living nephews and nieces in the distribution.</p> <p>This is in accordance with Carstensen’s Estate, 196 Pa. 325, where it was held that although the remaindermen took vested interests at the decease of the testator, their interests were subject to be divested in case of their decease during the pendency of the life estate; and Burk’s Est., 21 Dist. Rep. 357, the latest case in this court on the subject, where the testatrix directed her estate, after the death of the life tenant, to be converted into money and the proceeds thereof divided among the children of her sisters, providing the children of any deceased child of her said sisters to take only the share the parent would have taken if living, and we held that the children of nephews and nieces who had died during the pendency of the life estate, took in substitution for the parents,' and Algaier’s Est., 16 Dist. Rep. 913, cited by except-ants, is not in conflict with these decisions. There the question arose as to the construction of the codicil to the will. The will was construed to give absolute estates to the widow and children. The codicil, instead of giving to the widow absolutely a part, gave her a life estate in the whole estate, the remainder at her death to go to testator’s children or their respective issue in equal parts, the issue of any deceased child to receive the parent’s share. Upon the principle that a codicil is to be read in the light afforded by the will and to be changed to the extent only that it is clearly inconsistent with it, it was held that the estaté having vested in the children under the will, the codicil would not affect such vesting, except to postpone possession until after the death of the life tenant; while in the present case, the distributing clause is part of the original gift and the gift must become conditional, so as to give it effect.</p> <p>We believe that the intention of the testator was, as found by the auditing judge, and therefore both upon reason and authority his conclusion must be upheld. The exceptions are dismissed.</p> <p>Errors assigned were in dismissing exceptions to adjudication.</p>

Appeal, No. 262, by Rupert G. Beale, administrator, from order of O. P. No. 3, June T., 1906, No. 1650, refusing to take off nonsuit in case of Stephen T. Beale v. House of Refuge. Assumpsit for rent. At the trial Ferguson, J., entered a nonsuit delivering the following oral opinion: This is an action by Stephen T. Beale against the House of Refuge for rent for, the balance of the year.

<p>Landlord and tenant — Rent—Refusal of tender — Affidavit of defense — Replevin.</p> <p>Where in an action of replevin by a tenant against his landlord to recover property 'alleged to have been wrongfully distrained for rent, it appears that under the lease the tenant agreed “to keep the rear building reasonably warm during cold weather for which the lessor agrees to pay one-half of the coal bill monthly,” and that tender was made by the lessee of the amount of the monthly rental less one-half of the monthly coal bill, an affidavit of defense will not bar judgment which merely avers that “for the purpose of keeping its books, the defendant corporation required payment in full of the rent and would have then paid for the coal with its own voucher.”</p> <p>In such a case the plaintiff is not obliged to bring into court the amount of rent admitted to be due.</p>

<p>Appeal, No. 270, Oct. T., 1914, by defendant, from order of O. P. No. 5, Philadelphia Co., June T., 1914, No. 4498, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Luella Coal & Coke Company v. Cano, Moore & Company.</p> <p>Assumpsit for coal sold and delivered.</p> <p>Rule for judgment for want óf a sufficient affidavit of defense.</p> <p>The material portions of the affidavit of defense were as follows:</p> <p>Defendant avers that instead of shipping Luella slack coal as called for in the contract and in the said order, “Exhibit F,” the plaintiff on the thirtieth and thirty-first days of March, 1914, shipped seven cars containing coal of an inferior quality and character containing a large amount of foreign matter. The said, cars all contained a large amount of rubbish, rock, slate and other foreign matter, and with the exception of one, to wit, B. & O. car No. 141,827, containing 109,600 pounds shipped on March 31, 1914, were absolutely unmerchantable and unsalable and when they arrived at their destination at Cleveland, Ohio, were rejected by the Goff-Kirby Coal Company, the party to whom the defendant had sold the same, on account of the quality. When the coal reached Cleveland, Ohio, it was subject to the payment of freight and other charges thereon, which were chargeable a'gainst the defendant and as the cars stood on the tracks it was becoming chargeable with additional demurrage, and the defendant, after notifying the plaintiff of the quality of the coal and its rejection, and after ample time had elapsed for the plaintiff to have taken the coal away and plaintiff had failed to take the same away and pay the freight and other charges thereon or make disposition of the same, the defendant, to avoid loss of any further amount by reason of demurrage and freight which were chargeable against it as aforesaid, was obliged to take the coal away and sell it to C. L. Ayers Coal Company at Lorain, Ohio, for the best price obtainable, which was the sum of fifty cents (50 cents) per net ton, being twenty cents (20 cents) per net ton less than the amount which defendant had agreed to pay the plaintiff for the same, and defendant avers that the sum which it agreed to pay the plaintiff for the same, to wit, seventy cents (70 cents) per net ton f. o. b. mines at Philippi, West Virginia, was less than the usual market price at the said time and place, and defendant further avers that in order to have the coal delivered to the said C. L. Ayers Coal Company at Lo-rain, Ohio, it was necessary to pay and defendant did pay switching charges on the said six cars of $71.53 and demurrage on the said six cars of $59; all of which amounts were lost wholly by the fact that the plaintiff did not ship coal of the kind, quality and character ordered and agreed to be shipped by it, but shipped an unmerchantable substance, consisting largely of rubbish, rocks, slate and other unsalable foreign matter, as aforesaid, by reason of which facts defendant lost the sum of twenty cents (20 cents) per net ton on six cars of the said coal, containing 572,200 pounds, amounting to the sum of $57.22, and was obliged to- pay switching charges thereon as aforesaid, of $71.53, and demurrage of $59, making a total of $187.75, and leaving a balance due the plaintiff of $25.31, which defendant paid to the plaintiff on. July 7, 1914. Defendant admits that before the entire ten cars had been shipped it had cancelled the remaining portion of the order by reason of the quality of the coal aforesaid.......</p> <p>4. Defendant avers that on or about the seventh day of July, 1914, it sent to the plaintiff its check drawn to the plaintiff’s order for $25.31, which the plaintiff received and still retains, being the entire amount due the plaintiff at that time.</p> <p>The court made absolute rule for judgment for want of a sufficient affidavit of defense.</p> <p>Error assigned was the order of the court.</p>

<p>Deeds — ■Boundaries—Call for private alley — Use of alley.</p> <p>When land is sold bounded by a private alley, which alley is in fact opened and used at the time the conveyance is made, and the alley is convenient or necessary to the premises sold, unless there is something in the conveyance restricting the use solely to the grantor or expressly excepting the alley from the grant, the righ.t to use it passes with the conveyance and becomes appurtenant to the property.</p>

<p>Ejectment — Prior ejectments — Evidence—Parties—Privy in title —Equity—Jurisdiciion.</p> <p>In. a suit in equity where the real dispute is title to land it is reversible error for the court to admit in evidence the records of two prior ejectments concerning the same land in which the defendant corporation was not a party, and where a deed offered in evidence by the plaintiff showed that the defendant did not hold .anything as a privy through or under the successful party in the prior ejectments, but was in fact the grantor of the land in dispute, to such unsuccessful party. Such a deed in itself has no evidential value where it appears that it merely purported to convey “the surface or right of soil” reserving the mineral without surface support, and the plaintiff’s claim is for damages for failure to give such support.</p> <p>A privy to a judgment or decree is one whose succession to the rights of property thereby affected occurs after the institution of the suit or from a party thereto.</p> <p>Equity has no jurisdiction over a claim for damáges for failure to afford surface support, where the suit involved a dispute as to the title to the coal; but if the defendant raises no question as to the jurisdiction and submits to the trial on the merits, the court will not thereafter dismiss the bill for lack of jurisdiction.</p>

<p>Appeal, No. 37, March T., 1915, by defendant, from order of C. P. Lackawanna Co, June T., 1914, No. 472, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Dunmore Borough v. P. A. McAndrew.</p> <p>Scire facias sur municipal lien.</p> <p>Buie for judgment for want of a sufficient affidavit of defense.</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>

Appeal, No. 19, March T., 1915, by defendant, from judgment of 0. P. York Co., Aug. T., 1913, No. 110, on verdict for plaintiff in case of J. H. Brenneman v. P. II. Glatfelter Company. Trespass to recover damages for personal injuries. Before Wanner, J. At the trial it appeared that the plaintiff who was nineteen years of age was injured lvkile working at cog machinery which was alleged to have not been properly guarded.

<p>Restitution — Appeals—Wrongful disposition of money paid into court.</p> <p>Where the Court of Common Pleas directs money which is the proceeds of sale of real estate, but not produced by execution process to be paid into court, and subsequently orders it to be paid to a person not entitled to receive it, the Superior Court in reversing the order will direct restitution to be made by the person wrongfully receiving the money to the person lawfully entitled to it.</p>

Appeal, No. 8, March T., 1915, by plaintiff, from order of C. P. Susquehanna Co., Nov. T., 1913, No. 149, dismissing petition to remove school… Held: that the transportation of pupils under the terms of the section, was likewise discretionary, and that “shall” should be read as meaning “may.” In West Fallowfield School District, 29 C. C. Rep., at page 600, and Directors of Pike Township, 15 D. R., at page 565, the court in construing the Act of June twenty-seventh, 1897, of…

Appeal, No. 12, March T., 1914, by plaintiff, from order of Q. S. Pike Co., Feb. T., 1913, discharging rule to strike off appeal in case of Commonwealth v. Albert Cotterill. Rule to show cause why an appeal from a summary conviction before a justice of the peace for violating the game laws should not be stricken off. The court in an opinion by Staples, P. J., discharged the rule. Error assigned was order discharging rule to strike off appeal.

Appeal, No. 17, March T., 1915, by defendants, from order of C. P. Lackawanna Co., Jan. T., 1911, No. 790, making absolute rule for judgment for want of a sufficient affidavit of defense in case of City of Scranton v. W. W. Watson and Annie M. Watson, real owner. Scire facias sur municipal lien for paving. Before Newcomb, J. Rule for judgment for want of a sufficient affidavit of defense.

Appeal, No. 41, March T., 1915, by plaintiff, from order of O. P. Lackawanna Co., Sitting'in Equity, No. 11, Jan. T., 1913, discharging rule to amend record in case of Scranton Private Hospital v. Frank Caum, William W. May and Patrick R. Reilly, Representing themselves and all others interested in a certain unincorporated association known as Scranton Railway Beneficial Association. Bill in equity. Rule to amend record.

<p>Appeals — Summary conviction — Violation of borough ordinance —Jurisdiction of Common Pleas — Act of June 4, 1897, P. L. 121.</p> <p>A conviction before the chief burgess of a borough for the violation of a borough ordinance prohibiting the digging up of a street without a permit, and providing a penalty for such an offense is a summary conviction from which no appeal lies to the Court of Common Pleas. An appeal in such a case must be taken to the the Court of Quarter Sessions.</p> <p>Boroughs — Streets—Digging up street by railroad company.</p> <p>A railroad company and its employees are subject to the provisions of a borough ordinance which requires the securing of a permit before a street is torn up, even if the company has the right to use the street without the municipal consent, and even if it owns the land on both sides of the street.</p>

Appeal, No. 148, Oct. T., 1914, by plaintiff, from decree of C. P. Schuylkill Co., Jan. T., 1910, No. 127, refusing divorce in case of Henrietta Rosenthal v. Leopold Rosenthal. Libel for divorce. The facts are stated in the opinion of the Superior Court. Error assigned was decree refusing divorce.

<p>Criminal law — Protection of female children — Acts of June 11, 1879, P. J. llfi, and May 28, 1885, P. L. 27.</p> <p>The provisions of the Act of June 11, 1879, P. L. 142, entitled “An Act to protect children from neglect and cruelty and relating to their employment, protection and adoption,” are radically enlarged by the supplementary Act of May 28, 1885, P. L. 27.</p> <p>On the trial of an indictment for enticing a female child under sixteen years of age for purposes of prostitution “into, about or in the immediate vicinity of the sheds, buildings and structures of the Independent Refinery, and upon or near the right of way of the Pennsylvania Railroad Company” in violation of the Act of May 28, 1885, P. L. 27, which makes it a misdemeanor to entice such a child for such a purpose “into a house of ill-fame, or of assignation, or elsewhere,” the trial judge commits no error in his charge in construing the word “elsewhere” as meaning any place convenient for such a purpose.</p> <p>The word is to be interpreted in its plain and dictionary sense— in another place, or in other places, somewhere or anywhere else,— than in a house of ill-fame or assignation.</p> <p>On the trial of such an indictment, it is not material to investigate the reputation of the child for chastity.</p>

Appeal, No. 75, April T., 1915, by plaintiff, from judgment of C. P. Allegheny Co., Oct. T., 1912, No. 1367, for defendant n. o. v. in case of George A. Gow v. Adams Express Company. Trespass for malicious prosecution. At the trial the jury returned a verdict for the plaintiff for $1,000.

<p>Malicious prosecution — Probable cause — Malice — Evidence — Province of court and jury — Principal and agent.</p> <p>Malice in law exists where an act is done wrongfully and designedly by one person to the injury of another. Prosecutions may be instituted and pursued with pure motives, but so regardless of me forms of law and judicial proceedings as to render the transactions illegal and malicious. It may be inferred from the want of probable cause, and generally is, but its existence is a fact for the jury.</p> <p>The liability of a principal for the act of his agent in instituting an unfounded prosecution is governed by the general principles of agency, and where there is no express authority, and there has been no subsequent ratification of the act, the ultimate test is whether the agent acted within the scope of his implied authority. In determining this, each case must stand on its own facts.</p> <p>In an action against a railroad company for malicious prosecution, it appeared that the plaintiff, an umbrella mender, aged about sixty years, was seated in a waiting room of defendant’s station waiting for a train which was to leave in about one-half hour. He was eating his lunch and was dropping crumbs upon the floor and seats. A duly commissioned police officer employed by the railroad company arrested him, and took him before a justice of the peace, in whose office he was detained for several hours. The justice on the testimony of the officer committed the plaintiff to jail on the charge of disorderly conduct and fined him five dollars and costs. There was no evidence of disorderly conduct or that plaintiff resisted arrest. He was released from custody about-midnight by his daughter, who without his knowledge, paid to the jailor the amount of the fine imposed by the justice. An appeal was taken from the justice’s judgment, and after hearing before the county court he was discharged and restitution awarded. Held, that the case was for the jury, and that a verdict and judgment for three hundred dollars against the railroad should be sustained.</p>

<p>Appeal, No. 29, March T., 1915, by plaintiff, from order of O. P. Luzerne Co., Dec. T., 1911, No. 856, dismissing exceptions to report of referee in case of John Shumega and Elizabeth Shumega v. The First Catholic Slovak Union of the United States of America.</p> <p>Exceptions to report of Frank P. Slattery, Esq., referee.</p> <p>The referee stated the facts to be as follows:</p> <p>The defendant is a beneficial society incorporated January 12, 1892, in the State of Ohio, for the purpose of improving the “moral, mental and social conditions of its members, to aid and assist its members or their families in case of sickness or death, to uphold, preserve intact and perpetuate the doctrine of the Holy Roman Catholic Faith, to institute and control such other branches of the said corporation as it may see fit, under such rules, by-laws and regulations as it may hereafter adopt and establish, not to conflict with the laws of this State.” On the 20th day of September, 1900, at Pitts-ton, Luzerne County, Pennsylvania, John Hvasta was accepted as a member of the defendant society, through one of its branches located there known as “St Cyrill and Methodius Branch 350.” This branch was organized at Pittston aforesaid on August 26, 1900. The original application for membership on the part of John Hvasta was not produced. It appears in the testimony however, that on April eleventh, 1911, he directed on the books of the defendant in the manner required by its bylaws, that his death benefit in case of his death be disposed of as follows: for funeral expenses, $150.00; to his son, Michael Hvasta, $50.00; to his daughter, Mary Hvasta, $50.00; and “the balance to the boarding boss who will take care of me and help me up to my death, John Shumega and his wife, Elizabeth Shumega.” It is agreed that the balance here referred to amounts to seven hundred ($700.00) dollars.</p> <p>John Hvasta died August 4, 1911, in Exeter, Luzerne County, Pennsylvania. He left to survive him a widow and two children. On account of cruel treatment this same woman with her children, deserted Hvasta nine (9) years before his death and went to live in Zanesville, Ohio, where she has lived continuously since that time, remarrying after the death of Hvasta.</p> <p>In February, 1911, six (6) months before he died, John Hvasta was in ill health, suffering from dropsy, and without a home. He applied for, and was refused admittance to the home of his sister, Mary Wazik. For the purpose of securing a place to live where he would be cared for, he then went to the home of the plaintiffs, John Shumega and Elizabeth Shumega, his wife, the former being engaged in tbe conduct of a saloon business in Exeter, and be promised to make tbe plaintiffs tbe beneficiaries of bis death benefit in consideration for tbeir boarding and lodging bim, nursing and caring for bim, providing medical attention, and necessary medical supplies, and paying bis dues in tbe defendant society during tbe balance of bis natural life. In pursuance of this arrangement, Hvasta made a will whereby be bequeathed seven hundred ($700.00) dollars mentioned. A month after tbe designation bad been made on tbe books of tbe defendant, plaintiffs called on Andrew Y. Kozak, tbe national president of tbe defendant society, and informed bim of what bad transpired, and they alleged that Mr. Kozak represented to them that, if they bad paid Hvasta’s dues during bis lifetime, they would receive tbeir designated share of tbe death benefit in tbe event of bis death. Mr. Kozak denies that be made any such representation. Hvasta made bis borne in tbe family of tbe plaintiffs until bis death. They cared for bim, nursed bim, boarded and lodged and clothed bim, provided bim with medical attention, paid for tbe drugs that- were prescribed for bim, and paid bis dues for bim in tbe defendant society, thus keeping alive bis policy therein.</p> <p>The designation of tbe plaintiffs as beneficiaries on tbe books of tbe defendant was surrounded by all tbe formality required by tbe by-laws of tbe defendant, and tbe defendant is willing to pay tbe money to tbe plaintiffs if they are legally entitled thereto, but wishes to be protected against a possible wrong payment, and for this purpose only makes a defense. Tbe society defends on tbe ground that tbe defendant society comes within tbe scope of tbe requirements of tbe Act of Assembly of tbe Commonwealth of Pennsylvania, approved April 6, 1898, P. L. 7 and its supplement, and that consequently tbe death benefits are payable only to a member of tbe class of beneficiaries named in tbe act.</p> <p>Tbe referee found in favor of tbe defendant.</p> <p>Exceptions to the referee’s report were dismissed in an opinion by Woodward, J.</p> <p>Errors assigned were in dismissing exceptions to the referee’s report.</p>

<p>Appeal, No. 10, March T., 1915, by William Bryant, from order of C. P. Dauphin Co., Commonwealth Docket, 1911, No. 219, dismissing exceptions to auditors’ report in case of Commonwealth, ex rel., John C. Bell, Attorney General, v. Tradesmen’s Trust Company.</p> <p>Exceptions to report of auditors.</p> <p>The facts agreed upon are as follows:</p> <p>“William Bryant prior to August 1, 1911, was the owner of a certain house and lot in the City of Philadelphia known as No. 2520 South Sartain street.</p> <p>“Michele Buggieri prior to August 1, 1911, agreed with said William Bryant to purchase said house and lot and applied to the Tradesmen’s Trust Company for insurance of the title to said property which he was purchasing.</p> <p>“On August 1, 1911, a settlement was arranged for at the office of the Tradesmen’s Trust Company for the purpose of delivering the deed and the payment of the purchase-money and the settlement was attended by the parties or persons representing them. The settlement was attended by M. A. Franey on behalf of William Bryant.</p> <p>“On August 1, 1911, (at the time set for said settlement), the sum of $1,773.17 was placed with the said Tradesmen’s Trust Company on behalf of said Michele Ruggieri-for the purpose of distributing it in the settlement and completing the said purchase. No receipt was issued to said Michele Ruggieri for the deposit of said money, but it was placed under the usual conditions and the following is a copy of the form of receipt issued by the said Tradesmen’s Trust Company, when a receipt was requested.</p> <p>No..... This receipt is not negotiable.</p> <p>Tradesmen’s Trust Company.</p> <p>$____ Chestnut and Juniper Streets, Philadelphia.</p> <p>Received of..................................... ..........................................Dollars, to be applied in settlement of matter No.....viz:....... of premises...........'....................</p> <p>Tradesmen’s Trust Company,</p> <p>By................</p> <p>“At the- settlement it was found that there was no statement of the amount due the holder of an existing mortgage on the said property and distribution was therefore postponed. On the following day, August 2, 1912, the amount necessary to satisfy this mortgage having been determined, the Tradesmen’s Trust Company made distribution as had been agreed upon and sent said check No. 63,678 for $631.42 payable to the order of William Bryant to his said representative, M. A. Franey.</p> <p>“Said M. A. Franey on the same day sent the said check to the claimant William Bryant. The check was not received by William Bryant personally, but by one of his employees who placed it in Mr. Bryant’s desk. By some means unknown the check and letter containing it became hidden behind a partition in said desk and was. not found by William Bryant until in the afternoon of September 16, 1911, or in the morning of September 18, 1911. William Bryant attempted to present the check as soon as possible within banking hours, to wit, some time on September 18, 1911, when he found that the said Tradesmen’s Trust Company was in the hands of a receiver.</p> <p>“The said sum of $1,773.17 placed on behalf of said Michele Ruggieri on August 1, 1911, is entered on the cash book of the Tradesmen’s Trust Company, under date of August 1, 1911, as cash to the credit of settlement of 2520 South Sartain street.</p> <p>“The Tradesmen’s Trust Company had on hand on September 18, 1911, in cash, $43,011.17, which amount was handed over to the receiver. From August 1, 1911, to September 18, 1911, the said Tradesmen’s Trust Company, had a balance in cash on hand at all times in excess of $20,000.”</p> <p>The auditor’s report was as follows:</p> <p>The Act of May 8, 1907 (P. L. 192), under which the fund now before the auditors is to be distributed, provides that distribution shall be made and preferred in the following order, namely:</p> <p>“1. To pay all deposits in the trust company.</p> <p>“2. To the payment and discharge of all the remaining liabilities of such trust company or corporation.</p> <p>“3. The residue, if any, shall be distributed to the shareholders of the trust company or corporation, according to their respective legal rights.</p> <p>“Provided, however, that all trust money and property shall be kept separate as provided by said act as supple-men ted, as aforesaid, and distributed to the beneficiaries accordingly.”</p> <p>Among the large number of acts which are supplemented and repealed by the foregoing supplemental act, there seem to be but two acts which refer to the proviso in this act, the first being the Act of June 27, 1895 (P L. 399), which, in Section 25, Clause 5, contains the following provision:</p> <p>“The said companies shall keep all trust funds and investments separate and apart from the assets of the companies and all investments made by the said companies as fiduciaries shall be so designated as that the trust to which such investment shall belong shall be clearly known.”</p> <p>The same provision is contained in the Act of May 9, 1889 (P; L. 159) ; the phraseology being the same.</p> <p>The statutes contain a clear direction that trust companies shall keep all trust funds and investments separate and apart from the assets of the companies, and that all investments made by the said companies as fiduciaries shall be so designated that the trust to which the investments belong shall be clearly known; but in none of the foregoing acts is there any provision prescribing the consequences which shall follow if the statutory mandate is not complied with. It may, therefore, be asked what effect the failure to comply with the statutory provision relating to the keeping apart of trust funds has upon distribution as prescribed by the Act of May 8, 1907 (P. L. 192), the proviso in that act stating that trust moneys and property directed to be kept separate “shall be distributed to the beneficiaries accordingly.”</p> <p>There are no statutory provisions relating to the dis-' tribution of the assets of insolvent trust companies prior to the Act of May 8,1907.</p> <p>In Prudential Trust Company’s Assignment, 223 Pa. 409, Elkin, J., said:'</p> <p>“It may be stated as a general principle that, in the absence of legislation preferring certain creditors, no such preference exists. The legislature has passed many acts making a preference in the distribution of estates among creditors, this on the ground of public policy or to protect the natural and superior equities of parties; but the burden is always upon him who asserts a preference to point to the authority which gives it. In the present case the learned counsel for appellees attempt to meet this burden under the provisions of the Acts of 1844, 1850 and 1876, all of which relate either to banks of issue or to those of discount and deposit. Trust companies created under the provisions of the General Corporation Act of April 29, 1874 (P. L. 73), and deriving their privileges and powers from the Act of 1889, and other supplemental statutes, are neither banks of issue nor of discount and deposit within the meaning of the law, and, therefore, the acts relied on as giving a preference to bank depositors are not authority for the proposition that the same preference must be given to depositors in a title and trust'company, incorporated for a different purpose and being denied by the express language of the statute the right to engage in the business of banking.”</p> <p>Under the facts of that case, the court then considered whether distribution could be made under the Act of May 8, 1907, but, the assignment having been made before the act, the court held that it did not apply to that case. It appears that, at the date of the assignment, the appellant had the right to participate in the fund for distribution along with the depositors and other creditors in such proportion as his claim bore to the aggregate of all the claims. If, however, the Act of 1907 had applied, the depositors would have taken the whole fund and the appellant would have received nothing. It was held that the appellant was entitled to share in the distribution with the depositors and other creditors, without reference to the preference established by the Act of 1907.</p> <p>Where trust funds have been kept separate and apart there is, of course, no question; but where the funds have been mingled with the general assets of the insolvent trust company and the statutory provision has not been complied with, a question does arise. The statutes are silent as to what shall be done when the trust funds have not been kept separate and apart as provided by the act of assembly, and reference must then be had to the adjudicated cases governing such a situation.</p> <p>In Thompson’s App., 22 Pa. 16 (1853), an individual as executor received moneys which he used in his own business and, being also otherwise indebted, he executed a voluntary assignment for creditors. It was held that the heirs of the decedent were not entitled to a preference in the distribution of the fund in the hands of the assignee, but only to a pro rata share with other creditors. Lewis, J., said:</p> <p>“Whenever a trust fund has been converted into another species of property, if its identity can be traced it will be held in its new form liable to the rights of the cestui que trust. No change of its state and form can divest it of such trust. So long as it can be identified, either as the original property of the cestui que trust or as the product of it, equity will follow it and the right of reclamation attaches to it until detached by the superior equity of a bona fide purchaser for a valuable consideration without notice. The substitute for the original thing follows the nature of the thing itself so long as it can be ascertained to be such, but the right of pursuing it fails when the means of ascertaining it fail. This is always the case when the subject-matter is turned into money and mixed and confounded in a general mass of property of the same description.”</p> <p>[Here follows a detailed review of the following cases: Thompson’s App., 22 Pa. 16; Miskimins’s App., 114 Pa. 530; Columbian Bank’s Est., 147 Pa. 422; Freiberg v. Stoddard, 161 Pa. 259; Lebanon Trust & Safe Deposit Bank’s Assigned Est., 166 Pa. 622; Solicitors Loan & Trust Company’s Assigned Est., 3 Pa. Superior Ct. 244; Farrell’s Assigned Est., 17 Pa. Superior Ct. 240; Jamison’s Assigned Est., 163 Pa. 143; Com., ex rel., v. Union Surety & Guaranty Co., 37 Pa. Superior Ct. 179; Miller’s App., 218 Pa. 50; Groff v. City Savings Fund & Trust Co., 46 Pa. Superior Ct. 423; Peoples Bank App., 93 Pa. 107; Thompson’s App., 22 Pa. 16.]</p> <p>■The doctrine laid down in Thompson’s App., 22 Pa. 16 (1853), has been repeatedly maintained by the courts of Pennsylvania, and that case was again cited with approval in O’Neill v. O’Neill, 227 Pa. 334 (1910).</p> <p>In a number of briefs submitted to the auditors, cases showing a different doctrine in other jurisdictions were cited, but the rule which prevails in the State of Pennsylvania seems to be thoroughly established in accordance with the foregoing cases governing the mingling of trust funds.</p> <p>The auditors have reconsidered the claim as originally presented, in connection with the additional facts made a part of the evidence in the case by agreement of counsel, and they are of opinion that their original findings, to wit, that the claimant is entitled to $631.42 as a general creditor, must be sustained.</p> <p>Errors assigned were in dismissing the exceptions to the auditor’s report.</p>

<p>Negligence — Railroads—Accident at crossing — Proximate and remote cause — Evidence.</p> <p>In an action against a railroad company to recover damages for injuries to a horse, the case is for the jury and a verdict and judgment for plaintiff -will be sustained, where the evidence tends to show that the driver of the plaintiff’s team, traveling upon a public road, approached a railroad crossing at grade, and, observing a team drawing a loaded wagon on the same public road approaching the railroad-croossing from the opposite direction, stopped on the public highway, about 100 feet from the crossing, to allow the passing of the loaded team, and, when the loaded team, without negligence, came upon the crossing, it was struck by defendant’s train, operated in a negligent manner, and a part of its load consisting of gas or water pipe was thrown against the plaintiff’s horse, breaking its leg.</p>

Appeal, No. 84, April T., 1915, by plaintiff, from judgment of C. P. Allegheny Co., Dec. T., 1Q11, No. 381, on verdict for defendant in case of Karl F. Tiegel v. John B. Love. Ejectment for land in the 35th ward of the City of Pittsburgh. Before Ford, J. Defendants title was based upon a sheriff’s sale under a judgment entered on a municipal lien for paving.

Appeal, No. 112, April T., 1915, by defendant, from judgment of O. P. of Allegheny County, at No. 838, 1914, on verdict for plaintiffs in case of Elizabeth Bier, et al., v. Florence W. Myers. Trespass to recover damages for death of plaintiff’s husband. Before Drew, J. The facts are stated in the opinion of the Superior Court. Verdict and judgment for plaintiff for $1,000. Defendant appealed. Error assigned was refusal to grant judgment n. o. v.

<p>Insurance — Life insurance — Attaching by-laws to policy — Insanity — Act of May 11,1881, P. L. SO.</p> <p>Where a beneficial association issues a straight policy of life insurance it cannot set up as a defense to the payment of the policy, the fact the insured was insane at the time the policy was taken out, and that the by-laws of the association required that a member be sound in mind and body, if it appears that the by-laws were not attached to the policy as required by the Act of May 11,1881, P. L. 20.</p> <p>In such a case the association after having paid an annuity to the widow of the insured for four years, cannot allege as a ground for stopping further payments that the mental condition of the insured had not been disclosed to the company, if it appears that at the time the policy was issued there was no request for representation, declarations, warranties or medical examination on the part of the insurer, and this is especially so, if it appears that the proofs of death showed that the insured had died of paresis in an insane asylum only a few months after the policy was issued.</p>

Appeal, No. 137, April T., 1915, by defendant, from judgment of C. P. Fayette Co., Sept. T., 1912, No. 406, on verdict for plaintiff in case of Abraham C. Weaver v. Meadville Lumber Manufacturing Company. Trespass to recover damages for cutting and removing timber. Before Van Swearingen, J. From the record it appeared that the plaintiff claimed title by virtue of a tax sale in 1902.

Appeal, No. 153, April T., 1915, by defendant, from judgment of C. P. Greene Go., March T., 1912, No. 164, on verdict for plaintiff in case of Vaidnia Dougal and D. W. Dougal, her husband, v. George W. Woods. Ejectment for land in Franklin Township. Before Inghram, P. J. At the trial it appeared that plaintiffs claimed title under a general warranty deed duly recorded from Thomas E. Dougal.

<p>Appeal, No. 128, April T., 1915, by plaintiff, from judgment of C. P. Westmoreland Co., Nov. T., 1913, No. 422, sustaining demurrer to statement of claim in case of Sewickley Township v. William McKelvey.</p> <p>Appeal from judgment of justice of tbe peace.</p> <p>Demurrer to statement of claim.</p> <p>Tbe statement of claim was as follows:</p> <p>First: That C. H. Bolton is a citizen and taxpayer of tbe Township of Sewickley, Westmoreland County, Pa.</p> <p>Second: That William McKelvey was duly elected one of tbe supervisors of said township and that be bad taken upon himself tbe duties of said office and acted as such during tbe year 1913.</p> <p>Third: That tbe said C. H. Bolton requested and demanded of said William McKelvey, supervisor, that be be given an opportunity to inspect tbe books and minutes of tbe proceedings of tbe board of supervisors of Sewickley Township and that such demand was made repeatedly at reasonable times during tbe months of August and September, 1913, but that tbe said William Mc-Kelvey has wholly failed, neglected and refused to permit tbe said C. H. Bolton to inspect the minutes of tbe proceedings of the board of supervisors and the books kept by them.</p> <p>Fourth: That the said William McKelvey has not allowed or permitted the said minutes of the proceedings of the said supervisors or the books kept by them to be and remain open for the inspection of the said C. H. Bolton and other taxpayers of said township at reasonable times, but on the contrary the said William Mc-Kelvey, supervisor, failed, neglected and refused to permit the said C. H. Bolton to inspect the said minutes and the books kept by the said supervisors.</p> <p>Fifth: That by reason of said neglect and refusal the said William McKelvey has violated the provisions of Sections 11 and 13 of the Act of Assembly of the Commonwealth of Pennsylvania, approved June 14, 1911, P. L. 942-948, and has by reason thereof forfeited and should pay a fine of fifty ($50.00) dollars to the township treasurer for the use of the road fund of said Township of Sewickley. Wherefore this suit is brought.</p> <p>Error assigned was judgment sustaining the demurrer.</p>

<p>Appeal, No. 16, March T., 1915, by Charles E. Kachline, from order of C. P. Dauphin Co. Commonwealth Docket, No. 219, dismissing exception to auditors’ report in case of Com., ex rel., John C. Bell, Attorney General, v. Tradesmen’s Trust Co.</p>

<p>Telegraph companies — Eminent domain — Damages—Use and occupation of land.</p> <p>Where a telegraph company with the right of eminent domain has maintained its poles and wires over the property of a land owner for more than twenty-one'years, it cannot be held liable in an action of trespass, by the land owner for the use and occupation of the land within six years from the institution of the suit, where there is no proof that the damages occasioned by the original taking had not been paid, and where it also appears that the original entry was before plaintiff had acquired title to the land, f and there is no proof of any assignment to him of the rights of the owner of the land to damages resulting from the original entry.</p>

<p>Appeal, No. 298, Oct. T., 1914, by defendant, from judgment of C. P. No. 3, Philadelphia Co-., Dec. T., 1909, No. 6522, M. L. D., on verdict for plaintiff in case of Cornelius Haney and Edward T. Henson, Copartners trading as Haney, Henson & Company, to use of Edward T. Henson v. Thomas A. Moore-head, Owner or Reputed Owner, and the Land Title and Trust Company, Real Owner.</p> <p>Scire facias sur mechanic’s lien. Before McMichael, P. J.</p> <p>At the trial it appeared that in 1908 Thomas A Moore-head was engaged in a building operation comprising a number of dwelling houses in the City of Philadelphia. The plaintiffs furnished mill work for the operation.</p> <p>On November 3, 1908, the claimant executed and delivered to Moorehead a release of liens covering all of the houses for the expressed purpose of enabling Moorehead to obtain money upon the security of mortgages upon the properties. The claimant contends that at the time of the execution and delivery of the release it was verbally agreed that the release should not be used unless all the persons who should furnish labor or materials should execute the release of liens. This agreement was denied by Moorehead.</p> <p>On February 18, 1909, the claimant executed and delivered to Moorehead a separate release of liens upon each one of the properties. The claimant stated that these separate releases were executed and delivered to Moorehead upon the same condition which attached to -the execution and delivery of the first release-of liens; this, however, was denied by Moorehead.</p> <p>The Land Title and Trust Company insured the property for the mortgage after the releases had been submitted to it.</p> <p>On February 25, 1910, the mechanic’s lien, was filed. On December 31, 1910, the Title Insurance Company took title to the property to protect its own interest. .</p> <p>At the trial when J. Williston Smith, a witness for defendant, was on the stand, the following offer was made:</p> <p>“Mr. Norris: I offer to prove by this witness that on or about the date of the execution of the individual releases of liens coveidng each property ,or of the general release covering all the properties they were delivered by Mr. Moorehead to the Land Title and Trust Company ;' that the Land Title and Trust Company relying upon these releases of liens thereupon insured the titles to mortgages upon the various properties; the proceeds of these mortgages were paid by the Land Title' and Trust Company to Moorehead and paid by Moorehead to the subcontractors who furnished materials in this operation; and that subsequently after the incurring of this liability for the maintenance of these liens the Land Title and Trust Company was compelled to expend a large sum of money in order to protect the properties and to protect their liability, taking therefor a mortgage upon the premises; that neither the mortgage nor these moneys having been repaid the Land Title and Trust Company then took title to the properties on December 30, 1910.</p> <p>“Mr. Williams: I object to any such testimony except1 testimony Avhich shows the circumstances under which the Land Title and Trust Company took title and relating to the time of its taking title and anything that may have affected its title.</p> <p>“The Court: I sustain the objection and give defendant an exception.” (3)</p> <p>Plaintiff submitted these points:</p> <p>“4. In the absence of evidence the defendant the Land Title and Trust Company took title relying upon the release of liens the Land Title and Trust Company, having taken title subsequent to tbe filing of the lien herein the rights of the said defendant rise no higher than the rights of Thomas A. Moorehead.</p> <p>“Answer. That is affirmed.” (4)</p> <p>Defendant presented these points:</p> <p>“1. The claimant having executed and delivered a release of liens, absolute on its face, is barred from asserting a claim of mechanic’s lien, and the verdict must be for the defendant. Answer. Refused. (9)</p> <p>“2. The claimant having put into the possession of Moorehead a release of liens absolute on its face for the express purpose of delivering it to the Land Title and Trust Company to enable it to insure the title of mortgages, the proceeds of which were to be used for the purpose of financing the operation, cannot set up a contemporaneous oral agreement which in any-way alters the expressed terms of the release, and the verdict must be for the defendants. Answer. Refused. (10)</p> <p>“3. Even if the jury believe that a contemporaneous oral agreement was made by Moorehead that the release of liens executed and delivered to him by the claimant for the purpose of inducing the Land Title and Trust Company to insure the title of mortgages were not to be used unless all the subcontractors signed them, the claimant is estopped from setting up such agreement as against the Land Title and Trust Company, upon the principle that where one or two innocent persons suffer through the act of a third, he who gave the aggressor the means of doing the act must alone bear the consequence of the act, and the verdict must be for the defendants. Answer. Refused. (11)</p> <p>“4. Under all the evidence the verdict must be for the defendants. Answer. Refused. . (12)</p> <p>“6. That if the jury believed that any portion, of the materials set forth in ‘Exhibit B’ attached to the claim of lien were furnished for the buildings erected on Walnut Lane, the amount claimed, therefore, to wit, $248.01,. cannot be claimed in this proceeding. Answer. Refused. (4)</p> <p>“7. That having appropriated the amount paid on account by Moorehead, to wit, $7,300, to the whole indebtedness, the claimant cannot change such appropriation and by such appropriation be credited the amount due upon contracts for 27 houses, to wit, $8,922, the sum of $6,171.67, leaving due a balance of $2,750.33 or $101.86 per house. Answer. Refused. (15)</p> <p>Verdict and judgment for plaintiff for $230.76. Defendant appealed.</p> <p>Errors assigned were, among others, (3) rulings on evidence quoting the bill of exceptions;. (4, 9-12, 14, 15) above instructions quoting them.</p>

Appeal, No. 34, April T., 1915, by defendant, from judgment of O. P. Allegheny Co., Jan. T., 1913, No. 1126, on verdict for plaintiff in case of Jacob Pildish v. Pittsburgh Railways Company. Trespass to recover damages for personal injuries. The facts were stated by Macfarlane, J., to be as follows: “Plaintiff was a passenger on a summer car which he boarded at Kennywood Park where he had a seat.

Appeal, No. 167, April T., 1915, Tby defendant, from judgment of C. P. Allegheny Co., April T., 1911, No. 493, on verdict for plaintiff in case of J. W. Crosby, et al., doing business as Crosby Brothers, v. American Slovak Hall Association. Assumpsit to recover a balance alleged to be due on a building contract.

Appeal, No. 172, April T., 1915, by plaintiffs, from judgment of C. P. Allegheny Co., Oct. T., 1912, No. 24, on verdict for defendants in case of J. Henry Smythe, doing business as the Sunshine Publishing Company, now for use of American Lithographic Company, v. John I. Shaw and A. Abijah Shaw, doing business as Shaw Brothers. Assumpsit for goods sold and delivered. Before Evans, J. At the trial it appeared that J. Henry Smythe traded as the Sunshine Publishing Company.

Appeal, No. 174, April T., 1915, by defendants, from judgment of O. P. Allegheny Co., Jan. T., 1913, No. 58, on verdict for plaintiff in case of Lillian M. Morrow v. Daniel Morrow, et al. Trespass to recover damages for. the alienation of plaintiff’s affections. At the trial it appeared that plaintiff’s husband deserted his wife, or left her without her consent on August 18, 1912.

Appeal, No. 185, April T., 1915, by plaintiff, from judgment of O. P. Allegheny Co., April T., 1913, No. 531, for defendant n. o. v. in case of Peter'Winter v. Colonial Land Company. Assumpsit for breach of contract. Prom the record it appeared that the contract in question had been executed eleven years prior to the bringing of the suit. The plaintiff claimed that the contract was under seal and a specialty. The defendant denied this and pleaded the statute of limitations.

Appeal, No. 186, April T., 1915, by defendant, from order of C. P. Allegheny Co., April T., 1915, No. 833, refusing appeal from the County Court, in case of William Keown v. Harry R. Bunton. Assumpsit for money had and received. Prom the record it appeared that plaintiff claimed to recover the sum of $908.39, less a reasonable fee for the services rendered by defendant in litigation involved in collecting the sum in controversy.

Appeal, No. 191, April T., 1915, by defendant, from order of C. P. Allegheny Co., Jan. T., 1915, No. 54, making absolute rule to open judgment in case of Walter A. Mahler v. Ralph Freeman, J. A. Rhodes, Fred. Fulgora, Jos. Dean, H. Brooks and John Sipe, representing themselves and others interested and known as the Moving Picture Operators’ Protective Union, Local No. 171, an unincorporated association. Rule to open judgment. The opinion of the Superior Court states the case.

Appeal, No. 139, April T., 1915, by John Gelm, et al., from decree of O. 0. Allegheny Co., June T., 1914, No. 319, dismissing appeal from assessment of Collateral Inheritance Tax in Estate of William Gelm, deceased. Appeal from appraisement of collateral tax.

Appeal, No. 152, April T., 1915, by defendant, from judgment of C. P. Cambria Co., Sept. T., 1913, .No. 49, on verdict for plaintiff in case of Carrie N. Yoder Stull, Administratrix of Harry Yoder, deceased, v. John A. Johnson. Assumpsit for money loaned. Before Stephens, P. J. Verdict and judgment for plaintiff for $585. Defendant appealed. Error assigned was portion of the charge quoted in the opinion of the Superior Court.

<p>Will — Construction—Life estate — Gift to wife with power to consume.</p> <p>Where a testator gives and bequeaths all his “property real and personal” to his wife, and such provision is followed by gifts of money legacies to sons payable after the wife’s death, and this is followed by a clause as follows: “I also request what part of my estate real and personal is left after the death of my said wife and the bequests heretofore mentioned paid, shall be divided equally,” among certain of his children naming them, the gift to the wife is to be construed as a gift for life with power to consume the principal, if necessary.</p>

<p>Criminal law — Cross-examination of prisoner as to his name— Evidence.</p> <p>On the trial of an indictment for crime, where the defendant has gone upon the stand and distinctly testified as to his name, the district attorney may be permitted to ask him on cross-examination whether he had ever been known by any other name. Such a question is not forbidden by the Act of March 15, 1911, P. E. 20, which provides that a person charged with crime shall not be required to answer any question tending to show that'he had committed, “or been charged with, or - been convicted of any offense, other than the one wherewith he shall then be charged, or tending to show that he had been of bad character or reputation.”</p> <p>Criminal law — Assault and battery — Scar on face of prosecutor —Evidence.</p> <p>On the trial of an indictment for assault and battery where the prosecutor, a professional pugilist, testified that the defendant had struck him in the face, and that a scar upon his face shown to the jury had resulted from that cut, it is not error for the trial court to refuse to withdraw a juror and continue the case because the district attorney in his closing argument showed to the jury the scar on the prosecutor’s face, alleged to have been caused by the assault.</p>

<p>Negligence — Boroughs—Defective sidewalk — Evidence — Notice —New trial.</p> <p>In an action by a woman against a borough to recover for personal injuries sustained while walking on a defective boardwalk, where the statement of claim avers in general terms that the plaintiff was injured by a fall caused by a defect in a sidewalk on the north side of a street designated and at some point near a crossroad towards which she was walking, and the testimony of the plaintiff does not fix the precise point at which she fell, but merely shows that she had passed a bowling alley on the street, and it appears that the plaintiff was somewhat confused in trying to identify the spot from a photograph of the street shown to her, and it also appears that the testimony of one of the defendant’s witnesses conflicted with that of the plaintiff as to the locality of the defect, the case is for the jury under all the conflicting testimony, and a verdict and judgment for plaintiff will be sustained.</p> <p>In such a ease where one of plaintiff’s witnesses testifies that he had notified the chief of police of the borough as to the dangerous condition of the whole boardwalk, and two other witnesses for plaintiff testify that the walk was defective in a number of places and had been so for three years, and the evidence of the borough contradicts the witnesses for the plaintiff, the question of the borough’s notice of the defect is for the jury.</p> <p>A boast made by a witness for plaintiff in an accident case against a borough that he had received twenty dollars for testifying, is not a ground for a new trial where it appears that the boast was made while the witness was intoxicated, that he never did receive twenty dollars or any other sum, and that the verdict' could be sustained on the other testimony in the case.</p>

<p>Justice of the peace — Appeals—Failure to talce appeal in time— Justice as agent of defendant.</p> <p>An appeal from a judgment of a justice of the peace will not be allowed nunc pro tunc where it appears that the defendant requested the justice to give him a transcript, that the justice said he could not do it at the time but that he would mail it to defendant’s attorney, and that the justice did not act, so as to permit an appeal to be filed within the statutory time. In such a case the justice is the agent of the defendant, and the latter is bound by his negligence.</p>

<p>Road law — Lien for paving — Filing of lien — Time—State highway department — Evidence—Acts of April 27, 1909, P. L. 194, and May 31, 19 1, P. L. 468.</p> <p>The right of a borough to impose an assessment upon abutting property in order to reimburse it for the amount which it has paid as its share of the cost of paving a street by the State highway department under the provisions of the Act of May 31, 1911, P. L. 468, is doubtful, but even if the assessment were legal it cannot be enforced if the claim for it is filed'more than six months after the completion of the improvement.</p> <p>In such a case the lien is not saved by evidence of a ledger entry made in the State highway department purporting to show that the improvement was completed within six months prior to the filing of the lien. Such ledger entry is not the equivalent of the certificate of a municipal officer as provided by the Act of April 27, 1909, P. L. 194, and will not prevent the abutting owner from showing in the absence of such certificate, that the lien was filed more than six months after the completion of the improvement.</p>

<p>Appeal, No. 163, April T., 1915, by plaintiff, from judgment of O. P. Jefferson Co., Aug. T., 1914, No. 284, for defendant on case tried by the court without a jury in suit of Punxsutawpey Borough v. Perry A. Wingert.</p>

<p>Appeal, No. 194, April T., 1915, by defendant, from judgment of Q. S. Butler Co., March T., 1914, No. 18, on verdict of guilty in case of Commonwealth v. John J. Scheiring.</p> <p>Indictment for larceny. Before Reiber, J.</p> <p>Prom the record it appeared that the indictment contained four counts. On the first three counts a verdict of not guilty was found by direction of the court. These counts charged larceny of specific sums but the charges were not sustained by the evidence. The fourth count of the indictment was as follows:</p> <p>And the inquest aforesaid, upon their respective oaths and affirmations, aforesaid do further present; that the said John J. Scheiring, afterwards, to-wit, on the same day and year aforesaid, to-wit, on the second day of March in the year of our Lord one thousand nine hundred and fourteen, in the county aforesaid and within the jurisdiction of this court, with force and arms, &c., being then and there a municipal officer or employee, to-wit, a clerk or receiving clerk in the employ of a municipal corporation, ■ to-wit, the Township of Butler, in a certain department thereof, knoyn as the tax collector of said township did as such municipal officer, clerk, servant or employee and by virtue of such employment, receive, have and take into his possession for and behalf and in the conduct of his duties as said municipal officer aforesaid from various persons whose names are to the grand inquest unknown and in various amounts the sum of five thousand ($5,000,00) dollars, lawful money of the United States of America, for and in the name and on the account of the said tax collector as aforesaid and did then and there fraudulently and feloniously embezzle and convert to his own use the said sum of money of the value of five thousand ($5,000.00) dollars, receive as aforesaid, and so the inquest aforesaid, upon their oaths and affirmations aforesaid do say that the said John J. Scheiring, then and there in the manner and form aforesaid, the sum of money, to-wit, five thousand ($5,000.00) dollars of the money, goods, chattels and property of the said tax collector of said Butler Township, from the said tax collector of Butler Township, his employer as aforesaid, feloniously did steal, take and carry away contrary to the form of the act of the general assembly in such case made and provided and against the peace and dignity of the Commonwealth of Pennsylvania.</p> <p>The facts appear by the opinion of the Superior Court</p> <p>Verdict of guilty upon which judgment of sentence was passed.</p>

<p>Appeal, No. 47, Oct. T., 1915, by defendant, from judgment of Q. S. Philadelphia Co., March Sessions, 1914, No. 453, on verdict of guilty in case of Commonwealth v. Frank R. Bilotta.</p> <p>Indictment for violation of the Act of June 19, 1911, P. L. 1060, relating to private banking. Before Henry, P. J., specially presiding.</p> <p>The case turned upon the constitutionality of the Act of June 19, 1911, P. L. 1060. See Commonwealth v. Crossman, 248 Pa. 11.</p> <p>Verdict of guilty upon which judgment was entered. Defendant appealed.</p>

<p>Nuisance — Private nuisance — Abatement—Spout from overhanging roof.</p> <p>An overhanging roof with a spouting attached thereto which discharges water onto the land of an adjoining owner is a private nuisance, and it may be abated by the injured person on his own motion without resorting to legal proceedings, if that may be done without a breach of the peace.</p> <p>An owner has no right to accumulate and carry the water from the roof of his house onto the lot of an adjoining owner, and if he does so, the adjoining owner may adopt the means most available and least prejudicial to the offender in turning it back on to the latter’s premises.</p> <p>Trespass — Nailing boards across neighbor’s windows — Landlord and tenant — Damages—Evidence.</p> <p>Where an owner of land nails boards across the windows on the wall of his neighbor’s building next to his own lot, and the neighbor puts in skylights to give light to the tenant who occupied the premises, the trespasser cannot be charged with the cost of the skylight, inasmuch as the injury was to the tenant, and not to the landlord.</p> <p>The implied covenant of quiet enjoyment in a lease only covers the conduct of the lessor or those holding title paramount.</p> <p>In an action of trespass where the defendant is charged with several trespasses, one of them for throwing down a brick wall, and the trial judge withdraws this particular trespass from the consideration of the jury on the ground that there was a dispute as to the ownership of the land on which the wall was located, evidence of vexatious conduct of the defendant in connection with the wall is inadmissible for the purpose of establishing either compensatory or punitive damages.</p>

<p>Evidenc e — Cross-examination—D efense.</p> <p>A party is not permitted to present his defense in the cross-examination of the opposite party by the introduction of matter not brought out in the examination in chief.</p> <p>Evidence — Declarations—General statement of accounts.</p> <p>Declarations or admissions having reference to a general state of accounts between the parties made in an attempt to negotiate a settlement are not admissible in evidence.</p> <p>Contract — Husband and wife — Evidence.</p> <p>In an action by a wife against her husband on a promissory note, the case is for the jury and a verdict and judgment for the defendant will be sustained, where the evidence tends to show that the note was given for money loaned by the' wife to her husband to ■make certain repairs which the husband had undertaken on a house belonging to the wife, that at the time the loan was made the parties had agreed that if by reason of a sale of the property by the wife or the existence of subsequent conditions he could no longer remain on the premises he should not be required to repay the note, and that the husband was subsequently turned out of the premises after his wife had obtained a divorce from him.</p> <p>In such a case it is immaterial that the husband may have wished to have the house repaired because of his defective eyesight. Such fact was explanatory of the contract, but had no bearing on the question of the making of the contract.</p>

Appeal, No. 150, April T., 1915, by plaintiffs, from order of C. P. Erie Co., April T., 1914, No. 24, dismissing exceptions to return of road supervisors in the matter of widening Twelfth Street in Millcreek Township, in suit entitled Sadie F. Lowry, et al., v. Road Supervisors of Millcreek Township. Exceptions to report of road supervisors. The opinion of the Superior Court states the case. Error assigned was in dismissing exceptions to return of supervisors.

Appeal, No. 110, April T., 1915, by defendants, from order of C. P. Allegheny Co.; April T., 1913, D. S. B., discharging rule to strike off judgment in case of Charles J. Kirch v. John L. Crawford and Eleanor Marlatt. Rule to strike off judgment.

Appeal, No. 193, April T., 1915, by defendant, from judgment of O. P. Allegheny Co., April T., 1911, Ho. 466, on verdict, for plaintiff in case of The Tarentum Lumber Company v. A. N. Marvin. Assumpsit to recover a balance alleged to be due for furnishing mill Avork and rough lumber for a building operation. Before Haymaker, J. The facts are stated in the opinion of the Superior Court. Defendant presented these points: 2.

Appeal, No. 199, April T., 1915, by defendant, from order of C. P. Allegheny Co., April T., 1915, No. 847, refusing appeal from the County Court in case of Rachel Woods v. The Pelican Mutual Life Insurance Company. Petition' for appeal from judgment of County Court. Error assigned was order refusing appeal.

Appeal, No. 202, April T., 1915, by plaintiffs, from judgment of C. P. Allegheny Co., Jan. T., 1913, No. 213, on verdict for defendant in case of F. Davis, for use of S. A. Thorniley and Chester Franzell, v. Mary Neel. Issue to determine the validity of a judgment entered under a warrant in a lease. Before Frazer, P. J. The opinion of the Superior Court states the case. Verdict and judgment for defendant. Plaintiffs appealed.

<p>Appeal, No. 192, April T., 1915, by defendant, from judgment of C. P. Allegheny Co., Jan. T., 1913, No. 1744, on verdict for plaintiff in case of Victor J. Schmitt, Receiver of the Interstate Lumber Company, v. Potter Title & Trust Company.</p> <p>Assumpsit to recover money alleged to have been wrongfully received. Before Haymaker, J.</p> <p>At the trial the court admitted under objection and exception the charter of the Interstate Lumber Company although it had not been recorded in the office of the recorder of deeds. (4)</p> <p>Plaintiff offered in evidence a check of the Interstate Lumber Company, reading as follows: “Pay to the order of W. A. Coleman, one hundred twenty dollars ($120), account of salary.” Signed “Interstate Lumber Company,” signed by W. A. Coleman, treasurer, and on the back endorsed “Pay to the order of Potter Title & Trust Co., W. A. Coleman.”</p> <p>Objected to, as incompetent, irrelevant and immaterial, not being the check on which suit was brought, and secondly, if it was, it shows on the face of it that it was made to the order of Mr. Coleman, and for salary, being a matter for which the officer would have a perfect right to draw a check, and being so clothed he would have a right to endorse it to the order of the Potter Title & Trust Company.</p> <p>Objection overruled.</p> <p>To which ruling of the court counsel for defendant except.</p> <p>Exception allowed and bill sealed. (5)</p> <p>W. A. Coleman was asked this question by Mr. Stone:</p> <p>Q. In other words, after the opening of the account in the Real Estate Savings and Trust Company, your moneys were mingled with the corporation’s moneys in the bank?</p> <p>A. Certainly, yes, sir.</p> <p>Q. And at that time the corporation was indebted to you?</p> <p>Objected to as incompetent, irrelevant and not a proper question in this case.</p> <p>By the Court:</p> <p>The objection to the last question and answer, with reference to the condition of the account between the corporation and the witness, is sustained.</p> <p>To which ruling of the court counsel for defendant except.</p> <p>Exception. (6)</p> <p>Q. In addition to these deposits, as made by you, what, if anything, did the company owe to you from time to time in the nature of compensation for services?</p> <p>Objected, first, for the reason that it is an attempt to draw in, by process of getting in the accounts, a statement of the accounts between these parties, and secondly, the witness is not competent to answer the question, because if the question becomes material to the issue, it can only be proved by the proper corporate action of the board of directors, fixing his compensation prior to the services being rendered.</p> <p>Objection sustained.</p> <p>To which ruling of the court counsel for the defendant except. Exception. (7)</p> <p>Q. Did the audit show that you were indebted to the company or that the company was indebted to you?</p> <p>Objected to as incompetent and irrelevant.</p> <p>Objection sustained.</p> <p>To which ruling of the court counsel for the defendant except.</p> <p>Exception. (8)</p> <p>By Mr. Stone:</p> <p>' I propose to show by the witness on the stand, that the witness, W. A. Coleman, brought suit against the Interstate Lumber Company and Y. J. Schmitt, its receiver, in the Court of Common Pleas of Allegheny County, at No. 1173 April Term, 1914; that in said suit said Coleman gave credit for the full amount, and for all of the checks on which suit is brought in this case, and that the affidavit of defense, as filed by Y. J. Schmitt, receiver, claims that Mr Coleman is indebted to the Interstate Lumber Company on account of the checks which are the basis of the suit in this case. This being offered for the purpose of showing that as to the accounts between William A. Coleman and the Interstate Lumber Company, and the company is indebted to Mr. Coleman and not he indebted to the company; and for the special reason of showing that these checks have been considered in the pleadings filed by both parties.</p> <p>Objected to as incompetent, irrelevant and immaterial.</p> <p>Objection sustained.</p> <p>To which ruling of the court counsel for the defendant except</p> <p>Exception. (9)</p> <p>Yerdict and judgment for plaintiff for $967.54. Defendant appealed. -</p> <p>Errors assigned, among others, were (1) refusal of binding instructions for defendant; (5-9) rulings on evidence quoting the bill of exceptions.</p>

<p>Appeal, No. 109, April T., 1915, by defendant, from decree of O. P. Lawrence Co., March T., 1913, No. 4, on bill in equity in case of J. J. Dean v. Central District and Printing Telegraph Company.</p> <p>Bill in equity for an injunction. Before Porter, P. J.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was decree awarding injunction.</p>

<p>Contract — Written and oral agreement — Royalties—Conflicting evidence — Case for jury.</p> <p>In an action of assumpsit to recover royalties which the plaintiffs claimed had been collected by defendant under a contract partly in writing and partly oral, under which they were entitled to a share, the case is for the jury where the testimony is involved and conflicting, and the written part of the contract is ambiguous, and modified by the oral part.</p>

<p>Will — Distribution—Reduction of legacy — Gift to children.</p> <p>Where a testator gives the whole residue of his estate to his six children naming them, share and share alike, “excepting a reduction of five hundred dollars of each” naming four of the children, “equal in all to two thousand dollars,” distribution is to be made by adding two thousand dollars to the entire amount for distribution, and after this entire amount is divided into six equal parts by deducting five hundred dollars from the shares of each of the four children whose shares are subject to reduction.</p>

<p>Ejectment — Boundaries—Division line — Adverse possession — ■ Estoppel — Evidence.</p> <p>In an action of ejectment where the issue is to determine the location of a division line described in deeds in partition executed by the predecessors in title of plaintiff and defendant, the latter is entitled to have the case submitted to the jury on the question of adverse possession, where there is evidence 'that shortly after the execution of the deeds, a fence had been constructed having reference to the division line, a part being along it, but not on it, and that for more than twenty-one years before the suit was brought the fence had been maintained, except during a short interval after it had been torn down by plaintiff, but almost immediately rebuilt by defendant. In such a case it is immaterial that plaintiff may have occasionally used a private road, a part of which was on the land in dispute; and in such a case the deeds in the line of title may be sent out with the jury.</p> <p>In an.action of ejectment where the issue is the location of a division line described in deeds of partition executed by predecessors in title of plaintiff and defendant, and where it appears that the deeds had been recorded, and that plaintiff had in no way misled the defendant, it is reversible error for the court to charge in effect that the defendant’s cultivation of the plaintiff’s land without objection on the latter’s part would estop him from asserting title to the property, if such cultivation had not continued for twenty-one years.</p>

<p>Equity — Jurisdiction—Injunction—Remedy at law — Timber.</p> <p>A court of equity will not award an injunction restraining a defendant from cutting and removing timber where it appears that the timber in controversy had been sold by the plaintiff to the defendant under an entire contract, that the full consideration had all been paid at the time the contract was made, that, while an immediate removal of all the timber was .talked about, it was not made an important or controlling part of the bargain that all should be removed within any specified time, and that the defendant after having removed a portion of the timber delayed for several months before attempting to remove the remainder.</p> <p>The expression “immediate delivery” in such a contract is to be construed in the light of the circumstances, having due regard to the subject matter, its location the season and the difficulty of re^moval, and the like.</p> <p>The granting of an injunction is always the exercise of power to be cautiously used, and it should clearly appear that irreparable injury is likely to follow, and that there is no adequate remedy at law.</p>

Appeal, No. 88, April T., 1915, by defendant, from order of C. P. Mercer Co., April T., 1911, No. 97, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Frank P. Craig, et al., v. J. Mede Lininger. Rule for judgment for want of a sufficient affidavit of defense.

Appeal, No. 138, April T., 1915} by defendant, from judgment of C. P. Beaver Co., Dec. T., 1912, No. 219, on verdict for plaintiff in case of John M. Turner v. G. C. Murphy Company. Assumpsit for salary. Before Holt, P.' J. Verdict and judgment for plaintiff for $459.28. Defendant appealed. Errors assigned were various portions of charge.

<p>Note — Judgment note — Wrongful entry of judgment — Damages for injuries from sale under execution.</p> <p>Where the holder of a judgment note enters judgment thereon and issues execution in violation of a verbal agreement, based on a valuable consideration, to cancel or surrender the note, and such agreement is made after the note was given, but before judgment is entered on it, the plaintiff may be held liable in an action of assumpsit for the injury to the defendant resulting from the sale of the latter’s property under the execution. Such’ an action of assumpsit does not attack the judgment collaterally.</p>

<p>School law — Attendance of pupils in district other than domicile —Payment for tuition — Minutes—Resolutions of hoard — Act of May 8,186A</p> <p>Directors of a school district, who have repaid to a parent domiciled in the district moneys which he had voluntarily paid out to another school district for the tuition of his children, will be surcharged with such payment, where there is nothing in the minutes of the hoard of either district showing any resolution, contract or arrangement relating to such tuition or payment therefor.</p>

<p>Appeal, No. 188, April T., 1915, -by defendant, from judgment of O. P. Somerset Co., Feb. T., 1914, No. 107, on verdict for plaintiff in case of Harry Goldberg v. Crown Mutual Fire Insurance Company of Somerset.</p> <p>Assumpsit on policy of fire insurance. Before Ruppel, P. J.</p> <p>At the trial plaintiff made this offer:</p> <p>“By Mr. Shaver: We now offer in evidence the proof of loss on this policy No. 515, in the Crown Mutual Fire Insurance Company of Somerset, Pa., for the purpose of showing the amount of the liability of the defendant company, and for the purpose of showing compliance upon the part of the plaintiff with the terms and conditions of the policy upon his part to be kept and performed.</p> <p>“By Mr. Boose: This is objected to for the reason that the proof of loss submitted is not competent evidence for the purpose of showing the value of the goods alleged to have been damaged by the plaintiff’s fire.</p> <p>“By the Court: The objection raises a collateral question. The offer is for a specific purpose and the objection does not go to the offer, and for that reason alone the offer might be admitted. But under the pleadings in this case I think the only issue is as to the question of additional insurance on the property lost. The plaintiff filed a statement giving a copy of the policy, copy of proofs of loss, and making averments as to the amount of loss, amount of insurance, and every other element requisite for the establishment of a claim. To this the defendant filed an affidavit of defense making no denial of any of the facts, and setting up the single defense that theré was other insurance on the property destroyed which vitiated the policy in suit. This was followed by filing the plea of non assumpsit accompanied by special matter setting up the same questions referred to in the affidavit of defense. There is no denial of the amount of plaintiff’s loss and the value of the goods destroyed or any question of that kind. No such defense has been set up either by notice to the insured before suit brought or in the pleadings and special matter on file in the case, and therefore the objections are overruled, the evidence admitted and bill sealed to the defendant.”</p> <p>Exception noted for defendant before verdict and bill sealed. (1)</p> <p>“By Mr. Boose for defendant: We propose to identify this policy. We propose to prove with the witness on the stand that he was secretary of the Crown Mutual Fire Insurance Company at the time of the issuance of the policy in suit; that he continued to be the secretary of said company up until and after the date of the plaintiff’s fire; that as secretary of said company he never received any notice whatever from the plaintiff that he had taken out additional insurance in other companies; that the only insurance whicli the plaintiff had at the time of issuing the policy in suit as stated by the plaintiff himself was $1,000.00 insurance in the 2Etna. This to be followed by proof by several other witnesses that subsequent to the date of the policy in suit, the-plaintiff took out $5,000.00 additional insurance in other companies; all of this testimony being offered for the purpose of showing a violation of the clause in the policy which renders said policy void if other insurance shall have been procured by the insured without the agreement of the defendant endorsed or added to its said policy.</p> <p>“By Mr. Shaver: This offer is objected to for the following reasons:</p> <p>“1. It is an attempt on the part of the defendant tc contradict the terms of its own contract in writing.</p> <p>• “2. The proof is irrelevant and immaterial for the reason that under the terms of the contract the insured was given permission to take out other insurance. If admissible at all under the contract and the pleadings, it would be admissible only upon proof by the defendant of its compliance with the terms and provisions of the Act of 1881, relative to the defendant’s compliance with the said act is attaching a copy of the application to the policy.</p> <p>“3. And generally, the offer is irrelevant, incompetent and immaterial.</p> <p>“By the Court: As I understand the offer, it is simply to prove the additional insurance already established by the plaintiff’s testimony and embodied in the proofs of loss which have been offered in evidence and therefore I can see no advantage to come to the defendant from offering this proof. The policy in suit has attached to it this clause: ‘Other insurance permitted as mentioned on application for this insurance.’ No copy of the application is attached to the policy as provided by the Act of 1881, the objections are sustained, the evidence excluded and bill sealed to the defendant.” (2)</p> <p>Verdict and judgment for plaintiff for $1,137.91. Defendant appealed.</p> <p>Errors assigned were (1, 2) rulings on evidence and (3) in giving binding instructions for plaintiff.</p>

<p>Appeal, No. 120, April -T., 1915, by plaintiff, from order of Q. S. Fayette Co., Sept. Sessions, 1914, No. 115, quashing indictment in case of Commonwealth v. J. H. Sweeney.</p> <p>Indictment for violation of the Act of May 8, 1909, Sec. 3, Clause 1, P. L. 470. Before Umbel, P. J.</p> <p>The case turned upon the constitutionality of the Act of May 8,1909, Clause 1, Section 3. The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was order quashing the indictment.</p>

<p>Appeal, No. 195, April T., 1915, by defendant, from judgment of C. P. Allégheny Co., April T., 1913, No. 1980, on verdict for plaintiff in case of Burke Electric Company v. Pennsylvania Light & Power Company.</p> <p>Assumpsit for machinery sold and delivered. Before Carnahan, J.</p> <p>At the trial it appeared that the machinery had been consigned by plaintiff from Erie, Pennsylvania, to the defendant at Allegheny, Pennsylvania. The defendant claimed that the machinery had been bought by another corporation named the Oil Recovery Company from which the defendant had bought it for full value.</p> <p>At the trial the court admitted in, evidence under objection and exception the books of the American Express Company to show the shipment, after such books had been verified, by William N. Nearing, chief clerk of the express company, and by other employees of the company. (1-3)</p> <p>Other facts appear by the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $414.79. Defendant appealed.</p> <p>Errors assigned, among others, were (1-3) rulings on evidence quoting the bill of exceptions and (11) answer to plaintiff’s second point, quoted in the opinion of the Superior Court.</p>

<p>Contract — Sale—Writing—Contemporaneous agreement — Evidence.</p> <p>In an action for goods sold and delivered under a written contract, tbe defendant will not be permitted to prove a contemporaneous parol agreement made with plaintiff’s agents and alleged to have been the inducement for signing the contract, where the written agreement provides as follows: “The within proposition, if accepted within......days from the date of its submission and ap-</p> <p>proval and approved by an executive officer of the company is the agreement between the parties hereto, and it is agreed and understood that all previous communications between said parties, either verbal or written, contrary to provisions thereof, are hereby abrogated and withdrawn.”</p>

<p>Appeal, No. 199, Oct. T., 1914, by plaintiff, from order of C. P. No. 3, Philadelphia Co., June T., 1907, No. 5903, discharging rule to amend in case of Peter McCullough v. Philadelphia Rapid Transit Company.</p> <p>Rule to amend statement of claim.</p> <p>The petition for the rule to amend averred that “through a misunderstanding by counsel for the plain-, tiff, a statement of claim was filed alleging that the car in which plaintiff was riding collided with a car preceding it in the same direction on the said Chestnut street and that this error was not discovered until April 15, 1910, after the case had been reached for trial.</p> <p>“Petitioner avers that the said error was due to misunderstanding and is an incorrect statement of the facts.</p> <p>“Wherefore petitioner prays leave to amend his aforesaid statement of claim by substituting on page two thereof, lines nine and ten for the words: ‘running in the same direction on Chestnut street as the aforesaid car, and immediately preceding it.’</p> <p>“The words: ‘running southwardly upon and along Twelfth street, a certain public highway crossing the said Chestnut street at right angles, to wit, in the county aforesaid.’ ”</p> <p>Error assigned was order discharging rule to amend.</p>

<p>Practice — Municipal Gourt of Philadelphia — Buie for judgment —Answer to new matter — Act of July 12, 1918, Section 12, Paragraph 2, P. L. 711.</p> <p>Where the plaintiff in an action in the Municipal Court of Philadelphia County moves for judgment for want of a sufficient affidavit of defense, and subsequently files an answer to defendant’s statement of new matter, the filing of the answer is not an abandonment of the rule for judgment. The Act of July 12, 1913, Section 12, Par. 2, P. L. 711, clearly shows that the fact that the case is at issue by the filing of the answer to new matter, does not prevent a motion for judgment for want of a sufficient affidavit of defense.</p> <p>Building and loan associations — Loan—Fraud—A'ffidavit of defense.</p> <p>In an action by a member of a building and loan association against the association to recover a portion of a loan which the association had agreed to make to the plaintiff on a mortgage, and which portion had been retained until certain conditions were performed, the defendant cannot set up as a defense misrepresentations made to it by the plaintiff who was its conveyancer as to the price which he was going to pay for the property on which the mortgage was given, if there is nothing to show that the price actually paid was not a proper one, or that the association had in any way been injured by the misstatement.</p>

<p>Road law — Revieivers—Next term of court.</p> <p>Where a report of viewers in favor of a road has been approved, and subsequently reviewers are appointed and file a report, but their report is set aside because of the disqualification of one of the reviewers, the court will not appoint other reviewers upon the petition for review already filed where it appears that such petition had been filed more than two terms of court after the report of the original viewers had been approved.</p>

<p>Liquor laws — Granting license — Associate judges — Occupation of surety.</p> <p>Two associate judges unlearned in the law may grant a liquor license notwithstanding the dissent of the president judge.</p> <p>An application for a retail liquor license is not fatally defective, because it fails to aver that a surety company named as surety was not engaged, in the manufacture of spirituous, vinous, malt or brewed liquors.</p>

Appeal, No. 234, Oct. T., 1914, by defendant, from order of the Municipal Court, Philadelphia Co., April T., 1914, No. 64, making absolute rule for judgment for want of a sufficient answer in case of Philadelphia and Gulf Steamship Company in the hands of S. P. Wetherill, Jr., Receiver, v. Edward V. Pechin. Assumpsit to recover a balance due on a stock subscription. Before Crane, J. The opinion of the Superior Court states the case.

Appeal, No. 285, Oct. T., 1914, by defendant, from order of C. P. No. 2, Philadelphia Co., Sept. T., 1914, No. 2888, making absolute rule for judgment for want of a sufficient affidavit of defense in case of John A. Wiland, trading as Wiland & Co., v. Royal Insurance Company, Ltd. Assumpsit on a policy of fire insurance. Rule for judgment for want of a sufficient affidavit of defense.

<p>Constitutional law — Civil rights — Theatre—Discrimination on account of color — Equality of accommodations — Act of May 19, 1887, P. L. 180 — Police power.</p> <p>The Act of May 19, 1887, P. L. 130, -which provides “That any person......being the owner, lessee, or manager of any...... theatre, concert hall, or place of entertainment, or amusement, who shall refuse to accommodate, convey, or admit any person or persons on account of race or color......into their theatre, concert hall or place of amusement, shall, upon conviction thereof, be guilty of a misdemeanor,” is a proper exercise of the police power, and is constitutional.</p> <p>A theatre proprietor who sets aside a portion pf his theatre for the accommodation of colored patrons exclusively, cannot be convicted of violating the Act of May 19, 1887, P. L. 130, unless it be shown to the satisfaction of a jury that the accommodation afforded by the portion set aside is not equal to that afforded by other parts of the theatre.</p>

<p>Appeal, No. 132, April T., 1915, by defendant, from judgment of O. & T. Allegheny Co., March Sessions 1914, No. 12, on verdict of guilty in case of Commonwealth v. Edward Exler.</p> <p>Indictment for statutory rape. Before Macearlane, Haymaker, Brown, JJ., and Sloan, J., specially sitting. See Com. v. Exler, 243 Pa. 155.</p> <p>From the record it appeared that the defendant was about twenty-five years old, that his victim was twelve and one-half years old, and that the crime was committed on November 27,1912.</p> <p>The circumstantial evidence as to the crime is summarized in the opinion of the Superior Court.</p> <p>At the trial the court permitted all the jurors to be called into the box, after which they were examined on their voir dire and challenges were made (8, 9).</p> <p>A. H. Willis, a juror, was examined as follows:</p> <p>By Mr. Wolf:</p> <p>Q. Mr. Willis, where do you live?</p> <p>A. Baldwin Township.</p> <p>Q. Have you heard of the Edward Exler case?</p> <p>A. Yes, sir.</p> <p>COMMONWEALTH v. EXLER, Appellant. Statement of Facts. [61 Pa. Superior Ot.</p> <p>Q. Have you ever formed or expressed an opinion as to the guilt or innocence of Edward Exler?</p> <p>A. Yes, sir, I did.</p> <p>Challenged for cause by defendant.</p> <p>By the Court:</p> <p>Q. You formed an opinion at that time?</p> <p>A. Yes, sir.</p> <p>Q. Is that a fixed opinion, have you still that opinion?</p> <p>A. Well, no.</p> <p>Q. If you were sworn as a juror in this case could you try it and decide it upon the evidence that would be introduced in the case?</p> <p>A. Yes, sir.</p> <p>Q. Unaffected by your former judgment or your former opinion?</p> <p>A. Yes, sir.</p> <p>Q. Were you acquainted writh the details of the case at the time of the trial?</p> <p>A. Just read of it, I heard them speak of it, that is all.</p> <p>Mr. Wolf:</p> <p>Q. You read the testimony in the former case?</p> <p>A. I wouldn’t say I read it all, I read some.</p> <p>Q. You read a good deal of it?</p> <p>A. Yes, sir.</p> <p>Q. And your opinion is based on what you read of that testimony?</p> <p>A. Yes, sir.</p> <p>Challenge for cause renewed.</p> <p>Challenge overruled.</p> <p>To which ruling of the court counsel for the defendant except.</p> <p>Exception allowed and bill sealed. (10)</p> <p>Counsel for defendant moved the court to compel the district attorney to forthwith return to the defendant one cap, one tan raincoat, one white shirt, one grey suit and some underwear now in the possession of the district attorney and which the district attorney has stated he will use as evidence in the trial of this case, which articles of personal property were obtained by the district attorney, or some of his detectives, from the home of the defendant without a search warrant — the seizure and retention thereof, and the proposed use of which by the district attorney is an invasion of the constitutional rights of the defendant.</p> <p>Motion refused.</p> <p>To which ruling of the court counsel for defendant except.</p> <p>Exception allowed and bill sealed. (11)</p> <p>By Mr. Simon:</p> <p>I now move that the following testimony given by James Beech, on page 166, be stricken from the record:</p> <p>Q. Bid Mr. Exler make any purchases from you the week of Thanksgiving, 1912?</p> <p>Objected to as immaterial, as Frank Exler is neither a witness nor a party to this case.</p> <p>By Mr. Jackson:</p> <p>This is to be followed by evidence .showing the presence in the Exler stable of a bag, which we undertake to show was a bag delivered there by this witness.</p> <p>No objection.</p> <p>Question repeated.</p> <p>A. Which Mr. Exler do you mean?</p> <p>Q. Mr. Frank Exler?</p> <p>A. The old gentleman?</p> <p>Q.' Yes.</p> <p>A. Yes, sir, he dealt with me continuously.</p> <p>Q. I have asked you of that week.</p> <p>A. Yes, sir.</p> <p>Q. What did he buy from you that week?</p> <p>A. The last thing they took up there, on the 25th of . November, was 100 pounds of bran, that comes in 100-pound sacks, and 178 pounds of shelled corn.</p> <p>Q. What was the shelled corn in?</p> <p>A. In a burlap sack.</p> <p>Q. What sized sack?</p> <p>A. Well, that would be over three bushels.</p> <p>Q. More than a three-bushel sack?</p> <p>A. Yes, sir.</p> <p>By Mr. Simon:</p> <p>I move the court to strike that evidence from the record because the district attorney stated that he would follow it by testimony which has not been produced.</p> <p>By Mr. Jackson:</p> <p>This is objected to, as the very same witness said he-did so deliver it.</p> <p>By the Court: The motion is refused; partly on account of the testimony of Frank Neeper, reported on pages 386 and 387.</p> <p>To which ruling of the court counsel for the defendant except.</p> <p>Exception allowed and bill sealed. (12)</p> <p>By Mr. Simon: I now move the court to withdraw a juror and continue this cause on account of the introduction during the trial of a great deal of irrelevant, incompetent and immaterial evidence, which would tend to prejudice and inflame the jury’s minds; and especially on account of the introduction of the testimony of James Beech, as to a feed sack, and as to the testimony of Mrs. Mary Lain, Mrs. Mabel Neeper, Mrs. Anna Probst, relative to a man riding a wagon down Grand-view avenue on the evening of Wednesday, November 27, 1912; because all of the evidence is in its nature prejudicial to the accused, was impressed by the Commonwealth on the jury as being material, and-tending to inflame the minds of the jury against the defendant.</p> <p>Objected to.</p> <p>Objection sustained, and motion to withdraw a juror refused.</p> <p>To which ruling of the court counsel for defendant except.</p> <p>Exception allowed and bill sealed. (13)</p> <p>During the progress of the argument of the district attorney counsel for defendant request an exception to the following language of the district attorney: “It is hard work to defend a guilty man; it is always hard work to defend one as guilty as he.”</p> <p>Counsel for defendant move the court to withdraw a juror on account of the said improper remark.</p> <p>By Mr. Jackson: At the point where I was interrupted by counsel for the defense I stopped, and not being addressed by the court, or stopped by the court, I finished the sentence that I was then uttering with these words, “as we will shoAV he is by the evidence that we have offered in this case.”</p> <p>• By the Court: The motion is refused.</p> <p>To which ruling of the court counsel for the defendant except.</p> <p>Exception allowed and bill sealed. (21)</p> <p>By Mr. Jackson: What went on in that stable was never known until the body of Lillian Schadle was taken from underneath the waters of the Ardmore Dam, and never would have been known if it had not been. You know now what happened, you know now. So does everybody that heard this testimony — knows that that defendant sitting here inveigled that child into that sta: ble by some means, by the means, I think, that I have suggested to you, because of-his beastly passions—</p> <p>By Mr. Simon: I object to the improper remarks of the district attorney.</p> <p>By the Court: For what reason?</p> <p>By Mr. Simon: Misstatement of the evidence.</p> <p>By Mr. Jackson (continuing) : This cruel deed was committed. That little girl was sent into eternity as a result of it. You tell me that there is a doubt of who did it, that there is a doubt of who did it? That there is a Aveak link in the chain? Never was there a stronger chain of evidence woven in this world than that which leads Ed Exler with the little girl that wore that blue coat into the Exler stable on the night of Thanksgiving, 1912, about twenty minutes after five o’clock—</p> <p>By Mr. Simon: I object to the improper remarks of the district attorney, and move the court to withdraw a juror.</p> <p>By the Court: State the reason for your objection.</p> <p>By Mr. Simon: The stating of facts which are not in the evidence in this case.</p> <p>By the Court: State what you consider is not in evidence.</p> <p>By Mr. Simon: There is no evidence that the little girl that was supposed to have gone into the stable wore that coat. There is no evidence that the defendant in that stable assaulted that girl.</p> <p>By the Court: The motion is overruled.</p> <p>To which ruling of the court counsel for the defendant except.</p> <p>Exception allowed and bill sealed. (22)</p> <p>By Mr. Jackson: (Exhibiting garments offered in evidence to the jury.) “Justice cries out to me and cries out to you from every one of these dust covered garments, it cries out from the blood of the little victim, it cries out from the womanhood of this great Commonwealth, that men shall have the nerve, the stability, the force, to apply the evidence in this case and pronounce the verdict that it justifies, and that they will render a verdict of guilty as indicted against the defendant.”</p> <p>Counsel for the defendant object to these remarks as improper. (23)</p> <p>Q. Miss Hricz, I show you a photograph, Exhibit No. 30, and ask you to state whether or not any of the faces or forms there is a photograph of the little girl that you saAv-there with Edward Exler?</p> <p>By Mr. Simon: If the court please, I object to this, because the photograph shown in that picture as being Lillian Schadle is marked with a big check mark, and I object to it on the ground that it is leading.</p> <p>Objection overruled.</p> <p>To which ruling of the court counsel for defendant except.</p> <p>Exception allowed and bill sealed.</p> <p>By Mr. Jackson:</p> <p>Q. What is yonr answer?</p> <p>A. This is the girl I seen coming down (indicating). (24) •</p> <p>Verdict of guilty upon which judgment of sentence was passed. Defendant appealed.</p> <p>Errors assigned, among others, were (1) sentence of the court, (2) refusal of binding instructions for the prisoner; (6) refusal to accept the plea of former acquittal ; (10, 11, 12, 13, 21, 22, 23, 24) various rulings as above quoting the bill of exceptions.</p>

<p>Appeal, No. 107, April T.,</p> <p>1915, by Citizens Title & Trust Company, from order of C. P. Payette Co., March T., 1914, No. 187, dismissing exceptions to auditor’s report in case of George B. Jeffries, et al., v. Uniontown Radial Street Railways Company.</p> <p>Exceptions to report of James R. Cray, Esq., auditor. The opinion of the Superior Court states the case.</p> <p>Error assigned was the order of the court.</p>

Appeal, No. 135, April T., 1915, by plaintiff, from judgment of C. P. Lawrence Co., Dec. T., 1913, No. 94, for defendant n. o. v. in case of ■ Mary Winter v. Mahoning & Shenango Railway & Light Company. Trespass to recover damages for personal injuries. Before Porter, P. J. The facts are stated in the opinion of the Superior Court. Error assigned was in entering judgment for defendant n. o. v.

<p>Criminal law — Sentence—False pretense — Discharge on habeas corpus.</p> <p>Where a prisoner charged with the oSense of false pretense has pleaded guilty, and been sentenced to imprisonment in the penitentiary, and has served part of his sentence, he will be discharged on habeas corpus proceedings in the Superior Court. In such a case the sentence should have been to the county jail and not to the penitentiary.</p>

<p>Petition for habeas corpus.</p>

<p>Mechanic’s lien — Separate liens — Dwelling house — Gurtilage— Reference to other buildings — Act óf June U, 1901, P. L. 1$1.</p> <p>Where a materialman has three separate contracts with a contractor to furnish certain material respectively for a dwelling house, tenant’s house and a barn all to be constructed on a lot consisting of seven acres, the whole to constitute a “residential plant” for the owner, a mechanic’s lien filed by him for material furnished to the dwelling house is not void because he also filed at the same time liens against the tenant’s house and the barn, and refers to these structures in the lien filed against the dwelling house. If the curtilage described contained more land than “should be justly included therein,” Section 23 of the Act of June 4, Í901, P. L. 431, furnishes an ample remedy to have the curtilage restricted to what may be reasonably necessary.</p> <p>In such a case the lien against the dwelling house is not defeated .because the owner made a subdivision of the whole lot after the plaintiff’s bill had been incurred, so as to leave each of the three structures on a separate lot.</p> <p>Mechanic’s lien — Lumping charge — Trice of items.</p> <p>Where a materialman contracts to furnish a specified number of frames for windows and frames for doors and a specified number of feet of cornice for a lump sum, he will not be required in filing a mechanic’s lien for such material, to specify a price for each item of material furnished, if he sets forth the number of frames and the number of feet of cornice, furnished.</p> <p>Mechanics’ liens — Times when materials loere furnished.</p> <p>Where a subcontractor files a lien for material furnished under a contract and states the time when the last material was furnished and that it was all furnished within sis months last past, objection cannot be taken to the lien because it fails to show what items were furnished within three months immediately preceding the giving of notice of the intention to file the lien.</p>

Appeal, No. 7, March. T., 1916, by plaintiffs, from judgment of O. P. Luzerne Co., Dec. T., 1909, No. 136, for defendant non obstante veredicto in… Held: in effect, that under the said proposal and acceptance the defendant was liable only for stone delivered and accepted by him pursuant to his orders at the prices set out in the writing. The plaintiffs alleged that the first shipment of stone was in pursuance of a verbal order given on or about the 14th day of August, 1903.

<p>Appeal, No. 256, Oct. T., 1914, by plaintiffs, from judgment of O. P. No. 3, Philadelphia Co., March T., 1912, No. 2175, M. L. D., on verdict for defendants in case of P. Elmer Weitzel, et al., trading as P. Elmer Weitzel Brothers & Sons, v. Anthony M. Zane, owner or reputed owner, and George W. and Judson M. Zane, trading as G. W. and J. M. Zane, Contractors.</p> <p>Scire facias sur mechanic’s lien. Before Ferguson, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>At the trial the court gave binding instructions for defendants.</p> <p>Verdict and judgment for defendants. Plaintiff appealed.</p> <p>Error assigned was in giving binding instructions for defendants.</p>

<p>Appeal, No. 11, Feb. T., 1915, by plaintiff, from judgment of C. P. Clinton Co., April T., 1913, No. 130, on verdict for defendants in case of Charles A. Bitner v. Joseph D. Diehl, et al.</p> <p>Assumpsit on a promissory note. Before Hall, P. J..</p> <p>The note was as follows:</p> <p>11,000.00 Lock Haven, Pa., Dec. 81,1912.</p> <p>Three months after date Ave promise to pay to the order of J. H. Crider at the Lock Haven Trust and Safe Deposit Co., of Lock Hateen, Pa.,</p> <p>One Thousand..............................Dollars</p> <p>without defalcation for value received.</p> <p>Joseph D. Dieiil.</p> <p>Charles Basinger.</p> <p>INDORSED Now Feb. 5, 1913 for value received, I hereby assign, transfer and set over to Chas.</p> <p>A. Bitner the within note.</p> <p>J. H. Crider.</p> <p>The defense set up was that the note had been signed by Diehl under duress exerted upon him by Crider, and that Basinger had signed the note as surety for Diehl without knowledge of the duress.</p> <p>The plaintiff purchased the note for $750.00. There was no evidence that he knew of the duress practiced on Diehl, and when on the stand denied that he had ever such knowledge. Crider was called by the plaintiff to testify to the genuineness of his signature to the endorsement. He was subjected to a cross-examination by the defendant in the course of which he stated that he did not explain to Bitner how he got the note, and that both he and his lawyer assured Bitner that it was a good and valid note.</p> <p>The court submitted the case to the jury.</p> <p>Verdict and judgment for defendants. Plaintiff appealed.</p> <p>Error assigned, among others, was in refusing binding-instructions for plaintiff.</p>

<p>Promissory note — Bills of exchange — Presentment for payment— Fraud — Burden of proof — Evidence.</p> <p>In an action by an endorsee against the acceptor of a draft, it is not necessary to show presentment for payment in order to charge the defendant inasmuch as he is primarily liable.</p> <p>In such a case the defendant is entitled to show that the payee negotiated it under such circumstances as amounted to a fraud upon the acceptor, and the burden of proof is then thrown upon the endorsee to show that he took the note in due course for a valuable consideration and without knowledge of the fraud.</p> <p>Where a person accepts a draft under a promise on the part of the payee that the draft will not be negotiated, and would only be used for a designated purpose, a subsequent violation of the agreement is a fraud upon the rights of the acceptor and will relieve him from liability on the draft as against the payee, or any one who takes it with knowledge of the fraud.</p>

<p>Landlord and tenant — Lease—Extension of term — Amount of rent.</p> <p>Where a lease for two years provides that the lessee “shall have the first privilege to rent the building for a further term of three years, providing he exercises the privilege three months before the expiration of two years,” and it appears that the lessee insisted upon the privilege of extension because he was about to purchase the business of an out-going tenant, the lessee has the right to an extension of three years after the termination of the term of two years, without any increase of rent or other change in the original lease.</p>

Appeal, No. 225, Oct. T., 1913, by plaintiff, from order of C. P. No. 2, Philadelphia Co., Dec. T., 1912, No. 3142, entering judgment for defendant n. o. v. in case of Mary P. Toy v. International Mercantile Marine Company. Trespass to recover damages for personal injuries. At the trial it appeared that the plaintiff was injured on September 9, 1911, while traveling as a first-class passenger on the steamship Dominion operated by the defendant company.

<p>Wills — Mother and son — Accounting for trust moneys — Executors and administrators.</p> <p>Where a testatrix bequeaths the residue of her estate to a son and daughter, but provides that the son “shall give my executors an accounting satisfactory to my said executors and all property of mine which, ever came into his hands, and if such satisfactory account is not given,” then the whole residue is to go to the daughter, and it appears that the son had settled with his mother in her lifetime for her moneys which he had in his possession, paying mostly in cash but the balance in a note, less than his share of the residuary estate, the executor cannot object to the son sharing in the residuary, because the son had not made a satisfactory accounting of what he did with the money represented by the note. In such a case the son’s relation with his mother after the settlement was that of debtor and creditor and not trustee and cestui que trust, and it is .immaterial what he had done with the money for which the mother accepted the note.</p>

<p>Appeal, No. 283, Oct. T., 1914, by defendant, from judgment of Municipal Court, Philadelphia Co., Aug. T., 1914, No. 517, on verdict for plain tiff in case of Katie M. H. Marshall v. Charles H. Marshall.</p> <p>Assumpsit for moneys due under a contract. Before Crane, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $600.00. Defendant appealed.</p> <p>Errors assigned were various rulings and instructions.</p>

<p>Negligence — Boarding house Iceeper — Evidence.</p> <p>In an action against a boarding house keeper to recover damages for personal injuries where the plaintiff avers in her statement of claim that her foot caught in a hole in a carpet on a stairway in a totally dark hallway, a verdict in her favor cannot be sustained, where the evidence shows that the hallway had been properly lighted, but that the lights had been put out by some one other than the defendant or any one in his employ, and no witness testified that plaintiff fell by reason of her foot catching in a hole, and the plaintiff herself testified that “there wasn’t any hole.”</p>

<p>Appeal, No. 160, April T., 1915, by defendant, from order of Q. S. Indiana Co., June Sessions, 1907, No. 16, awarding mandamus in case of R. T. Marlin, Administrator d. b. n. of the Estate of Mary Ann Reed v. Indiana Borough.</p> <p>Petition for mandamus. Before Telford, P. J.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was order awarding mandamus.-</p>

Appeal, No. 166, April T., 1915, by plaintiff, from judgment of C. P. Armstrong .Co., March T., 1911, No. 103, for defendant non obstante veredicto in case of James D. Clark v. Armstrong County Coal Company. Trespass for an alleged wrongful mining of coal and use of ways and entries. At the trial the jury returned a verdict for plaintiff for six and one-fourth cents damages.

Appeal, No. 284, Oct. T., 1914, by defendant, from judgment of Municipal Oourt, Philadelphia Co., March T., 1914, No. 26, for plaintiff in case tried by the court without a jury in suit of David Herring, et al., trading as Herring Brothers, v. Max Weinroth. Assumpsit for goods sold and delivered.

Appeal, No. 285, Oct. T., 1915, by defendant, from judgment of C. P. No. 4, Philadelphia Co., March T., 1914, No. 873, on verdict for plaintiffs in case of Carl Huehner, et al., v. Mollie Fisher. Assumpsit to collect the purchase-price of a ground rent. Before Carr, J. From the record it appeared that on January 28,1774, a' sheriff’s deed was executed conveying certain land under and subject to the ground rent in question.

Appeal, No. 18, Oct. T., 1915, by defendant, from judgment of Municipal Court of Philadelphia Co., Oct. T., 1914, No. 510, on verdict for plaintiff, in case of Samuel Demby v. Edward Atkins. Trespass to recover damages for personal injuries. Before Knowles, J. The circumstances of the accident are stated in the opinion of the Superior Court. Verdict and judgment for plaintiff for $400.00. Defendant appealed. Error assigned was in not entering judgment for defendant n. o. v.

Appeal, No. 41, Oct. T., 1915, by defendant, from judgment of Municipal Court of Philadelphia Co., July T., 1914, No. 397, on verdict for plaintiff in case of Horace W. Leeds, Trustee of the Bankrupt Estate of Lewis J. Matthias v. Perpetual Building and Loan Association. Assumpsit for money had and received. Before Crane, J. The facts are stated in the opinion of the Superior Court.

<p>Liquor laws — Refusal of license — Local option district — Division of district — Appeals—Review.</p> <p>An appeal from an order refusing a liquor license is in effect but a certiorari, yet where the court sets forth in the record as part of its final order the reasons for its action, the appellate court will determine whether the reasons thus assigned are legal reasons; and the same rule applies where the reasons are not set forth in the order itself, but are stated in an opinion filed in the proceedings.</p> <p>Where a district has been created a local option district under the Act of April 3, 1872, P. L. 804, but has been subsequently divided into different municipal divisions, the aggregate vote of the whole territory as originally constituted, governs the question of “license” or “no license” for all the new divisions, and not the vote of each division.</p>

<p>Appeal, No. 5, March T., 1916, by plaintiffs, from order of Public Service Commission No. 300, Complaint Docket, dismissing complaint in case of West Virginia Pulp & Paper Co.; New York and Pennsylvania Co.; the D. M. Bare Paper Co. and the York Haven Paper Co. v. The Public Service Commission of the Commonwealth of Pennsylvania, The Pennsylvania Railroad Company; Huntingdon & Broad Top Mountain Railroad Co.; Philadelphia, Baltimore & Washington Railroad Co. and West Jersey and Seashore Railroad Co.</p> <p>Motion to quash appeal.</p> <p>The motion' to quash the appeal was as follows:</p> <p>The Pennsylvania Railroad Company, Philadelphia, Baltimore & Washington Railroad Company and West Jersey & Seashore Railroad Company, intervenors in the above entitled proceeding, by their counsel, respectfully move the court to quash the appeal in the above entitled proceeding for the following reasons:</p> <p>First. The appeal purports to have been taken from the finding, determination and order of the Public Service Commission of the Commonwealth of Pennsylvania to the Superior Court, under the provisions of the Act approved the 3d day of June, 1915, amending the Public Service Company Law of Pennsylvania, approved July 26, 1913, which said Act of June 3, 1915, is unconstitutional and void.</p> <p>Second. That while the above appeal is taken from the finding, determination and order of the Public Service Commission to the Superior Court, the Public Service Company Law of July 26, 1913, as amended by the Act of June 3,. 1915, directs in Section 18, of Article VI, that the record of the proceedings in said case shall be certified to the Court of Common Pleas of Dauphin County.</p> <p>Third. That under the provisions of the said Public Service Company Law, as amended, the appellate court is to determine from the record certified to it by the commission whether or not the order appealed from is reasonable and in conformity with law, but there is no provision in said act, as amended, or in any other law of this Commonwealth, by which the record and proceedings before the Public Service Commission may be brought before, or certified to, the Superior Court.</p>

Appeal, No. 296, Oct. T., 1915, by defendant, from judgment of Q. S. Bucks Co., Dec. T., 1914, No. 35, on verdict of guilty in case of Com. v. Milton Weaver. Indictment for abortion. Before Ryan, P. J. At the trial the jury returned a verdict of guilty.

<p>Attorney-at-law — Partnership of attorneys — Dissolution of firm —Suit for fees.</p> <p>Where a firm of attorneys-at-law employed in certain litigation is dissolved by one of the members of the firm going upon the bench, the client is not bound to go on with the new firm, but if she gives no notice of her intention to make any change and permits the new firm to carry on the pending litigation to a successful conclusion, she cannot deny her liability to pay for the services rendered. In such a case a suit may be brought for fees in the name of the old firm for the use of the new firm.</p>

<p>Appeal, No. 34, Jan. T., 1915, by plaintiff, from order of C. P. Lackawanna Go., Jan. T., 1915, No. 34, discharging rule for judgment for want of a sufficient affidavit of defense in case of Louis Reiter v. Michigan Commercial Insurance Company.</p> <p>Assumpsit on a policy of fire insurance.</p> <p>. The statement of claim contained an itemized list of the goods alleged to have been destroyed.</p> <p>The material portions of the affidavit of defense were as follows:</p> <p>First. — That the policy of insurance on which suit is instituted in this case provides inter alia:</p> <p>“This entire policy shall be void if the insured has concealed or misrepresented, in writing or otherwise, any material fact or circumstance concerning this insurance or the subject thereof; or if the interest of the insured in the property be not truly stated herein; or in case of any fraud or false swearing by the insured touching any matter relating to this insurance or the subject thereof, whether before or after a loss.”</p> <p>That after the loss by fire referred to in the plaintiff’s statement the plaintiff furnished to defendant company proofs of loss wherein he made an affidavit that the value of the insured goods destroyed by fire was two thousand seven hundred and forty-five ($2,745.00) dollars, and the actual loss sustained thereon was two thousand six hundred and forty-five ($2,645.00) dollars; that said statement was false and untrue and a misrepresentation, as your deponent is informed and believes and expects to be able to prove on the trial of this case, under the terms of the policy, for the reason that the value of the property destroyed by fire was not in excess and did not exceed the sum of seven hundred ($700.00) dollars, which figure is giving the plaintiff the benefit of a liberal appraisement.</p> <p>Second. — By reason of said false swearing and misrepresentation said defendant is not liable to the plaintiff in this case in any sum of money whatever.</p> <p>The court discharged a rule for judgment for want of a sufficient affidavit of defense.</p> <p>Error assigned was the order of the court.</p>

<p>Road law — Appeals—Record—Evidence—Certiorari.</p> <p>An appeal from an order of the court in relation to a public road is in the nature of a certiorari. Neither the testimony, nor the rulings of the court on the admission of evidence, nor the findings of fact however unwarranted, are brought up with the record on the certiorari.</p> <p>Jury — Grand jury — Fraud—Discretion of court — Review—Appeals.</p> <p>The action of a grand jury influenced by fraud or improper Conduct may be set aside by the court. If the court, in the exercise of a proper discretion refuses to act, the appellate court will not interfere unless the facts to sustain the charge of fraud or improper conduct be such that the appellant court may say that the lower court, in thus refusing to act, abused its discretion.</p> <p>Road law — Hearing before grand jury- — County commissioners.</p> <p>County commissioners have a right to be present at a hearing in a road case before the grand jury, and to state in a proper way their views as to the propriety of the public improvement contemplated.</p> <p>Constitutional law — Title of act — Road law• — -County commissioners — Act of May 1.1, 1909, P. L. 506.</p> <p>The Act of Hay 11, 1909, P. L. 506, entitled “An Act providing for the construction, operation, and maintenance of public highways, bridges and tunnels in the several counties of this Commonwealth; authorizing the taking of property for such improvement and providing for the compensation therefor and the damages resulting from such taking; providing for the payment of costs and expenses incurred in such construction, operation and maintenance; and authorizing the levy of a tax and the issuance of bonds to provide a fund for said purpose,” is not unconstitutional as being defective in title, inasmuch as the title sufficiently indicates the change of policy on the part of the Commonwealth which extended the powers of the county commissioners over street improvements within cities and boroughs.</p> <p>Constitutional law — Uniformity of taxation — Special legislation —Road law — Act of May 11, 1909, P. L. 506.</p> <p>The Act of May 11, 1909, P. L. 506, relating to the construction, operation and maintenance of public highways, bridges and tunnels in the several counties of this Commonwealth does not violate the provision of the Constitution relating to uniformity of taxation, nor Article III, Section 7, of the Constitution, relating to local or special laws.</p> <p>Road law — Tunnel within city limits — Act of May 11, 1909, Section 16, P. L. 506.</p> <p>Under Section 16 of the Act of May 11, 1909, P. L. 506, a county is not required to ask a city for an agreement relating to a proposed public improvement, unless the city’s property rights or authority are affected.</p>

<p>Appeal, No. 299, Oct. T., 1915, by plaintiff, from judgment of O. P. Clearfield Co., May T., 1915, No. 85, on verdict for defendant in case of William S. Solida v. Brady Township.</p> <p>Trespass to recover damages for personal injuries. Before Bell, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The court gave binding instructions for defendant.</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Error assigned was in giving binding instructions for defendant.</p>

Appeal, No. 14, Oct. T., 1915, by plaintiff, from order of C. P. Lancaster Co., Aug. T., 1910, No. 49, refusing to take off nonsuit in case of Michael Isecovitz v. The Conestoga Traction Company. Trespass to recover damages for injuries to a horse. Before Landis, P. J. The facts relating to the accident are stated in the opinion of the Superior Court. The court entered a compulsory nonsuit Avhich it subsequently refused to take off.

<p>Appeals — Agreement as to two appeals — Decision in one appeal to control another — Quashing appeal — Failure to print evidence.</p> <p>Where parties have two suits pending in the same court at the same time, and they file an agreement of record that the same judgment shall be entered in the second suit as shall have been Qntered in the first suit, and that in the event of an appeal the same disposition may be made of the second suit as is made of the first suit, and on appeal the judgment in the first suit is reversed, the appellate court will reverse the judgment in the second suit. The appeal in the second suit will not he quashed because the appellant did not print the evidence, inasmuch as the decision of the appeal does not depend on the evidence, hut on the agreement filed of record.</p>

Appeal, No. 184, Oct. T., 1915, by Alfred J. Raubenhold, Garnishee, from judgment of O. P. Berks Co., Jan. T., 1914, No. 83, on verdict… Held: a verdict was directed finding that at the time of the attachment Eaubenhold had in his possession $1,242.00 in money belonging to Ella Bitner, defendant, subject to the process, whilst the bank had no money subject thereto belonging to either of the defendants. The question.now is whether the result as to Eaubenhold is right or not.

<p>Attorney-at-law■ — Attorney and client — Satisfaction of judgment —Authority of attorney- — Misappropriation of money.</p> <p>Where an attorney-at-law negotiates a loan from one of his clients to another and prepares and enters up a judgment bond against the borrower for the loan, and subsequently receives from the borrower and pays over to the lender two installments of the loan, and thereafter receives the whole balance of the loan from the borrower which he misappropriates, an entry of satisfaction of the judgment by the attorney is invalid and without authority, and will be stricken off at the instance of the plaintiff.</p>

Appeal, No. 244, Oct. T. 1915, by defendant, from order of O. P. No. 3, Philadelphia Co., June T., 1914, No. 2990, refusing to dismiss libel in divorce in case of Sarah Celeste Walsh v. John Early Walsh. Libel in divorce. Error assigned was in refusing to dismiss libel.

Appeal, No. 218, Oct. T., 1914, by defendant, from judgment of O. P. Northampton Co., Dec. T., 1914, No. 28, on verdict for plaintiff in case of Fred Foelner v. Louis Sulkin. Assumpsit on a promissory note.