Volume 62 — Pennsylvania Superior Court Reports

Appeal, No. 78, April T., 1915, by defendant, from judgment of C. P. Venango Co., Jan. T., 1913, No. 11, at E. D., for plaintiff n. o. v. in case of O. D. Bleakley v. George W. Feldman. Sheriff’s interpleader. Before Criswell, P. J. The facts are stated in the opinion of the Superior Court. Error assigned was in entering judgment for plaintiff n. o. v.

Appeal, No. 100, Oct, T., 1915, by plaintiff, from judgment of O. P. Philadelphia Co., Sept. T., 1912, No. 5419, on verdict for defendant in case of Delphia Knitting Mills Company, Inc., v. Howard S. Richards. Sheriff’s interpleader to determine ownership of a stock of goods.

Appeal, No. 51, Oct. T., 1915, by defendant, from judgment of Municipal Court Philadelphia Co., Nov. T., 1914, No. 712, on verdict for plaintiff in case of Mary Costello v. George Long. Trespass to recover the value of a diamond. Before Bonniwell, J. At the trial it appeared that on September 16, 1914, the plaintiff took an unmounted diamond, as she claimed, to the defendant’s shop and left it with his clerk, Archibald Bryson, to have mounted in a ring.

Appeal, No. 37, Oct. T., 1915, by defendant, from judgment of Municipal Ct. Sept. T., 1914, No. 32, on verdict for plaintiff in case of Peter C. McKinlay or MacKinlay v. John G-. Ogden. Assumpsit for money had and received. Before Knowles, J. The facts are stated in the opinion of the Superior Court. Verdict and judgment for plaintiff for f219.45. Defendant appealed. Errors assigned were various rulings on evidence and instructions.

Appeal, No. 103, Oct. T., 1915, by defendant, from judgment of O. P. Northumberland Co., Sept. T., 1913, No. 126, on verdict for plaintiff in case of Precilla Hettrick v. Emma L. Eby. Trespass to recover damages for the obstruction of an alley located on the southern end of five contiguous lots in Shamokin Borough.

Appeal, No. 257, Oct. T., 1915, by defendant, from order of O. P. Lancaster Co., April T., 1915, No. 43, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Pneumatic Scale Corporation, Ltd., v. Ideal Cocoa and Chocolate Co. Assumpsit for rental of an automatic weighing machine.

Appeals, Nos. 205 and 206, April T., 1915, by plaintiff, from order C. P. Butler Co. making absolute rule to set aside service of writ of execution in case of C. W. Wick, Cashier, v. Rachel Alworth, defendant, and Rachel Alworth, Administratrix of Joseph F. Alworth, deceased, Garnishee. Rule to set aside service of attachment execution. Before Reiber, P. J. The facts are stated in the opinion of the Superior Court.

Appeal, No. 40 April T., 1916, by defendant, from judgment of Q. S. Allegheny Co., Dec. T., 1914, No. 1, on verdict of guilty in case of Commonwealth v. Andrew Bobanic. Indictment for perjury. Before Heck, J. Prom the record it appeared that the prosecutrix was Violet M. Boliver. The facts are stated in the opinion of the Superior Court. Verdict of “guilty as indicted” on which judgment of sentence was passed. Defendant appealed.

Appeals, Nos. 299 and 300, Oct. T., 1914, by Sarah Pereyra Myers and Laura. Pereyra, from decree of O. C. Philadelphia Co., Jan. T., 1914, No. 554, dismissing exceptions to adjudication in Estate of Abraham M. Frechie, deceased. Exceptions to adjudication.

Appeal, No. 30, March T., 1915, by plaintiff, from decree of C. P. Luzerne Co., March T., 1913, No. 1, dismissing bill in equity in case of Edward A. Sweeney v. City of Wilkes-Barre, et al. Bill in equity for an injunction. The facts are stated in the opinion of the Superior Court. Error assigned was decree dismissing the bill. cited: Wettengel v. Allegheny County Light Co., 223 Pa. 79; Phoenixville Borough v. Phoenix Iron Co., 45 Pa. 135.

Appeal, No. 27, Oct. T., 1915, by defendant, from judgment of Municipal Court, Philadelphia Co., Aug. T., 1914, No. 505, on verdict for plaintiff on case tried by the court without a jury in suit of L. J. Campbell v. Manatawny Bessemer Ore Company. Assumpsit for expenses incurred. Before BonniWELL, J. The opinion of the Superior Court states the facts. Judgment was entered for plaintiff for $365.50. Defendant appealed. Error assigned was in entering judgment for plaintiff.

Appeal, No. 29, Oct. T., 1915, by plaintiff, from judgment of Municipal Court, Sept. T., 1914, No. 46, on verdict for defendant, in case of Jacob Berreski, by his next friend and father Michael Berreski, ahd Michael Berreski, in his own right, v. The Philadelphia Electric Company. Trespass to recover damages for personal injuries to a child nine years old caused by the alleged negligence of the defendant’s chauffeur.

<p>Appeal, No. 31, Oct. T., 1915, by defendants, from judgment of Municipal Court, Nov. T., 1911, No. 182, on case tried by the court without a jury in suit of Fred Sutcliffe v. Samuel Bakes and William Stockton, co-partners trading as Westmoreland Packing Case Company.</p> <p>Assumpsit on a written contract. Before MacNeille, J.</p> <p>The opinion of the Superior Court states the case.</p> <p>Errors assigned were in refusing defendant’s motion for a new trial based on the exclusion of certain evidence.</p>

Appeal, No. 33, Oct. T., 1915, by defendant, from order of Municipal Court Philadelphia Co., Jan. T., 1915, No. 51, making absolute rule for judgment for want of sufficient answer in case of R. Le Roy Dengler v. Exchange Building Association of Fairhill. Assumpsit for the purchase-money of real estate.

<p>Promissory notes — Consideration—Duress—Threat to imprison maher’s daughter.</p> <p>The maker of a promissory note given to a corporatibn cannot be held liable on the note, where the uncontradictéd facts are that the maker owed the payee nothing, that the note was obtained by the counsel and a director of the payee through threats that a daughter of the maker, who had been in the payee’s employ, would be arrested, prosecuted and put in jail unless the father gave the note, that the father was greatly frightened and alarmed at the threats, and executed the note when he was in a highly excited and nervous condition.</p> <p>Duress is that degree of restraint or danger, either actually inflicted or threatened and impending, which is sufficient in severity or apprehension to overcome the mind of a person of ordinary firmness.</p>

Appeal, No. 64, Oct. T., 1915, by defendant, from order of C. P. No. 1, Philadelphia Co., Dec. T., 1911, No. 1911, making absolute rule for judgment for want of a sufficient affidavit of defense in case of The W. E. Heyser Lumber Company v. Whiting Lumber Company. Assumpsit for goods sold and delivered.

<p>Municipalities — Employees — Dismissal — Civil service rules— Suit for wages.</p> <p>Where a carpenter employed by the City of Philadelphia, and subject to the civil service regulations, is dismissed, and is served with a notice stating the reasons for his dismissal, to which, he files no answer and as to which he takes no further action, he cannot maintain a suit against the city for his wages from the time of his suspension or dismissal until the date of the suit; and this is the case irrespective of the fact whether his discharge was regulated by the Act of March 6, 1906, P. L. 83, or by the Act of February 15, 1906, P. L. 19, or by both of these acts construed in pari materia.</p> <p>Title to office cannot be tried in an action to recover salary incident thereto.</p> <p>Statutes — Repeal—Acts of February 15, 1906, F. L. 19, and March 5,1906, P. L. 88.</p> <p>It seems that the Act of February 15, 1906, Sec. 2, P. L. 19, was repealed by the Act of March 5, 1906, Sec. 20, P. L. 83.</p>

<p>Appeal, No. 55, Oct. T., 1915, by defendant, from order of Municipal Court, Philadelphia County, Feb. T., 1915, No. 5, discharging rule to open judgment in case of J. W. Colquhoun v. General Flooring & Manufacturing Co.</p> <p>Rule to open judgment. Before Knowles, J.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was order discharging rule to open judgment.</p>

Appeal, No. 83, Oct. T., 1915, by defendant, from judgment of O. P. No. 5, Philadelphia Co., Sept. T., 1915, by No. 2375, on verdict for plaintiff in case of Hyman Fishman v. Max Berger, trading as M. Berger & Co. Assumpsit to recover hand money paid on account of an alleged agreement to sell real estate. At the trial it appeared that the owner of a stable placed it in the hands of the defendant as agent to effect a sale.

<p>Appeal, No. 86, Oct. T., 1915, by defendant, from judgment of O. P. No. 2, Philadelphia Co., Dec. T., 1897, No. 1756, M. L. D., on verdict for plaintiff in case of City of Philadelphia, to use, of Thomas Cunningham, v. Estate of Margaret A. Peters, deceased, actual and registered owner.</p> <p>Scire facias sur municipal lien for paving. Before Sulzberger, P. J.</p> <p>.From the record it appeared that the lien in suit was filed on September 13, 1899, against the estate of Margaret A. Peters, owner and registered owner. On November 1, 1901, Jacob A. Peters was permitted to intervene in the proceedings. He did not, however, register, himself as owner, and in subsequent proceedings to revive he was not served with the writ, or given notice of the proceedings. Other facts are stated in the opinion of the Superior Court.</p> <p>The court gave binding instructions for plaintiff.</p> <p>Yerdict and judgment for plaintiff for $986.80. Defendant appealed.</p> <p>Error assigned was in directing a verdict for plaintiff.</p> <p>The purchaser at a valid foreclosure sale acquires all'the title, right and interest of the mortgagor in and to the mortgaged premises, as the same existed at the date of the mortgage: DeHaven v. Landell, 31 Pa. 120; King v. McCully, 38 Pa. 76; Bituminous Paving Co. v. McManus, 148 S. W. 621.</p> <p>The lien was not properly revived: Jones v. Beale, 217 Pa. 182.</p> <p>A person who accepts a deed with both actual and constructive notice and knowledge of the location of a street designated for the use of different owners of a tract of which his lot is part, takes the land subject to the easement of such streets as were by the plan located upon it: Wit-man v. Smeltzer, 16 Pa. Superior Ct. 285; Jackson v. Pittsburgh, 36 Pa. Superior Ct. 274.</p> <p>The words “Estate of” under the present circumstances have been held to be mere “harmless superfluity” and do not affect the validity of the lien. See: Philadelphia, to use, v. Peters, 57 Pa. Superior Ct. 275, citing Jones v. Beale, 217 Pa. 182; Eeece v. Haymaker, 164 Pa. 575.</p>

<p>Appeal, No. 61, Oct. T., 1915, by defendant, from judgment of Municipal Court, Philadelphia Co., Nov. T., 1914, No. 704, on verdict for plaintiff in case of Peter Kronberger v. Philadelphia Rapid Transit Company.</p> <p>Trespass to recover damages for personal injuries. Before Bonniwell, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $300.00. Defendant appealed.</p> <p>Error assigned was in dismissing defendants motion for judgment n. o. v.</p> <p>There was no proof of any negligence on the part of the defendant: Yingst v. Lebanon, Etc., Ry. Co., 167 Pa. 438; Moss v. Philadelphia Traction Co., 180 Pa. 389; Wagner v. Lehigh Traction Co., 212 Pa. 132.</p> <p>The plaintiff was guilty of contributory negligence: Crumley v. Philadelphia Rapid Transit Co., 55 Pa. Superior Ct. 599; Pilgrim Laundry Co. v. Philadelphia Rapid Transit Co., 56 Pa. Superior Ct. 593; Mease v. United Traction Co., .208 Pa. 434.</p>

<p>Appeal, No. 80, Oct. T., 1915, by plaintiff, from judgment of G. P. No. 2, Philadelphia Co., Dec. T., 1912, No. 3037, on verdict for plaintiff in case of Charles J. Day v. Central Trust & Savings Company.</p> <p>Assumpsit for breach of a written contract of guaranty. ' Before Dougherty, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The court charged in part as follows:</p> <p>There is no doubt that there was a breach of contract on the part of the defendant company; but there is nothing in the evidence, as far as I can see, which shows any bad faith on the part of the defendant company. In other words, the failure to carry out the express conditions of the contract was not owing to any failure on the part of the defendant or any bad faith on its part.</p> <p>Under the circumstances, the question arises: To what damages is the plaintiff entitled? [You will have observed at the trial here that the defendant has made a formal tender to the plaintiff of the title to the property, in accordance with the terms of the agreement. Now, I instruct you, as matter of law, that that was a good tender to Day and that there is nothing in the evidence to show any bad faith on the part of the defendant toward the plaintiff in failing to have the conveyance made at the proper time.] (9)</p> <p>[I do not think it is necessary for me to go into the facts, in view of what I am going to say to you, and that is that in my opinion the only damages that the plaintiff is entitled to recover here, in addition to the property 4918 Walnut street, is the rental value of the property from the time the property should have been conveyed to the plaintiff up to the present day.] (10)</p> <p>Verdict for plaintiff, deed of 4918 Walnut street and $562.00 damages. Judgment was entered on the verdict.</p> <p>Errors assigned, among others, were (9, 10) above instructions, quoting them.</p> <p>The present case is squarely, ruled by Singerly v. Armstrong, 5 W. N. C. 139..</p>

<p>Appeal, No. 308, Oct. T., 1914, by defendant, from judgment of Municipal Court, Philadelphia Co., May Sessions, 1914, No. 240, on verdict of guilty in case of Commonwealth v. Harry Shepherd.</p> <p>Indictment for larceny as bailee. Before Bonniwell, J.</p> <p>At the trial the defendant claimed that he was a common carrier of goods for hire and that he retained the goods in question to enforce his lien for charges.</p> <p>Verdict of guilty upon which judgment of sentence was passed.</p> <p>Error assigned was in refusing binding instruction for defendant.</p> <p>—Defendant was a common carrier: Fuller v. Bradley, 25 Pa. 120; Gordon v. Hutchinson, 1 W. & S. 285; Lloyd v. Haugh, 223 Pa. 148.</p> <p>He had a right to enforce the lien: Labar v. Benedetto, 20 D. E. 799; Freeman v. Wilkes-Barre, Etc., Traction Go., 36 Pa. Superior Ot. 166; Brown v. Sun-bury, Etc., Ey. Go., 43 Pa. Superior Ct. 61; Monier v. Philadelphia Eapid Transit Go., 227 Pa. 273.</p> <p>A common carrier has not the right to hold goods of a shipper in full payment for freight until he has delivered or tendered all the goods contracted to be delivered. Nor has he any right to retain such goods until certain accumulated charges demanded by him are paid: Nicolette Lumber Co. v. People’s Coal Co., 213 Pa. 379; Wallace v. B. & O. E. E. Go., 216 Pa. 311.</p>

<p>Appeals, Nos. 5 and 6, April T., 1916, by defendants, from judgment of Q. S. Lawrence Co., March Session, 1914, No. 3, on verdict of guilty in case of Commonwealth v. John Bingle, C. B. Burns and J. M. Badger.</p> <p>Indictment for conspiracy. Before William E. Porter, P. J.</p> <p>The facts are stated in the opinion of the Superior Court,</p> <p>Verdict of guilty upon which the defendants were sentenced to imprisonment in the western penitentiary for seven and five months respectively.</p> <p>Errors assigned were various rulings on evidence and instructions, the refusal to withdraw a juror and sentence to the penitentiary instead of to the county jail.</p> <p>The declarations of the defendant were not admissible: Com. v. Bliss, 12 Philadelphia 580; Heine v. Com., 91 Pa. 145; Wagner v. Haak, 170 Pa. 495.</p> <p>The court should have withdrawn a juror: Com. v. Bell, 20 Pa. C. C. R. 223; Com. v. Brown, 16 W. N. C. 557.</p> <p>The sentence is simple imprisonment for less than one year and the place of confinement is the common jail: Com. v. Petterman, 26 Pa. Superior Ct. 569.</p> <p>Declarations and acts of conspirators are admissible against each other when made or done during the existence of the conspiracy or continuance of the common purpose or in furtherance thereof : Confer, et al., v. McNeal, 74 Pa. 112; Heine v. Commonwealth, 91 Pa. 145; Commonwealth v. Zuern, 16 Pa. Superior Ct. 588; Commonwealth v. Tack, 1 Brewst. 511; Commonwealth v. Williams, 31 Pa. Superior Ct. 372; Com. v. Stambaugh, 22 Pa. Superior Ct. 386.</p>

<p>Appeal, No. 97, Oct. T., 1915, by defendants, from judgment of O. P. No. 1, Philadelphia Co., June T., 1913, No. 926, on verdict for plaintiff in case of Frederick Townsend v. Camille Gemehl, trading as American Taxicab Company.</p> <p>Trespass to recover damages for personal injuries. Before Bregy, P. J.</p> <p>At the trial it appeared that the injuries were sustained as the result of a collision between a wagon which the plaintiff was driving on December 30, 1912, and an automobile owned by defendant but operated at the time by his chauffeur, Robert Tyrer.</p> <p>The plaintiff called Robert Tyrer and offered in evidence a letter written by Tyrer shortly after the accident. An objection to the admission of the letter was sustained. Tyrer was subsequently called by the defendant and testified that the collision occurred owing to the way the plaintiff was driving. On cross-examination he was asked this question:</p> <p>“Q. — Immediately after the accident you wrote a letter to Mr Townsend?</p> <p>“A. — Yes, sir.</p> <p>“Q. — In that letter did you state this-</p> <p>“(Objected to by Mr. Bromley.)</p> <p>“The Court. — You can show him the letter and ask him to' identify it.</p> <p>“(Letter produced and shown.)</p> <p>“By Mr. White:</p> <p>“Q. — Is this the letter which you wrote him?</p> <p>“A. — That is my signature.</p> <p>“Q. — You wrote that immediately after the accident?</p> <p>“A. — I did not say ‘immediately.’</p> <p>“By the Court:</p> <p>“Q. — How long after the accident?</p> <p>“A. — Witness refers to letter of 1912.</p> <p>“(Envelope produced and shown.)</p> <p>“Q. — That is the envelope in which you sent it?</p> <p>“A. — Yes, sir.</p> <p>“Q. — It says up in the corner — Station O, Philadelphia, December 30, 1912, 9:30 p. m.</p> <p>“A. — Yes, sir; I must have wrote it the same day or after the accident.</p> <p>“Q. — In the letter you stated-</p> <p>“(Objected to by Mr. Bromley.)</p> <p>“The Court. — Anything he said in the letter about the accident, you can show him.</p> <p>“By Mr. White:</p> <p>“Q. — You said this, did you not? ‘Now, Mr. Townsend, I will pay, it was my fault through the wet street and the rain on the wind shield?’</p> <p>“(Objected to by Mr. Bromley for the reason that the witness was called for the purpose of stating the facts of the accident without any opinion thereon.)</p> <p>“Objection overruled. Exception.”</p> <p>Verdict for plaintiff for $12,000.00 upon which judgment was entered for $800.00; all above that amount having been remitted.</p> <p>Error assigned was ruling on evidence as above quoting the bill of exceptions.</p> <p>The admission of the Tyrer letter on cross-examination was improper both as substantive evidence to make out the plaintiff’s case, or to impeach the credibility of the witness: Floyd v. Bovard, 6 W. & S. 75; Jackson v. Ditch, 62 Pa. 451; Glenn v. Philadelphia & West Chester Traction Co., 206 Pa. 135; Keystone Brewing Co. v. Varzaly, 39 Pa. Superior Ct. 155; Gallagher y. Philadelphia Rapid Transit Go., 248 Pa. ■304.</p> <p>The Tyrer letter was inadmissible on cross-examination to test the credibility of the witness, as it contained nothing contradictory, and its admission is reversible error: Jackson v. Litch, 62 Pa. 451; Thomas & Lonis v. Loose, 114 Pa. 35; Warner Co. v. Exeter Machine Works, 58 Pa. Superior Ct. 477; American Steamship Co. y. Landreth, 102 Pa. 131.</p> <p>The statement of facts by the witness in the letter contradicted his testimony and was a proper subject of cross-examination: Rothrock v. Gallagher, 91 Pa. 108; Cronkrite v. Trexler, 187 Pa. 100; Com. y. Racco, 225 Pa. 113; Schlater y. Winpenny, 75 Pa. 321; Wilson v. Wilson, 137 Pa. 269; Walden v. Finch, 70 Pa. 460; Kreiter v. Bomberger, 82 Pa. 59.</p>

<p>Appeal, No. 309, Oct. T., 1914, by defendant, from judgment of Municipal Court, Philadelphia Co., Oct. T., 1914, No. 2, on verdict for plaintiff in case of Laura A. Kunkel v. Union Casualty Insurance Company.</p> <p>Assumpsit upon a policy of automobile insurance. Before Knowles, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $572.42. Defendant appealed.</p> <p>Error assigned was refusal of binding instructions for defendant.</p> <p>Tbe available legal literature on the subject of automobiles bas been examined by appellant and in tbe accessible works on this comparatively recent and fruitful branch of tbe law consisting of</p> <p>Abbott’s Automobile Law for Motorists, 1909,</p> <p>Babbitt on tbe Law of Motor Vehicles, 1911,</p> <p>Berny’s Treatise on tbe Law relating to Automobiles, 1909,</p> <p>David’s Law of Motor Vehicles, 1911,</p> <p>Huddy’s Law of Automobiles, 1912, although numerous decisions defining a great number of automobile terms are cited, tbe word “testing” is not defined therein, nor do tbe authors of tbe works discuss it and tbe equally numerous books on casualty insurance give no further light on this subject.</p> <p>It would seem logical, therefore, to conclude that in tbe absence of any reference to testing, in these works, that tbe word bas no technical or special meaning other than its plain ordinary and popular meaning, and that tbe adjustment of tbe carburetor by appellee’s employee, and taking tbe car out to see what effect it bad on tbe running of tbe motor was a testing of tbe car within tbe meaning of tbe policy.</p> <p>Tbe verb test, of which testing, tbe word in controversy, is tbe present participle, is defined by Webster’s Dictionary as follows, viz: “Test, to put to tbe proof, to prove tbe truth, genuineness, or quality of by experiment, or by some principle or standard; to try.” And tbe definition in tbe Century Dictionary is also similar, viz: “Test, to put to tbe test, being to trial and examination, compare with a standard; try, as to test tbe soundness of a principle; to test the validity of an argument; to test a person’s loyalty; to test the electrical resistance of a wire.”</p> <p>Words in an instrument are to he given their plain, ordinary and popular meaning: McWilliams v. Martin, 12 S. & R..268; Lehigh, Etc., Coal Co. v. Wright, 177 Pa. 387; Bickford v. Cooper, 41 Pa. 142; Preston v. ¿Etna Ins. Co., 193 N. Y. 133.</p> <p>cited: Glenn v. Strickland, 21 Pa. Superior Ct. 88; Ford v. Buchanan, 111 Pa. 31; Reynolds v. Maryland Casualty Co., 30 Pa. Superior Ct. 456; Frick v. United Firemen’s Ins. Co., 218 Pa. 409.</p>

<p>Appeals — Certiorari—Order of support — Hushand and wife■ — ■ Evidence.</p> <p>An appeal from an order of the Municipal Court of Philadelphia County refusing to revoke an order of support, is in effect a certiorari and takes up the record only. The appellate court cannot consider the evidence.</p> <p>Where the Court of Quarter Sessions makes an order on a father <for the support of a child and subsequently the same court is petitioned to revoke the order on the ground that the minor child mentioned in the original order was not the child of petitioner, and the petition is dismissed, the matter is res adjudicata, and cannot be raised in a subsequent proceeding in the Municipal Court of Philadelphia County to revoke the order for the support of the child.</p>

Appeal, No. 167, Oct. T., 1915, by defendant, from judgment of Municipal Court, Philadelphia Co., March T., 1915, No. 274, on verdict for plaintiff in case of Isadore Klein v. Philadelphia. Trespass to recover damages for personal injuries. Before Knowles, J. The facts are stated in the opinion of the Superior Court. Verdict and judgment for plaintiff for $1,200.00.

Appeal, No. 109, Oct. T., 1915, by defendant, from judgment of Municipal Oourt, Philadelphia Co., Oct. T., 1914, No. 352, on verdict for plaintiff in case of William Stankowcz v. Baltimore & Ohio Railroad Company. Trespass to recover damages for personal injuries. Before Crane, J. The circumstances of the accident are stated in the opinion of the Superior Court. Verdict and judgment for plaintiff for $150.00. Defendant appealed.

Appeal, No. 120, Oct. T., 1915, by defendant, from judgment of O. P. No. 5, Philadelphia Co., Dec. T., 1912, No. 367, on verdict for plaintiff in case of Anna L. Reese v. A. Warren France. Trespass to recover damages for personal injuries.

Appeal, No. 119, April T., 1915, by defendant, from judgment of C. P. Allegheny Co., April T., 1913, No. 725, on verdict for plaintiff in case of Walter J. Taylor v. C. Limburg. Assumpsit to recover the price of drilling an oil and gas well to the depth of 832 feet at the rate of eighty cents per foot. At the trial the jury returned a verdict for plaintiff for $744.46.

Appeal, No. 320, Oct. T., 1914, by defendant, from decree of C. P. No. 5, Philadelphia Co., March T., 1913, No. 1014, on bill in equity in case of Gibson Distilling Company v. David Netter, trading as David Netter & Company. Bill in equity for an injunction to restrain the wrongful use of a trade name, and to. enjoin unfair trading. Before Ralston, J. The court found as a fact that the defendant sold a whiskey under the name of “Gibson’s Cabinet......

Appeal, No. 168, April T., 1915, by plaintiff, from decree of C. P. Cambria- Co., March T., 1913, No. 2, dismissing bill in equity in case of Robert Blume v. Carrolltown Borough, et al. Bill in equity for an injunction.

Appeal, No. 190, May T., 1915, by defendant, from judgment of C. P. Cambria Co., June T., 1913, No. 223, on verdict for plaintiff in case of S. W. Treese v. Lydia R. Price, Administratrix of E. T. Price, deceased. Assumpsit for rent. Before Stephens, P. J. The facts are stated in the opinion of the Superior Court. Verdict and judgment for plaintiff for $1-,023.39. Defendant appealed.

Appeal, No. 200, April T., 1915, by plaintiff, from judgment of C. P. Allegheny Co., April T., 1913, No. 652, for defendant n. o. v. in case of Anna Holliday v. Booth & Flinn, Ltd. Trespass to recover damages for personal injuries. Before Evans, J. At the trial the jury returned a verdict in favor of the plaintiff for $975.

<p>Appeal, No. 154, April T., 1915, by defendant, from judgment of C. P. Lawrence Co., Sept. T., 1913, No. 13, on verdict for plaintiff in case of Carmine Carrozza v. National Life Insurance Company of the United States of America.</p> <p>Assumpsit on a policy of life insurance. Before William E. Porter, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The court charged in part as follows:</p> <p>[So you will see it becomes a material question in this case as to whether or not Mr. Switzer caused false answers to appear upon the application for insurance and whether or not the plaintiff here made truthful answers to the questions that were asked him. If he made truthful answers and they were either negligently, mistakenly or fraudulently written by the agent on the paper differently, then the company would not be able to escape responsibility or liability on that account, for the reason that it is the company’s agent that is responsible for the false answers in the paper. But the jury must be clearly satisfied that the answers were written down falsely by the agent. You have the application made by the plaintiff and signed by him and the jury should not conclude, without due reflection and without -being clearly satisfied that the plaintiff made truthful answers and that the agent either fraudulently, negligently or mistakenly wrote down improper answers to the questions. If you find that he did, and that the plaintiff made truthful answers, then the plaintiff would be entitled to recover.] (2)</p> <p>Counsel for the plaintiff requests us to' instruct you:</p> <p>I. The fraud or mistake of the insurance agent within the scope of his authority will not enable his principal to avoid a contract of insurance to the injury of the insured who acted in good faith; and the fraud or mistake of the agent may be proved by parol evidence, notwithstanding it is provided in the policy that the description of the property shall be a part of the contract and the warranty of the insured.</p> <p>Ans. Affirmed. (3)</p> <p>Verdict and judgment for plaintiff for $102.06. Defendant appealed.</p> <p>Errors assigned were (2, 3) above instructions quoting them.</p> <p>The insured having accepted the policy and renewed it four times with a copy of the application in which the false answers as to prior disability and medical attention plainly appeared will not now be heard to say that incorrect answers were inserted by the agent: Stewart v. General Accident Ins. Go., 35 Pa. Superior Ct. 120; Lynch v. Travelers Ins. Co., 200 Fed. 193; Wyss-Thalman v. Md. Casualty Co., 193 Fed. 55; Gaines v. Fidelity & Casualty Co., 87 N. Y. Supp. 821; Colaneri v. General Accident Ins. Co., 110 N. Y. Supp. 678; Leuten Brick Co. v. Killen, 235 Pa. 144; Rinker v. iEtna Life Ins. Co., 214 Pa. 608; Bostwick v. Mutual Life Ins. Co., 116 Wis. 392; Forwood v. Prudential Ins. Co., 83 Atl. 169; Bonewell v. North American Acc. Ins. Co., 167 Mich. 274; Reynolds v. Atlas Accident Ins. Co., 71 N. W. 831; Bostwick v. Mutual Life Ins. Co., 116 Wis. 392; Madsen v. Md. Casualty Co., 142 Pac. 51.</p> <p>The insured is bound by his agreement that the company shall not be bound by any knowledge of or statements made by or to any agents unless written in the application: Rinker v. iEtna Life Ins. Co., 214 Pa. 608; Suravitz v. Prudential Ins. Co., 224 Pa. 582; Scientific American, Etc., Dept. v. Creighton, 32 Pa. Superior Ct. 140; iEtna Life Ins. Co. v. Moore, 231 U. S. 356.</p> <p>The insured having accepted the return of all the premiums with the understanding that they were tendered on the ground that the policy had been rendered void, is thereby estopped to claim that the policy is valid: Austin v. Mutual Reserve Fund Life Assn., 132 Fed. 555; In re Millers and Mfgs. Ins. Co., 106 N. W. 485; Ashton’s App., 73 Pa. 153; Robinson v. Hay, 91 Pa. 242.</p> <p>Where an applicant for insurance has acted in good faith and misstatements have resulted from the negligence or bad conduct of the agent of the company, the company cannot take advantage of its agent’s wrong and thereby escape liability on its policy: Mullen v. Union Central Life Ins. Co., 182 Pa. 150; Dowling v. Merchants’ Ins. Co., 168 Pa. 234; Landes v. Safety Mutual Fire Ins. Co., 190 Pa. 536; Susquehanna Mut. Fire Ins. Co. v. Cusick, 109 Pa. 157; Eilenberger v. Protective Mut. Fire Ins. Co., 89 Pa. 464; Smith v. Farmers’ & Mechanics’ Mut. Fire Ins. Co., 89 Pa. 287; Stewart v. General Accident Ins. Co., 39 Pa. Superior Ct. 396; Suravitz v. Prudential Ins. Co., 244 Pa. 582.</p> <p>The payment of part of a debt due without a release under seal will not discharge the debt: Girard Fire, Etc., Insurance Company v. Canan, 195 Pa. 589; Eves-son v. Ziegfeld, 22 Pa. Superior Ct. 79; Krauser v. Mc-Curdy, 174 Pa. 174; Collins v. Busch, 191 Pa. 549; Mc-Cauley v. Cremerieux, 132 Pa. 22;</p>

Appeal, No. 182, April T., 1915, by defendant, from judgment of C. P. Armstrong Co., Sept. T., 1913, No. 120, on verdict for plaintiff in case of W. H. Glenn v. Kittanning Iron & Steel Manufacturing Company. Trespass to recover damages for personal injuries. Before King, P. J. The circumstances of the accident are set forth in the opinion of the Superior Court. Verdict and judgment for plaintiff. Defendant appealed.

Appeal, No. 123, April T., 1915, by plaintiffs, from judgment of C. P. Beaver Co., June T., 1913, No. 182, for defendant n. o. v. in case of Avre Mamula, et al., v. Albert L. McDonald. Assumpsit for breach of a parol agreement. Before Holt, P. J. At the trial the jury returned a verdict for plaintiff for $469.80.

<p>Appeal, No. 124, April T., 1915, by plaintiff, from judgment of C. P. Beaver Co., June T., 1913, No. 183, for defendant n. o. v. in case of George' Evosevic v. Albert L. McDonald.</p>

Appeal, No. 108, April T., 1915, by defendant, from judgment of C. P. Somerset Co., Feb. T., 1914, No. 14, on verdict for plaintiff in case of J. C. Lowry v. Austin Yutzy. Assumpsit to recover commissions for the sale of real estate. At the trial it appeared that the contract to pay commissions was in writing, but was unlimited as to time, and gave plaintiff no exclusive right to negotiate the sale.

Appeal, No. 178, April T., 1915, by plaintiff, from decree of C. P. Beaver Co., March T., 1914, No. 3, dismissing bill in equity in case of Sarah B. McConnell v. Fannie S. Bryan, et al. Bill in equity for partition of the real estate of which Elizabeth Bryan died seized and possessed. The bill was filed by one of the daughters of Mrs. Bryan. The case turned upon the question whether the will worked a conversion of the real estate.

Appeal, No. 37, April T., 1916, by plaintiff, from order of Q. S. Lawrence Co., Sept. T., 1914, No. 30, quashing indictment in case of Commonwealth v. Tony DeSarto. Indictment for hawking and peddling without a license in violation of the local Act of March 14, 1873, P. L. 297. Before William E. Porter, P. J. The material portion of the Act of 1873 is as follows: Section 2.

Appeal, No. 89, April T., 1915, by defendant, from decree of C. P. Allegheny Co., Oct. T., 1913, No. 276, dismissing bill in equity in case of Marie Riedrich v. Paul Riedrich. Bill in equity for a decree for support. The opinion of the Superior Court states the case. Error assigned was decree in favor of the plaintiff.

Appeal, No. 296, Oct. T., 1914, by defendant, from judgment of O. P. No. 5, Philadelphia Co., June T., 1912, No. 4015, on verdict for plaintiff in case of Bettie Clark v. Metropolitan Life Insurance Company. Assumpsit upon a policy of life insurance. Before Ralston, J. The facts are stated in the opinion of the Superior Court. Verdict and judgment-for plaintiff for $580. Defendant appealed.

<p>Negligence — Telephone company — Junction box — Infant.</p> <p>A boy seven years of age who runs in sport through a private alley, in which neither he nor his parents had any right and strikes his head against a metal junction box, and injures himself, is not entitled to maintain a judgment on a verdict in his favor, where it appears that the alley had been generally used by the public without objection from those having the legal right to its use, that the box had been placed on a fence along the alley with the permission of the owner of the fence, that it was securely fastened to the fence at such a height that the bottom of it was three feet and ten inches from the pavement of the alley, and that, at that height it projected four inches from the surface of the fence into the open way.</p>

Appeal, No. 11, Oct. T:, 1915, by defendant, from judgment of O. P. No. 2, Philadelphia Co., June 9., 1912, No. 1453, on verdict for plaintiff in case of Richard B. Tustin v. Levin E. Hawes. Trespass to recover damages for personal injuries. Before Sulzberger, P. J. Verdict and judgment for plaintiff for $250. Defendant appealed.

<p>Appeal, No. 82, Oct. T., 1915, by defendant, from judgment of Municipal Court, May T., 1914, No. 243, for plaintiff on case tried by the court without a jury in suit of E. H. Salter, trading as Salter’s Stables, v. A. Lincoln Acker, Sheriff.</p> <p>Assumpsit against the sheriff. Before Crane, J.</p> <p>Plaintiff’s statement of claim averred that judgment was obtained by Clara V. Krause against one James F. Donohue on March 12, 1913; that plaintiff obtained judgment against James F. Donohue and Walter D. Gibney, trading as Donohue & Gibney, on May 9, 1913; that a property, the title of which stood in the name of said Walter D. Gibney, but which plaintiff alleged belonged to said Donohue & Gibney by virtue of a deed of trust executed by said James F. Donohue, had been sold by the defendant, as sheriff, upon a paramount encumbrance; that the surplus after payment of all prior charges should have been paid to him on account of his said judgment, but that the defendant, as such sheriff, only paid one-half thereof to him, and the other one-half on the above prior judgment against said James F. Donohue alone.</p> <p>The defendant, by his answer, averred that under said declaration of trust, the ownership of said property was in the said James F. Donohue and Walter D. Gibney as tenants in common, and that hence the distribution was properly made by him.</p> <p>The material portions of the deed of trust were as follows :</p> <p>Whereas, William P. McLaughlin and Louise G., his wife, by indenture dated May 2, 1911, granted and conveyed unto Walter D. Gibney, Ms heirs, and assigns, all that certain lot or piece of ground with the buildings and improvements thereon erected, described as follows:</p> <p>And whereas the true and real consideration money paid to the said William P. McLaughlin for the said premises was the sum of six thousand eight hundred dollars, notwithstanding the above mentioned deed recited the consideration money as one dollar;......</p> <p>And whereas, the said premises were purchased for James F. Donohue and the said Walter D. Gibney, trading as Donohue & Gibney, undertakers, and all sums raised and paid on account of said premises for purchase-money, mortgage-money, building association dues, interest, taxes and other charges were raised and paid equally by the said James F. Donohue and the said Walter D. Gibney, and will continue to be raised and paid equally by them,</p> <p>Now know all men by these presents, that the said Walter D. Gibney does hereby acknowledge and declare that he holds the legal title to said premises by virtue of said conveyance as trustee for himself the said Walter D. Gibney and the said James F. Donohue, in equal shares, as tenants in common, the consideration for the conveyance above recited having been raised and paid by them, the said James F. Donohue and Walter D. Gibney, equally, and the said Walter D. Gibney, for himself, his heirs, executors and administrators, covenants, promises and agrees to and with the said James F. Donohue, his heirs and assigns, that he, the said Walter D. Gibney, shall and will, at any time hereafter, upon request of the said James F. Donohue, his heirs or assigns, and the tender by the said James F. Donohue, his heirs or assigns, of the- proper costs and charges, grant and convey to the said James-F. Donohue, his heirs and assigns, by good and sufficient deed an equal one-half share, portion, estate, property, right, title and interest of, in and to the'said premises.</p> <p>The court entered judgment for plaintiff for $423.99. Defendant appealed.</p> <p>Error 'assigned was in entering judgment for plaintiff on case stated.</p> <p>The sheriff upon the distribution of a fund raised upon the sale of real estate under execution process, is bound to distribute in accordance with the facts as they appear of record at the time of the sale, unaffected by extraneous matters: Ebbert’s App., 70 Pa. 79; Gunnison v. Erie Dime, Etc., Loan Go., 157 Pa. 303; Stover v. Stover, 180 Pa. 425; Cundey v. Hall, 208 Pa. 335.</p> <p>The record at the time of the sheriff’s sale, required the sheriff to distribute the fund exactly as he did: Kramer v. Arthurs, 7 Pa. 165; Mehaffy v. Dobbs, 9 Watts 363; Naglee v. Ingersoll, 7 Pa. 185; Tate v. Clement, 176 Pa. 550; Olfsheskey v. Graham, 46 Pa. Superior Ct. 523; Ridgway, Budd & Co.’s App., 15 Pa. 177; McCormick’s App., 57 Pa. 54; Lefevre’s App., 69 Pa. 122; Ebbert’s App., 70 Pa. 79; Second Natl. Bank’s App., 83 Pa. 203; Geddes’ App., 84 Pa. 482; Holt’s App., 98 Pa. 257; Kepler v. Erie, Etc., Loan Co., 101 Pa. 602; Shafer’s App., 106 Pa. 49; Gwinner v. Union Tr. Co., 226 Pa. 614.</p> <p>cited: Lancaster Bank v. Myley,</p> <p>13 Pa. 543.</p>

<p>Negligence — Street railways — Collision between car and wagon —Contributory negligence.</p> <p>Where a driver of a team about to cross a street railway looks along the tracks before urging his horses onto the tracks and sees a car 300 feet away, he cannot be charged with contributory negligence as a matter of law in driving ahead, and if in such a case it appears that the wagon was struck with violence, there is sufficient evidence of the defendant company’s negligence to submit the case to the jury.</p>

<p>Appeal, No. 101, Oct. T., 1915, bv defendant, from judgment of Municipal Court, Philadelphia Co., Dec. T., 1914, No. 431, for plaintiff op case tried by the court without a jury in suit of Catharine Pries v. Louis E. Wiser.</p> <p>Trespass to recover damages for personal injuries to Catharine Pries resulting from assault and battery. Before Knowles, J.</p> <p>Prom the record it appeared that the suit was begun by a capias issued upon a petition setting forth the facts. After the defendant’s arrest, plaintiffs filed a formal statement in which each claimed damages in the sum of fifteen hundred dollars, making three thousand dollars in all. The defendant filed an answer. Subsequently the case was tried by agreement of the parties without a jury. The court found in favor of the plaintiff, Catharine Pries, in the sum of three hundred and fifty dollars. Subsequently the defendant moved in arrest'of judgment, filing the following reasons:</p> <p>(1) The Municipal Court has no jurisdiction of the action which was instituted by the issuance of a capias ad respondendum.</p> <p>(2) The Municipal Court has no jurisdiction of the cause because no statement of the plaintiffs’ claim was filed by the plaintiffs at the time they began this action.</p> <p>(3) The Municipal Court has no jurisdiction of the cause because the total amount of damages demanded by the plaintiffs in the statement of claim was $3,000.00.</p> <p>The motion was dismissed.</p> <p>Error assigned, among others, was in dismissing the motion to arrest judgment.</p> <p>That the Municipal Court is a court of jurisdiction limited by the terms of the act of assembly creating it, in which, the practice and procedure are regulated by the provisions of that act, is recognized in all the reported decisions upon the Municipal Court Act: Rotan’s Petition, 23 D. R. 110; Philadelphia & Reading Ry. Co. v. Walton, 23 D. R. 535; Philadelphia & Gulf Steamship Co. v. Clark, 59 Pa. Superior Ct. 415.</p> <p>A question somewhat similar to that in the present-case was raised under the Allegheny County Court Act in Commonwealth v. Lewis, 60 Pittsburgh L. J. 676.</p> <p>Inasmuch as the plaintiffs here sought to recover a total of $3,000.00 the court lacked jurisdiction for the reason that “the sum demanded by the plaintiff” exceeded the jurisdictional limit of $1,500.00</p>

<p>Appeal, No. 30, April T., 1915, by defendant, from judgment of Q. S. Lawrence Co., June Session, 1914, No. 63, on verdict of guilty in case of Commonwealth v. Frank W. Myers.</p> <p>Indictment for selling liquor without a license. Before William E. Porter, P. J.</p> <p>At the trial it appeared that the defendant was a member of the Loyal Order of Moose. He was also one of the stewards employed by the order in a club or grill room established for'the benefit of the members of the order where liquors, tobacco and food were distributed to the members.</p> <p>The prosecutor presented the following points:</p> <p>2. In determining whether or not the distribution of liquors to- members, as exercised by the Loyal Order of Moose, of which this defendant is a steward, is a mere incident of the organization, you may take into consideration the fact that four stewards are engaged in conducting the sideboard and selling these tickets, while but two other persons are employed in looking after the wants of members in the other social features conducted by the order. The further fact that the club rooms are kept open and liquors served every day in thenveek from 8 o’clock a. m., until 11 o’clock p. m., while the lodge proper meets but once a week, and- the further fact that about 4% times as much money is received from the sale of these books of tickets as is taken in yearly in dues from the members for carrying on the work of the order; and if you find from all the evidence in the case that the distribution of liquors is not a mere incident of this organization then such distribution, whether equitable or not, is unlawful and any person distributing liquor and taking in exchange therefor money, tickets or other valuable thing would be guilty of selling liquor without a license. Ans. Affirmed. (10)</p> <p>3. If the distribution of liquors is made to the members of the club either at a loss or a profit, then the distribution is not equitable and is unlawful and the person making such distribution and taking in exchange therefor money, tickets or other valuable thing would be guilty of selling liquor without a license. Ans. Affirmed. (11)</p> <p>4. Thomas Moore, the secretary of the house committee, has testified that the money received from the sale of the yellow tickets was not sufficient to pay for the liquors consumed by the members, but that the money received from the sale of the red tickets was sufficient to pay the deficit on the liquors, the salaries of the stewards, janitors, secretary of the house committee and the incidental expenses of the club rooms and leave a balance for the year ending April 1,1914, of $9,-965.55. • This testimony has not been contradictory and if you believe it to be true and further, if you believe the defendant, himself, when he says that he sold these tickets to members and served them liquors in exchange for the yellow tickets, such distribution is unlawful; in other words, it would not be a distribution but would be a sale.</p> <p>Ans. Affirmed. (12)</p> <p>5. Under all the evidence the verdict must be “not guilty.” (13)</p> <p>Verdict of guilty upon which judgment of sentence was passed.</p> <p>Errors assigned, among others, were (1) in refusing to quash the indictment; (10-13) above instructions quoting them, and (15) in refusing to compel private counsel in the prosecution to file his warrant of attorney.</p> <p>It is well settled that a grand juror may be challenged for cause: Holland v. Com., 82 Pa. 306; Nickles v. Nickles, 1 Lack. Jur. 11; Com. v. Reber, 10 D. R. 683.</p> <p>Defendant’s demand for the warrant of attorney was of right under the Act of April 11, 1831, P. L. 351: Mercier v. Mercier, 2 Dallas 112.</p> <p>We insist that the club had a right to purchase a supply of liquors and distribute them among its members without cost or charge of any kind. If it did this at cost or less than cost or free there could be no complaint: Com. v. Carey, 151 Pa. 368; Com. v. Peters, 2 Pa. Superior Ct. 1.</p> <p>Whether there was a loss upon the distribution of these liquors was a matter that could be complained of only by the members of the club: Altenburg v. Com., 126 Pa. 602; Com. v. Carey, 151 Pa. 368.</p> <p>This appears to be good grounds for the challenge of a juror for cause and if so it would be proper for the grand juror to retire during the consideration of the case by the grand jury: Respublica v. Richards, 1 Yeates 180.</p> <p>Even in civil actions the filing of a warrant of attorney is not a matter of course, upon the request of the defendant, but is a matter subject to the discretion of the court: Com. v. Serfass, 5 Pa. C. C. R. 139.</p> <p>Where the purpose is gain and an attempt is being made to profit by the traffic and evade the payment of license fees and the laws intended to regulate and re* strain the traffic in liquors the business is unlawful and those engaged therein are guilty under the terms of the statute: Com. v. Krotzer, 55 Pa. Superior Ct. 351.</p>

<p>Contract — Sale—Unreasonable delivery — Failure to pay on time —Rescission.</p> <p>Where a contract for the sale of lumber provides that shipment shall “begin ten days after receipt of order, and he completed in 'sixty days,” and that payment shall he made in cash “after car arrives and is cheeked up,” if the seller’s failure to deliver is unreasonable and works prejudice to the purchaser, the latter may rescind the contract; and on the other hand, if the purchaser unreasonably refuses to pay for the lumber after a reasonable time to inspect and check it up, the seller may also rescind.</p> <p>Custom — Contract—Writing—Evidence.</p> <p>Where the parties to a contract have expressed it in writing, if there be silence as to a certain feature covered by a custom of trade satisfying every legal requirement, such custom, upon proper proof, may be read into the contract; but where the parties, by the use of plain language have clearly indicated the subject of agreement between themselves, evidence of a custom is not admissible.</p>

<p>Appeal, No. 75, Oct. T., 1915,</p> <p>by defendant, from judgment of C. P. Clearfield Co., Sept. T., 1914, No. 442, on verdict for plaintiffs in case of S. C. Stewart and L. F. Stewart v. New York Central & Hudson River Railroad Company.</p> <p>Assumpsit for services rendered by surgeons. Before Bell, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Yerdict and judgment for plaintiff for $436.50. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for defendant.</p> <p>A railroad company cannot be field liable for medical services rendered employees at request or knowledge of an assistant trainmaster or district claim agent alone, without some proof of authority to bind: Weldon v. Traction Co., 27 Pa. Superior Ct. 257.</p> <p>cited: Park v. Kansas City Southern Ry. Co., 58 Pa. Superior Ct. 419; Brooke v. New York, Lake Erie & Western Ry. Co., 108 Pa. 529.</p>

<p>Common carriers — Railroads—Passing of title to goods — Evidence — Form of action.</p> <p>In an action against a railroad company to recover damages for injuries to a soda fountain resulting from tbe negligent act of tbe defendant while the fountain was in its possession, a judgment on a verdict in favor of the consignor will be sustained, where the evidence for the plaintiff tends to show that the foum tain was sold to the consignee under an agreement that it was to be bought by the consignee only after it was put up in his store in good condition and ready for use.</p> <p>For negligence by a common carrier in transporting goods entrusted to it, the shipper may at his election bring either an action ex contractu or an action ex delicto.</p>

<p>Justice of the peace — Record—Qertiorari—Exceptions—Appeal —Interlocutory order.</p> <p>Where on certiorari to the judgment of a justice of the peace, exceptions were filed to the effect that the justice had not returned the record as it actually was, but had added thereto, and the Court of Common Pleas dismisses the exceptions, the appellate court will not decide the .question of fact involved, but is bound by the record as certified and returned by the justice.</p> <p>It seems that an order of the Common Pleas upon certiorari to a justice of the peace merely overruling exceptions to his record is not a final judgment from which an appeal can be taken.</p> <p>Justice of the peace — Summary conviction — Joinder of three offenses — Drunhenness—Profanity-r—Disorderly conduct.</p> <p>Drunkenness; profanity and disorderly conduct rqay be joined in one complaint, and the justice of the peace in convicting the defendant may impose three separate sentences upon him, one for each offense.</p> <p>A summary conviction will not be set aside on the ground that the transcript of the justice did not set forth a place where the .offense was committed; and especially is this the case where the information upon which the conviction was based sets forth the place.</p> <p>Where a person is convicted of drunkenness, profanity and disorderly conduct and is sentenced by the justice to a fine of sixty-seven cents for drunkenness, sixty-seven cents for profanity and one dollar for disorderly conduct or thirty days in jail, the alternative sentence of thirty days in jail applies only to disorderly conduct inasmuch as the justice could not impose a jail sentence for profanity for more than .twelve hours, or for intoxication for more than twenty-four hours. ' The fact that the alternative jail sentences for profanity and drunkenness are omitted, is not material.</p> <p>A person may be convicted of drunkenness under the Act of April 22, 1794, P. L. 178, although the act designates the offense as “intoxication.”</p>

<p>Contract — Joint contracts — Parties—Action.</p> <p>In an action against two defendants jointly to recover on a joint contract, the plaintiff may have a verdict and judgment against one defendant, where the other defendant proves to the jury that he has paid his proportion of the debt and has been released from liability.</p>

Appeal, No. 286, Oct. T., 1915, by plaintiff, from decree of O. P. Blair Co., Equity Docket No. 828, dismissing bill in equity in case of Domenico Bonfitto v. The San Donato Mutual Benefit Association. Bill in equity for a mandatory injunction to reinstate plaintiff as a member of an incorporated association.

<p>Appeal, No. 297, Oct. T., 1915, by plaintiff, from decree of C. P. Lancaster Co., Equity Docket No. 6, dismissing bill in equity in case of Ida Neff v. Charles F. Schied, Albert McCutcheon, John C. Reese, Anna Scheid and others, Trustees, members and officers of Lady Franklin Council, No. 85, of Pennsylvania Daughters of Liberty.</p> <p>- Bill in equity for a mandatory injunction to compel the reinstatement of plaintiff as a member of an unincorporated beneficial association.</p> <p>Landis, P. J., filed the following opinion:</p> <p>So far as regularity is concerned, the proceedings against the plaintiff, which resulted in her expulsion from Lady Franklin Council, No. 85, Daughters of Liberty, seems to have been conducted in conformance with the several laws regulating this order. The notice of the charge made against her by John C. Reese was, in our judgment, sufficiently served upon her; but, even conceding that it was not, she, without protest, appeared at the hearing and any informality in the service was thereby waived. Of all subsequent action, whether by Lady Franklin Council or by the Appeal Committees and Officers of the State National Councils, she, according to the papers offered by her, received due notice.</p> <p>That by Law XIII, Sec. 9, a committee, who has been appointed to hear charges, must, if the accused refuses or neglects to stand trial when duly summoned, report such party guilty of contempt of the council, is, from its reading, plain; and by this section, the report thus made is conclusive of the contempt, and the punishment is expulsion. Now, it appears beyond dispute that, under this law, the plaintiff was expelled from this order by Lady Franklin Council. She, being dissatisfied, had recourse to the appellate tribunals of the order, and they, in due form, have sustained that action. The only question, therefore, remaining to be determined is, whether such a law, enacted by a beneficial order like this, is valid and binding upon the members.</p> <p>In Myers v. Fritchman, et al., 6 Pa. Superior Ct. 580, it is said that “it has long been settled that, when one becomes a member of such an organization (a beneficial organization) as this, he accepts and is bound by the rules adopted for its government. His rights and liabilities are regulated by those rules, whether they be called a constitution or by-laws, or both; provided they are not in contravention of the laws of the Commonwealth : Com., ex rel., v. Pike, Etc., Society, 8 W. & S., 247; Com. v. Union League, 135 Pa. 301. This doctrine has been recognized in many other cases, and is in conflict with none.”</p> <p>It is also held, in the case just cited, that a member must resort to the tribunal of his order, and that the judgment of such tribunal is final and conclusive. Quoting from the opinion of the court, it is said: “In seeking right arising under the constitution of the order, he must pursue the methods provided by the constitution. In the present case, the order to which the plaintiff belonged has, by its constitution, provided tribunals for the settlement,of his claim. He was bound to resort to these, and is concluded by their adjudication. He does not deny that their proceeding in relation to his claim were regular, nor that he had full opportunity of being heard. Their jurisdiction is not to be transferred to the courts of law because of an adverse decision, or his failure to employ or to exhaust the methods provided for its exercise.” In Black and White-Smiths’ Society v. Vandyke, 2 Wh. 309, Mr. Justice Gibson said: “Into the regularity of these proceedings, it is not permitted us to look. The sentence of the society, acting in a judicial capacity, and with undoubted jurisdiction of the subject-matter, is not to be questioned collaterally, while it remains unreversed by superior authority. If the plaintiff has been expelled irregularly, he has a remedy by mandamus to restore him. But neither by mandamus nor action can the merits of his expulsion be re-examined. He stands convicted by the sentence of a tribunal of his own choice, which, like an award of arbitrators, concludes him.” See, also, Crow v. Capital City Council, 26 Pa. Superior Ct. 411; Badger v. iEolian Council No. 17, 39 Pa. Superior Ct. 406.</p> <p>In Commonwealth v. Union League, supra, Mr. Justice Clark remarked: “We see nothing unreasonable in a bylaw of a club, consisting of gentlemen, who are associated for patriotic and social purposes, requiring the observance of a proper decorum and gentlemanly personal intercourse between the members, whilst within the walls of the clubhouse; the lack of such regulations would certainly tend to promote such disorder and dissension as would be fatal to the attainment of the objects of the association. Any vilification of a member or exhibition of personal rancor towards him, or the use of abusive or offensive epithets respecting him, especially in his presence and hearing, within the clubhouse, is without doubt disorderly and injurious to the interests of the club. Nor is the by-law in question illegal or in conflict with the charter in this, that it does not designate and define the various and specific acts which will be deemed disorderly......What is orderly, and what is disorderly conduct injurious to the interests and hostile to the objects of the league, must necessarily be determined by some proper tribunal; and the board of directors, to whom the practical management of its affairs is given, constitutes in the first instance the tribunal which the members have themselves set up to have and exercise jurisdiction over such offenses.” See, also, Beeman v. Supreme Lodge, Shield of Honor, 215 Pa. 627.</p> <p>Now to call a fellow member “a liar” at a meeting of the council, in the presence of other members, could hardly be said to be such language as would promote the peace and harmony of the body to which these parties belonged. It certainly could be contained within the words “improper language,” which subject such person to trial under Law XII, Sec. 4. If this be true, then her refusal to plead and be tried, and her leaving the meeting of the committee, with the remark that she “had no business there,” subjected her to the penalties contained in Law XIII, Sec. 9. ' She was regularly heard upon this complaint, and we think the decisions of the tribunal of her order are binding and conclusive upon her.</p> <p>Even should this conclusion be incorrect, her proper remedy was by mandamus for reinstatement, and, therefore, under no circumstances could she maintain this bill.</p> <p>The bill is now dismissed at the costs of the plaintiff.</p> <p>Error assigned was decree dismissing the bill.</p> <p>cited: Com., ex rel., v. German Society, 15 Pa. 251; McSparran v. Southern, Etc., Ins. Co., 193 Pa. 184; Weiss v. Musical Mut. Protective Union, 189 Pa. 446; Fowler v. Eddy, 110 Pa. 117.</p> <p>Where, in a fraternal society, rules provide for an offense and direct the mode of proceeding and authorize the society to expel a member, the proceedings being regular, the conclusion cannot be attacked: Crow v. Capital City Council, 26 Pa. 411; Sanderson v. Brotherhood of R. R. Trainmen, 204 Pa. 182; Sperry’s App., 116 Pa. 391; Lerch v. Harris, 2 Brewster 571; Connor v. Simpson, 104 Pa. 440; Bowen v. Cooper, 7 Watts 311.-</p>

<p>Will — Vested and contingent estates — Vested estates subject to be divested.</p> <p>The law leans in favor of vested rather than contingent estates, and will not suffer the inheritance to be in abeyance, if by any reasonable construction of the will, this can be avoided; where a future estate is limited to ascertained persons in being, subject to a prior gift to others unborn or unascertained who may never come into existence, the estate so given is regarded as vested subject to he divested.</p> <p>Testator directed that the proceeds arising from the sale of his real and personal estate should be divided equally among his seven children naming them, and their heirs, share and share alike. In the next clause of his will he directed that the shares going to each of his three daughters,' naming them, should be held in trust for her sole and separa+e use, but with the privilege to consume a portion of the principal if necessary for support and maintenance. He then directed as follows: “Immediately after the decease of any of my said daughters, I give, the whole of the residue if any of their shares, to their heirs, if any, and share and share alike. And in ease, if any one of my said children should die without any heirs of his or her blood then and in such case his or her share, I devise to be equally divided among my other children.” One of the daughters died unmarried and without issue. Held, that the gift over to other children after the death of one of them was a gift to the children named in the will as individuals, and was vested at the death of the testator subject to be divested if the daughter left children surviving, and that as the daughter who died, left no children, testator’s children who survived him and the legal representatives of such as were deceased, took the deceased daughter’s share.</p>

Appeal, No. 275, Oct. T., 1915, by defendant, from judgment of C. P. Berks Co., Oct. T., 1913, No. 7, on verdict for plaintiff in case of John J. Witman, trading and doing business as the Reading… Held: “First, the alleged act of holding out must have been done either by him or by his consent.

<p>Building laws — Obstruction of street — Porch — Definition of porch — City ordinance.</p> <p>A structure erected along the front of a city residence, not covering the doorway, five feet in height balustraded in the front and at the ends, and extending five feet two inches from the front wall, is a “porch” within the meaning of a city ordinance, passed in 1865 which permitted a “porch, cellar door or step” to extend six feet into the street, where it appears that prior to the ordinance and afterwards sucb structures were commonly known in the city and vicinity as “porches,” and that many of them were erected after the date of the ordinance without objection by the municipal authorities. In such a case the court will not apply the technical oí architectural definition of a porch as “a covered entrance or open vestibule in connection with a doorway.”</p>

<p>Appeal, No. 155, Oct. T., 1915, by plaintiffs, from decree of O. C. Lancaster Co., Nov. T., 1914, No. 44, dismissing appeal from Register of Wills in Estate of Annie C. Betz.</p> <p>Appeal from decision of register of wills admitting to probate the will of Annie C. Betz, deceased. Before Smith, P. J.</p> <p>The opinion of the Superior Court states the facts.</p> <p>Error assigned was decree dismissing the appeal.</p>

<p>Appeal, No. 283, Oct. T., 1915, by plaintiffs, from judgment of C. P. Lancaster Co., Aug. T., 1914, No. 76, on verdict for defendant in case of Joseph H. Wimer and Isaac Montgomery, Receivers of the Quarrysville Coach Horse Company, v. C. L. Harner.</p> <p>Assumpsit to- recover the value of a horse. Before Landis, P. J.</p> <p>At the trial the jury returned a verdict for defendant upon which judgment was entered.</p> <p>On motion for a new trial Landis, P. J., filed the following opinion:</p> <p>Many of the facts which arose upon the trial were not in dispute. A number of persons associated themselves together under the name of the Quarryville Coach Horse Company, and the company then purchased a stallion for service. It was agreed among them that the stallion should be handled by one, Ira Stewart, and it was placed in his possession and retained by him for about three years. In the month of April, 1913, he had it at Nottingham, Chester County. The members of the company were desirous of procuring a settlement with Stewart and of securing possession of the stallion, and a meeting was, therefore, held at Quarryville, at which a committee, consisting of William Myers, Joseph H. Wimer and Charles L. Harner, the defendant, was appointed. This committee was authorized to make the best settlement they could and secure possession of the stallion. The committee went down to see Stewart. He refused to deliver up the stallion, but agreed that, it should be put up at. public sale and sold to the highest bidder. It was then agreed that a sale should be held and that the committee should have the matter in charge. A sale was advertised and was actually held at the Unicorn on April 17, 1913, and the stallion was then knocked down to Harner for $600. A note was signed by Harner and Joseph H. Wimer for that amount, payable at the Farmers National Bank of Quarryville, and the note when presented upon the trial, showed opposite the names of these gentlemen the word “Per Com.” The note was never used, but was handed back on the day of the sale to Harner. Immediately after the sale, the stallion was placed in the possession of William Myers, the other member of the committee, who kept him fot several weeks, and he was then delivered to a man by the name of Slentz. While the horse was in Slentz’s possession, he died. It was contended on the part of the defendant that the sale was a sham sale and was gotten up for the purpose of getting the stallion out of the possession of Stewart; whereas, on the other hand, the plaintiffs’ witnesses testified that no such arrangement was made and that the committee was never given any authority to so act; that the committee did not buy the horse, but that it was sold to Harner for himself and not for the company. It was testified by Harner and Wimer, two of the members of the committee, that the stallion was not sold to Harner individually, and it was in addition testified by Charles F. Hess, who was the secretary of the company, that the committee was appointed to do the best they could to get the horse or the money, and that his understanding was that Harner was not to pay for the horse. The minutes were read, but not offered in evidence, and they contain no record to that effect. The court, in instructing the jury, said: “Now, these are really the disputed points between the parties; and we say to you that, if, from all the evidence, you find that Harner purchased this horse for himself, then he owes this money, and the verdict should be for the sum of $600, with interest. If, on the contrary, the manner of procuring the horse was placed in the hands of the committee, — these three persons,— and this committee authorized Harner to buy the horse for the company, and, in pursuance of those instructions, he did so, that is, bought it for the company and not for himself, then he is not liable for the price for which it was knocked down, and the verdict should, under such circumstances, be in favor of the defendant. The evidence in the case is contradictory. I do not see how you can reconcile it. You will do so, if you can; and, if you cannot reconcile it, you must determine what witnesses you will believe. You have seen the parties and the witnesses and have noted their manner of testifying, and, from all the testimony, which you will carefully consider, whether I have particularly referred to it or not, you will decide who is entitled to a verdict at your hands.” Under these instructions, the jury found in favor of the defendant.</p> <p>The second reason presented complains that the court erred in excluding the testimony of the witnesses offered in rebuttal. It is a little difficult to review the correctness of rulings under such a general reason. If it refers to the testimony of Kersey Rineer, it will be seen that he stated he was a.member of the company, but was not present at the meeting of the 13th of April, when the horse was ordered to be sold. The offer was made to ask this witness whether the horse was ordered to be sold, and whether it was agreed by the company that it should be sold at a sham sale. As this was rebuttal, and the witness said that he was not present at the meeting, the court disallowed the offer. He could not in rebuttal have testified as to what happened outside of the meeting, unless reference had been made to some time and place in the defendant’s testimony which it was desired to contradict. It seems to be very plain that it would have been improper for the court to have allowed the witness to answer a question which apparently was not rebuttal at all. If the reason refers to the testimony of Ira Stewart (page 44), it must be to the disallowance of the question why he proposed that the note should be paid at the Farmers Bank. His undisclosed reason could certainly have little force. He had already been permitted to testify what he did, and that, it seems to me, was as far as he could go.</p> <p>The third and fourth reasons complain that the court did not give adequate instructions to the jury. It will be recollected that the whole case was submitted to them, and no special instructions, so far as the record shows, were requested. As a matter of fact, points were submitted, which were withdrawn by counsel for the defendant immediately after the conclusion of the charge. This would seem to indicate that it was perfectly satisfactory at that time.</p> <p>The fifth reason involved binding instructions, and how under the facts which were elucidated such instructions could have been given I am now at a loss to see. The whole question was one of fact, and it was submitted to the jury, where it properly belonged.</p> <p>Rule discharged.</p> <p>Errors assigned were various rulings and instructions</p>

<p>Appeal, No. 235, Oct. T., 1915,, by plaintiff, from decree of C. P. Chester Có., Jan. T., 1915, No. 54, refusing divorce in case of Harvey Reynolds v. Eva Reynolds.</p> <p>Libel for divorce on the ground of desertion.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was decree refusing divorce.</p>

<p>Taxation — Corporations—Lien of taxes — Corporate property sold under foreclosure — Filing certificate in prothonotary’s office — Notice from auditor general — Acts of April 16, 1827, P. L. Jfll, June 15,1911, P. L. 955, and June 21,1911, P. L. 1098.</p> <p>Where a mortgage executed in 1894, covering the franchises, plant and fixtures of a corporation, is foreclosed in 1914, and the property sold, the Commonwealth has priority in distribution for taxes on capital stock, on bonds, and on gross receipts accruing for the years, 1911, 1912 and 1913, although the auditor general has not transmitted to the prothonotary of the county where the property was sold, certified copies of the tax liens for the years, as provided by the Act of April 16, 1827, P. L. 471. The Act of June 15, 1911, P. L. 955, is retroactive in character and supersede* the Act of April 16, 1827, P. L. 471, relating to the transmission of certified copies of liens, by providing that the auditor general shall upon the payment of a fee of twenty-five cents, give to any one interested a certificate showing the amount of all tax liens against any corporation.</p> <p>The Act of 1911 in so far as it relates to certified copies of liens to tbe prothonotary being superseded by a certificate from' tbe auditor general, merely substitutes one remedy for another, and does not impair any contract or disturb any vested right.</p> <p>The Commonwealth tdoes not lose its priority of lien for taxes in the distribution of the proceeds of the property of a corporation sold at judicial sale, because the auditor general did not give to the person in charge of the sale a certified copy of tax liens, as provided by the Act of June 21,1911, P. L. 1098, if it appears that the auditor general had no notice of such sale from the party intending to hold it.</p>

<p>Appeal, No. 324, Oct. T., 1915, by plaintiff, from judgment of C. P. Bradford Co., Dec. T., 1913, No. 75, for defendant on case tried by the court without a jury in case of Commonwealth to use of the Bradford County v. Michael Smith.</p> <p>Issue to determine the amount due on a judgment.</p> <p>The case was'tried by Maxwell, P. J., without a jury under the Act of April 22,1874.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was in finding that the total liability of the defendant was $400 instead of $1,200.</p> <p>On a forfeiture regularly entered of record, the liability of the recognizors becomes absolute: Eespublica v. Cobblett, 3 Dallas 467; Shriver v. Com., 2 Eawle 206; Ehoads v. Com., 15 Pa. 272; Com. v. Eoss, 6 S. & E. 427; Cockran y. Parker, 6 S. & E. 549; Com. v. Finney, 17 S. & E. 282; Com. y. Sayage, 30 Pa. Superior Ct. 364; Pierson v. Com., 3 Grant 314; Mishler v. Com., 62,Pa. 55; Com. y. Haryey, 222 Pa. 214; Fox y. Com., 81% Pa. 511; Com. y. Blumberg, 56 Pa. Superior Ct. 589.</p> <p>The courts are empowered to moderate recognizances: Com. v. Stegmaier, 5 Kulp 502; Com. y. Eeal Est. T. I. & T. Co., 22 Pa. Superior Ct. 235; Com. y. Cohen, 22 Pa. Superior Ct. 55; Com. v. Haryey, 222 Pa. 214; Com. y. Messer, 19 Pa. Superior Ct. 1; Com. y. Taylor, 1 Chest. Co. 263; Com. y. Phillips, 8 E/ulp 230; Com. v. McAnany, 3 Brewst. 292; Com. v. Gaul, 2 Woodw. 70.</p>

Appeal, No. 345, Oct. T., 1915, by plaintiff, from judgment of C. P. Bradford Co., Sept. T., 1915, No. 123, for defendant n. o. v. in case of Helen S. Davis, by Catharine M. Davis, her next friend, v. Lee Osborn. Trespass to recover damages for personal injuries. Before Heck, P. J., specially presiding. The circumstances of the accident are stated in the opinion of the Superior Court. At the trial the jury returned a verdict for $607.50.

Appeal, No. 110, Oct. T., 1915, by defendant, from judgment of Municipal Court, Philadelphia Co., Jan. T., 1915, No. 431, on verdict for plaintiff in case of Sarah Grinage v. Michael McGlinchey, trading as Majestic Garage. Trespass to recover damages for personal injuries. Before Bonniwell, J. The facts are stated in the opinion of the Superior Court. Yerdict and judgment for plaintiff for $500. Defendant appealed.

<p>Appeal, No. 60, Oct. T., 1915, by defendant, from judgment of C. P. No. 1, Philadelphia Co., June T., 1911, No. 1908, on verdict for plaintiff in case of Philip J. Ritter Conserve Company v. Kolb’s Bakeries.</p> <p>Assumpsit for 50,000 tin whistles manufactured, sold and tendered. Before Patterson, J.</p> <p>The opinion of the Superior Court states the facts.</p> <p>' At the trial “William Edward Gamble was called on behalf of defendant.</p> <p>“Mr. Edmonds: I offer to prove by this witness that he is manager of the bakery at 10th and Reed streets, and was the manager in 1908, and that at that time there was a newspaper advertising campaign, having for its object the free distribution of the whistles; that the date for the distribution of the whistles was to be July 16th. Posters similar to this were distributed; and this order for 50,000 whistles was intended for distribution at that time.</p> <p>“Objected to. Objection sustained. Exception allowed.” (2)</p> <p>“Mr. Gilpin: I offer to show the jury that we went ahead with the work in all departments of this concern’s factory, as soon as possible.</p> <p>“Objection overruled. Exception allowéd.” (3)</p> <p>Verdict and judgment for plaintiff for $520.55. Defendant appealed.</p> <p>Errors assigned were (2, 3) rulings on evidence quoting the bill of exceptions.</p> <p>The ambiguous words in the contract “soon as possible” could be and were shown to mean, and' to include within their terms, the words “on or before July 16th”: Wright v. Monongahela Nat. Gas Co., 2 Pa. Superior Ct. 219.</p> <p>The condition in the contract between Kolb and Fraustadter that delivery must be made by July 16th was binding upon Franstadter’s principal, the Ritter Co., and upon their failure to fulfil it, they had no right to recover: Belfield v. Nat. Supply Co., 189 Pa. 189; Youghiogheny Iron Co. v. Smith, 66 Pa. 340; Mundorff v. Wickersham, 63 Pa. 87.</p> <p>Defendant should have been allowed to show that he conducted an advertising campaign based upon the delivery of the whistles by July 16th for the purpose of evidencing his construction of an ambiguous term in the contract, particularly when there is evidence that these acts were known to the plaintiff or his agent or both of them: Moore v. Webster, 14 Pa. C. C. R. 433; Peoples Gas. Co. v. Braddock Wire Co., 155 Pa. 22.</p>

Appeal, No. 25, Oct. T., 1915, by plaintiff, from order of C. P. Lancaster Co., Feb. T., 1913, No. 27, refusing to take off nonsuit in case of Chester Huber v. John Walker. Trespass to recover damages for false imprisonment. Before Hassles, J. At the trial it appeared that Abraham Hess had made a charge against the plaintiff, an alderman of Lancaster City, for wilfully injurying his dam. The defendant, a constable, arrested the plaintiff in Martic Township.

Appeal, No. 19, Oct. T., 1915, by defendant, from judgment of C. P. Chester Co., April T., 1914, No. 71, on verdict for plaintiff in case of Michael Broski v. Phoenix Iron Company. Trespass to recover damages for death of plaintiff’s son. Before Butler, J. The facts relating to the accident are stated in the opinion of the Superior Court. Verdict and judgment for plaintiff for $1,100. Defendant appealed. Error assigned was in refusing binding instructions for defendant.

Appeal, No. 212, Oct. T., 1915, by plaintiff, from order of C. P. Del. Co., June T., 1913, No. 391, refusing to take off nonsuit in case of Sarah Ann Reilly v. Heston D. McCray who with Martin B. Bunyea was late trading as Bunyea and McCray and the Delaware County Trust Safe Deposit and Title Insurance Company. Assumpsit on a bond.

Appeal, No. 292, Oct. T., 1915, by plaintiff, from judgment of C. P. Delaware Co., March T., 1914, No. 226, on verdict for defendant in case of Benjamin Amsterdam v. E. I. Dupont de Nemours Powder Company. Trespass to recover damages for injuries to plaintiff’s house caused by an explosion of dynamite. Before Broomall, J. The facts are stated in the opinion of the Superior Court. At the trial Charles A. Patterson was called by the plaintiff as for cross-examination.

<p>Appeal, No. 106, Oct. T., 1915,</p> <p>by Alexander L. Crawford, from decree of O. C. Philadelphia Co., Jan. T., 1909, No. 285, dismissing exceptions to adjudication in Estate of Alexander L. Crawford, deceased.</p> <p>Exceptions to adjudication.</p> <p>Lamorelle, J., stated the facts to be as follows:</p> <p>Alexander L. Crawford, who died in 1908, bequeathed and devised his residuary estate unto his executors, in trust, to pay certain annuities, and the rest of the income to Ms grandson, Alexander L. Crawford, for life, and upon his death, ont of the principal, $30,000 to his wife and all else to snch children and the issne of those deceased as should survive him. In event that he died without issue, $15,000 was given to named charitable institutions, and the residue among certain nieces and nephews then living. He appointed Henry B. Bartow and Northern Trust Company executors of his will. They duly qualified. By codicil, testator provided that the executors and trustees should be two in number until the estate was fully settled and the trusts ended. Henry B. Bartow, one of the executors, died March 2,1914, and, on the application of the grandson, Alexander L. Crawford, Jr., William Clarke Mason was appointed executor and trustee in his place and stead. Security in the sum of $750,000 was ordered, and a bond in this amount has been filed.</p> <p>The estate amounts to .upwards of $500,000, and, subject to the payment of two' annuities, of $3,000 and $400, respectively, Alexander L. Crawford receives all of the income. The amount just released to him, because of an illegal accumulation, aggregates $93,000.</p> <p>The questions before us, raised on exceptions, are whether he should pay the premium on the bond of the trustee whom he himself chose, as well as the counsel fees in the matter of the appointment of the new trustee and of guardians ad litem for his children, or whether these expenses should be borne by his children, if they survive him, or by the nieces and nephews of testator, if the children do not.</p> <p>The auditing judge was of opinion that, giving due weight to all the surrounding circumstances, these charges should come out of income.</p> <p>The court dismissed the exceptions to the adjudication.</p> <p>Error assigned was in dismissing exceptions to adjudication.</p> <p>cited: Spangler’s Est., 21 Pa. 335; Butterbaugh’s App., 98 Pa. 351; Penn-Gaskell’s Est., 208 Pa. 346; Boyer v. Ohanncey, 12 Pa. Superior Ct. 526; Kidder’s Est., 3 Kulp 443; Robinson’s Est., 9 Dist. 379; Miller’s Est., 12 Dist. Rep. 719.</p> <p>cited: Spangler’s Est., 21 Pa. 335; Butterbaugh’s App., 98 Pa. 351.</p>

Appeal, No. 21, Oct. T., 1915, by Harriet C. Waller, from decree of O. C. Philadelphia Co., July T., 1909, No. 334, dismissing exceptions to adjudication in Estate of William H. H. Waller. Exceptions to adjudication.

Appeal, No. 144, Oct. T., 1915, by defendant, from judgment of O. P. No. 2, Philadelphia Co., Dec. T., 1914, No. 2256, on verdict for plaintiff in case of George Porter v. James S. Wilson and Son, Inc. Trespass to recover damages for personal injuries. Before Dougherty, J. The facts relating to the accident are stated in the opinion of the Superior Court. Verdict and judgment for plaintiff for $750.00. Defendant appealed.

Appeal, No. 174, Oct. T., 1915, by plaintiff, from order of Municipal Court, Philadelphia Co., March T., 1915, No. 551, refusing to take off nonsuit in case of Abbotts Alderney Dairies v. Philadelphia Rapid Transit Company. Trespass to recover damages to a horse and wagon. Before Bonniwell, J. The opinion of the Superior Court states the case. Error assigned was refusal to take off nonsuit.

<p>Judgment — Opening judgment — Amount■ in excess of debt— Practice, C. P.</p> <p>Where the averments of a petition for a rule to open a judgment are to'the effect that judgment was entered for an amount in excess of the debt, and no answer is filed, and no testimony-taken, the court commits reversible error in discharging the rule; and on appeal, the appellate court will direct that the judgment be reversed unless the plaintiff files a remittitur for the sum in excess of the debt.</p>

<p>Contract — Building contract — Extra worlc — Architect—Principal and agent.</p> <p>In an action by a subcontractor against an owner to recover the costs of certain extra work alleged to have been- ordered by the defendant’s architect, if there is no evidence of direct or actual authority in the architect to give the order, and the plaintiff relies upon an apparent authority, the case is for the jury, where the defendant denies that the architect had any authority and this is corroborated by the testimony of the architect and one other witness, and this is supplemented by the fact that in two other instances of departure from the specifications, the plaintiff required previous written authorization of tbe architect to do the extra work, and further by the fact, that when the work was done the building had been leased to a third party on whose account, according to the architect, the fextra work had been ordered.</p> <p>Where an agency is to be implied from the conduct of the parties, or is to be established by witnesses, the fact and scope of the agency are for the jury.</p>

<p>Appeal, No. 266, Oct. T., 1915, by defendant, from order of C. P. No. 4, Philadelphia Co., March T. 1914, No. 5303, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Vernon Fahnestock v. Ida May Boyd.</p> <p>Assumpsit on a bond. Before Audenried, P. J.</p> <p>From the record it appeared that B. L. Fahnestock died January 3, 1888. By his will he appointed Alexander V. Verner and Benjamin S. Fahnestock, his executors, and bequeathed to the plaintiff, Vernon Fahnestock, one-sixth of his residuary estate in trust, to pay the income thereof to Levi F. Fahnestock for life and after his death to the children of Levi Fahnestock until they should reach “legal age,” whereupon the principal was to be paid to them share and share alike, it being provided that in the event that Levi Fahnestock should have no children surviving him the principal of the trust should be paid to the legal heirs of the testator in the same proportions in which under the will they were to share in his estate.</p> <p>The estate of B. L. Fahnestock appears to have been distributed by his executors. The sixth part of the residuum, the income from which was payable to Levi Fahnestock for life, was duly segregated from the other assets and paid over to the plaintiff as trustee.</p> <p>Levi Fahnestock died November 9, 1903, without issue.</p> <p>On February 5, 1906, as trustee under the bequest above mentioned, the plaintiff filed his account in the Orphans’ Court of Allegheny County. This was duly audited, and on March 25, 1907, the auditing judge entered an order directing the accountant to pay to Ida May Boyd, the defendant herein, the sum of $555.38 by way of distribution of the principal of the fund in his hands. Exceptions to the adjudication were filed; and on January 7, 1908, the order of March 25, 1907, was so far modified by the court as to require that the money thereby awarded to Mrs. Boyd should be paid to The Safe Deposit and Trust Company of Pittsburgh (by which the exceptions had been filed) to be held upon the trusts specified in the last clause of the fourth paragraph of B. L. Fahnestock’s will. With the decree as modified the plaintiff complied on May 22,1908.</p> <p>Pending the disposition of the exceptions to the adjudication of the judge who audited his account, the plaintiff had, on June 19, 1907, paid the defendant the sum of $555.38 thereby awarded to her, with the additional amount of $219.96, in all $805.31. In consider■ation of this payment at that time, the ■ defendant, by writing under seal, agreed with the plaintiff that should the exceptions above mentioned be sustained, she would refund and repay to him any sum that he might be required to pay to The Safe Deposit and Trust Company of Pittsburgh.</p> <p>The defendant filed an affidavit of defense setting up the Act of June 30, 1885, P. L. 203, which prohibits the bringing of any suit on a refunding bond given in the distribution of a decedent’s estate after five years from the date of the bond.</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>This bond is within the contemplation and express language of the Act of June 30,1885, P. L. 203,1 Purd. Dig. 1132: Kelly’s Est., 37 Pa Superior Ct. 320.</p> <p>The instrument in question is not a refunding bond within the meaning of the Act of 1885: McCarthy’s Est., 2 W. N. C. 128; Jones’s App., 99 Pa. 124; Edgar v. Shields, 1 Grant 361; Phillips v. Ely, 17 Philadelphia 310.</p>

<p>Appeal, No. 187, Oct, T., 1915, by defendant, from judgment of O. P. No. 1, Philadelphia Co., Sept. T., 1913, No. 2961, on verdict for plaintiff in case of Matthias Wilbert v. Adolph Weicht, Jr., and Adolph Weicht, Sr., trading as Adolph Weicht & Sons.</p> <p>Trespass to recover damages for personal injuries. Before Bregy, P. J.</p> <p>The circumstances relating to the accident, are set forth in the opinion of the Superior Court. ■</p> <p>Verdict and judgment for plaintiff for $1,500.00. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for defendant.</p> <p>cited: Hemscher v. Dobson, 220 Pa. 222; Alexander v. Penna. Water Co., 201 Pa. 252; Higgins v. Panning Co., 195 Pa. 599.</p> <p>The plaintiff had a right to rely on the statement of the foreman that the machine had been fixed: Hartman v. Beading Wood Pulley Co., 38 Pa. Superior Ct. 587; Ligón v. Salt Company, 43 Pa. Superior Ct. 583; Eldridge v. Pell Manf. Co., 240 Pa. 321; Moleskey v. Mining Company, 247 Pa. 434.</p>

<p>Appeal, No. 168, Oct. T., 1915, by defendant, from judgment of Municipal Court Philadelphia Co., March T., 1915, No. 423, on verdict for plaintiffs in case of George Lowry and Mary Lowry, his wife, v. Singer Sewing Machine Company.</p> <p>Trespass for assault and battery. Before Bonniwell, J.</p> <p>At the trial the plaintiff testified that she was assaulted by one Goldberg alleged to be an agent of the defendant, while he and another man were removing a sewing machine of which the plaintiffs had possession under a contract of bailment with the defendant.</p> <p>When Nathan T. Skinner, managing salesman of the defendant, was on the stand, he was asked this question:</p> <p>Q. — You are employed by what company?</p> <p>A. — The Singer Sewing Machine Company.</p> <p>Q. — Have you a contract with them?</p> <p>A. — Yes, sir.</p> <p>Q. — I show you a contract dated February 10, 1913, and ask you if that is your signature, and if that is your contract upon which you are working for this company.</p> <p>Objected to. Objection sustained .</p> <p>Exception for defendant.</p> <p>Mr. Eaton. I offer to prove by this witness that the authority given him by the defendant company and the scope of that authority was contained in the contract; that he had no authority to send Goldberg to the house of Mrs. Lowry and that Goldberg was not employed by him and prior to September 17, 1914, knew nothing about the case of Mary Lowry; that it was not a part of Goldberg’s duties with the company to visit the house of Mary Lowry; that in doing so his action was purely that of a volunteer, not in the scope of his employment nor in the line of his duty.</p> <p>Objected to. Objection sustained.</p> <p>Exception for the defendant. (3)</p> <p>The court charged in part as follows:</p> <p>. The plaintiff’s story is, that having the machine in her possession, the agents of the defendant company came there, and, against her protest, forcibly removed it. I say to you, as a matter of law, if that is found by you to be a fact, [they had no right to so remove it, and the removal in itself was a trespass, and the plaintiff would be entitled to damages. If, in removing it, violence was used upon Mrs. Lowry, causing her injuries, that would be aggravation of damages for which you might find punitive damages]. (8)</p> <p>Verdict and judgment for George Lowry for $101.00 and for Mary Lowry for $275.00. Defendant appealed.</p> <p>Errors assigned were (3.) rulings on evidence quoting the bill of exceptions and (8) above instructions quoting them.</p> <p>When the plaintiff rested his case there was no competent evidence such as would legally warrant the court, in instructing the jury as a matter of law, or justify a jury in finding as a fact that the alleged assault was committed by a servant or, agent of the defendant company: Smith v. Evans & Co., 56 Pa. Superior Ct. 626, 631; Bellman v. P. & A. Valley B. R. Co., 31 Pa. Superior Ct. 389; Stewart v. Machine Co., 200 Pa. 611; Hoskins v. Peoples, 42 Pa. Superior Ct. 611; Conners v. P. R. R. Co., 24 Pa. Superior Ct. 241; Shay v. American Iron, Etc., Works, 218 Pa. 172; Rudgeair y. Reading Traction Co., 180 Pa. 333; Christian y. P. R. T. Co., 244 Pa. 391; Guille v. Campbell, 200 Pa. 119; Simmons v. Penna. R. R. Co., 199 Pa. 232.</p>

<p>Negligence — Automobiles—Collision between two automobiles— Contributory negligence.</p> <p>Where the chauffeur of an automobile on a wet day drives his car at a speed of twelve or thirteen miles an hour on to a street crossing where the view is obstructed, and in order to avoid an automobile truck which is about to turn into the side street, the chauffeur so handles his car that it skids sideways into the truck, the chauffeur is guilty of contributory negligence and the owner of the automobile cannot recover for injuries to bis machine; and this is the case although the truck was not on the proper side of the street at the turning.</p>

Appeal, No. 249, Oct. T., 1915, by plaintiff, from decree of C. P. No. 3, Philadelphia Co., March T., 1912, No. 282, dismissing libel in divorce in case of Claude E. Hamilton v. Georgia Hamilton. Libel for divorce. The case was referred to a master who reported a decree in favor of the libellant.

<p>Telephone companies — Use of highways — Townships of second class — Consent of supervisors — Acts of April 22, 1905, P. L. 291f, and July 22,1918, P. L. 915.</p> <p>A telephone company has the right to use the highways of a township of the second class, without securing the consent of the supervisors as a prerequisite to the exercise of such right. If a landowner is injured by such use of a highway, his remedy is an action for damages against the company, or an action on the company’s bond if it has filed one,</p>

Appeals, Nos. 272-3, Oct. T., 1915, by Susan B. Mitchell and Martha B. Poulterer, from decree of O. C. Philadelphia Co., April T., 1912, No. 82, dismissing exceptions to adjudication in Estate of Charles Avery Bullock, deceased. Exceptions to adjudication. The facts are stated in the opinion of the Superior Court. Error assigned was in dismissing exceptions to adjudication.

Appeal, No. 146, Oct. T., 1915, by defendant, from order of C. P. No. 2, Philadelphia Co., Dec. T., 1914, No. 3481, making, absolute rule for judgment for want of a sufficient affidavit of defense in case of Prank J. Ford v. Edward H. Hedley. Assumpsit to recover back part of purchase-price of real estate.

Appeal, No. 181, Oct. T., 1915, by defendant, from order of Municipal Court, Jan. T., 1915, No. 462, discharging rule to satisfy judgment in case of Florence E. Marshall, Executrix of Estate of Walter F. Marshall, deceased, y. James J. King. Rule to satisfy judgment. The facts are stated in the opinion of the Superior Court. Error assigned was order discharging rule to satisfy judgment.

<p>Appeal, No. 175, Oct. T., 1915, by George F. P. Young, County Controller, from order of C. P. Northampton Co., July T., 1914, No. 17, denying intervention and awarding mandamus in case of George E. Heller v. Charles Bercaw, Milton Weller and William Casey, Commissioners of Northampton County.</p> <p>Appeal from judgment of justice of the peace. Before Staples, P. J., specially presiding.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Errors assigned were (1) denying the petition of George F. P. Young for intervention, and (2.) in awarding peremptory mandamus against Young as controller.</p> <p>The act of the county controller in approving contracts is a deliberative and discretionary duty and a peremptory writ of mandamus never issues to control the judgment of a public officer where he is placed in a position that he must exercise a choice between two courses: Boggs v. Monongahela City, 22 Pa. C. C. R. 640; Kell v. Rudy, 1 Pa. Superior Ct. 507; Moore v. Neil, 233 Pa. -408.</p> <p>The county controller should have been allowed to intervene on behalf of the county: Schnable v. Rhoads, 2 Berks County Law Journ. 216; Riley v. Prudential Ins. Co., 12 Pa. Superior Ct. 561; Good Roads Co. v. Old Lycoming Twp., 25 Pa. Superior Ct. 156.</p> <p>The judgment is conclusive as to fraud: Otterson v. Middleton, 102 Pa. 78; Hoffman v. Coster, 2 Whart. 453.</p> <p>The peremptory mandamus was properly awarded: Com ex rel. v. Philadelphia, 176 Pa. 588.</p> <p>The court below properly denied the petition of the county controller to intervene on behalf of the county: Black v. Pittsburgh, 230 Pa. 312; Butler’s App., 73 Pa. 448.</p>

<p>Appeals, Nos. 304, 305, 306, 307, 308, 309, 310, 311 and 312, Oct. T., 1915, by Sallie Kistler, et al., from decree of O. O. Schuylkill Co.’, Jan. T., 1915, No. 23, ■ dismissing exceptions to adjudication in Estate of F. S. Snayberger, deceased.</p> <p>Exceptions to adjudication.</p> <p>From the record it appeared that F. S. Snayberger died Oct. 30, 1913, leaving a will dated Aug. 26, 1897. When the will was made decedent was married to a second wife by whom he had nine children. On February 24, 1893, he gave to each of the nine children a promissory note, in the following form:</p> <p>Molino, Pa., Feb. 24, 1893.</p> <p>$600.00</p> <p>Six months after my death I promise to pay to Sallie Snayberger, or order, the sum of six hundred dollars (without interest from date) without defalcation, value received. F. S. Snayberger.</p> <p>On April 19, 1894, he married his third wife, Ella A. Snayberger, who- survived him. The notes were presented as claims against the estate. The evidence relating to them is set forth in the opinion of the Superior Court.</p> <p>The court below in an opinion by Wilhelm, P. J., disallowed the notes.</p> <p>Exceptions to the adjudication were dismissed.</p> <p>Errors assigned were in dismissing exceptions to adjudication.</p> <p>The notes presented should have been allowed by the auditing.judge: Grabill v. Moyer, 45 Pa. 530; Mel-linger v. Bausman, 45 Pa. 522; Bergey’s App., 60 Pa. 408; Hamill’s Est., 88 Pa. 363; Bardsley’s Est., 13 Philadelphia 222; Wormley’s Est., 137 Pa. 101; Young’s Est., 65 Pa. 101; Hawley v. Griffith, 187 Pa. 306; Kreider v. Hartzell, 40 Pa. Superior Ct. 186.</p> <p>A gift or bequest after death is of the very essence of .a will and determines a writing, whatever its form, to be testamentary: Patterson v. English, 71 Pa. 454; Frew v. Clark, 80 Pa. 170; Rife’s App., 110 Pa. 232; Fouche’s Est., 147 Pa. 395; Turner v. Scott, 51 Pa. 126; Beaumont’s Est., 214 Pa. 445; Hummel’s Est., 161 Pa. 215; Kern’s Est., 171 Pa. 55; Frederick’s App., 52 Pa. 338; Young’s Est., 202 Pa. 431; Lonsdale’s Est., 29 Pa. 407; Dickerson’s App., 115 Pa. 198; DivilMss’s Est., 13 D. R. 503; Roberts v. Brunner, 23 D. R. 717.</p>

<p>Appeal, No. 136, Oct. T., 1915, by defendant, from judgment of Municipal Court, Philadelphia Co., Dec. T., 1914, No. 136, on verdict for plaintiff in case of R. Laird Ord v. Rudolph R. Baizley.</p> <p>Assumpsit to recover commissions for the sale of a dredge. Before Wheeler, J.</p> <p>The opinion of the Superior Court states the case.</p> <p>Verdict and judgment for plaintiff for $347.70. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for defendant.</p> <p>cited: Holt v. Green, 73 Pa. 198; Earp v. Cummins, 54 Pa. 394.</p> <p>cited: Peters v. Holmes, 45 Pa. Superior Ct. 278; Lamb v. Elder, 56 Pa. Superior Ct. 522; Shepler v. Scott, 85 Pa. 329.</p>

<p>Attorney-at-law — Counsel fees — Illegal contract — Foreclosure of mortgage.</p> <p>An attorney-at-law who has received instructions from a building association to foreclose a mortgage, cannot enter into a valid contract in writing with the mortgagee by which the latter agrees to pay him in consideration of postponing the foreclosure proceedings until a date named, the sum of one hundred and fifty dollars in lieu of attorney’s commissions of two hundred and fifty dollars under the mortgage.</p>

Appeal, No. 82, Oct, T., 1913, by defendant, from judgment of C. P. No. 1, Philadelphia Co., March T., 1912, No. 3359, on verdict for plaintiff in case of John Yorndran v. Charles F. Franz, Jr. Appeal from judgment of justice of the peace. At the trial it appeared that the plaintiff claimed to recover water rent which he had been compelled to pay for a number of years for water used in a factory leased to the defendant by the plaintiff.

Appeal, No. 343, Oct. T., 1915, by defendant, from judgment of Municipal Court, Philadelphia Co., Sept, T., 1915, No. 264, overruling demurrer to statement in case of Philadelphia Local Telegraph Company v. William H. Hoskins Company. Assumpsit to recover rental for a night watchman’s telegraph, signal, and fire alarm boxes installed in the defendant’s building. The opinion of the Superior Court states the facts.

<p>Negligence — Circus—Defective seating stand — Inspection.</p> <p>In an action by a woman against the proprietor of a circus to recover damages for injuries to her foot, a judgment and verdict for plaintiff will be sustained where the evidence offered on behalf of the plaintiff tends to show that plaintiff’s foot was caught and injured between two boards as she was descending from her seat after a performance; that as she trod on a board it gave way under her, and her foot was pinched between two boards, one of which overlapped the other; that a stringer which should have been placed under the spot where the two boards overlapped was out of place; and that a reasonable inspection on the part of the defendants would have disclosed this fact.</p> <p>The proprietor of a circus is not a warrantor or insurer that the stand occupied by the spectators is absolutely safe, but he impliedly warrants that it is safe for the purpose intended, save only as to those defects which are unseen, unknown and undiscoverable.</p>

<p>Statutes — Repeal—Municipal liens — Church property — Exemption — Acts of June 4,1901, P. L. 864, and May 12,1911, P. L. 288.</p> <p>The Act of May 12, 1911, P. L. 288, wbicb empowers boroughs to pave public streets and assess tbe properties abutting on them by tbe foot front rule does not repeal Section 5 of tbe Act of June • 4, 1901, P. L. 364, as amended by tbe Act of March 19, 1903, P. L. 41, exempting actual places of religious worship from municipal claims for street improvements. There is no inequality if tbe Act of March 19, 1903, P. L. 41, is allowed to stand. .</p>

<p>Appeal, No. 356, Oct. T., 1915, by defendant, from judgment of C: P. No. 3, Philadelphia Co., Dec. T., 1912, No. 1374, on verdict for plaintiff in case of Frederick H. Miller, Administrator d. b. n. of the Estate of William B. Miller, deceased, v. National Casualty Company, a corporation under the laws of the State of Michigan.</p> <p>Assumpsit on a policy of accident insurance to recover the amount provided in the policy for the death of the insured. Before Davis, J</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $707.11. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for defendant.</p> <p>cited: Timlin v. American Patriots, 249 Pa. 465; Shannon v. Macabees, 54 Pa. Superior Ct. 634.</p> <p>cited: Humphreys v. Natl. Benefit Assn., 139 Pa. 264; Burkhard v. Travellers’ Ins. Co., 102 Pa. 262; Mutual Benefit Life Ins. Co. v. Herold, 198 Fed. 199.</p>

<p>Affidavit of defense — Practice, C. P. — Contract—Principal and agent.</p> <p>In an action for cigars sold and delivered at different times, an affidavit of defense is insufficient which avers that an agent of the plaintiff agreed that defendant should pay for the cigars as he sold them, and return what he could not sell, and that he had offered to return the cigars unsold, without averring the exact language of the agreement, or that the agent had authority to make it, or when the alleged privileges of returning the unsold goods had been given.</p>

<p>Appeal, No. 314, Oct. T., 1915, hy defendant, from order of C. P. No. 1, Philadelphia Co., Sept. T., 1914, No. 3927, discharging»rule to strike off judgment in case of Rudolph Wurlitzer Company v. James H. Pearson.</p> <p>Rule»to strike off judgment.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was order discharging rule to strike off judgment.</p>

Appeal, No. 315, Oct. T., 1915, by defendant, from order of C. P. No. 1, Philadelphia Co., Sept. T., 1914, No. 3927, discharging rule to open judgment in case of Rudolph Wurlitzer Co. ,v. James BL Pearson. Rule to open judgment.' The facts are stated in Rudolph Wurlitzer Co. v. Pearson (No. 1), supra. Error assigned was order discharging rule to open judgment.

<p>Appeal, No. 28, Oct. T., 1914, by plaintiff, from order of O. P. No. 2, Philadelphia Co., June T., 1912, No. 1,907, refusing to take off nonsuit in case of John F. Brennan v. Charles F. Felin and Amos Y. Lesher, trading as Charles F. Felin & Company.</p> <p>Assumpsit for salary.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was order refusing to take off nonsuit.</p>

Appeal, No. 289, Oct. T., 1915, by defendant, from judgment of C. P. No. 5, Philadelphia Co., June T., 1914, No. 634, on verdict for plaintiff in case of Pennsylvania Company for Insurance on Lives and Granting Annuities, William H. Henderson and George Henderson, Executors and Trustees under the will of Adelaide C. Henderson, deceased and George Henderson, Individually, v. Central Trust & Savings Company. Assumpsit on a policy of title insurance.

Appeal, No. 113, Oct. T., 1915, by defendant, from decree of C. P. Bradford Co., May T., 1912, No. 316, granting divorce in case of Mabel Snow Hill v. George R. Hill. Libel for divorce. Newcomb, J., found the facts to be as follows: 1. The parties are both natives of this State and were residents of this county at the date of their marriage in 1891. They lived and cohabited together as husband and wife from that date until 1901.

Appeal, No. 287, Oct. T., 1915, by defendant, from judgment of Municipal Court, Philadelphia Co., May T., 1914, No. 340, on case tried by the… Held: however, that the word “immediate” in the contract “must be construed to mean within a reasonable time thereafter, under all the facts and circumstances of the case, and what is a reasonable time must be decided by the jury unless the delay has been so great that the court may rule it as a question of law,” and that, “We cannot…

Appeal, No. 227, Oct. T., 1915, by defendant, from order of C. P. No. 5, Philadelphia Co., Sept. T., 1914, No. 3851, dismissing appeal from Mercantile Appraisers in case of Commonwealth v. Abbotts Alderney Dairies. Appeal from decision of Board of Mercantile Appraisers assessing a mercantile license tax against the defendant as a retail vendor of goods, etc. Before Ralston, J. The facts are stated in the opinion of the Superior Court.

Appeal, No. 210, Oct, T., 1915, by defendant, from judgment of C. P. No. 1, Philadelphia Co., June T., 1913, No. 4608, on verdict for plaintiff in case of Annie M. Paynter v. Atlantic City Railroad Company. Trespass to recover damages for personal injuries. Before Shoemaker, J. ... At the trial it appeared that the plaintiff was injured on May 30, 1913, while a passenger on one of plaintiff’s trains.

Appeal, No. 6, Oct. T., 1915, by defendants, from order of C. P. Schuylkill Co., Jan. T., 1915, No. 40, for writ of mandamus in case of Beny Fedorowicz for himself and Franciska Fedorowicz, his wife, v. E. C. Brobst, B. J. Smith and P. J. Boyle, Commissioners for the County of Schuylkill. Petition for mandamus.

<p>Negligence — Street railways — Passenger—Collision between car's - — Burden of proof — Presumption of negligence — Evidence.</p> <p>In an action against a .street railway company to recover damages for death of plaintiff’s son where the plaintiff shows that his son was killed while seated in a car of the defendant by a collision with another car running in the opposite direction on an adjoining track, the plaintiff establishes a prima facie case, and the burden of proof is shifted to the defendant company to show that it was not guilty of negligence.</p> <p>In such a case where there-are contradictions in the testimony, infereneeg to. be drawn from the statements of the witnesses, illustrated positions of the deceased, descriptions of the construction of the ears, and proof that the accident happened on a curve around which some of the cars of the company could not safely pass at the same time, the case is for the jury, and a verdict and judgment for the plaintiff will be sustained:</p>

<p>Practice, Orphans’ Gourt — Findings by auditing judge — Review.</p> <p>A finding by an auditing judge based on sufficient evidence, that an assignment of a legacy was in fact fraudulent, will not, when confirmed by the Orphans’ Court in banc, be reviewed by the appellate court, where there is no clear error.</p>

<p>Costs — Game laws — Killing deer — Act of May 1, 1909, Sec. 18, P. L. 884 — Liability of county for costs — Acts of May 19, 1887, P. L. 188, April 16, 1908, P. L. 218, and April 14, 1905, P. L. 158.</p> <p>Where a prosecution instituted in good faith by the secretary of the Board of Game Commissioners against a person for the unlawful killing of deer in violation of Sec. 18, of the Act of May 1, 1909, P. L. 334, has resulted in an acquittal of the defendant by a jury in the Court of Quarter Sessions, with costs imposed upon the prosecutor, the Court of Quarter Sessions in setting aside so much of the verdict as related to the costs being imposed upon the prosecutor, should make an order directing that the county should pay the costs.</p>

<p>Appeal, No. 36, Oct. T., 1915, by defendant, from judgment of Municipal Court, Philadelphia Co., March T., 1914, No. 39, on case tried by the court without a jury in suit of National Freight Bureau to use of Edward Norton Getzler, trading as National Freight Bureau, v. D. B. Martin Company.</p> <p>Assumpsit on a written contract. Before Cassidy, J.</p> <p>The contract upon which the suit was based was as follows :</p> <p>National Freight Bureau Auditors of Freight Bills Greenwich and Warren Street.</p> <p>No. B. A. 4227. New York, N. Y.</p> <p>Philadelphia, Pa., Oct. 3, 1911.</p> <p>For the auditing of the undersigned’s freight bills from January 1, 1907, to Oct.-3, 1911, by the National Freight Bureau, this subscriber agrees to pay the National Freight Bureau one cent for each freight hill examined. The undersigned also agrees to pay the National Freight Bureau 50 per cent, of all moneys refunded to them from the audit of the above mentioned freight bills.</p> <p>Accepted.</p> <p>(sgd.) National Freight Bureau.</p> <p>Subscriber (sgd.) D. B. Martin Co.</p> <p>F. L. Getzler F. V. English</p> <p>Address 30th & Market streets.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>The court entered judgment for plaintiff for $180.28. Defendant appealed.</p> <p>Error assigned was in refusing to enter judgment for defendant n. o. v.</p>

<p>0 ontract — G ompromise — G onsideraiion.</p> <p>A contract made in compromise and settlement of a disputed and doubtful claim is binding. The sufficiency of the consideration for a compromise is not to be determined by the soundness of the original claim of either party. The very object of compromise is to avoid the risk or trouble of that question; and where a settlement has all the substantial elements of a compromise it is immaterial that the claim was made and received not in a hostile, but in an amicable spirit.</p> <p>In an action of assumpsit where it appears that the plaintiff purchased a very large number of cigars at a price designated, under an agreement on the part of the defendants that a skilled salesman should go to the city of defendant’s place of business and assist in selling the cigars until all were sold, and it also appears that the defendant failed to perform this agreement, and that subsequently after much correspondence, the defendant agreed to allow plaintiff 5 per cent, of the price of all the cigars, in settlement of the loss sustained by defendant’s default, such compromise is a valid contract based on sufficient consideration.</p>

<p>Appeal, No. 26, Oct, T., 1915, by defendants, from judgment of Municipal Court, Philadelphia Co., June T., 1914, No. 444, for plaintiff on case tried by the court without a jury in suit of John E. Beatty v. Frederick C. Boyson and Myer Magil, late trading as Boyson Envelope Company..</p> <p>Assumpsit for five months rent at fifty dollars per month less a credit of twenty-five dollars.</p> <p>At the trial the court found in favor of the plaintiff for $230.50. The defendants filed a petition for a new trial in which they averred that the case had been tried in the absence of themselves and their counsel without notice of a transfer of the case for trial from one court room to another. The facts are stated in the opinion of the Superior Court,</p> <p>Errors assigned were m entering judgment for plaintiffs, in dismissing motion for new trial, and dismissing motion for judgment for defendants n. o. v.</p> <p>A new trial should have been granted: Gerlach v. Englehoffer, 7 Philadelphia 241; Epstein v. Ins. Co. of N. A., 245 Pa. 132.</p> <p>The cases in which the appellate court will reverse for failure to grant a new trial are rare, and are only those in which there has been a clear abuse of discretion by the court below.</p> <p>This rule applies also where the case was tried without a jury in the court below: Commonwealth v. Delaware, S. & S. Railroad, 165 Pa. 44; Slattery v, Supreme Tent, Etc., 19 Pa. Superior Ct. 108.</p>

<p>Appeal, No. 140, Oct. T., 1915, by defendant, from judgment of the Municipal Court, Philadelphia Co., Feb. T., 1915, No. 238, for plaintiff on case tried by the court without a jury, in case of Michael Skubisz v. Karol Gunther.</p> <p>Trespass for the conversion of a steamship ticket. Before Wheeler, J.</p> <p>At the trial it appeared that the plaintiff purchased a steamship ticket from the Uranium Steamship Company for the transportation of a person from Europe. The ticket was not used, and the plaintiff delivered it to the defendant to send to the Steamship Company at Toronto, Canada, for redemption. Other facts appear by the opinion of the Superior Court.</p> <p>The court entered judgment for plaintiff for $53.65. Defendant appealed.</p> <p>Error assigned was in entering judgment for plaintiff and in refusing motion for defendant non obstante veredicto.</p> <p>In order that an action of trover may be maintained, it is an essential ingredient to prove that the defendant had the object in possession and able to deliver it to the plaintiff at the time of demand for the return thereof, and if the defendant has not such possession thereof, and has not tortiously obtained it from the plaintiff, then the action is not maintainable: Spear v. Alexander, 2 Philadelphia 89; Smith v. Young, 1 Campbell 439; Canot v. Hughes, 2 Bingh. N. 0. 448; Kelsey v. Griswold, 6 Barb. Supreme Ct. (N. Y.) 436; Bunting v. Dessau, 9 Philadelphia 31; Shaw v. Swope, 8 Pa. Superior Ct. 491; Lowry v. Walker, 4 Yt. 76; Irish v. Cloyes, 8 Vt. 30; Duffield v. Miller, 92 Pa. 286; Martin v. Megargee, 212 Pa. 558; Keyser v. Rodgers, 50 Pa. 275; Hutchinson v. Merchants & Mechanics Bank, 41 Pa. 42.</p> <p>Where an article has been given for a specific purpose and it has not been applied to that purpose it is larceny: Com. v. Maher, 11 Philadelphia 425; Brunner v. Griffith, 4 Dist. 640; Withrow v. Walker, 41 Pa. Superior Ct. 155.</p>

<p>Appeal, No. 256, Oct. T., 1915, by plaintiff, from decree of O. P. Huntingdon Co., Sept. T., 1913, No. 194, dismissing bill in equity in case of W. Huyett Isenberg, Administrator of the Estate of J. C. Louder, deceased, v. Huntingdon Millwork & Lumber Co.</p> <p>Bill in equity for an accounting.</p> <p>Prom the record it appeared that the Huntingdon Mill Work and Lumber Company was- incorporated on July 12, 1910, by John S. Bare, John W. Hoffman and J. C. Louder. Bare was the president. On March 17, 1911, Louder died and among his effects was found a certificate for five shares of the capital stock of the lumber company. Louder’s administrator filed a bill against the lumber company praying for a receiver, and for an accounting of the profits of the company.</p> <p>The case was referred to Howard L. Henderson, Esq., as master who found as to the ownership of the certificate in question the following facts:</p> <p>“The stock was issued to J. C. Louder at the office of the company. There were present at or about the time of its issuance, John S. Bare, president of the company; Nevin Peightal, and J. C. Louder. This stock, at the time it was issued, nor at any time, ever became the property of J. C. Louder, but at the time of its issuance and at the present time, it was and is the property of John S. Bare. John C. Louder was only to get the income, if any, from the stock.</p> <p>The plaintiff called John S. Bare, president of the company, who was adverse, as the plaintiff’s witness. This witness testified: “I had $7,000.00 in my own certificate, $500.00 that I had for Mr. Louder and $500.00 that was issued for T. M. Kurtz, making me owning or controlling $8,000.00 of stock.” This evidence is, manifestly, detrimental to the plaintiff, and the plaintiff is bound by it. “In a proceeding in the Orphans’ Court when one party calls and swears the other the oath must be taken.for true, unless it be clearly disapproved. This is the general rule in equity. I will not say where the burden of proof lay before the accountant was sworn; but it was certainly on the legatees afterwards. It will not do to charge a man with misbehavior, attempt to convict him by means of his own oath, and, when that fails, charge him with perjury into the bargain. He who demands the oath of this adversary must not trifle with it nor treat it as a light matter wh.en he gets it. We do not understand the auditor to have given the harsh judgment that the accountant was guilty of perjury and if he had we must have disapproved it entirely for there is nothing to justify it.” Light’s App., 24 Pa. 180.</p> <p>Nevin Peightal testified: “Mr. Bare says I will give working stock of $500.00 which proceeds will go to keep you in the mill.”......“The stock was to be Bare’s. All Mr. Louder was to get was the income off this stock. This was my understanding.” The master recommended a decree dismissing the bill.</p> <p>The court entered a decree dismissing the bill.</p> <p>Error assigned was the decree of the court.</p> <p>cited: Dickson v. McGraw, 151 Pa. 98; Darragh v. Stevenson, 183 Pa. 397; Boyer v. Smith, 3 Watts 449.</p> <p>cited: Walls v. Walls, 182 Pa. 226; Danley v. Danley, 179 Pa. 170; Watkins v. Hughes, 206 Pa. 526; Pringle v. Pringle, 59 Pa. 281; McClellan v. West, 70 Pa. 183.</p>

<p>Appeal, No. 50, Oct. T., 1915, by defendant, from judgment of Municipal Court, Philadelphia Co., Nov. T., 1914, No. 588, on verdict for plaintiff in case of Roscoe C. Riley v. Walter P. Hall.</p> <p>Assumpsit for goods which the defendant is alleged to have purchased, but which he refused to accept. Before Bonniwell, J.</p> <p>At the trial it appeared that suit was brought for $160.99 the contract price of a quantity of terrapin which the plaintiff claimed to have sold to the defendant and which the latter refused to accept.</p> <p>The defendant testified as follows:</p> <p>I have been doing business with Mr. Riley and on the 20th of November he sent me some terrapin and I paid •him for them, and he asked me whether I would need some more and I told him I guessed I would, and he asked me when and I told him I had a good lot on hand, but I would let him know later on. On Tuesday he called me up on the ’phone and said he had a lot of terrapin and I told him I didn’t want any more this week, I may be able to use some next week, and I immediately wrote him a letter, and on the Friday morning when I got to my place I got some terrapin and Mr. Riley was there at the same time, and I immediately sent the terrapin back to him.</p> <p>Verdict and judgment for plaintiff for $160.99. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for defendant.</p> <p>We contend that this was a mere offer to do business: Eckert y. Schoch, 155 Pa. 530.</p> <p>At all events, if there was a contract, it was plainly executory.</p> <p>When the agreement of sale is for things not specific as of a quantity of goods in general without specific identification or an “appropriation” of them, the contract is executory and property does not pass: Halderman v. Duncan, 51 Pa. 66; McCandlish v. Newman, 22 Pa. 460.</p> <p>And the plaintiff should have alleged and proved damages: Unexcelled Fire Works Co. v. Polites, 130 Pa. 536; Baltimore Brick Co. v. Coyle, 18 Superior Ct. 186; Hall v. The Woolen Co-., 187 Pa. 18.</p> <p>cited: Scott v. Wells, 6 W. & S. 357; Leonard v. Winslow, 2 Gr. 139.</p>

<p>Appeal, No. 151, Oct. T., 1915, by defendant, from judgment of O. P. Blair Co., March T., 1915, No. 295, on verdict for plaintiff in case of C. H. Fleck v. Altoona & Logan Yalley Electric Railway Company.</p> <p>Trespass to recover damages for injuries to a horse and wagon and for personal injuries. Before Gillan, P. J., specially presiding.</p> <p>The circumstances of the accident are stated in the opinion of the Superior Court.</p> <p>At the trial counsel for plaintiff in his opening to the jury stated that the plaintiff was the owner of a horse which was valued at $300.00 before the accident.</p> <p>. “Counsel for defendant objects to this statement, moves to withdraw a juror and continue the case.</p> <p>“By the court:</p> <p>“While it might have been better for counsel for the plaintiff not to have named the price of the horse, he did not name to the jury the amount of damages claimed; he did say the horse was a valuable one and was worth $300.00. The plaintiff’s statement does not claim that the horse was killed, but simply injured. The motion of Mr. Greevy to withdraw a juror and continue the case is, therefore, denied, to which Mr. Greevy takes an exception.” (1)</p> <p>The court refused binding instructions for defendant.</p> <p>Verdict and judgment for plaintiff for $427.50. Defendant appealed.</p> <p>Errors assigned were (1) in refusing to withdraw a juror and continue the case, and (4) in refusing binding instructions for defendant.</p> <p>The accident could have been avoided had the plaintiff looked back: Speak-man v. Philadelphia & West Chester Traction Co., 42 Pa. Superior Ct. 558; Kaechele v. Traction Co., 15 Pa. Superior Ct. 73; Kannenberg v. Conestoga Traction Co., 215 Pa. 555.</p> <p>It is error for counsel to state to the jury the amount of damages claimed in the declaration. The damages are to be ascertained by the jury from the evidence and are not to be determined by any estimate of counsel not based on the evidence: Quinn v. Philadelphia Rapid Transit Co., 224 Pa. 162; Carothers v. Pittsburgh Rys. Co., 229 Pa. 558.</p> <p>Plaintiff was not guilty of contributory negligence: Friedland v. A. & L. V. E. Ry. Co., 59 Pa. Superior Ct. 539; Thatcher v. Central Traction Co., 166 Pa. 66; Dyer v. Philadelphia Rapid Transit Co., 58 Pa. Superior Ct. 634.</p>

<p>Appeal, No. 260, Oct. T., 1915, by defendant, from decree of C. P. Berks Co., Equity Docket 1914, No. 1125, on bill in equity in case of Despina Hollis v. Kathryn S. Bland.</p> <p>Bill in equity for specific performance.</p> <p>The bill averred that the defendant had entered into a written agreement to sell to the plaintiff the premises No. 32-36 Plum street in the City of Reading for the sum of $2,800; the plaintiff tendered said amount but that same was refused.</p> <p>That on April 27,1914, having learned meanwhile that the defendant had an 8-22 interest in said properties, the plaintiff made a tender to the defendant of $1,018.18, arid requested a deed for the defendant’s undivided interest; which offer the defendant rejected.</p> <p>That the plaintiff is the owner of a large building located on the northwest corner of Franklin and Plum streets, Reading, in which she conducts a business as manufacturing confectioner; and that the premises aforesaid to wit Nos. 32-34 and 36 Plum street, while not adjoining the said factory, are in the immediate vicinity, and are valuable to plaintiff as a store house; and that there is no other property in that location which she can purchase, having the same advantages to her for the desired purpose as aforesaid.</p> <p>The answer admitted that the defendant entered into the agreement as set forth in the bill.</p> <p>She asserted that she entered into said agreement with the firm conviction that her two sisters, who held common interests with her therein, would approve of the sale; but that directly they were advised of the same they expressed disapproval of the sale and a refusal to be bound thereby.</p> <p>That thereupon, on February 5, 1914, the defendant returned to plaintiff a check for $100, being the down-money on the purchase, and notified her that she (the defendant) would be unable to give a complete title as she had agreed.</p> <p>The defendant denied (1) that the plaintiff was the owner of the building at the northwest corner of Franklin and Plum streets, or (2) that plaintiff there conducted the business of manufacturing confectioner.</p> <p>She also asserted that after the defendant had notified the plaintiff of her inability to complete the agreement, the plaintiff had purchased properties Nos. 25 and 27 Plum street, which, being at the corner of two streets, were better adapted for the purposes of a store-house than were those which the plaintiff had attempted to buy from the defendant.</p> <p>The case was heard on:bill, answer and proofs, before Wagner, J., who filed an opinion which was in part as follows:</p> <p>The plaintiff, as is shown by the evidence, and which is also not controverted, agreed to take such title as the defendant was able to give, and offered to pay to her the proportionate part of the consideration. In Erwin v. Myers, supra, on page 106, we have: “ ‘If a man having partial interest in an estate, chooses to enter into a contract respecting it, and agrees to sell it as his own, it is not competent for him afterwards to say, though he has valuable interests, he has not the entirety, and therefore a purchaser shall not have the benefit of his contract. For the purposes of this jurisdiction, the person contracting under those circumstances is bound by the assertion in his contract, and if the vendee chooses to take as much as he can have, he has a right to that, and to an abatement.’ ” Also on page 107: “Adams, in his Treatise on Equity, page 90, lays it down that, in favour of the purchaser the rule in equity is, though he cannot have a partial interest forced upon him, yet if he entered into the contract in ignorance of the vendor’s incapacity to give him the whole, and chooses afterwards to take as much as he can get, he has generally, though not universally, a right to insist on that, with compensation for the defect. He adds, the defect must be one admitting of compensation, and not a mere matter of arbitrary damages. In Story’s Equity, Sec. 779, the general rule is also said to be that the purchaser, if he chooses, is entitled to have the contract specifically performed as far as the vendor can perform it, and to have an abatement out of the purchase-money or compensation for any deficiency in the title, quantity, quality, description, or other matters touching the estate; and in Morse v. Elmendorff, 11 Paige 288, the chancellor went so far as to say that in a case where the vendor never had it in his power to perform at all, if the purchaser had filed his bill in good faith, supposing at the time he instituted his suit specific performance could be decreed, he was not prepared to deny that the court would retain his suit, and award the complainant a compensation in damages. However this may be, there is nothing in the general rule of which a vendor can complain. It is his own .fault if he has assumed obligations which he cannot fulfill. It cannot be inequitable to require him to perform, as far as is in his power, and being in a court of equity, a decree that he make compensation for all that he fails to perform is but completing what the court has begun, and preventing a multiplicity of suits. In no just sense can it be said that thus a new contract is made for the parties. The vendor is not compelled to convey anything which he did not agree to convey, and the vendee pays for what he gets, according to the rate established by the agreement.” To the same effect is Burk’s App., 75 Pa. 141; Napier v. Darlington, 70 Pa. 64; Farber v. Blubaker Coal Co., 216 Pa. 209; Stratford v. Lukens, 52 Pa. Superior Ct. 355; Whiteside v. Winans, 29 Pa. Superior Ct. 244; Hughes v. Antill, 23 Pa. Superior Ct. 290. In Farber v. Blubaker Coal Co., supra, on page 214, we have: “It is settled law that when a vendor sells real estate and thereafter it is discovered that he has but an undivided interest therein, the purchaser if he desire, may elect to accept such interest as the vendor can convey, or he may decline to accept and may rescind the contract.” In Whiteside y. Winans, supra, where the husband had contracted to convey his lands without his wife joining in the agreement, and the wife refused to join in the deed of conveyance, but the vendee agreed to accept such title as the husband, the vendor, was able to give, the court, on page 248, says: “The plaintiff has a right to insist on a specific performance of the contract so far as the vendor can carry it out.” Also in Stratford v. Lukens, supra, pp. 350, 360, — a similar case of a bill in equity for specific performance, — we have: “It is argued by appellant’s learned counsel that the defendant’s wife will not join with him in conveying the land in question, and, therefore, he cannot be compelled to comply with his contract. A sufficient answer to this contention is that the bill is only against the defendant and the plaintiff did not ask for and did not secure a decree against the wife. All that is required is for the defendant to convey the land without his wife joining in the deed. We here remark that at the trial the plaintiff distinctly testified that he was entirely willing to accept a deed from the defendant without his wife joining therein. We hold that he is entitled to such a conveyance from the defendant.” From these cases it must be perfectly plain that the mere fact that the defendant in this case has but an eight-twenty-second interest in the premises that she agreed to convey does not warrant us to deny to plaintiff, the purchaser, who is willing to accept that interest, a decree for specific performance therefor.</p> <p>The court entered a decree awarding specific performance</p> <p>Error assigned was decree awarding specific performance.</p> <p>Plaintiff was not entitled to relief: Elbert v. O’Neil, 102 Pa. 302; Willard v. Taylor, 8 Wall 557; Rennyson v. Rozzell, 106 Pa. 407; Hess v. Calender, 120 Pa. 138; Friend v. Lamb, 152 Pa. 529; Mitchell v. Steinmetz, 97 Pa. 251; Latta v. Hax, 219 Pa. 483; Weigel v. Mercer, 1 Pa. Superior Ct. 490; Spotts v. Eisenhauer, 31 Pa. Superior Ct. 93; Baldridge v. George, 216 Pa. 231; Croneberger v. Conrad, 248 Pa. 612.</p> <p>cited: Mortlock v. Buller, 10 Yes. 292; Hill v. Buckley, 17 Yes. 394; Attorney General v. Day, 1 Yes. Sr. 217; Erwin v. Meyers, 46 Pa. 96; Burk’s App., 75 Pa. 141; Napier v. Darlington, 70 Pa. 64; Latta v. Hax, 219 Pa. 483; Townsend v. Vanderwerker, 160 U. S. 171.</p>

<p>Contract — Conveyance of real estate — Agreement to reconvey— D efault — Forfeiture.</p> <p>A forfeiture is abhorred in law as in equity, and where the rights of one of the parties will be injured by so declaring it, the courts will not be slow to seize on a reasonable opportunity to prevent the forfeiture.</p> <p>An owner executed a deed of real estate to a person to whom she was indebted, and at the same time executed an agreement with the grantee by which she was permitted to retain possession of the real estate. In this agreement she covenanted to pay taxes, insurance, rent, repairs, etc., to the grantee and the whole of the debt on or before a date mentioned. If default should be made in paying the rent or taxes, or the principal sum, a stipulation on the part of the grantee to reconvey should be null and void, and for the collection of the rent a landlord’s warrant might issue. It was also provided that if the charges were all paid and a portion of the principal, and the grantee should sell the property he was to account to the grantor for any difference between the proceeds and the balance of the claim due him. It was also provided that the agreement might be terminated by defendant giving six months’ previous notice and demanding payment to the debt with all other claims if the agreement continued beyond the date previously mentioned. The grantor continued in possession of the property for several years after the date mentioned in the agreement. The grantor claimed that she had paid all the rent and other charges. This was denied by the grantee. The grantee claimed that he gave the six months’ notice required by the agreement, but this was denied by the grantor. The grantee sold the property, claimed a forfeiture and refused to pay the difference between the purchase-price and the amount due him. Held, that the case was for the jury, and that a verdict and judgment for the grantor should be sustained.</p> <p>Contract — New agreement — Continuance after right to forfeit.</p> <p>Parties may, by a course of conduct subsequent to an agreement, substitute new provisions or change or alter an agreement already existing, or continue in life what otherwise would have been a forfeited right.</p>

<p>Appeals, Nos. 305, Oct. T., 1914, and No. 178, Oct. T., 1915, from decree of Q. S. Delaware Co., Dec. T., 1911, No. 1, by James P. Calvert, et al., dismissing exceptions to report of jury of review In re Vacation of a part of Church Road in Newtown Township.</p> <p>Exceptions to report of jury of review.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Errors assigned were: 1. Order of the court dismissing petition to dismiss the appointment of a jury of review. (305) 2. Pinal decree dismissing exceptions to the report of the jury of review and confirming the report. (178)</p>

<p>Interpleader — Equity—Act of March 11,1886, P. L. 777 — Bill in equity treated as petition for interpleader.</p> <p>Where a bank is sued by the administrator of a deceased depositor for the amount of a deposit, and another person claims the deposit, and a hill in equity for an interpleader is filed under the Act of March 11, 1836, P. L. 777, containing all the material essentials of the act, the court may direct the equity proceeding to he certified to the law side of the court to the number and term of the ease wherein the hank was sued, and it then may treat the bill as a petition for an interpleader, and grant the interpleader and award a feigned issue.</p> <p>In such a case the plaintiff in the action of assumpsit has no standing to object that the other claimant to the fund had not been personally served with the rule to appear and answer, and especially so if the record shows that he was present in court and represented by counsel.</p>

<p>Appeal, No. 215, Oct. T., 1915, by plaintiff, on judgment of C. P. No. 1, Philadelphia Co., June T., 1913, No. 987, on verdict for plaintiff in Case of iEtna Life Insurance Company v. Harry E. Clark.</p> <p>Assumpsit to recover the first premium on several policies of life insurance. Before Bregy, P. J.</p> <p>At the trial it appeared that the premium amounted to $957.87. Defendant received the policy from the plaintiff’s agent, Walter, who had authority to accept payment of the premiums. He gave his note for $574.72, and the balance he retained under an agreement with Walter to be applied to an indebtedness due to defendant from one Rank who was an insurance agent, but not a licensed agent of the plaintiff. The note was subsequently paid by defendant to Walter bnt the latter never turned over the proceeds to the company. The court directed a verdict for the amount of the rebate only.</p> <p>Verdict and judgment for plaintiff for $484.88. • Plaintiff appealed.</p> <p>Error assigned was the charge of the court.</p> <p>Appellee’s arrangement with Walter was illegal: Johnson v. Hulings, 103 Pa. 498.</p> <p>Appellee cannot set up the illegal arrangement with Walter as a defense: Pittsburgh y. Goshorn, 230 Pa. 212; Vandegrift v. Vandegrift, 226 Pa. 254; Holt v. Green, 73 Pa. 198; Johnson y. Hulings, 103 Pa. 498; Blattenberger v. Holman, 103 Pa. 555.</p> <p>The arrangement of appellee with Walter was not within the scope of Walter’s known agency: Farmers’ & C. Ins. Co. y. Derr, 59 Pa. Superior Ct. 600; Mechling y. Philadelphia, Etc., Ins. Co., 53 Pa. 526; Reed v. Philadelphia, Etc., Co., 50 Pa. 384; Burns, Reilly, Etc., Co. v. Philadelphia, Etc., Life Ins. Co., 239 Pa. 22.</p>

<p>Negligence — Street railway — Wagon—Bight angled collision— Contributory negligence.</p> <p>Where the driver of a team and wagon, thirty feet long, approaches at a slow trot, from a cross street, a broad avenue upon which is a double track electric railway, sees a car on the far track three hundred feet away, when he himself is at the house line, again looks when the front feet of his team are on the first rail of the far track and sees the car ninety feet away, coming at a high speed, and then without stopping endeavors to drive the team across and is injured, he cannot recover for personal injuries sustained by himself.</p> <p>In such a case it is immaterial that the driver testified that it was the general custom for cars to slacken speed at another intervening cross street, and that the car in question did not slacken speed on this occasion at that street.</p>

<p>Appeals — Certiorari—Evidence—Custody of children — Habeas corpus.</p> <p>An appeal from an order in a habeas corpus proceeding relating to the custody of children, is in the nature of a certiorari. Neither the testimony nor the findings of fact however unwarranted, are brought up with the record, which alone can be considered. If it is clearly evident that the court has proceeded on an erroneous theory of the law upon which its order is based, the appellate court has power to correct such mistake.</p> <p>On such an appeal a complaint that the court below did not pass upon the facts presented for adjudication, cannot be sustained where the decree itself sets forth that it was made after a consideration of all the testimony.</p> <p>The court must consider the question of fitness and the best interest of the child. It is advisable to incorporate these findings in the decree.</p>

Appeal, No. 303, Oct. T., 1914, by defendant, from judgment of Municipal Court, Philadelphia Co., April T., 1914, No. 1, for plaintiff on case tried by the court without a jury in case of William D. Fenner v. Joseph J. Smyth. Trespass for the conversion of an automobile. Before Gilpin, J. At the trial the following agreement between plaintiff and defendant was offered in evidence: “This is to certify that Jos. J. Smyth and Wm.

<p>Deeds — Boundaries—Street of boundary — Middle line of street— Presumption.</p> <p>A conveyance of land bounded by a road or street gives the grantee a title to the middle of the road or street if the grantor owned thereto, and in the absence of title papers showing a contrary restriction, the presumption is that a lot bounded by a street extends to the middle of it. It is a burden of the person asserting the contrary to overcome this presumption.</p> <p>Street railways — Elevated railway — Occupation of street — Obstruction of light and air.</p> <p>Where a street railway company constructs an elevated railway track on one side of the cartway and sidewalk of a street, and thereby obstructs the light and air to a house built on an abutting lot, the owner of which owns the fee to the middle line of the street, the railway company will be liable in damages to the owner for such obstruction of light and air.</p>

<p>Wills — Construction—Division of residue — Children.</p> <p>Where a testator directs that the residue of his estate shall be divided into five equal parts in accordance with an appraisement, and held in trust, to pay to each of his four daughters, naming them, one-fifth of the income for life and after their decease the principal to be paid to their respective children, but if either dies without children then her share to be in like manner held on the same trust for his remaining children, and further directs in a separate clause that one-fifth of the residue shall be assigned after the appraisement to his son, naming him, absolutely, a share of a deceased daughter who dies without children will be divided share and share alike among the four surviving children of the testator, including the son.</p>

<p>Appeal, No. 20, Oct. T., 1915, by plaintiff, from judgment of Municipal Court, April T., 1914, No. 133, for defendant, on case tried by tbe court ■without a jury in suit of J. Joseph McHugh v. City of Philadelphia.</p> <p>Assumpsit to recover balance alleged to be due on a municipal contract for grading.</p> <p>The case was tried by Crane, J., without a jury.</p> <p>At the trial plaintiff claimed to recover the cost of filling 3,117 cubic yards in the work of grading Gross street in accordance with certain plans and specifications attached to a municipal contract. The plaintiff claimed that the surveyor of the district had made an erroneous estimate of the amount of filling to the plaintiff’s disadvantage. The contract contained an arbitration clause by which all matters in dispute under the contract should be determined by the chief of the Bureau of Highways.</p> <p>The court found in favor of the defendant.</p> <p>Error assigned was in finding for the defendant.</p> <p>cited: Philadelphia & Gulf Co. v. Soeffing, 59 Pa. Superior Ct. 429; Warsaw Twp. v. Knox Twp., 107 Pa. 301; Oath-cart v. Com., 37 Pa. 108.</p>

Appeal, No. 177, Oct. T., 1915, by plaintiff, from judgment of Municipal Court, Philadelphia Co., March T., 1915, No. 363, on case tried by the court without a jury in suit of David Peoples v. Philadelphia. Assumpsit for money alleged to be due under a municipal contract for grading. Before Cassidy, J. The case was tried by the court without a jury. Error assigned was in entering judgment for defendant.

<p>Appeals — Assignments of error-.— Rulings on evidence — Two questions in one assignment.</p> <p>Assignments of error to the exclusion of evidence which do not quote the rulings, nor state where they may be found in the appendix, will not he considered.</p>

<p>Appeal, No. 38 Oct. T., 1915, by plaintiff, from judgment of O. P. No. 2, Philadelphia Co., Sept. T., 1905, No. 3386, M. L. D., on verdict for defendants in case of City of Philadelphia v. Eli K. Price, Eli K. Price Estate, Owners.</p> <p>Scire facias sur municipal lien. Before Barratt, J.</p> <p>From the .record it appeared that the City of Philadelphia in 1906 filed a municipal claim for water pipe for |480.00 against the property of the defendants. A scire facias was duly issued-in the claim, and an affidavit of defense filed, alleging, inter alia, that the city neglected to deliver to the defendants a bill for the water pipe before filing the claim, as directed by the ordinance of councils of January 29, 1855.</p> <p>At the trial the following offer was made:</p> <p>“Mr. Saul: I offer to prove by the owner of the property sought to be charged with this lien that no bill for the expense of laying the water pipe in front of the lot of ground described in this case was ever delivered to the owner or owners of said ground described in said claim, or to anyone representing them, or placed upon the premises, as required by said ordinance.”</p> <p>(Objected to by counsel for plaintiff.)</p> <p>Objection overruled; exception to plaintiff. (1)</p> <p>Verdict and judgment for defendants. Plaintiff appealed.</p> <p>Errors assigned, among others, were (1) rulings on evidence quoting the bill of exceptions; (3) a portion of</p> <p>charge quoting it, and (4) refusal of binding instructions for plaintiff.</p> <p>It has been repeatedly held by the court of Pennsylvania that ordinances of the character in question are directory merely, and not mandatory: Winter v. City of Reading, 15 W. N. C. 329; Pittsburgh v. Coursin, 74 Pa. 400.</p> <p>For other cases in which a distinction was drawn between ordinances and statutes as being directory or mandatory in their character see: Fell v. Philadelphia, 81 Pa. 58; Magee v. Commonwealth, 46 Pa. 358; Philadelphia, to use, v. Brooks, 81 Pa. 23; Wilvert v. Sunbury Borough, 81% Pa. 57; Philadelphia v. Ash, 15 Philadelphia 45.</p> <p>Morewood Avenue, 159 Pa. 39; Scranton Sewer, 213 Pa. 4; Apollo Boro. v. Clepper, 44 Pa. Superior Ct. 396.</p>

<p>Appeal, No. 15, Oct. T., 1915, by defendant, from judgment of C. P. No. 2, Philadelphia Co., Dec. T., 1911, No. 6724, M. L. D., on verdict for plaintiff in case of City of Philadelphia v. Jacob Kerschner.</p> <p>Scire facias sur municipal lien for the cost of paving old York Road in front of defendant’s property. Before Dougherty, J.</p> <p>At the trial the plaintiff claimed that the paving for which the lien was filed was a repaving following an original paving by the turnpike company which owned the road.</p> <p>The court gave binding instructions for plaintiff.</p> <p>Verdict and judgment for plaintiff for $35.20. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for defendant.</p> <p>There was a municipal adoption of the road as a street: Leake v. Philadelphia, 171 Pa. 125.</p> <p>The case was one for the jury.</p> <p>cited: Leake v. Philadelphia, 150 Pa. 643; Philadelphia v. Eddleman, 169 Pa. 452; Lincoln Avenue, 193 Pa. 432; Dick v. Philadelphia, 197 Pa. 467; Philadelphia v. Hafer, 38 Pa. Superior Ct. 382; Philadelphia v. Gowen, 202 Pa. 453.</p>

Appeal, No. 281, Oct. T., 1915, by plaintiff, from order of C. P. No. 1, Philadelphia Co., June T., 1913, No. 4995, refusing to take off nonsuit in case of Miller North Broad Storage Co., Appellant, v. Philadelphia Rapid Transit Company. Trespass to recover damages for injuries to an auto-truck. Before Bregy, P. J. The facts are stated in the opinion of the Superior Court. Error assigned was refusal to take off nonsuit.

<p>Appeal, No. 142, Oct. T., 1915, by defendant, from judgment of the Municipal Court, Philadelphia Co., Feb. T., 1915, No. 32, for plaintiff on case tried by the court without a jury in suit .of Louis Smuckler v. Antonio Di Napoli.</p> <p>Assumpsit for breach of contract.</p> <p>The cause was tried by Knowles, J., without a jury.</p> <p>At the trial it appeared that the action was brought to recover the sum of $150.00 which the plaintiff claimed to have lost by reason of the failure of the defendant to deliver to him one hundred barrels of flour which he claimed he had bought from defendant through the latter’s agent. The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was in entering judgment for plaintiff.</p> <p>cited: Anderson Coal Mining Co. v. Sloan, Howell & Co., 46 Pa. Superior Ct. 320.</p>

<p>Practice, O. P. — Affidavit of defense — Supplemental affidavit— Appeals — Reversal—Judgment.'</p> <p>The provision of the Act of April 18, 1874, P. L. 64, that judgment shall be entered for the plaintiff where the. refusal of judgment for want of a sufficient affidavit of defense has been reversed -by the appellate court unless “other legal or equitable cause” shall be shown means a cause which did not exist when the affidavit of defense was filed, or, if it did exist, the defendant- was ignorant of' it through no fault of his own.</p> <p>In such case, where the defendant after reversal, files without leave of court a supplemental affidavit of defense, averring a fact, the existence of which was perfectly well known to him at the time the original affidavit was filed, and the court below discharges a rule for judgment, the appellate court will again reverse the judgment, but in doing so will again have to order that judgment shall be entered for plaintiff, “unless other legal or equitable cause” shall be shown, why judgment should not be so entered.</p> <p>If after such reversal the' defendant does nothing more than ask the court below for leave to mark filed nunc pro tune the supplemental affidavit of defense, and the court refuses the motion, and enters judgment for plaintiff, its action will be sustained on appeal; and this is the case although the court based its decision on another ground than that raised by the supplemental affidavit of defense, if it appears that such question, although not passed upon, was directly raised by the affidavit of defense originally filed.</p>

<p>Trusts and trustees — Trust to secure payment for material furnished to a building operation — Action against trustee — Affidavit of defense.</p> <p>In an action of assumpsit against a trust company judgment will not be entered for want of a sufficient affidavit of defense where it appears that the defendant through an agent had executed a declaration of trust by which it acknowledged that it held title to a house to secure the plaintiff for materials to be furnished to a building operation of which the house was a part, that the debt remained unpaid, and that the trustee had sold the house to a stranger, but there is nothing either in the statement, or in the affidavit of defense to show what was the value of the house, or that the value of the house exceeded the debt for which it was pledged.</p>

<p>Appeal, No. 159, Oct. T., 1915, by defendants, from decree of the Municipal Court Philadelphia Co., April T., 1915, No. 74, on hill in equity in case of Funeral Benefit Association of the United States v. James E. Hyatt Council, No. 923.</p> <p>Bill in equity to enforce an assessment.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The court below overruled the demurrer, and entered judgment for plaintiff in the sum of $34.40.</p> <p>Error assigned was the decree of the court.</p> <p>—The court did not have a right to enter judgment on the demurrer but should have overruled the demurrer and permitted an answer to be filed in case the court deemed the demurrer insufficient: Barbey v. Beaver, 119 Pa. 413; Corbett v. Oil City & Co., 5 Pa. Superior Ct. 19.</p> <p>The defendant has paid the penalty and no other can be imposed without its consent. It is nowhere alleged thát defendant ever agreed to pay anything except upon a condition precedent: Lehman v. Clark, 43 L. R. A. 648; Johnston v. Anderson, 23 Pa. Superior Ct. 152.</p> <p>Plaintiff is governed by Act of April 28,1876, P. L. 53.</p> <p>cited: Johnston v, Anderson, 23 Pa. Superior Ct. 152; Pain v. Sample, 158 Pa. 428; Susquehanna M. F. Ins. Co. v. Leavy, 136 Pa. 499; International Savings & Trust Co. v. Tillotson, 34 Pa. Superior Ct. 521.</p>

<p>Appeal, No. 149, Oct. T., 1915, by defendants, from decree of the Municipal Court, Philadelphia Co., Nov. T., 1914, No. 434, on bill in equity in case of Antonm Caruso v. Vito Gallo, et al., Members of Corte Americo Vespucci, No. 234, Foresters of America.</p> <p>Bill in equity for a decree to reinstate the complainant as a member of an unincorporated association. Before Knowles, P. J.</p> <p>The case turned in the appellate court upon the jurisdiction of the Municipal to entertain the bill.</p> <p>Error assigned was decree in favor of the plaintiff.</p>

<p>Appeal No. 150, Oct. T., 1915, by defendants, from decree of Municipal Court, Philadelphia Co., March T., 1914, No. 221, on bill in equity in case of Maria De Domenicies, Administratrix of the Estate of Rosario De Domenicies, deceased, v. John Quiroli, et al., Members of the Corte Americo Vespucci, No. 234, Foresters of America.</p> <p>Bill in equity against the members of an unincorporated beneficial association to recover sick benefits and funeral expenses. Before Knowles, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was decree in favor of the complainant.</p>

<p>Beneficial associations — By-laws—Suspension of benefits — Failure to appeal.</p> <p>In an action' against an unincorporated beneficial association to recover sick benefits, the plaintiff will not be entitled to recover, where it appears that the by-laws provided for the payment of sick benefits only in case the association had funds for that purpose, that at a meeting at which the plaintiff was present, a resolution was passed suspending the payment of sick benefits on account of lack of funds, that the plaintiff although voting against the resolution and protesting against it, did not take the appeal provided by the by-laws, and that the illness for which he claimed benefits began eight days after the resolution was passed.</p>

<p>Appeal, No. 268, Oct. T., 1915, by defendant, from judgment of Municipal Court, Philadelphia Co., Feb. T., 1915, No. 516, for plaintiff on case tried by the court without a jury in suit of Andrew L. Palmer and W. Wallace Gayley, trading as Palmer & Gayley, v. General Flooring and Manufacturing Company.</p> <p>Assumpsit for goods sold and delivered.</p> <p>The case was tried by Knowles, J., without a jury.</p> <p>The opinion of the Superior Court states the facts.</p> <p>Judgment was entered for plaintiff for $141.20. Defendant appealed.</p> <p>Errors assigned were in refusing a new trial and in refusing judgment for defendant n. o. v.</p> <p>There is not a scintilla of evidence in the case to fasten liability upon the corporation defendant. The plaintiff claims for goods sold to a corporation, beginning on April 7, 1914. The undisputed testimony of the defense discloses that the corporation was not organized until the first day of May, 1914, and did no business of any kind prior to that time.</p> <p>The company did not and could not have known that Levering was acting on its behalf, in signing receipts, upon delivery slips for goods delivered to the mill, and the corporation cannot therefore be bound by his act, in signing upon those delivery slips “The General Flooring and Manufacturing Company, per. Levering.”</p> <p>Under the conditions of this trial, there were no instructions to be made by the court, and to enforce such a rule as is required by the practice in a trial of cases before a jury would be to reduce the practice to the absurd. Certain it is that the counsel in closing requested the court to find that under all of the evidence the verdict must be for. the defendant.</p> <p>As to the appeal from the refusal of the court to grant a judgment non obstante veredicto in favor of the defendant, it is respectfully submitted that the lower court committed no error: Haley v. American Agricultural Chemical Co., 224 Pa, 316; Hanick v. Leader, 243 Pa. 372; Philadelphia v. Bilyeu, 36 Pa. Superior Ct. 562; Penna. R. R. Co. v. Harl, 50 Pa. Superior Ct. 236; Coyne v. Lackawanna County, 53 Pa. Superior Ct. 603.</p> <p>The evidence was oral and conflicting, and it is submitted that, under the authorities, after the learned trial judge found in favor of the plaintiff, the appellate court will not reverse his findings.</p> <p>Notice to the president of matters within the scope of the corporate business, is notice to the corporation: Kersey Hill Mineral Co. v. Oil Creek & A. R. Co., 5 W. N. C. 144; First Natl. Bank of Bethlehem v. Peiserf, 2 Penny. 277.</p> <p>It is submitted that as the corporation did not disavow liability within a reasonable time, the corporation will be presumed to have ratified the same: Bellman v. Pittsburgh & Allegheny Valley Ry. Co., 31 Pa. Superior Ct. 389; Hall v. Vanness, 49 Pa. 457; Louden Sav. Fund Soc. v. Hagerstown Sav. Bank, 36 Pa. 498; Philadelphia, Etc., R. R. Co. v. Cowell, 28 Pa. 329.</p>

<p>Wages — Attachment execution — Exemption from attachment.</p> <p>Where a person is employed to superintend the construction of a coal breaker at a compensation of five dollars per day and ten per cent, of the amount of the pay roll of all employees engaged in the construction of the breaker, and it appears that his work is partly mental in planning the structure and partly manual, and that he did not employ or pay the workmen, all of his compensation, both wages and commission is exempt from attachment by virtue of the Act of April 15, 1845, Sec. 5, P. L. 460.</p>

Appeal, No. 245, Oct. T., 1915, by plaintiff, from decree of C. P. Northampton Co., Nov. T., 1914, No. 59, dismissing libel in divorce in case of Victor J, Kocb v. Louise W. Koch. Libel for divorce. The case was referred to William H. Sehneller, Esq., as master, who reported in favor of the libellant. Exceptions to his report were sustained by the court. A full review of the testimony will be found in the opinion of. the Superior Court.

Appeal, No. 372, Oct. T., 1915, by defendant, from judgment of Municipal Court, Philadelphia Co., April T., 1915, No. 225, on verdict of guilty in case of Commonwealth v. Eobert H. Wilson. Indictment for larceny as bailee. Before Crane, J. The facts are stated in the opinion of the Superior Court. Verdict of guilty upon which judgment of sentence was passed.

Appeal, No. 271, Oct. T., 1915, by plaintiff, from order of Municipal Court, Philadelphia Co., March T., 1915, No. 714, refusing to take off nonsuit in case of Overland Motor Company v. Mrs. Samuel Goodman. Trespass to recover damages for injuries to an automobile. The case was tried without a jury by Knowles, J., who entered a nonsuit which the court subsequently refused to take off. Plaintiff appealed.