Volume 63 — Pennsylvania Superior Court Reports

<p>Appeal, No. 42, April T., 1916, by Relief Electric Light, Heat and Power Company, •from order-of the Public Service Commission at No. 312 Municipal Contract Docket, 1914, refusing certificate of public convenience.</p> <p>Petition for certificate of public convenience.</p> <p>The petition was as follows:</p> <p>That your petitioner is a corporation formed for the purpose of supplying electric light and electric power to persons and corporations within the Borough of Washington. It being the further purpose of. the associates forming this company to supply electric light and electric power to the Borough of East Washington, which joins and is commercially a part of the Borough of Washington, an additional corporation was formed un-. der the name of the East End Electric Light, Heat and Power Company, it being proposed and intended that the Relief Electric Light, Heat and Power Company and the East End Electric Light, Heat and Power Company will operate from the same plant and lines. The whole district which this company proposes to serve through itself and its subsidiary is shown on map Exhibit A hereto attached and made a part of this petition.</p> <p>It is proposed to establish a central light and power plant of best modern- design in Washington or its immediate vicinity, with an initial capacity of two thousand K. W., with ample room for additional plant, as the business may warrant. Your petitioner proposes to supply two-phase and. three-phase electric current; of seventy-two hundred alternations, and at voltages suitable for the various requirenients of the consumers. It is believed that a plant of this kind, conveniently located will be able to obtain considerable electric light and power business, at fair rates, due to its ability to generate economically, and to give that certainty of continuous service and closeness of regulation which are the two prime factors in any successful operation.</p> <p>In supplying this service, the company will compete with the West Penn Lighting Company, a Pennsylvania corporation, whose principal office is in the City of Pittsburgh, upon whom notice of this application was duly served as appears by return hereto attached.</p> <p>The petitioner was incorporated under charter dated June 26,1912.</p> <p>By ordinance of the Borough of Washington approved the 26th day of May, 1914, a copy whereof is hereto attached, marked Exhibit B, petitioner secured the consent of the local authorities.</p> <p>Petitioner is advised and believes that it has authority under said charter and local consent to proceed and exercise its charter rights to furnish electric current for light, heat and power to persons and corporations within the territory covered by said charter, subject, nevertheless, to the approval by your Commission of the terms and conditions prescribed in the ordinance granting said local consent.</p> <p>On the 17th day of February, 1914, your petitioner presented its petition to your Commission under Paragraph 2 of Rule 36 for a declaration by the commission of the terms and conditions upon which it would grant its approval of a contract between the Borough of Washington and this petitioner in the same terms as are expressed in the ordinance hereto annexed, but on presentation of the petition your commission expressed the desire that the petitioner withdraw its application for the time being and renew it after the local consent had been obtained. The petitioner having complied with said request , of the commission now submits itself to such order as may be proper under circumstances.</p> <p>This application is made under Section. 11, Article III of the Public Service Company Law.</p> <p>It therefore prays that the terms and conditions contained in said ordinance may be considered and approved and that a certificate of public convenience may issue authorizing it to proceed to perform the service contemplated by its charter and said ordinance.</p> <p>The West Penn Lighting Company intervened, and filed an answer in which it stated that it had been serving the Borough of Washington for a number of years at just and reasonable rates.</p> <p>Testimony was taken before the commission, and an order was made refusing to grant a certificate of public convenience to the petitioner.</p> <p>Error assigned was the order of the commission.</p> <p>—While the State has the unquestionable power to regulate the manner of the use by a corporation of its property, so far as it may injuriously affect others, it cannot under the pretense of making police regulations, repeal the company’s charter and revoke its franchises or deprive it of any of the essential rights conferred by its charter: Sharpless v. Mayor of Philadelphia, 21 Pa. 147; Com. v. Penna. Canal Co., 66 Pa. 41.</p> <p>The act is constitutional: Mugler v. Kansas, 123 U. S. 623; Com. v. Powell, 127 U. S. 678.</p> <p>'Appellant was not a corporation under the Act of May 8,1889, when Section 11, of Article 3, of the Public Service Act became part of its charter: Guckert v. Hacke, 159 Pa. 303; Braddock Borough v. Penn Water Co., 189 Pa. 379.</p>

<p>Contracts — Infants—Disaffirmance of contract — Replevin.</p> <p>Whére an. infant on coming of age disavows a contract by which he had purchased and acquired possession of goods without revealing his age. the vendor cannot maintain an action of assumpsit to enforce the contract, nor can he, if the goods are no longer- in the possession of the vendee, maintain an action of replevin and recover a money verdict for the goods.</p> <p>In such a case the vendor cannot show as evidence of fraud that the vendee had entered into similar contracts with other parties; nor that he made statements to mercantile agencies as to his assets, without an offer to prove that such statements were false.</p>

<p>Contract — Vue bill — Evidence.</p> <p>Where a due bill states on its face that it “is neither transferable nor negotiable, and is only payable by an allowance of the amount hereof on the leasing or purchase by the payee of a new piano at regular selling price,” and that it must be presented at the time of selection of new instrument, the payor is not justified in refusing to accept the bill where it is presented by a daughter of the payee acting for him, at a time when a third person under an agreement with the payee, has selected a new piano at the regular selling price for his own use; nor can the payor impose as a condition of the acceptance of the bill, that it should only be on the sale of a piano on the installment plan.</p> <p>In such a ease where the daughter of the payee is asked on cross-examination her reason for doing a certain act, objection cannot be made to her answer because it involved a statement as to certain information that her father gave her.</p>

<p>Replevin — Gontracl—Delivery of material to building operation —Passing of title.</p> <p>An action of replevin to recover steel window sashes cannot be maintained where it appears that the plaintiff entered into a contract in writing with the defendant to furnish and hang the window sashes for a building which the defendants were constructing for another, that after the sashes were delivered to the building, but before they were hung, the defendants notified the plaintiffs that the contract was revoked because of the employment by plaintiffs of nonunion labor, and that the plaintiffs by reason of this notice, and also by reason of the fact that there had' been a default in the payment of moneys due, went upon the premises and removed the window sashes under the writ of replevin issued in the case. In such a case the title to the sashes had passed out of the plaintiffs by the delivery, and they had no such general or special property in them as would support an action of replevin.</p> <p>Practice, G. P. — Demurrer—Judgment for want of an affidavit of defense — Appeals.</p> <p>Where in an action of assumpsit a demurrer to the statement is overruled, and the defendant takes no further step, but permits judgment to be entered against him for want of an affidavit of defense, he may after the entry of such final judgment, take an appeal and assign as error the order overruling the demurrer.</p>

<p>Appeal, No. 153, Oct. T., 1915, by the Finance Company of Pennsylvania, from order of C. P. No. 3, Philadelphia Co., Dec. T., 1914, No. 324, discharging rule for judgment for want of an affidavit of defense in suit of McFarland-Meade Company v. James G. Doak and G. A. Maicas, trading as James G. Doak & Company and the Finance Company of Pennsylvania.</p>

<p>Will — Tested and contingent interests — Trusts and trustees— Life estate.</p> <p>Where a testator gives his estate to- a trustee to pay the income of his estate to a niece for life, and after her death to pay the income to her five children, naming them, and to the children of any of her children who might be deceased, such children to take their parent’s share until the death of the last of said children, when the principal shall be divided among the nieces’s grandchildren and the issue of any grandchildren who may he deceased, per stirpes, and further directs that the income shall he paid quarterly, and not he subject to assignment, nor debts of any of the beneficiaries, the gift of income is limited to the children of the niece and their issue, and if a daughter of the niece dies in her mother’s lifetime without issue her surviving, her interest in the income terminates with her death, and her husband, executor under her will, takes nothing.</p>

<p>Appeal, No. 274, Oct. T., 1914, by plaintiff, from decree of C. P. No. 4, Philadelphia Co., Sept. T., 1913, No. 1235, dismissing bill in equity in case of Rudolph Paris v. City of Philadelphia, George D. Porter, Director of the Department of Public Safety of said City; Joseph S. Neff, Director of the Department of Public Health and Charities of said City; John A. Yogelson, W. H. Andrus, and A. C. Abbott, constituting the Bureau and Board of Health of said city, and John A. Yogleson, Chief of the Bureau of Health of said City.</p> <p>Bill in equity for an injunction. Before Willson, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was decree dismissing the bill.</p> <p>The board of health here did not “first obtain a warrant from a justice of the peace in due form of law, founded on a complaint of two householders, under oath or affirmation: Baugh v. Sheriff, 7 Philadelphia 82.</p> <p>The Act of 1818 specifically applies to the old “City of Philadelphia,” District of Southwark and the Townships of the Northern Liberties, Moyamensing and Penn, and, unless supplements to the said act extend the power of the board, they are without authority in the present instance: Homer v. Com., 106 Pa. 221; Philadelphia, to use, v. Edwards, 78 Pa. 62; Duffield v. Williamsport School District, 162 Pa. 476.</p> <p>The action of the Board of Health in attempting to compel the removal of plaintiff’s hogs and hog pens, is an attempt to deprive plaintiff of his property without due process of law: Philadelphia v. Provident, Etc., Trust Co., 132 Pa. 224; Eddy v. Board of Health, 10 Philadelphia 94; Philadelphia v. Lyster, 3 Pa. Superior Ct. 475; Allegheny v. Heyl, 26 Pitts. L. J. 70; Hutton v. City of Camden, 39 N. J. 122.</p> <p>The alleged'right of the Board of Health to solely determine the existence of the alleged nuisance here, is further negatived by the ordinance of June 24, 1912, which recognizes the right of residents of certain rural districts to keep pigs: Gregory v. City of New York, 40 N. Y. 273; Egan v. N. Y. Health Dept., 20 Misc. N. Y. 38.</p> <p>The condition of the plaintiff’s pig pens, or the pigs and pig pens, do not constitute a nuisance: Shetzline v. Layer, 19 Pa. Dist. Rep. 1025.</p>

Appeal, No. 9, March T., 1916, by defendant, from order of C. P. Susquehanna Co., Aug. T., 1912, No. 256, refusing to direct the payment of an award of viewers into court in case of Etta E. Dean v. Delaware, Lackawanna & Western Railroad Company. Buie to pay the amount of award of viewers into court. Before Little, P. J. The plaintiff moved to quash the appeal on the ground that the order discharging the rule was interlocutory in character.

<p>Appeal, No. 48, March T.,. 1916, by plaintiff, from decree of C. P. Luzerne Co., Oct. T., 1915, No. 2, dismissing bill in equity in case of Luzerne County Gas and Electric Co. v. Evan R. Morgan, et al.</p> <p>Bill in equity for an injunction.</p> <p>Prom the record it appeared that the plaintiff is a Pennsylvania corporation engaged in the business of manufacturing and supplying gas and electricity in the Borough of Kingston and other municipalities in Luzerne County. It owns land situate on Wyoming avenue in the Borough of Kingston, upon which is erected a brick building, with a barn and garage. The building is a three-story structure used by the manager, attorney, engineering department, stockkeeper, accounting department, meter department, and store room, and other purposes necessary for the conduct of thé business. The ground floor is largely taken up with a store, in which is displayed for sale and sold, gas ranges, gas heaters, gas mantles, electric lamps, glassware for shades, electric •cooking devices, gas and electric fixtures, electric irons and gas irons, electric cooking stoves and so forth. The assessed valuation of the property for the year 1914 is $38,600.00, and the local taxes for the year 1914 amounted to $221.95 for borough purposes, $231.60 for school purposes, and $42.46 for poor purposes.</p> <p>The company made no claim for an apportionment of the taxes.</p> <p>The bill was filed against Evan R. Morgan to restrain a collection of the taxes assessed.</p> <p>The court dismissed the bill in an opinion by Wo.odward, J.</p> <p>Error assigned was decree dismissing the bill.</p> <p>In a long and unbroken line of decisions, from Lehigh Coal and Navigation Company v. Northampton County, 8 W. & S. 334, to Conoy Township v. York Haven, Etc., Co., 222 Pa. 319, it has been uniformly held that the real estate of a public service corporation, essential and necessary to the exercise of its franchise, is not subject to local taxation : Schuylkill Co. v. Citizens’ Gas Co., 148 Pa. 162; Com. v. Salt Mfg. Co., 1 Dauphin Co. 98; Malone v. Lancaster Gas, Etc., Co., 182 Pa. 309; D., L. & W. R. R. Co. v. Metzgar, 28 Pa. Superior Ct. 239; Coatesville Gas Co. v. Chester County, 97 Pa. 476; Phillips Gas, Etc., Co. v. Butler County, 51 Pa. Superior Ct. 158; Western N. Y. & Penna. R. R. Co. v. Venango County, 5 Pa. Superior Ct. 304.</p> <p>The property was assessable: R. R. Co. v. Berks Co., 6 Pa. 70; D., L. & W. R. R. Co. v. Metzgar, 28 Pa. Superior Ct. 239; Western New York & Penna. R. R. Co. v. Venango County, 5 Pa. Superior Ct. 304; Western New York & Penna. R. R. Co. v. Venango County, 183 Pa. 618; Penna., Etc., R. R. v. G. H. Van Dyke, 137 Pa. 249.</p> <p>It is only where the evidence shows and the prayer of the bill requests an apportionment, that the courts have apportioned the valuation: Philadelphia v. Barber, 160 Pa. 123; Y. M. C. A. v. Donohugh, 7 W. N. C. 208; Bell Telephone Co. of Penna. v. Harrisburg, 53 Pa. Superior Ct. 458; Malone v Lancaster Gas Light, Etc., Co., 182 Pa. 309.</p>

<p>Husband and wife — Support and maintenance — Decree in equity —Custody of children.</p> <p>Where a decree in equity in a suit brought by a wife against her husband for support and maintenance provides for a money payment by the husband and the execution of mutual releases and deeds by husband and wife, the husband will not be excused from paying the amount of money provided by the decree because his wife refused to permit him to see his children in violation of an agreement of counsel made on the same day that the decree was entered. The husband can raise the question of his right to see the children by writ of habeas corpus.</p>

Appeal, No. 47, March T., 1916, by defendants, from judgment of C. P. Lackawanna Co., June T., 1911, No. 467, on verdict for plaintiff in case of Harry Goldsleger v. Dominick Carraceiolo and Angelina Carraceiolo. Appeal from judgment of justice of the peace. Assumpsit for goods sold and delivered. The opinion of the. Superior Court states the case. Verdict and judgment for plaintiff for $257.30. Defendant appealed.

<p>Appeal, No. 32, Oct. T., 1916, by defendant, from judgment of Q. S. Centre Co., Dec. T., 1914, No. 4, on verdict of guilty in case of Commonwealth v. Isaac Harpster.</p> <p>Indictment for fornication and bastardy. Before Quigley, P. J.</p> <p>Error assigned was in refusing to quash the indictment found by the grand jury on May 17,1915, while the former indictment found Dec. 7, 1914, was outstanding and undisposed of.</p>

Appeal, No. 386, Oct. T., 1915, by defendant, from order of Q. S. Philadelphia Co., March T., 1915, No. 694, overruling demurrer in case of Commonwealth v. Lércy Weber. Error assigned was in overruling demurrer to indictment directing the defendant to plead.

<p>Negligence — Street railways — Collision of automobile and car— Contributory negligence — Case for jury.</p> <p>Where an automobile stalls upon a street car track as a result of the unexpected failure of its engine, at a point where the motorman of a street ear two hundred and fifty feet away has a full view of the automobile, and it appears that while the chauffeur was trying to start his engine, remaining in the automobile, the motorman so operated bis car as to run into tbe automobile, tbe question of tbe motorman’s negligence and tbe chauffeur's contributory negligence is for tbe jury.</p>

<p>Divorce — Indignities to person — Gruel and barbarous treatment —Evidence.</p> <p>“Indignities to the person” and “cruel and barbarous treatment” are two distinct clauses of divorce, and in the statutes a distinction is made between the case where the wife and the case where the husband, is the complaining party. In the former the language of the statute is “When any husband shall have by cruel and barbarous treatment endangered his wife’s life”; Act of March 13, 1815, 6 Sm. L. 286. In the latter the language is: “When the wife shall have by cruel and barbarous treatment rendered the condition of her husband intolerable or life burdensome”; Act of May 8, 1854, P. L. 644; Act of May 22, 1895, P. L. 309. The distinction is a substantial one.</p> <p>A libel filed by a husband for divorce on the ground of indignities to the person and cruel and barbarous treatment, will be dismissed where the evidence that the facts on which the libellant relied never occurred, or were distorted through designed or unwarranted deductions, or so negative in character or so unimportant in effect, as to justify a conclusion that the allegations in the libel were not sustained, and that the libellant’s alleged wrongs were largely imaginary.</p>

Appeal, No. 276, Oct. T., 1915, by plaintiff, from order of O. P. No. 3, Philadelphia Co., Dec. T., 1911, No. 3773, making absolute rule to quash the proceedings in case of Margaret A. Murphy v. William R. Taylor. Rule to quash proceedings. The facts are stated in the opinion of the Superior Court. Error assigned was order making absolute rule to quash the proceedings.

<p>Appeal, No. 362, Oct. T., 1915, by plaintiff, from decree of C. P. No. 3, Philadelphia Co., June T., 1914, No. 3112, dismissing bill in equity in case of John G. Clawell v. Mary Anna Clawell.</p> <p>Libel for divorce.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was decree dismissing the libel.</p>

Appeal, No. 41, March T., 1916, by plaintiff, from judgment of C. P. Luzerne Co., Oct. T., 1912, No. 12, for defendant n. o. v. in case of Ellen Mc-Geever v.-Lehigh Yalley Coal Company. Trespass to recover damages for death of plaintiff’s husband. Before Fuller, P. J. The circumstances of the accident are stated in the opinion of the Superior Court. At the trial the jury returned a verdict for plaintiff for $1,140.00.

<p>Wills — Accumulations—Void accumulations — Remainder — Intestacy.</p> <p>Where a testator gives the residue of his estate to a trustee during the lifetime of testator’s son, and only child, to pay out of the income therefrom twenty .dollars annually toward the support of the son and after the death of the son to distribute all the rest and residue of the estate to the trustee himself and three sisters of the testator share and share alike, the accumulations of income over the twenty dollars per year are void, and are payable not to the remaindermen, but to the son of the testator as the latter’s next of -kin under the intestate laws.</p> <p>In such a case the court cannot during the life of the son distribute the corpus of the estate to the remaindermen, reserving enough to protect the annual payments required by the will.</p>

<p>Master and servant — Contract of employment — Distinct covenants — Consolidation of action.</p> <p>Where a contract of employment admitted to he an entire contract provides for the payment of weekly installments of wages and also provides that certain personal property belonging to the plaintiff should become vested in the defendant at the end of the contract upon the payment of a stated sum by the defendant to the plaintiff, and the plaintiff after an alleged wrongful discharge brings suit before the termination of the contract, for the stated amount, and after the termination of the contract brings a suit' in another Court of Common Pleas of the same county for the wages due, the two' actions may be consolidated in one of the courts and the plaintiff may be permitted to amend his statement in the consolidated action so as to join both claims. Such a consolidation of the action is not a “transfer of cases” within the meaning of Rule 5 of the Court of Common Pleas of Philadelphia.</p> <p>Where a suit has been brought by an employee against his employer to recover an installment of wages after an alleged wrongful discharge, an adjudication that the discharge was in fact unlawful in such suit, is res ad judicata as to that question in a subsequent suit for another installment of wáges.</p> <p>Where a contract of employment contains not only a provision for the payment of wages, but also a provision for the payment by the employer to the employee for certain personal property of the plaintiff, upon the termination of the contract, a suit for wages for an alleged wrongful discharge before the contract was terminated does not bar the plaintiff from bringing an action after the termination of the contract for the money due him for the personal- property.</p> <p>Where a servant has been discharged before the expiration of his term of employment without sufficient excuse, he is nevertheless bound to use reasonable efforts to obtain employment elsewhere; but the burden of showing that by reasonable efforts he might have found such employment, is upon the defendant.</p> <p>Appeals — Assignments of error — Practice, Supreme Gourt.</p> <p>An assignment of error which simply avers, in the language of the pleader, that the court erred in this or that respect, is insufficient. The judgment, decree or final order must be set out in the assignment.</p>

<p>Poor laws — Insane poor- — Liability of poor district — Settlement,.</p> <p>An order imposing the cost of support of an indigent insane person in the State hospital for the insane on a particular poor district will he set aside where there is nothing in the proceedings to disclose that the insane person ever had a legal settlement in the poor district charged, or that she was actually in that district when her disability began, or that she was in the district when the proceedings were instituted, or that she was a poor person when she resided in the district sixteén years before the proceedings were instituted.</p>

<p>Husband and wife — Order of support — ■Judgment—Certifying order into Common Pleas — Striking off judgment — Act of May 8, 1901, P. L. US.</p> <p>Where' a married woman secures an order in the Court of Quarter Sessions on her husband for support, and on the praecipe of her attorney to which is attached a certificate of the clerk of the Quarter Sessions, judgment is entered in the Common Pleas, the judgment will not be stricken off, because the- order was not certified by the Court of Quarter Sessions, or because the judgment was entered for the amount actually in default, and not for the penal sum.</p>

Appeal, No. 317, Oct. T., 1915, by defendant, from judgment of Municipal • Ct., Sept. T., 1914, No. 64, on verdict for plaintiff in case of Frederick C. Righter v. Guenther Lumber Company. Assumpsit for salary. • The opinion of the Superior Court states the case. Verdict and judgment for plaintiff for $177.30. Defendant appealed. Error assigned was in refusing binding instructions for defendant.

<p>Appeal — Review — Trial by court without a jury — Municipal Court of Philadelphia.</p> <p>The Superior Court will not review a judgment of the Municipal Court of Philadelphia County in a case tried by the court without a jury where no abuse of discretion is shown on the part of the trial judge.</p> <p>In ail action for breach of contract a question as to the measure of damages raised in the appellate court will not be considered, where the record shows that no such question was raised in the trial court.</p>

Appeal, No. 21, March T., 1916, by plaintiff, from judgment of C. P. Luzerne Co., June T., 1912, No. 415, for defendant n. o. v. in case of Annetta Cunius, by her next friend and father, Elmer Cunius, and Elmer Cunius v. Edwardsville Borough. Trespass to recover damages for personal injuries. Before Woodward, J. At the trial it appeared that the plaintiff fell into a hole in a sidewalk on Main street in the Borough of Edwardsville on May 10, 1911.

<p>Negligence — Municipalities—Hole in sidewalk — Notice—Time.</p> <p>In an action against a city to recover damages for personal injuries sustained by a woman who fell into a coal hole in a sidewalk, no recovery can be had where the testimony offered by the plaintiff shows that the cover for the hole was too small and would sometimes tilt, but that the defect was one that could only be observed by a very close examination.</p> <p>To charge a municipality with constructive notice the defect must be apparent by a reasonable inspection, and a reasonable time must elapse before the city can be charged with notice, but where the defect can only be noticed .by a close inspection, the length of time it has existed becomes immaterial.</p>

<p>Appeal, No. 214, Oct. T., 1915, by plaintiff, from judgment of C. P. Delaware Co., Dec. T., 1913, No. 38, for defendant n. o. v. in case of Frank Truschine v. Fayette Manufacturing Company.</p> <p>Trespass to recover damages for personal injuries. Before Broomall, J.</p> <p>At the trial the jury returned a verdict for plaintiff for $400. -</p> <p>On a motion for judgment n. o. v. Broomall, .J., filed an opinion which was in part as follows:</p> <p>Adjoining the- premises of the defendant’s plant on the south is the right of way of the Chester & Delaware River Railroad Company. Along the track of the railroad company on the south side is a path where the public is suffered by the railroad company to walk. The defendant company with the permission of the railroad company maintain two lines of pipe under ground for their plant across the railroad right of way. One of these pipes is ninety-five feet eastwardly from the east building line of Welsh street. This street is the westward boundary line of defendant’s plant. The other pipe is two hundred and eighty feet eastwardly from the east building line of Welsh street. These pipes after they cross the railroad right of way have their discharging ends in the river meadow some fifteen or eighteen feet south of the path along the railroad. The eastern pipé is used for the discharge of hot water from 180 degrees to 200 degrees Fahrenheit. The western pipe is used for the discharge of exhaust steam.</p> <p>On October 3, 1913, about 11 o’clock p. m., the plaintiff was walking eastwardly on the path alone. He testifies that he stepped into a hole, and scalded his leg in hot water which was in the hole. He sprained his leg. He says a great deal of steam came out and made a noise. He did not see the hole before he stepped into it, and has never seen it since. When he recovered from his injury about six weeks afterwards, he went to the place where the hole had been and located it as 80 paces east of Welsh street. He had passed along this path at 4 o’clock in the afternoon of the same day, and did not see any hole. His effort by this suit was to fix the responsibility for this hole on the defendant. The burden of proof is on him. The hole of which the plaintiff complains, if it was where he says it was, at the distance of 80 paces east of Welsh street, has not been connected with the defendant in any way. One of the plaintiff’s witnesses testified that on the morning of October '3, 1913, he observed smoke exuding from the ground between the path and the railroad track above the eastern drain 280 feet from Welsh street, but said there was no hole there. Another of the plaintiff’s witnesses saw the same thing on the morning of October 4> 1913, but said there was no hole there. This was reported to the defendants. and one of their workmen was sent two days afterward to investigate and make the necessary repairs. This man was called by the plaintiff as a witness who testified that there was no hole there. He dug the ground down to the pipe. The ground was firm. He found a break in the pipe with a hole of the size of a finger nail. He took out a section of the pipe and put in a new section. This very clearly establishes that the hole, if any, was not at the eastern drain. This turned attention to the western drain. But the evidence disclosed no defect in this pipe. “ Hence the plaintiff failed in his proofs. If at the western drain there had been a hole in this path, which the public were accustomed to use, it was susceptible of proof. The absence of proof induces speculation that the plaintiff had deviated from the path and fell down the bank into the scalding water at the end of the pipe some few feet from the path; and in the bewilderment with which he says he was affected he became infected with the notion that he had stepped into a hole. On the- trial we submitted the question of the defendant’s negligence to the jury, and they rendered a verdict for the plaintiff. Upon review we are unable to find any evidence upon which this verdict can rest. Hence we should have given binding instructions for a verdict in favor of the defendant,</p> <p>Error assigned, was in entering judgment for defendant n. o. v.</p> <p>cited: Finnegan v. Monongahela Water Co., 54 Pa. Superior Ct. 180; Payne v. Reese, 100 Pa. 301; Switzer v. Pittsburgh, 54 Pa. Superior Ct. 183; Shutt v. Cumberland Valley R. R. Co., 149 Pa. 266; Grimmer v. Penna. R. R. Co., 175 Pa. 1.</p> <p>cited: Philadelphia & Reading R. R. Co. v. Hummell, 44 Pa. 375; Taylor v. Del., Etc., Canal Co., 113 Pa. 162; Lodge v. Pittsburgh, Etc., R. R. Co., 243 Pa. 10.</p>

<p>Municipal liens — Paving—Revival—Prosecution to judgment— Act of May 16,1891, P. L. 69.</p> <p>Where a writ of scire facias is issued three years prior to the date of the Act of May 16, 1891, P. L. 69, to revive the lien of a judgment previously obtained on a municipal claim for paving, but such writ is not prosecuted to judgment until nearly two and one-half years after the passage of the Act of 1891, the lien of the judgment on the municipal claim is thereby lost.</p> <p>There is nothing in the Act of May 16, 1891, P. L. 69, that enlarges or broadens the use of an alias scire facias to revive, or has the effect of converting it into an original writ.</p>

<p>Evidence — Photographs—Identification of locality.</p> <p>Photographs are not of themselves substantive evidence and are not evidence per se. They become admissible when they fairly and truthfully represent the object or place desired to be reproduced. Before they are permitted to be used in the trial there should be preliminary evidence by those possessing sufficient knowledge of the accuracy of the photograph, that it fairly and truthfully represents the place or object.</p> <p>The mere fact that changes have been made which do not destroy the original identity of the place will not preclude the photograph from being admitted, but such changes must be fully explained to the jury.</p> <p>Negligence — Railroads—Passenger—Ejection from train — Evidence.</p> <p>In an action by a husband and wife against a railroad company to recover damages for the alleged wrongful ejection of the plaintiffs from a train with resulting injury to the wife from a fall, where plaintiffs testify that they offered to pay the conductor their fares, and that he refused to accept them it is reversible error to refuse to permit the brakeman acting as an assistant conductor, and who collected the fares in the car where the plaintiffs were passengers, to testify that no persons in the ear in question had offered to pay fares as described by the plaintiffs.</p> <p>In such a case it is also reversible error to refuse to permit a witness for the defendant to testify that she was present at the station where the plaintiffs were ejected, and that she observed the passengers getting off the train, and did not see any one fall. „</p>

<p>Negligence — Street railway companies — ■Injuries to pedestrian at street crossing — Stopping of car — Far side and near side.</p> <p>In an action against a street railway company to recover damages for personal injuries sustained by a pedestrian, a woman, while crossing the tracks of the railway, at the far side of a crossing, the case is for the jury where it appears that the car usually stopped on the near side, that under an ordinance it was required to slow up; that “slowing up” meant stopping if there was any one waiting to get on the car; that at the time the plaintiff took her last look at the ear before entering upon the track upon which the car was approaching, it was ten yards beyond the near crossing where she saw a man standing and signalling for the car to stop; that the car did not stop or slow up but went three times its own length beyond the place where it struck plaintiff, before it was stopped.</p>

Appeal, No. 26, March T., 1916, by Lillie Gfumaer, from decree of O. C. Lackawanna Co., No. 692 of 1905, dismissing exceptions to account in Estate of Alvah Sisco, deceased. Exceptions to account. From the record it appeared that Eunice Sisco, at the time of her death, had a deposit standing in her name in the First National Bank of Nicholson, being an interest account.

<p>Public officers — Auditors—Appeal from auditors — Issue—Township commissioners — Township treasurer.</p> <p>Where on a petition for a rule on the township commissioners and township treasurer to show cause why the report of an audit should not be reformed in accordance with averments contained therein, it appears that the answer of the commissioners and treasurer substantially agree on the facts, the court will not direct an issue. There is nothing ún the Act of May 3, 1909, P. L. 392, which malíes it obligatory on the court to direct an issue in such a case.</p> <p>Township commissioners are not entitled to be paid for their services for the inspection of a road built by the State through the township or for services in the inspection and examination of the streets, bridges, etc. If orders for such services are directed to the township treasurer he is bound to take notice of their invalidity, and if he pays them, he does so at his peril.</p>

<p>Appeal, No. 318, Oct. T., 1914, by defendant, from judgment of O. P. No. 1, Philadelphia Co., Sept. T., 1912, No. 3274, on verdict for plaintiff in case of Max Berger v. Charles Weinstein, et al.</p> <p>Assumpsit for breach of covenant. Before Patterson, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $283.53. Defendant appealed.</p> <p>Error assigned was in refusing-defendant’s motion for judgment n. o. v.</p> <p>There was no breach of the covenant against encumbrances: Real Est. Corporation v. Harper, 174 N. Y. 123; Cemansky v. Fitch, 121 Iowa 186; Newcomb v. Fielder, 24 Ohio 463; Bowers v. Narragansett Real Est. Co., 28 R. I. 365; Flajole v. Schultze, 80 Wash. 483; Shafer v. Greer, 87 Pa. 370; Lafferty v. Milligan, 165 Pa. 534; Wood’s Est., 15 W. N. C. 94; King’s Est., 18 W. N. C. 155.</p> <p>As far as the covenant for quiet enjoyment, implied by the Act of 1715, is concerned, it is sufficient to say that that covenant is one against disturbance by the vendor and those claiming under him: Seitzinger v. Weaver, 1 Rawle 377.</p> <p>cited: Gratz v. Ewalt, 2 Binney 94; Seitzinger v. Weaver, 1 Rawle 377; Wood’s Est., 15 W. N. C. 94; King’s Est., 18 W. N. C. 155; Lafferty v. Milligan, 165 Pa. 534; Peters v. Grubb, 21 Pa. 455; Hoeveler v. Fleming, 91 Pa. 322.</p>

<p>Appeal, No. 151, April T., 1914, by plaintiff, from order of C. P. Indiana Co., March T., 1914, No. 10, refusing to approve bond in condemnation proceedings in case of American Natural Gas Co. v. William A. Evans.</p> <p>Petition for approval of bond in condemnation proceedings. Before Telford, P. J.</p> <p>The court refused to approve the bond.</p> <p>The facts appear by the report of the case of Evans v. American National Gas Company, 55 Pa. Superior Ct. 116, and by the opinion of the Superior Court.</p> <p>Error assigned was order refusing to approve the bond.</p> <p>In no case has a corporation wrongfully in possession been compelled actually to deliver up physical possession, but has been permitted to perfect its right possession by the exercise of its power of eminent domain: Richards v. Buffalo, Etc., R. R. Co., 137 Pa. 524; P. & L. E. R. R. Co. v. Bruce, 102 Pa. 23; Oliver v. Pittsburgh, Etc., R. R. Co., 131 Pa. 408; Connellsville Gas Coal Co. v. B. & O. R. R. Co., 216 Pa. 309; McClinton v. R. R. Co., 66 Pa. 404; Hay v. Valley Pike Co. 38 Pa. Superior Ct. 145.</p> <p>The appellant does not seek, in this proceeding, to abandon all the rights it has under the contract, but is endeavoring thereby to retain the rights, it acquired-by contract, and hold them under eminent domain, and thereby free itself from the obligation to furnish gas to appellee at the price provided for in the agreement. It is seeking to hold all it acquired under the provisions of the contract beneficial to it, and to rescind that part beneficial to appellee, thus destroying the mutuality of the contract: Semple v. Cleveland, Etc., R. R. Co., 172 Pa. 369; Hay v. Baer, 48 Pa. Superior Ct. 231.</p>

Appeal, No. 25, March T., 1916, by Mary J. Foster, from decree of O. C. Luzerne Co., dismissing exceptions to adjudication in Estate of Charles D. Foster, deceased. Exceptions to adjudication. The facts appear by the opinion of the Superior Court.

Appeal, No. 139, April T., 1916, by Catherine M. Reed, from decree of O. C. Erie Co., Sept. T., 1914, No. 71, dismissing exceptions to auditor’s report in Estate of Lloyd G. Reed, deceased. Exceptions to report of M. L. Davis, Esq., auditor. The facts appear by the report of Reed’s Est., 82 Pa. 428, and Reed’s Est., 237 Pa. 125, and the opinion of tbe Superior Court. Errors assigned were in dismissing exceptions to report of auditor.

Appeal, No. 15, March T., 1915, by defendant, from decree of C. P. Montour Co., Jtme T., 1913, No. 8, awarding an issue to try title to real estate in case of James W. Robinson v. Caroline Greiner. Petition for an issue to try title to real estate. Before Evans, P. J. The court awarded an issue. Error assigned was in awarding an issue. Walsh v. Walsh, 61 Pa. Superior Ct. 620; Davenport v. Jones, 126 Pa. 271; Gabler v. Black, 210 Pa. 541.

Appeal, No. 254, Oct. T., 1915, by defendant, from judgment of C. P. Lehigh Co., June T., 1911, No. 3, on verdict for plaintiff in case of William J. Clader v. William EL Gangewere. ' Trespass to recover damages for personal injuries. Before Staples, P. J., specially presiding. At the trial it appeared that on May 16, 1910, the plaintiff, a hod-carrier, fell from a runway or scaffolding around the building on which he was working.

Appeal, No. 282, Oct. T., 1915, by plaintiff, from judgment of C. P. Schuylkill Co., Nov. T., 1914, No. 847, on verdict for defendant n. o. v. in case of Aaron Stauffer v. Sbenandoab Borough. Trespass to recover damages for personal injuries, and for injuries to a horse and buggy. Before Koch, J. The facts are stated in the opinion of the Superior Court.

Appeal, No. 347, Oct. T., 1915, by plaintiff, from judgment of O. P. Schuylkill Co., May T., 1915, No. 392, on verdict for defendant in case of City of Pottsville v. Howard M. Jones. Scire facias sur municipal lien. Before Brumm, J. At the trial it appeared that the plaintiff claimed to recover from the defendant the sum of |20'2.24 for paving a street with wooden block pavement. The defendant claimed that the wood paving was not an original paving.

<p>Appeal, No. 320, Oct. T., 1915, by plaintiff, from order of Municipal Court, Philadelphia Co., Feb. T., 1915, No. 228, making absolute rule to open judgment in case of Cinnaminson Park Company v. John Laws.</p> <p>Rule to open judgment.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was order making absolute rule to open judgment.</p>

<p>Appeal, No. 290, Oct. T., 1915, by plaintiff,vfrom order of C. P. No. 3, Philadelphia Co., June T., 1915, No. 420, discharging rule for judgment for want of a sufficient affidavit of defense in case of Israel Grossman v. John F. McMahon and Mary J. McMahon.</p> <p>Assumpsit for rent.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>Prom the record it appeared that the suit was brought to recover $325.00, one month’s rent for a room in premises 4204 Kensington Ave., Philadelphia. Thé lease provided that the lessees should keep the premises “in as good order and repair as the same now are, reasonable wear and tear and damage by accidental fire, excepted.”</p> <p>The lease also contained the following provision:</p> <p>6. The lessor reserves the right, at all reasonable times, to visit an’d inspect the demised premises, personally or by agent, and to cause any repairs to be made which he may deem proper.</p> <p>The material averments of the affidavit of defense are set forth in the opihion of the Superior Court.</p> <p>The court discharged the rule for judgment for want of a sufficient affidavit of defense.</p> <p>Error assigned was the order of the court.</p> <p>cited: Hoeveler v. Fleming, 91 Pa. 322; Magaw v. Lambert, 3 Pa. 444; Maberry v. Dudley, 2 Penny 367; Clark v. Lindsay, 7 Pa. Superior Ct. 43; Reineman v. Blair, 96 Pa. 155.</p> <p>cited: Gibson v. Earling, 48 Pa. Superior Ct. 566; Paxson & Comfort Co. v. Potter, 30 Pa. Superior Ct 615; Burgwin v. Bishop, 91 Pa. 336</p>

<p>Appeal, No. 90, Oct. T., 1915, by defendant, from judgment of C. P. Northampton Co., April T., 1912, No. 57, on verdict for plaintiff in case of Richard O’Neill v. W. P. Sehneller, et al., Co-partners, trading as Sehneller & Snyder Co.</p> <p>Assumpsit for wages. Before Johnson, P. J.</p> <p>At the trial it appeared that the defendant was employed by the plaintiff as a cutter in their tailoring business for a period of one year from September 1,1911, at a salary of $50 a week. In January, 1912, difference arose as to the plaintiff’s manner of performing his work, and his conduct towards other employees and the members of the defendants’ firm. There was conflicting evidence as to whether he was actually discharged, or whether he left by mutual consent.</p> <p>The court after submitting to the jury the evidence relating to the discharge, and also the evidence as to the manner in which he did his work charged on the question of insubordination as follows:</p> <p>Now the question for you to determine is was this plaintiff a disobedient and insubordinate servant. It was his duty to act in a reasonable manner to work for the best interests of his employers and be obedient to them in a reasonable and proper manner and serve them in a reasonable and proper way; and you will take all the evidence in the case and see whether or not he was obedient and a subordinate servant in a reasonable and proper manner. You will recall all the testimony, and it will be for you to determine whether or not these things existed. What was the conduct of the plaintiff? You will have to determine that and whether it was proper conduct or not. We do not say that every slight mistake would be a good ground for a discharge. It is not expected that the plaintiff is perfect. A perfect man or a perfect woman .does not exist on this land. We don’t- expect that. We must be reasonable. Therefore the laws say that he be required to act in a reasonable manner, that he be reasonably obedient and reasonably subordinate so that he could work for the best interests of the defendants. While this is required it is not required that the plaintiff be a perfect man in every aspect of his demeanor, but that he would act in a reasonable and proper manner so as to serve the best interests of the defendants. [Now you take his conduct as you got it from the testimony, his language, his demeanor, his behavior when he was in his employment, working for the defendants, to say whether he was reasonably obedient and subordinate or not, You will remember that the defendants must prove that he was disobedient and insubordinate to such an extent as to injure the defendants. The burden is on the defendants to prove that.] (3) When the plaintiff has proved the contract and the discharge the burden in the first instance is shifted to the defendants to prove by the weight of the evidence that the discharge was on good ground, was for proper legal cause. These are the issues that you are to determine from the evidence. First was there a discharge or was there a termination of the contract by mutual consent. If it was terminated by mutual consent of the parties, that would be the end of the case, and your verdict would be for the defendants; but if there was a discharge then the defendants would have to prove by the weight of the evidence that the discharge was for cause, and if it was for a proper legal cause, then your verdict would have to be for the defendants; but if he was discharged not for cause, then your verdict would have to be for the plaintiff.</p> <p>Verdict and judgment for plaintiff for $1,074.38. Defendants appealed.</p> <p>' Errors assigned, amongst others, were (1) in refusing binding instructions for defendant and (3) portion of charge as above quoting it.</p> <p>Faithful service is a condition precedent to the right of a-servant to recover wages. Misconduct inconsistent with the relation of master and servant will justify the master in putting an end to the contract of service at any time: Singer v. McCormick, 4 W. & S. 265; Elliott v. Wanamaker, 155 Pa. 67; Peniston v. John Y. Huber Co., 196 Pa. 580; Carson v. Hosiery Co., 15 Pa. Superior Ct. 476; Matthews v. Park Bros. & Co., Ltd., 159 Pa. 579; Hand v. Clearfield Coal Co., 143 Pa. 408.</p> <p>The question of the existence of a ground for discharge, upon which a justification can be based by the employer, is for the jury: Wilke v. Harrison, 166 Pa. 202; Vandevort v. Wheeling Steel & Iron Co., 194 Pa. 118; Second Natl. Bank, Etc., v. Hoffman, 229 Pa. 429; Allentown Iron Co. v. McLaughlin, 24 W. N. C. 343.</p>

<p>Appeals — Review—Refusal of new trial.</p> <p>The granting or refusing a motion for a new trial is iso largely a matter of discretion in the court below that the appellate court will not attempt to review its exercise, except in a clear case of abuse of that discretion.</p>

<p>Appeal, No. 27, March T., 1916, by Independent Order of Odd Fellows’ Orphanage of Sunbury, Pa., from decree of O. C. Columbia Co., Dec. T., 1914, No. 14, dismissing exceptions to auditor’s report in Estate of Rebecca Klees, deceased.</p> <p>Exceptions to report of auditor.</p> <p>From the record it appeared that Daniel Swisher and Alice Swisher, his wife, presented a claim before the auditor for $1,006.33 for board, nursing, washing and assistance furnished and rendered the decedent during the last four years of her lifetime.</p> <p>The auditor found as facts that the claimants and the decedent, with respect to the latter making her home with the claimants, dealt with each other as debtor and creditor ;• that the understanding between them was that the board, care and nursing, which they were furnishing, were not being furnished gratuitously; that the decedent at various times during the time she lived in the Swisher home expressed her intention to pay the Swishers for the board, care and nursing they were providing for her; and that the decedent during her lifetime paid the claimants one hundred dollars on account of the same.</p> <p>The auditor allowed the claim, and exceptions to his report were dismissed by the court.</p> <p>Errors assigned were in the following form:</p> <p>1. The Orphans’ Court was in error in overruling and dismissing the exceptions filed to the findings of the auditor, and in confirming the auditor’s report.</p> <p>2. The Orphans’ Court was in error in allowing the claim of Daniel Swisher and Alice Swisher for hoarding and nursing decedent, Rebecca Klees.</p>

<p>Mortgage — Payment—Principal and■ agent — Evidence.</p> <p>Where a person desiring to gecure a loan applies to an attorney and the latter secures the money through the agency of another attorney acting for a client, who becomes the mortgagee, and the first attorney prepares the bond and mortgage and is paid for his services by the borrower, the latter, if he pays interest and part of the principal to such attorney, cannot escape liability to the mortgagee, if the money is not paid over to the latter; and especially is this the ease if the mortgage and bond are in the possession of the mortgagee at the time of such payments, and the mortgagor makes no inquiry concerning them.</p> <p>Practice, O. P. — Discharging rule to open judgment — Duty of lower court to file opinion.</p> <p>On discharging a rule to open a- judgment entered upon a mortgage bond, it is the duty of the lower court to file an opinion stating the reasons for its action.</p>

<p>Appeal, No. 42, March T., 1916, by defendant, from judgment of C. P. Lackawanna Co., Jan. T., 1913, No. 547, on verdict for plaintiff in case of Anastasia (Nasta) Telecb v. Tbe Orthodox Catholic Mutual Aid Society of America.</p> <p>Assumpsit to recover death benefits. Before O’Neill, J.</p> <p>From the record it appeared that Akufty Telech joined the defendant society, The Orthodox Catholic Mutual Aid Society of America, and thereupon a benefit certificate of $800 was issued, and he named his wife, Anastasia (Nasta) Telech beneficiary of the death benefits of the society, and paid his dues and assessments. He died December 25, 1911, in good standing in defendant society. At the time of his death he was a member of another society, which took charge of the funeral, and engaged a nonorthodox Eussian priest. The day of the funeral the beneficiary was informed of the rule of the defendant society requiring an orthodox priest to perform the ceremony, and thereupon attempted to have the only orthodox priest in .the borough officiate at the funeral but he refused and the funeral was conducted by the nonorthodox priest.</p> <p>On December 23, 1912, the widow brought an action of assumpsit against the defendant society to recover the amount of the death benefit with interest. The defendant society defended upon the ground that the funeral services were conducted by a nonorthodox priest in violation of a by-law of the society. A jury trial was had and the trial judge directed a verdict for the plaintiff.</p> <p>■Error assigned was in refusing binding instructions for defendant.</p>

<p>Appeal, No. 12, March T., 1916, by plaintiff, from order of C. P. Cumberland Co., Feb. T., 1915, No. 40, discharging rule for judgment for want of a sufficient affidavit of defense in case of Calvin A. Kramer, et al., Receivers of the Farmers’ Produce Company, v. D. M. Hamsher. Before Orlady, P. J.,</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>The statement of plaintiffs set forth that the defendant, on the 25th day of November, 1911, signed a certain paper, as follows:</p> <p>“Whereas certain citizens of Harrisburg and vicinity are forming a company to be chartered 'under the laws of Pennsylvania as the Farmers’ Produce Company. Said company to be located in, or in the vicinity of, Harrisburg, Pa. That the capital stock of said company is to be $30,000.00 and shall consist of 300 shares of $100.00 each:</p> <p>In pursuance of the above, I, D. M. Hamsher, do therefore agree to subscribe for one share of stock, at rate of $100.00 per share.</p> <p>And I further agree to pay for the shares so subscribed in the following manner, to wit, one-tenth of the amount so subscribed to be paid when the charter for said company is obtained, ten dollars to be paid each 30 days thereafter until full amount of subscribed stock be paid.</p> <p>“Witness our hand and seal this 25th day of Nov., A. D. 1911.</p> <p>“(Signed) D. M. Hamsher. (Seal.)”</p> <p>That the said Farmers’ Produce Company was organized on December 7, 1911, with a capital stock of $30,000.00 consisting, of 300 shares of $100 each, all of which had been subscribed, and letters patent were granted to it, which were recorded in Dauphin County on December 23,1911.</p> <p>That on February 11, 1913, the plaintiffs were appointed receivers of said company, and that the Court of Dauphin County, on petition of the receivers, on September 21, 1914, ordered and decreed an assessment to be levied upon the stockholders whose subscriptions remained unpaid; that demand has been made upon the defendant, who had failed to pay his subscription, and that he has refused to make payment. There is attached a statement that “according to the books of the company, the following residents of Dauphin and Cumberland Counties signed and delivered subscriptions for stock in the form above mentioned to the officers of said company, and the number of shares subscribed for, with the amount paid and the balance due are noted.” Then follows the names of thirty persons, subscribers altogether for 36 shares. By which it appears that $3,085.00 is unpaid on the subscriptions. By this it appears that the defendant has never paid anything.</p> <p>The affidavit of defense filed denied that any demand was made upon the defendant by the company for payment before the receivership; that while he did sign a paper subscribing for one share of stock, he does not admit that the copy filed by plaintiffs is a correct one, and calls for proof of the same.</p> <p>That his subscription was conditional, being secured from him under the promise and agreement that as a subscriber, he would be paid by the company twenty cents per gallon for his milk, and that it, the said company, failed to do this, as agreed upon, and at no time paid the said sum of 20 cents per gallon. That the subscription made by him should not be in force and effect unless 300 shares of the par value of $100.00 each were subscribed by bona fide subscribers, and he avers that the said 300 shares were at no time subscribed by bona fide subscribers.</p> <p>That this first became apparent to him at a meeting of the company in December, and he then promptly repudiated his subscription, and refused to pay the same, as it, and the other conditions had not been complied with.</p> <p>He also averred that no creditor became .such as the result of his subscription; that no outstanding indebtedness of the company was incurred on the faith of his subscription ;. that the assets of the company have been sold and distributed among the creditors of the company, and the receipts of said creditors taken in full satisfaction of their respective claims; and further averring that he owes to the plaintiffs no sum whatsoever.</p> <p>The court discharged the rule for judgment for want of a sufficient affidavit of defense.</p> <p>Error assigned was the order of the court.</p> <p>It is too late to aver that the subscription was induced by fraudulent misrepresentation: Dettra v. Kestner, 147 Pa. 566; Howard v. Turner, 155 Pa. 349.</p> <p>The affidavit of defense contains no averment sufficient to relieve defendant of liability upon his stock subscription by reason of any attempted cancellation or withdrawal: Garrett v. Dillsburg, Etc., Railroad Co., 78 Pa. 465; Auburn Bolt Works v. Shultz, 143 Pa. 256; Muncy Traction Engine Co. v. De La Green, 143 Pa. 269; Jeanette Bottle Works v. Schall, 13 Pa. Superior Ct. 96; Graff v. Pittsburgh and Steubenville R. R. Co., 31 Pa. 489; Braddock Electric Railway Co. v. Bily, 11 Pa. Superior Ct. 144; Altoona Milk Co. v. Armstrong, 38 Pa. Superior Ct. 350; Harvey v. Weitzenkorn, 232 Pa. 447.</p> <p>The various specific averments contained in the affidavit of defense are wholly insufficient: Graff v. Pittsburgh, Etc., Railroad Company, 31 Pa. 489; Philadelphia, Etc., Railroad Co. v. Conway, 177 Pa. 364; Miller v. Hanover, Etc., Railroad Co., 87 Pa. 95; Marles Moulding Co. v. Stulb, 215 Pa. 91; Altoona Milk Co. v. Armstrong, 38 Pa. Superior Ct. 350; Keystone, Etc., Machine Co. v. Bromeier, 42 Pa. Superior Ct. 384; Donaldson v. Rabenhold, 23 Dist. Rep. 795; Garrett v. Auburn R. R. Co., 78 Pa. 465; Capital City, Etc., Fire Ins. Co. v. Boggs, 172 Pa. 91; French v. Harding, 235 Pa. 79; Van Dyke v. Baker, 214 Pa. 168.</p> <p>cited: Spellier Elec. Time Co. v. Leedom, 149 Pa. 185; Chicago B. & Mfg. Co. v. Browning, 19 Pa. Superior Ct. 355; Jeanette Bottle Works v. Schall, 13 Pa. Superior Ct. 96; Donaldson v. Rabenhold, 23 Dist. Rep. 798; Philadelphia Med. Pub. Co. v. Wolfenden, 248 Pa. 450.</p>

<p>Appeal, No. 234, Oct. T., 1915, by plaintiffs, from judgment of C. P. No. 4, Philadelphia Co., Dec. T., 1912, No. 236, on verdict for plaintiff in case of Independent Brick Selling Company to use of Independent Brick Company v. Central Trust & Savings Company.</p> <p>Assumpsit on a guaranty. Before Carr, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $100.85. Plaintiff appealed.</p> <p>Error assigned was in not entering judgment for the full amount of the claim.</p>

<p>Common earners — Shipment of fish — Came laws — Conflict of laws — Interstate commerce — Illegal contract.</p> <p>Where the statutes of another state makes it illegal for any person who has not a license to ship any fish caught in the waters of the state, and also makes it illegal for any carrier to receive from such person a shipment of fish, an unlicensed person may, notwithstanding the statute, recover the value of fish which he has delivered to a carrier, and which had been lost through the carrier’s neglect. In such a case although the shipment is contrary to law, the shipper does not require the aid of the illegal transaction to make out his case, and he may recover.</p>

<p>Appeal, No. 62, Oct. T., 1915, by defendant, from judgment of C. P. No. 4, Philadelphia Co., Dec. T., 1913, No. 2001, on verdict for plaintiff in case of William S. Sowers v. City of Philadelphia.</p> <p>Trespass for personal injuries. Before Willson, P. J.</p> <p>The facts relating to the accident are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $428. Defendant appealed.</p> <p>Error assigned was refusing motion of defendant for judgment n. o. v.</p> <p>Plaintiff was guilty of contributory negligence: Lerner v. Philadelphia, 221 Pa. 294; Decker v. East Wash. Boro., 21 Pa. Superior Ct. 211; Erie v. Magill, 101 Pa. 616; Pittsburgh, Etc., Railway Co. v. Taylor, 104 Pa. 306; Crescent Twp. v. Anderson, 114 Pa. 643; Lynch v. Erie, 151 Pa. 380; Haven v. Pittsburgh, Etc., Bridge Co., 151 Pa. 620; Boyle v. Mahanoy City, 187 Pa. 1; Purcell v. Riebe, 227 Pa. 503; Scranton v. Hill, 102 Pa. 378.</p> <p>If it was not a public highway, there is no municipal liability to the plaintiff: Steel v. Huntingdon Borough, 191 Pa. 627; State v. Wilson, 42 Maine 9; Garnett v. Slater, 56 Mo. App. 207; Millikin v. Bowling Green, 9 Ohio Cir. Ct. 493; Lurgin v. Lowell, 3 Allen (Mass.) 398; Biggs v. Huntington, 32 W. Va. 55; Blair v. Granger, 24 R. I. 17; Oliver v. Worcester, 102 Mass. 489; City of Scranton v. Hill, 102 Pa. 378; Monongahela City v. Fischer, 111 Pa. 9; Ruppenthal v. City of St. Louis, 190 Mo. 213; Stadelman v. City of New York, 126 App. Div. 352; Hunter v. Weston, 111 Mo. 176.</p> <p>cited: Ankenbrand v. Philadelphia, 52 Pa. Superior Ct. 581; Weber v. Harrisburg, 216 Pa. 117; Steck v. City of Allegheny, 213 Pa. 573; Holbart v. Philadelphia, 221 Pa. 275.</p>

<p>Insurance — Fire insurance — Pleadings — Affidavit of defense — Affidavit by agent.</p> <p>In an action on a policy of fire insurance, an affidavit of defense is sufficient which avers that the plaintiff’s loss instead of $1,300 as claimed, was only $301.84, that plaintiffs fraudulently misstated their losé, and that the proofs were not furnished within sixty days after the fire,' as provided by the policy: Penn Plate Glass Co. v. Spring Garden Ins. Co., 189 Pa. 255, followed.</p> <p>In an action upon a policy of fire insurance an affidavit of defense sufficiently establishes the right of the deponent to make the affidavit, where the defendant avers that he is the district agent of the company, a corporation of another staté; that the executive officers do not reside in Pennsylvania; that he has full authority to make the affidavit; that there is not sufficient time to draw the affidavit for an officer of the company at the home office to execute it and return it in time; that deponent is thoroughly acquainted with the facts; that he has carefully investigated the case through competent persons and expert builders; that the results of the investigation have been carefully gone over by him, and that being informed and believing the facts, he expects to be able to prove them at the trial.</p> <p>Where a statement of claim in an action on a fire insurance policy avers that the plaintiff delivered to defendant proofs of loss on December 21st, and the defendant declares in its affidavit of defense that the proofs of loss were not received until December 23d, the latter date being too late under the conditions of the policy, the lower court cannot as a matter of law decide that the plaintiffs having mailed their proofs within sixty days had complied with the policy. Nothing having been said as to mailing the proofs, this fact cannot form the basis of the court’s decision.</p>

<p>Appeal, No. 43, March T., 1916, by defendant, from judgment of Q. S. Luzerne Co., April Session, 1915, No. 234, on verdict of guilty in case of Commonwealth v. Cullen B. Bandall and James E. Hadsall.</p> <p>Indictment for forcible entry and detainer.</p> <p>Garman, J., charged in part as follows:</p> <p>1 The defendants are charged in this indictment with having taken possession of the lands of Lyman R. Lutes and Wilbur S. Lutes, and holding possession forcibly and against the will of the prosecutors.</p> <p>1. [This whole case depends upon the question of possession. The title is not material. We need not go hack to inquire who really owned the place. If in October, 1914, the Lutes were in possession, the defendants then had no right to go on the premises and take possession. If the defendants, however, were in possession, or had been for years, they would have a right to go on the premises, as well as keep possession.] (3)</p> <p>2. [Possession has to be the doing of such things as indicate that a person is claiming the right to possess.] (4) The Commonwealth comes here and shows you that the Lutes obtained a title by a sheriff’s deed which was executed many years ago, I think 1887, or along there, but was not acknowledged until January of this year. The reason for its not having been acknowledged is not given, but it was not acknowledged, and was in the sheriff’s office according to both sides. The execution of the deed is not offered to show title, but to show a possession as dating from that deed, in that the title was in them, but it does not bear on the actual title. Then they say that from that time on — both sides testify to that — Mrs. Randall testifies to that — Judson Lutes took possession of the place, and for many years managed it. She maintains that he was managing it for her, but we say to you that in our judgment that is immaterial. If Judson Lutes was on the place, and in possession of it, .and after he died his heirs continued to keep possession of the place, then these people would not have the right to go on and expel the Lutes by taking possession and locking the doors and saying that they would not get out and that the Lutes were not able to put them out: So the Commonwealth asks you to find that by reason of Judson Lutes having been in possession; by reason of the fact, as sworn to by Mr. Lutes, that Wilkenson agreed to pay him rent, but didn’t; by reason of the fact that Lutes paid the taxes continuously up to date; that the property was assessed to them; and that they went there and cut off timber and sold it — that these things are evidence of possession. That is the only way, outside of actually living there that people can indicate possession.</p> <p>3. [Now, the evidence of possession on the part of the defendants is that of Mrs. Randall that Lutes, being her uncle, was going on there to protect the property for them. But you must find, gentlemen of the jury, from the evidence in this case that either Mrs. Randall or her husband, or her children, or her son, this defendant, or somebody under them, actually had possession of the place, in order to give them possession. Now, the only evidence there might be of'anyone having possession for the defendants relates to the possession of Dockey Wilkenson, who according to the testimony here, claimed that he was in there under Mr. Randall.] (5) But the testimony of Mr. Lutes is that Wilkenson admitted Lutes’ title, but would not pay any rent and was put off. One of the strongest items of evidence here is the fact of assessment. For many years the property was assessed, according to the testimony, in the name of the Lutes, and the taxes were paid by the Lutes. That is the strongest evidence given in this case. It is evidence whereby the possession may be given. There is no evidence on the part of these defendants that the Randalls paid any taxes at any time since Judson Lutes took possession.</p> <p>4. [There may be an honest claim on the part of the defendants, it may be possible that in another court, in an action of ejectment, or some other action, they may make Lutes deliver the property, but the law will not allow them to go and take possession in that way.] (6) If a man obtains possession of your house to-day when you and your family are away, and stays in possession, you are not allowed to go and shoot him out of it if you are once out of it. You must get possession by authority of law. And you can see the reason. If physical force is allowed, half of our society would be shooting the other half, and we would relapse into a state of old fashioned anarchy. The law therefore makes it a particularly grievous misdemeanor to go and take forcible possession of premises if you are once out of possession, even if you own them, because the law says if you own them you may bring an action of ejectment and eventually on the termination of that action, if your title is affirmed, then the law not only puts the man out that is in, but makes him pay damages for keeping your property away from you.</p> <p>5. [In this case the law simply calls this a forcible entry and detainer. It does not have to be a force that physically takes possession of land and holds it. If when told to go out of this place the defendants said, “we won’t get out and you are not able to put us out,” we are obliged to say that in your judgment that is sufficient evidence of menace to justify the action in this case if that Lutes had possession.] (7)</p> <p>6. [Now that is the principal point in the case, you believe that such a thing occurred, and if you believe possession does not have to be the actual physical living oh it, it must be the exercising of such authority over it as indicated to the world that he was in possession.] (8) Therefore he shows, and Mrs. Randall testifies, that he sold hay off of the place, that $75 worth was sold off by this man, if not recently, not many years ago. What acts are there on the part of the defendants that indicate they were actually in possession of these premises, even with Lutes — that their possession ran with Lutes? You know it may have been possible that both parties would have been in possession all these years. If the Randalls were selling off timber, if the Randalls were selling off hay, if the Randalls were ploughing the ground and paying their share of the taxes, their possession would be coordinate with Lutes, and they could go on the place just as well as Lutes, and both have the right to go on and stay. But is there any such evidence?</p> <p>7. [You have heard the evidence on both sides as to possession. If in your judgment the evidence is stronger in behalf of the Commonwealth, and satisfies yon beyond a reasonable doubt that the defendants went there and took possession and locked the doors and repaired the house and took possession of the place and indicated a disposition to keep it whereby Lutes was in effect forced off the place, why then you may convict them.] (9)</p> <p>8. [If you do not so believe, and believe that they were there in possession — (and I cannot see how you can believe that because in the opinion of the court the evidence does not bear that out) — then you might bring in a verdict in their favor.] (10)</p> <p>9. [It is not a question who owns the place. It is a question of whether one person out of possession could go in and take possession, and then exclude the other person by declaring his intention to hold it. That is all there is in this case, and if you find the fact, as the Commonwealth alleges it, you ought to find the defendants guilty.] (11)</p> <p>Verdict of guilty upon which judgment of sentence was passed. Defendants appealed.</p> <p>Errors assigned, amongst others, were (3-11) portions of charge as above quoting them.</p> <p>In order to justify a conviction for forcible entry, three things must be shown by the Commonwealth. First: That the prosecutors were in actual possession. Second: That the defendants’ entry was forcible. Third: That the detainer was forcible. (Authority: Commonwealth v. Robinson, Addison’s Report, page 14, etc.) : Kramer v. Lott, 50 Pa. 495; Com. v. Brown, 138 Pa. 447; Thompson v. Com., 116 Pa. 155.</p> <p>cited: Com. v. Wisner, 8 Philadelphia 612; Com. v. Everhart, 57 Pa. Superior Ct. 192; Penna. v. Waddle, Addison 41; Pennsylvania v. Robinson, Addison 14; Com. v. Miller, 107 Pa. 276.</p>

<p>Criminal law — Larceny—Receiving stolen goods — Evidence — Search warrant — Presumption of innocence — Reasonable doubt— Corroboration of defendant.</p> <p>On the trial of an indictment for receiving stolen goods the fact that the defendant and his witnesses deny that the defendant received the stolen property will not entitle the defendant to assert that he was not guilty of the crime charged, where his guilt might be inferred from his possession of the property and his failure to give a satisfactory account of the manner in which, consistent with his innocence, he obtained it. The jury is not bound to believe an incredible story because no witnesses contradicted it.</p> <p>On the trial of an indictment for receiving stolen goods, where a constable enters upon the defendant’s premises with a search warrant, and finds the stolen goods in a bam over which the defendant had control and which he used for his own purposes, evidence as to the legality of the search warrant, and the right of the constable to enter the premises is immaterial, and especially so where it appears that the warrant was read to defendant and he said it was all right, but when he afterwards asked to read it and was refused, said he did not care where the constable went.</p> <p>On the trial of such an indictment where there is evidence that the defendant’s actions were not frank, open and fair, the trial judge cannot be convicted of error because he said to the .jury that the Commonwealth claims that the defendant’s actions were not “frank, open and fair, which would indicate guilt on his part.”</p> <p>On the trial of an indictment for larceny and receiving stolen goods, where the court inadvertently instructs the jury that they could return a verdict of guilty on both counts, and the jury returned such a 'verdict, but the court subsequently arrests the judgment on the count charging receiving, and sentences the defendant for larceny, the defendant cannot demand a reversal of the judgment because of the inadvertent instructions.</p> <p>When a charge in a criminal case is just to the prisoner and the points fully answered, the court will not, as a general rule, be convicted of error for not having instructed on a point which was not presented.</p> <p>The mere omission to charge as to the presumption of innocence in the absence of a request so to do is not reversible error, where the court gives proper instructions on the question of reasonable doubt. '</p> <p>A trial judge cannot be convicted of error in failing to allude in his charge to the corroboration of the defendant by a witness, if it appears that he was not requested to do so.</p>

<p>Appeal, No. 49, March T., 1916, by plaintiff, from order of C. P. Lackawanna Co., Jan. T., 1916, No. 664, discharging rule for judgment for want of a sufficient affidavit of defense in case of Joseph P. Yeier v. Hanover Fire Ins. Co. of the City of New York.</p> <p>Assumpsit on a policy of fire insurance.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>The affidavit of defense was as follows:</p> <p>E. A. Innes being duly sworn according to law deposes and says:</p> <p>That be is the adjuster and authorized representative or agent of the defendant above named for the purpose of making affidavit of defense to said action:</p> <p>That said defendant has a perfect and complete defense to the whole of plaintiff’s claim, the nature and character of Avhich is as follows:</p> <p>1. That proofs of loss were not made by the plaintiff and served upon the defendant corporation, within sixty days from the date of the fire, as provided in the policy upon which claim is made, and that the serving of such proofs was not waived by the defendant, but on the contrary, when a paper alleged to be a proof of loss was received by said company, after the expiration of said sixty days, the plaintiff was at once notified, by the defendant, that the proof of loss was rejected because of failure to serve the same within the time required; the failure to serve proper proofs upon the defendant within sixty days after the fire being a matter necessary to have been done before the plaintiff could bring any action, and such failure, according to the terms of the policy Avhich the action is brought, is a bar to any action or recovery whatever;</p> <p>2. That the policy upon which suit is brought contains no permission for additional insurance, and, further, it was expressly and particularly stipulated by this deponent, representing said company, at the time the insurance was effected, that no additional insfirance would be permitted, and the assured agreed that there should be none; that without any permission for additional insurance granted by the defendant, in writing and attached to the policy (as in said policy required) said plaintiff procured another policy of insurance in the Sun Insurance office, in the sum of seven hundred dollars ($700), upon the stock of merchandise covered by the policy in question in this suit, which action on the part of said plaintiff, without the written consent of said defendant, rendered the policy'issued by the defendant absolutely null and void, according to the provisions thereof:</p> <p>The court discharged a rule for judgment for want of ■ a sufficient affidavit of defense.</p> <p>Error assigned was the order of the court.</p> <p>E. A. Innes, agent and adjuster of the defendant, had no authority to make an affidavit of defense, or if he had such authority, he does not aver why it was not made by an officer of the corporation; nor does he set forth sufficiently how he acquired a knowledge of the facts of the case to enable him to make this affidavit of defense: Wakley v. Sun Ins. Co., 246 Pa. 268; Citizens Nat. Gas Co. v. Waynesburg Nat. Gas Co., 210 Pa. 137; Phillips v. Allen, 32 Pa. Superior Ct. 356; Taylor v. Sellers, 12 Pa. Superior Ct. 230.</p> <p>The affidavit of defense is defective and insufficient for the reason that E. A. Innes, agent and adjuster, does not set forth that the facts contained in the affidavit of defense are from his own personal knowledge, or, whether they are from information received from some other person or source: Safety Banking & Trust Co. v. Conwell, 28 Pa. Superior Ct. 237; Baum v. Union Surety & Guaranty Co., 19 Pa. Superior Ct. 23; Bushong v. Edwards, 52 Pa. Superior Ct. 376.</p> <p>The affidavit of defense was sufficient: New York Trust Co. v. Langcliffe Coal Co., 227 Pa. 630; Com. v. Gould, 43 Pa. Superior Ct. 317; Griffiths v. Sitgraves, 81 Pa. 378; Security S. & L. Assn. v. Anderson, 172 Pa. 305; Trescott v. Cooperative Bldg. Bank, 212 Pa. 47; Am. Struc. S. Co. v. Annex Hotel Co., 226 Pa. 461; Sloss-Sheffield S. Co. v. Tacony Iron Co., 46 Pa. Superior Ct. 164; Edelson v. Norwich F. Ins. Co., 59 Pa. Superior Ct. 379; Hottner v. Aachen, Etc., F. Ins. Co., 31 Pa. Superior Ct. 461; McSparran v. Southern Mut. Ins. Co., 193 Pa. 184; Wilson v. Bryn Mawr Trust Co., 225 Pa. 143; Producers Coke Co. v. Hillman, 247 Pa. 501; Band and Imp. Co. v. Mendinhall, 4 Pa. Superior Ct. 398.</p>

<p>Judgment — Opening judgment — Insurance.</p> <p>A rule to open a judgment entered in a suit on a policy of fire insurance for want of an affidavit of defense, will not be opened, where the person who makes the application describes himself as the adjuster and agent of the defendant, and avers that although he had caused an appearance to be entered for the defendant, and had received a copy of the statement of claim, he had overlooked the subject, or that it was not so impressed upon his mind that he had any recollection of the transaction. The appellate court will not review the discretion of the lower court in refusing relief in such a clear case of inattention not excused, or accounted for.</p>

<p>Appeal, No. 10, March T., 1916, by plaintiff, from judgment of C. P. Cumberland Co., May T., 1915, No. 478, for defendant on case stated in suit of Roberta Y. Strong v. Martin A. Brinton.</p> <p>Case stated to determine whether a portion of the purchase-money of real estate should be paid by a vendee to the vendor. Before Sadler, P. J.</p> <p>From the case stated it appeared that on September 22d, Roberta Y. Strong executed an agreement in writing by which she agreed to sell to M. A. Brinton a tract of land containing 111 acres in Lower Allen Township “the title to be good and marketable and satisfactory to the said M. A. Brinton his heirs and assigns, and the said land to be clear of all liens and encumbrances.”</p> <p>On January 28, 1901, Mary Strong and others prior owners of the land executed and delivered a release to the Harrisburg Terminal Railroad Company of a strip or piece of land containing two and thirty-eight hundredth acres as a right of way for the railroad. This release contained the following provision:</p> <p>“And for ourselves, our heirs, executors, administrators, and assigns, we do hereby covenant and agree to and with the said The Harrisburg Terminal Railroad Company, their successors and assigns, shall never be required to erect or maintain any fence along the lines dividing the above described piece or strip of land from the adjoining lands belonging to us: And further, that no nonuser of the above described piece or strip of land, or any*part or portion thereof, by the said. The Harrisburg Terminal Railroad Company, their successors and assigns, or no user, occupation or possession thereof, or of any part thereof, by ourselves, or our heirs executors, administrators, assigns, whether by residence, cultivation, inclousure, or otherwise, for any period of time whatever, whether for twenty-one years or longer, shall in any manner affect the right or title of the said The Harrisburg Terminal Railroad Company, their successors and assigns, to the entire and exclusive possession of the same.”</p> <p>On December 14,1914, a deed was tendered to Brinton by Roberta Y. Strong, but he insisted that under his contract he was not obliged to pay for the land embraced in the release above quoted whereon having paid for the remainder of the land at the rate of $1.70 per acre, a written agreement was entered into between him and Roberta V. Strong which provided as follows:</p> <p>Now this agreement witnesseth, that the said sum of four hundred four and 60-100 dollars ($404.60) shall be deposited by the said M. A. Brinton in the hands of a third party, to be held until a satisfactory settlement of said question can be obtained by the two parties, when the same shall be paid to the party entitled thereto, as ascertained by said final settlement. Said M. A. Brinton further agrees to páy all costs incurred in arriving at a final settlement of the said question, including an attorney’s fee of not more than fifty (50) dollars.”</p> <p>The court entered judgment for defendant on the case stated.</p> <p>Error assigned was in entering judgment for defendant on case stated.</p> <p>■Where there is a servitude imposed upon the land which is visible to the eye, and which affects no title, but the physical condition of the property there is the presumption that if the encumbrance is really an injury, such injury was in the contemplation of the parties, and that the price was regulated accordingly: Memmert v. McKeen, 112 Pa. 315; Barns v. Wilson, 116 Pa. 303; Patterson v. Arthurs, 9 Watts 152; Wilson v. Cochran, 48 Pa. 107; Eby v. Elder, 122 Pa. 342; Friend v. Supply Co., 179 Pa. 290; Geible v. Smith, 146 Pa. 276; Ormsby v. Pinkerton, 159 Pa. 458; Smith v. Donahue, 60 Pa. Superior Ct. 424; Taylor v. Allen, 60 Pa. Superior Ct. 503. •</p> <p>The court below also argued that the fact that the defendant had knowledge of the encumbrance was immaterial, and in support of this view, cited the case of Evans v. Taylor, 177 Pa. 286; Firmstone v. Spæter, 150 Pa. 616; Patterson v. Friehofer, 215 Pa. 47, and Farber v. Blubaker Coal Co., 216 Pa. 209. An examination of these cases will show that in every one of them the contract before the court was an executory one, and that in no one of these cases had the defendant accepted the deed for the property as in the case at bar. The distinction is a material one, for where a deed has been accepted, the prior agreement merges in the deed, if the grantee had knowledge of the facts, and the stipulation against encumbrances contained in the preliminary agreement can no longer be relied upon to defeat a recovery of the purchase-money: Farmers, Etc., Bank v. Galbraith, 10 Pa. 490; Rogers v. Olshoffsky, 110 Pa. 147; Smith v. Donahue, 60 Pa. Superior Ct. 424; Eby v. Elder, 122 Pa. 342.</p> <p>Under all the authorities, therefore, we contend that it is clear that when the deed was offered to the defendant, he was bound to elect either to accept it and to pay for all the» land conveyed in accordance with the terms of his contract, or to rescind the contract and to refuse to accept the deed that was tendered to him, and that having accepted the deed, he had made his election and could not thereafter successfully ask to he relieved from the payment of the purchase-money, in view of the fact that he had knowledge of the alleged encumbrances when he made his election and accepted the deed.</p> <p>cited: Carbon Spring Water Ice Co. v. Hawk, 29 Pa. Superior Ct. 13; Com. v. Banker Bros. Co., 38 Pa. Superior Ct. 101; Johnson v. Callery, 173 Pa. 129; Patterson v. Freihofer, 215 Pa. 47; Evans v. Taylor, 177 Pa. 286; Wilson’s App., 109 Pa. 606.</p>

Appeal, No. 171, Oct. T., 1915, by defendant, from judgment of Q. S. Philadelphia Co., Oct. Sessions, 1914, No. 60, on verdict of guilty in case of Commonwealth v. Emmet Agato. Indictment for larceny. Before Walling, P. J. Verdict of guilty upon which judgment of sentence was passed. Error assigned was in refusing binding instructions for defendant.

<p>Insurance — Fire insurance — Use of particular kind of fuel — Increase of hazaA'd — 'Warranty.</p> <p>A stipulation attached to a policy of fire insurance which requires the insured “to use coal only for fuel when steam power is used” must be limited to the building insured, or anything attached to it in such manner that it might be said to be a part of it, and will not be construed as applicable to a portable steam engine using wood as a fuel for the purpose of sawing wood, located temporarily on the premises about twenty-eight feet from the dwelling house insured.</p> <p>In such a case it is not error for the trial court to refuse to permit the defendant to prove by a witness that the portable engine was dangerous, and that on the day prior to the fire in question, a fire started on the roof of the porch of the dwelling house next or near to the engine, and that there was no causo which could be assigned for the first fire save only sparks from the portable engine, without any offer to show that the fire on the preceding day was caused by sparks from the engine, or that the engine did throw sparks.</p> <p>In such a case whether the proximity to the building increased the probability of fire and thereby increased the hazard within the provision of the policy relating to an increased hazard, is a question of fact for the jury.</p> <p>In an action upon a policy of fire insurance where the plaintiff does not testify as to any increase of hazard, the defendant will not be permitted on cross-examination of the plaintiff to introduce a defense based on an alleged increase of hazard to the premises insured.</p>

<p>Contract — Contract by correspondence — Acceptance — Revocation.</p> <p>While an acceptance of an offer to contract is domplete where a letter is deposited in the mail, a retraction of the offer can have no effect until it is communicated to the person to whom the offer is made, and the revocation can take effect only if it is communicated to the other party before its acceptance.</p> <p>Where an offer to purchase lumber is made subject to confirmation, and subsequently on an August 11th the purchaser telegraphs a confirmation of the order,'andbn the same day the seller by letter retracts the offer, and this letter is not received by the purchaser until August 14th, the retraction is ineffectual; and it is immaterial that the seller may have telegraphed also on August 11th, after the accepting telegram was received, that the offer had been revoked.</p> <p>Affidavit of defense — Contract—Sales—Mistake.</p> <p>In an action to recover the price of lumber, an affidavit of defense is insufficient which merely alleges that the price quoted for the lumber and referred to in the correspondence $26 per thousand, was a mistake, and should have been $36 instead, and that plaintiff knew'that the defendant had made a mistake. In such a case the affidavit should disclose such equitable grounds as would relieve the defendant of the written order and narrate such facts as would bring knowledge of the mistake to the plaintiff, or at least sustain an inference to that effect.</p>

<p>Appeal, No. 186, Oct. T., 1915, by defendant, from judgment of O. & T. Philadelphia Co., May T., 1915, No. 583, on verdict of guilty in case of Commonwealth v. Benjamin Jester.</p> <p>Indictment for rape. Before Ralston, J.</p> <p>At the trial the prisoner was convicted and sentenced to the penitentiary. Subsequently he filed a motion for a new trial averring that he had employed Edward A. Kelley, Esq., a member of the bar to represent him at the trial, and that neither he nor his counsel had any notice of the date set for the trial, and that he was placed on trial without the aid of his counsel, in violation of Article I, Section 9, of the Constitution of Pennsylvania. Depositions were taken in support of the motion. Subsequently the motion was dismissed.</p> <p>Errors assigned were as follows:</p> <p>1. The learned trial judge erred in abusing his discretion in his refusal to grant a new trial.</p> <p>2. The learned trial judge erred in depriving the defendant of his constitutional right in violation of Article I, Section 9, of the Constitution of Pennsylvania, in the abuse of his discretion in his refusal to grant a new trial.</p> <p>Defendant was entitled to notice of the date for trial and to the assistance of counsel: Galpin v. Page 18 Wall (85 U. S.) 350; Hovey v. Elliott 167 U. S. 409; Stewart v. Commonwealth, 117 Pa. 378; Cathcart v. Commonwealth, 37 Pa. 108; Commonwealth v. Polichinus, 229 Pa. 311.</p>

<p>Appeal, No. 79, Oct. T., 1915, by defendant, from judgment of C. P. No. 3, Philadelphia Co., March T., 1912, No. 5300, on verdict for plaintiff in case of Westinghouse Electric & Manufacturing Co. v. C. Searing Wilson.</p> <p>Assumpsit on a contract of suretyship. Before Ferguson, J.</p> <p>The facts are set forth in the opinion of the Superior Court.</p> <p>The court charged in part as follows:</p> <p>[“As I have said, Mr. Wilson’s contract is a primary and original contract of his own, and it being a contract of suretyship, the Westinghouse people are not obliged to sue the Lancaster Company and get a judgment against it; the Westinghouse Company could proceed against Mr. Wilson in the first instance, and ask him to pay .the bill.] (10)</p> <p>[“Mr. Wilson signed a contract in which he agreed that he would pay the bill, and if the plaintiff delivered the goods he was obliged to pay the bill, and he cannot set up the defense that the plaintiff said it had the goods and would deliver them right away, because the paper which he signed said: ‘The company (that is the Westinghouse Company) 'reserves the right to extend the time of the purchaser to make any payments by note or otherwise.’ That means that the Westinghouse people could extend the time to the Lancaster people to pay their bill and such an act would not relieve Mr. Wilson, although it might otherwise have relieved him. The contract also said: ‘And the time of shipment of said apparatus is whole or in part, without the consént of and without notice to the guarantor;’ in other words, the Westinghouse people had the right to extend the time of shipment of the goods, and they had the right to extend the time when the Lancaster Company would be obliged to pay the bill, and Mr. Wilson could not complain about either one of those conditions. He signed the paper, and he cannot say, 'Before Í signed it we had an understanding that the goods were to be shipped to-day, or to-morrow, or immediately.’ Of course, he can say it, but it does not amount to enough to relieve him from the contract which he entered into. That is the reason I can say that defense cannot be received.] (11)</p> <p>[''The other defense which Mr. Wilson offered is that the Lancaster Electric Company has sustained a loss by reason of the delay in the shipments. That is an unliquidated claim for damages which the Lancaster Company might set up against the Westinghouse Company. There is nothing in the law to prevent the Lancaster Company suing the Westinghouse Company for damages which it sustained by reason of the delay, and those damages would have to be proved and they would have to be assessed by a jury. They are unliquidated to-day. To be sure, there was an offer to prove them in this case, but they have not been liquidated yet. The damages have not been sustained by Mr. Wilson. His contract was to pay this bill if the Westinghouse Company delivered the goods, and the Westinghouse Company has delivered the goods and has not been paid for them, and Mr. Wilson has to submit to judgment.”] (12)</p> <p>Verdict and judgment for plaintiff for $1,398.18. Defendant appealed.</p> <p>Errors assigned, amongst others, were (10-12) above instructions quoting them.</p> <p>The contract is clearly one of guaranty, and not suretyship: Donlevy v. Dobbs, 53 Pa. Superior Ct. 411; Hartley Silk Mfg. Co. v. Berg, 48 Pa. Superior Ct. 419; Snevily v. Johnston, 1 W. & S. 307; Zahm v. First Nat. Bank of Lancaster, 103 Pa. 576; Hartman v. First Nat. Bank, 103 Pa. 581; McBeth v. Newlin, 15 W. N. C. 129.</p> <p>A surety may set up any defense in a suit against him that may be lawfully set up by a principal: Sitgreaves v. Farmers, Etc., Bank, 49 Pa. 359; Roth v. Weisberger, 1 W. N. C. 4; Thorn v. Bayard, 9 Philadelphia 527; Stanley v. Barry, 16 W. N. C. 224; Peoples Bank of Wilkes-Barre v. Legrand, 103 Pa. 309; Wilkes-Barre v. Rockafellow, 171 Pa. 177; Crist v. Brindle, 2 Rawle 120; Balsley v. Hoffman, 13 Pa. 602; Hollister v. Davis, 54 Pa. 508; St. Michael’s Beneficial Society v. Brannen, 1 Del. County 105.</p> <p>The contract in suit is one of surety: Riddle v. Thompson, 104 Pa. 330; Allegheny Light Co. v. Reinhold, 7 Dist. Rep. 385; Reigart v. White, 52 Pa. 438; McBeth v. Newlin, 15 W. N. C. 129; Hartley Silk Mfg. Co. v. Berg, 48 Pa. Superior Ct. 419; Woods v. Sherman, 71 Pa. 100; Roberts v. Riddle, 79 Pa. 468; Campbell v. Baker, 46 Pa. 243; Levering v. Willard, 2 Pennypacker 352.</p> <p>In a suretyship the surety cannot set off against a suretyship obligation an independent claim for unliquidated damages which the principal might have for an amount greater than the suretyship debt, without the consent of the principal: First Nat. Bank, Etc. v. Tustin, 246 Pa. 151; Balsley v. Hoffman, 13 Pa. 602; Gillespie v. Terrance, 25 N. Y. 306; Osborne v. Bryce, 23 Fed. 171.</p>

<p>Waters — Ownership of ice — Pollution of stream — Rights of ri■> parían owners.</p> <p>Ice is the property of the riparian owner, and he has the sole right to take it, with the single qualification that it is not to he taken in such quantities as to appreciably diminish the head, of the water below.</p> <p>Where an owner dams up a natural water course and forms on his own land an artificial pond for the production of ice, which he cuts, stores and sells, and he loses the sale of the crop of a whole season because of the contamination of the stream by an upper riparian owner, he is entitled to recover the amount of his loss from the person who contaminated the' stream.</p>

<p>Municipalities — Sewers—Assessments — City of Philadelphia — Acts of April 8,186k, P. L. 82k, and March 27,1866, P. L. 791.</p> <p>Under the Acts of April 3, 1864, P. L. 324, and March 27, 1865, P. L. 791, the City of Philadelphia has the power to enact an ordinance requiring a sewer frontage charge of $1.50 per foot to be paid for a permit to connect properties with a sewer which had been constructed out of the general funds of the city in the bed of a street which had been placed on the city plan, but not opened to public use.</p>

<p>Constitutional law — Title of act — Fees of justices of the peace— New burdens imposed upon counties — Act of April 28, 1909, P. L. 160.</p> <p>Where an act places upon counties new burdens, without an intention so to do being clearly indicated in the title of the act in question, the act as it relates to those particular burdens is unconstitutional.</p> <p>The Act of April 23, 1909, P. L. 160, entitled “An act to regulate and estimate the fees to be charged by justices of the peace,” is unconstitutional, in so far as it attempts to impose upon counties the burden of paying to justices of the peace a fee of two dollars in each case of summary conviction.</p>

<p>Taxation — Collateral inheritance tax — Estates for life — Estates in remainder — Act of May 9, 1887, P. L. 79.</p> <p>An appraisement for collateral inheritance tax of the whole estate of a testator cannot he sustained, where it appears that the will created life estates and estates in remainder, and the will itself shows that the persons who would ultimately taire the remainders cannot he ascertained until after the death of the life tenants. Such an appraisement cannot he sustained because persons who might he remaindermen did not enter security or offer to enter security for the payment of the tax.</p> <p>Section 3 of the Act of May 6,' 1887, P. L. 79, applies to a case where both the life tenant and the remaindermen are collaterals.</p> <p>Where a will creates both life estates and estates in remainder, it is the duty of the appraiser to make an appraisement of the life interest. If he fails to do so and appraises the whole estate for the tax, the appraisement will be set aside.</p> <p>In Section 6 of the Act of May 6,1887, P. L. 79, the words “upon a condition or contingency” are to be construed so as to relate to the estate “for life or for a term of years, or for any other limited period,” previously mentioned. They are not to he construed as referring to a separate estate given upon a contingency or condition.</p> <p>Where a testator gives a life estate in his personal property to his brother, followed by a life estate to his niece with remainder to her children, if any survive her, and if none, then a remainder to the male relatives of his father hearing the family name living at the death of the brother and niece, or the survivor of them, an appraisement of the whole estate for collateral tax purposes is improper. The life estate should he appraised and taxed, hut the appraisement of the remainder must be postponed until it is ascertained who the remaindermen are to he.</p>

<p>Justice of the peace — Appeals—Time.</p> <p>Where a judgment of a justice of the peace was entered on. January 28th, and the defendant on February 17th appeals, gives bail, and files the justice’s transcript in the prothonotary’s office, the appeal is taken in time, and it is immaterial that the first day of the term of Common Pleas (February 16th) had intervened, or that the defendant had taken another appeal on February 12th, gave bail but did not receive the transcript-from the justice until February 16th, the first day of'the next term, too late in the day to file it.</p>

<p>Appeal, No. 156, Oct. T. 19Í5, by defendants," from judgment of C. P. Lancaster Co., Aug. T., 1914, No. 21, on verdict for plaintiffs in case of. Commonwealth to use of John M. Froelich v. Christian H. Nólt, et al., Executors of the will of Benjamin N. Nolt, deceased.</p> <p>Assumpsit on a bond. Before Landis, P. J., and Hassler, J. See 56 Pa. Superior Ct. 604.</p> <p>Verdict and judgment for plaintiff for $1,291.69. Defendants appealed.</p> <p>Error assigned was in giving binding instructions for plaintiffs.</p>

<p>Public Service Commission• — ■Appeals—Review by Superior Court —Act of July S6, 1913, P. L. 137k — Act of June 3,1915, P. L. 779.</p> <p>Under the Public Service Commission Act of July 26,1913, P. L. 1374, as amended by the Act of June 3, 1915, P. L. 779, the Superior Court is not required on appeal to fix and determine for itself the rate, charge, etc., that a public service company may exact. The inquiry on appeal is limited to the question as to whether the order appealed from as shown by the record and certified by the commission, is reasonable and in conformity with law.</p> <p>Water companies — Rates—Boroughs-?—Public Service Commission.</p> <p>Where the ordinance of a borough grants to a water company a franchise to lay and maintain water pipe lines “for a period of ten' years or until such time as said works may he purchased by said borough,” the duration of the franchise is uncertain and indeterminate as to time. The acceptance by a company of such an ordinance will not estop it from advancing its rates within the period of ten years if it appear such advance does not amount to more than a reasonable rate: Turtle Creek Borough v. Water Company, 243 Pa. 415; Bellevue Borough v. Water Company, 245 Pa. 114, followed.</p> <p>An order of the Public Service Commission refusing to disapprove of rates to consumers imposed by a water company, will not be reversed by the Superior Court on appeal where it appears that a large amount of testimony was taken, much of it of an expert character, that the report of the commission showed a careful consideration of the question, and that the conclusions reached by the commission were supported by the preponderance of the evidence produced. In such a ease where a complaint is made in the petition that the supply of water is inadequate, and that the water was not of the quality required by the ordinance, the commission in dismissing the complaint as to the rates may hold the petition pending the completion of tests directed to be made to. determine the question of the adequacy of the water supply and pending a direction requiring the company to take the necessary steps to prevent further pollution of the water.</p>

<p>Appeal, No. 237, Oct. T., 1915, by Julia Dorris, from decree of O. C. Huntingdon Co., No. 178, 1915, dismissing exceptions to auditor’s report in Estate of William Dorris, deceased.</p> <p>Exceptions to report of William H. Trade, Esq., and J. F. Schock, Esq., auditors.</p> <p>From the record it appeared that William Dorris died September 2, 1904, leaving to survive him a widow and five children, namely: William W. Dorris and John D. Dorris, children by his first wife, and Anne Dorris, now Anne Dorris Chisolm, Julia Dorris and Mary Dorris Miller, children by the surviving widow. He was a lawyer of many years’ practice.</p> <p>He died seized of certain coal lands as well as personal property.</p> <p>By his will he directed, inter alia, as follows:</p> <p>Second. I give and bequeath to my beloved wife Julia M. Dorris, all my furniture, miscellaneous library, carriages, harness, &c., to have and to hold the same to her and her heirs and assigns forever.</p> <p>I also give, devise and bequeath to my said wife, the mansion house and lot, Nos. 401 and 403 Penn street and also the out lot at the eastern end of Washington street, to have and to hold during her natural life.</p> <p>Third'. I am strongly impressed with the belief that it will be for the best interest of my heirs that my interest in coal lands in Morris Township, Clearfield, should be leased to responsible parties on terms suggested in a paper prepared by me for the guidance of my executors and heirs, and I hereby give to my executors full power and authority to sell, lease or make partition of the said real estate, or any part thereof, in Clearfielcl County, upon such terms as will be for the best interest of my heirs.</p> <p>After the decease of my wife I give the same power to my executors over my real estate in Huntingdon County.</p> <p>I hereby direct my executors shall retain from the income of my estate a sum sufficient to pay household expenses, taxes, repairs, &c., during the life of my wife, and the residue to be distributed monthly or quarterly as my heirs may desire — one-third to my wife during her life; one-tenth to my son William W. Dorris during his life, and the residue to be paid in equal proportions to my son John D. Dorris and to each of my daughters, Anne, Julia and Mary, intermarried with C. Herbert Miller, and their and each of their heirs and assigns. I hereby appoint my wife Julia M. Dorris, my son John D. Dorris and my daughters Anne, Julia and Mary to be my executors.</p> <p>After the death of the testator William W. Dorris, the son, executed and delivered to his three sisters a deed conveying “all of his interest, property, right, title and interest in” the Clearfield County coal and mineral rights of which his father died seized. The three sisters claimed that as to the real estate the testator died intestate and that therefore William W. Dorris took a one-fifth interest therein which passed to them by his deed of assignment to them. John D. Dorris claimed that there was no intestacy and that William W. Dorris took only a one-tenth interest in the real estate for life. The auditors sustained the latter contention, and awarded a fund which had been raised by a sale of a part of the real estate in accordance with this view.</p> <p>Exceptions to the auditors’ report were dismissed by the court.</p> <p>Errors assigned were in dismissing exceptions to the auditors’ report.</p> <p>If William W. Dorris, the eldest of five children, is to be disinherited of any portion of his one-fifth interest in his father’s estate, it must be because the express language of the will is such as to deprive him of his rights as an heir, or that an implication arises by necessity that it was his father’s intention so to deprive him. Such implication can arise only when the probability of .such intention is so strong that an intention to the contrary can not be supposed: Shaner v. Wilson, 207 Pa. 550; Corr’s Est., 202 Pa. 391; Nebinger’s Est., 185 Pa. 399; DeSilver’s Est., 142 Pa. 74.</p> <p>William Dorris died intestate as to most of the corpus of. his estate, and as to the corpus of all his real estate: Shaner v. Wilson, 207 Pa. 550; Watson v. Martin, 228 Pa. 248.</p> <p>Testator clearly distinguishes between heirs and donees under his will: Lesieur’s Est., 205 Pa. 119; Webb’s Est., 250 Pa. 179; Clark v. Scott, 67 Pa. 446.</p> <p>“When a will is executed, the natural and reasonable presumption is that the testator does not intend to die intestate as to any part of his property”: Miller’s App., 113 Pa. 459; Hofius, 92 Pa. 305; Jacob’s Est., 140 Pa. 268; Reiner’s Est., 159 Pa. 212; Ferry’s App., 102 Pa. 207; Redding v. Rice, 171 Pa. 301; Boies’ Est., 177 Pa. 190; Board of Missions App., 91 Pa. 507.</p> <p>The gift to William W. Dorris of one-tenth of the income for life restrains or limits the payment of that portion to him for and during a particular period, namely: His natural lifetime: Shissler’s App., 148 Pa. 577; Eichelberger’s Est., 135 Pa. 160; Sheets’ Est., 52 Pa. 257.</p> <p>“A devise of the rents, profits, income or proceeds of land is a devise of the land itself, but for no longer period than the rents or income are given”: Cooper v. Pogue, 92 Pa. 254; Weaver’s Est., 2 Lanc. L. Rev. 114.</p>

<p>Appeal, No. 135, Oct. T., 1915, by defendant, from judgment of O. P. Northumberland Co., Sept. T., 1914, No. 285, on verdict for plaintiff in case of Dr. H. M. Alexander & Co. ,v- Zerbe Twp. Poor District, Northumberland County, Wm. Haupt and James Sheetz, Overseers.</p> <p>Assumpsit to recover for Pasteur treatment. Before Moser, J.</p> <p>From the record it appeared that on December 5,1913, several persons were bitten by a mad dog in Zerbe Township, and the treatment was ordered for these persons. The testimony relating to the contract made with the plaintiff by the overseers is set forth in the opinion of the Superior Court.</p> <p>The defendant presented, inter alia, the following points:</p> <p>1. It not having been shown in this case that the per-' sons to whom the plaintiff administered the Pasteur antirabic treatment were indigent persons, and the plaintiff cannot recover, and the verdict of the jury must be for the defendants.</p> <p>Answer. That is refused as drawn. I have already said to you that the position that is taken by the defendant in that point would indicate that the burden is on, the plaintiff to show that they were indigent persons; but I say to you; that is not the law. This is not an ordinary case of relief in its general sense, that is providing maintenance and provisions and assistance to persons who are needy and too poor to support themselves. This is regarded in the law as an emergency case. The various acts of assembly on the question are passed, and the law is established, in order to prevent the development of a disease which is admitted to be very serious and also to prevent the spreading of it, that is, the communication of it. It being infectious, or contagious, it might be communicated from one person to another, so that the purpose of the law is to prevent that as far as possible and to provide prompt and efficient treatment for those who possibly are unable to provide for themselves. A person might be able to procure the necessaries of life, and might be able to live without any aid from the poor district, but not all men are prepared to procure or obtain treatment of this kind at all times, or when required,, and when it is required it must be administered with reasonable promptness in order to prevent the development. So all those facts are to be taken into consideration by you; the nature of the disease, and the reasonable and proper way that it should be treated, with promptness and intelligence. Indeed, this disease is treated usually only by institutions of this kind; or rather by people who handle this serum; not by the ordinary physician, in other words. A man bitten by a mad • dog could not be treated by an ordinary physician, unless throtigh some place of this kind where they manufacture this serum. (1)</p> <p>2. There having been no previous order of relief from two justices of the peace for the persons treated by the plaintiff, and no subsequent order of approval from two justices of the peace of the plaintiff’s claim, the plaintiff cannot sustain this action against the poor district, defendant, and the verdict of the jury must be for the defendant.</p> <p>Answer. That is refused as drawn for the present. That is a legal question entirely, and might be taken up even later regardless of what your verdict might be. (2)</p> <p>Verdict and judgment for plaintiff for |318. Defendant appealed.</p> <p>Errors assigned■, among others, were (1, 2) above instructions quoting them.</p> <p>A township cannot be made chargeable with the expense of maintaining a pauper otherwise than by the previous order of two justices of the peace: Overseers v. Baker’s Executors, 2 Watts 280; Directors of Poor v. Wallace, 8 W. & S. 94; Gibson v. Plum Creek Twp. Poor Dist., 122 Pa. 557.</p> <p>If a township is not legally liable for the maintenance of a pauper a promise of the overseers cannot impose that responsibility upon it: Del. Twp. v. Greenwood Twp., 66 Pa. 63.</p> <p>cited: Danville Hospital v. Overseers, 163 Pa. 175.</p>

<p>Appeal, No. 182, Oct. T., 1915, by plaintiff, from order of C. P. Chester Co., Aug. T., 1914, No. 86, refusing to take off nonsuit in case of Jacob E. Horne v. West Chester Street Railway Company.</p> <p>Trespass to recover damages for death of a horse.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The court entered a compulsory nonsuit which it subsequently refused to take off.</p> <p>Error assigned was in refusing to take off nonsuit.</p> <p>cited: Ferry v. Philadelphia Rapid Transit Co., 232 Pa. 403.</p> <p>cited: Taylor v. Philadelphia Rapid Transit Co., 55 Pa. Superior Ct. 607; Debereux v. P. & R. Ry. Co., 245 Pa. 136.</p>

Appeal, No. 220, Oct. T., 1915, by defendant, from judgment of C. P. Bradford Co., Sept. T., 1912, No. 337, on verdict for plaintiff in case of Johnson & Swackhammer v. Lehigh Valley Railroad Company. Appeal from judgment of justice of the peace. Before Maxwell, P. J. The facts are stated in the opinion of the Superior Court. Verdict and judgment for plaintiff for $168. Defendant appealed. Error assigned was in refusing to dismiss case for want of jurisdiction.

Appeal, No. 313, Oct. T., 1915, by plaintiff, from order of C. P. Delaware Co., March T., 1911, No. 107, refusing to take off nonsuit in case of First National Bank of Iowa City v. John Kane. Assumpsit on promissory note. Before Broomall, J. The facts appear by the opinion of the Superior Court. Error assigned, was refusal to take off nonsuit.

<p>Negligence — Railroads — Master and servant — Safe place to worh — Case for jury — .Evidence.</p> <p>In an action by an employee against a railroad company to recover damages for personal injuries, tbe case is for tbe jury, where it appears that the plaintiff was injured, while at work loading a car, by a crate falling from a truck upon him, and he testifies that the wheel of the truck went into a hole in the floor and upset the crate upon him, that the hole had existed for some time, and was known to the defendant’s foreman, that it was usually covered with an iron plate, but not so at the time of the accident, and the plaintiff although he did not actually see the wheel go into the hole, felt the jar just before the crate fell upon him.</p> <p>In such a case the danger to the plaintiff was not so obvious and imminent that it could be said as a matter of law that he assumed the risk of the possibility of the hole becoming uncovered, and the wheel of the truck slipping into it.</p> <p>If a plaintiff’s testimony in an accident case makes out a clear case, the contradictory testimony of another witness, though called by the plaintiff, will not as a matter of law destroy it. ,</p>

Appeal, No. 164, Oct. T., 1915, by plaintiff, from judgment of Municipal Court, Philadelphia Co., Jan. T., 1915, No. 382, on verdict for defendant in case of Michael-B. Kelly v. Murray B. Courtright. Assumpsit on a check. Before MacNeille, J. At the trial the plaintiff offered in evidence the check which had been protested. It was admitted without objection, and plaintiff thereupon rested.

Appeal, No. 137, Oct. T., 1915, by plaintiffs, from judgment of O. P. No. 5, Philadelphia Co., March T., 1913, No. 5097, for defendant non obstante veredicto in case of Harry J. Fricker by his next friend and father, Charles Fricker, and Charles Fricker in his own right, v. Philadelphia Rapid Transit Company. Trespass to recover damages for personal injuries. Before Ralston, J. The facts relating to the accident are stated in the opinion of the Superior Court.

Appeal, No. 141, Oct. T., 1915, by defendants, from judgment of C. P. No. 3, Philadelphia Co., Sept. T., 1912, No. 5030, on verdict for plaintiff in case of John D. Mcllhenny v. Horace P. Baker and Orpheus E. Bell, Co-partners, trading as Baker-Bell Motor Co. Trespass to recover damages to an automobile. Before McMichael, P. J. The circumstances of the accident are stated in the opinion of the Superior Court.

Appeal, No. 259, Oct. T., 1915, by defendant, from judgment of C. P. No. 2, Philadelphia Co., March T., 1911, No. 3418, on verdict for plaintiff in case of Bose Bayuk v. Albert Keinath. Trespass for slander.

<p>Contract — Parties—Corporations—Suit against individual.</p> <p>An action for goods sold and delivered against “William H. Hoffman, trading as W. H. Hoffman Co.,” cannot be snstained where the defendant testified that he was president of W. H. Hoffman Co., a corporation, that he did not buy the goods on his own account nor promise to pay for them, and the record shows that the goods were charged in plaintiff’s book account to W. H. Hoffman Co., that no controversy was raised either by the pleadings or at the trial as to the fact that the W. H. Hoffman Co. was a corporation, and there is no positive evidence that the plaintiff dealt with the defendant as an individual, except that in the application for the building permit for which building the goods were furnished, there was contained a statement by a third person, not produced by either party at the trial, that William H. Hoffman was the contractor for the work.</p>

Appeal, No. 340, Oct. T., 1915, by defendant, from decree of C. P. Montgomery Co., Dec. T., 1914, No. 5, awarding an injunction in case of Mary B. Wanamaker and Rodman Wanamaker v. Alma C. Y. Benzon. Bill in equity for an injunction.

Appeal, No. 251, Oct. T., 1915, by plaintiff, from order of C. P. No. 4, Philadelphia Co., June T., 1913, No. 3636, refusing to take off nonsuit, in case of Walter L. Benezet v. Alice Hess and Edward H Hess, surviving executors of the last will and testatment of David M. Hess, deceased. Assumpsit to recover compensation for effecting the exchange of real estate.

Appeal, No. 282, Oct. T., 1914, by plaintiff, from judgment of C. P. No. 5, Philadelphia Co., Dec. T., 1913, No. 2498, M. L. D., for defendant upon the whole record in case of Charles Benton v. David Berg Distilling Company. Scire facias sur mechanics’ lien. Rule for judgment for want of a sufficient affidavit of defense. Motion for judgment for defendant upon the whole record.

Appeal, No. 63, Oct. T., 1915, by defendant, from order of C. P. No. 5, Sept. T., 1914, No. 123, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Gomer Hagstrom and Henry Hagstrom, trading as Hagstrom Brothers, v. Excelsior Drum Works. Assumpsit for goods sold. Rule for judgment‘for want. of. a sufficient affidavit of defense. Error assigned was order making absolute rule for judgment for want of a sufficient affidavit of defense..

Appeal, No. 129, Oct. T., 1915, by plaintiff, from judgment of O. P. No. 2, Philadelphia Co., Dec. T., 1912, No. 5242, for defendants non obstante veredicto in case of City of Philadelphia, to use of Ferdinand D. Fleming, v. Hugh Black and the Title Guaranty and Surety Company. Assumpsit for a loss alleged to have been sustained by reason of an inaccurate tax search.

Appeal, No. 58, Oct. T., 1915, by defendant, from judgment of C. P. Chester Co., Jan. T., 1914, No. 74, on verdict for plaintiff in case of Theodore G. Patterson v. Hires Condensed Milk Co. Assumpsit to recover retained percentages. Before Johnson, P. J., specially presiding.

Appeals, Nos. 312 and 313, by defendant, from judgment of C. P. No. 4, Philadelphia Co., June T., 1909, No. 2956, on verdict for plaintiffs in case of Francesca Ponti and Francesca Ponti, Administratrix of Estate of Condoloro Ponti, Deceased. Trespass to recover damages for injuries sustained by a fall on a defective sidewalk.

Appeal, No. 88, Oct. T., 1915, by defendant, from judgment of C. P. Schuylkill Co., July T., 1913, No. 352, on verdict for plaintiff in case of Wm. H. Messerschmidt v. Alvin Fritz. Trespass to recover damages for an alleged diversion of water. Before Brumm, J. The facts are stated in the opinion of the Superior Court.

Appeal, No. 66, Oct. T., 1915, by plaintiff, from judgment of C. P. Delaware Co., Dec. T., 1913, No. 362, for defendant on quo warranto in case of Commonwealth, ex rel., Petition for quo warranto. The case turned on whether the office of inspector of weights and measures was a constitutional office so that the incumbent could be removed at the pleasure of the power by which he had been appointed. The court entered judgment for defendant.

Appeal, No. 279, Oct. T., 1915, by defendant, from judgment of C. P. No. 4, Philadelphia Co., March T., 1914, No. 3199, for plaintiff on case stated in suit of Philadelphia, to use of Filbert Paving Co. v. William C. DeArmond. Case stated for an action of assumpsit to recover a municipal claim.

Appeal, No. 145, Oct. T., 1915, by defendant, from judgment of C. P. No. 2, Philadelphia Co., March T., 1914, No. 1912, on verdict for plaintiff in case of Benjamin Joseph Drummond v. Pennsylvania Railroad Company. Trespass to recover damages for personal injuries. Before Dougherty, J. . The facts are stated in the opinion of the Superior Court. Verdict and judgment for plaintiff for $600. Defendant appealed.

Appeal, No. 211, Oct. T., 1915, by plaintiff, from order of O. P. No. 2, Philadelphia Co., Dec. T., Í914, No. 785, discharging rule for judgment for want of a sufficient affidavit of defense in case of Dillwyn Apartment Realty Co. v. The First Mortgage Guarantee & Trust Company. Assumpsit to recover taxes and municipal claims paid on account of certain real estate purchased by the plaintiff at a sheriff ’s salé.

Appeal, No. 209, Oct. T., 1915, by defendant, from judgment of C. P. No. 4, Philadelphia Co., March T., 1907, No. 4961, on verdict for plaintiff in case of Thomas Akers v. City of Philadelphia. Appeal from award of jurors. Before Carr, J. The facts are stated in the opinion of the Superior Court. Verdict and judgment for plaintiff for $415. Defendant appealed.

Appeal, No. 225, Oct. T., 1915, by defendant, from judgment of C. P. No. 4, Philadelphia Co., Dec. T., 1910, No. 2900, on verdict for plaintiff in case of Allen Iron & Steel Co. v. Provident Iron & Steel Co. and National Surety Company. Assumpsit on two bonds. Before Carr, J. The facts are stated in the opinion of the Superior Court. At the. trial the court refused binding instructions for defendant, the National Surety Company.

Appeal, No. 294, Oct. T., 1914, by defendant,from judgment of C.P. Lehigh Co., June T., 1914, No. 64, on verdict for plaintiff in case of Henry M. Yundt v. Fred G. Runk. Appeal from judgment of justice of the peace in an action for wages. Before Groman, P. J. Verdict and judgment for plaintiff for $175. Defendant appealed. Error assigned was that the charge was inadequate, and that court should not have submitted the case to the jury.

Appeal, No. 226, Oct. T., 1915, by plaintiff, from judgment of .C. P. Montgomery Co., March T., 1914, No. 1, for defendant on case tried by the court without a jury in suit of Daniel F. Marple v. W. C. Brister. Trespass for cutting a crop of timothy and clover. The case was tried by the court without a jury before Miller, J. From the record it appeared that plaintiff was a tenant from year to year of a farm.

Appeal, No. 125, Oct. T., 1915, by plaintiff, from judgment of Municipal Court, Philadelphia Co., Sept. T., 1914, No. 329, for defendant on case tried by the court without a jury in suit of Elizabeth Foster v. Cyrus H. K. Curtis. Trespass to recover damages for personal injuries. Cassidy, J., tried the case without a jury and found a verdict for defendant. Error assigned was in finding for defendant. cited: Diamond v. Cowles, 174 Fed. 571; Dugan v. Lyon, 41 Pa.

<p>Divorce — Adultery—Condonation—Evidence.</p> <p>A divorce will not be granted to a husband on account of adultery alleged to have been committed by the wife with the libellant’s business partner, where there is no direct proof of the act, and both the wife and correspondent deny any guilty act, and it appears from the husband’s own testimony, that with ample knowledge of the facts and possible reason to suspect his wife of infidelity, he permitted her, for business considerations, to continue in peril.</p>

<p>Appeal, No. 28, Oct. T., 1915, by plaintiffs, from decree of C. P. No. 2, Philadelphia Co., Dec. T., 1913, No. 5325, dismissing bill in equity in case of Benjamin Robinson, et ah, officers and members of the Philadelphia True Blue Loyal Orange Lodge No. 59, of the Loyal Orange Institution of the United States v. David Harshaw, et al., officers, etc., of the Supreme Grand Lodge of the. Loyal Orange Institution of the United States.</p> <p>Bill in equity for an injunction. Before Sulzberger, P. J.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was decree dismissing the bill.</p> <p>Where a member of an organization, otherwise in good standing, applies to a court for relief against an alleged illegal expulsion, the burden is upon the defendant society, which has all the evidence in its possession, to exhibit to the court all the facts necessary to establish the validity of the expulsion complained of: Society, Etc., v. Com., ex rel., 52 Pa. 125; Washington L. O. L. No. 137 v. Buchanan, 24 Dist. Rep. 563; Com. v. Penn Beneficial Inst., 2 S. & R. 140; Metropolitan B. B. Club v. Simmons, 17 W. N. C. 153; Young v. Sons of Progress, 173 Pa. 302; Com., ex rel., v. Heilman, 241 Pa. 374; Wicks v. Monihan, 130 N. Y. 232; Golden Star Lodge v. Watterson, 158 Mich. 696; Curran v. O’Meara, 211 Mass. 261.</p> <p>Where the by-laws of an association provided that no suit shall be brought against the association until the remedies within the body have been exhausted, a suit cannot be maintained where it appears that the person or persons seeking redress failed to comply with the by-laws which govern the association. Such laws are binding upon the association and all its members: Beeman v. Supreme Lodge, 29 Pa. Superior Ct. 387; Wick v. Accident Order, 21 Pa. Superior Ct. 507; McGary v. McDermott, 207 Pa. 620; Bixler v. Heilman, 44 Pa. Superior Ct. 603; McCullough v. Barr, 145 Pa. 459.</p>

Appeal, No. 331, Oct. T., 1915, by plaintiff, from judgment of C. P. No. 1, Philadelphia Co., Dec. T., 1912, No. 2796, for defendant on demurrer in case of Postal Telegraph Cable Co., No. 1, v. Keystone State Construction Company. Trespass to recover sums.of money expended for the temporary removal of telegraph poles and wires. The facts are stated in the opinion of the Superior Court. Error assigned was in sustaining demurrer to statement of claim.

<p>Habeas corpus — Superior Court — Jurisdiction—Pleading—Autrefois acquit.</p> <p>The Superior Court has jurisdiction to grant a writ of habeas corpus in a case where a prisoner claims to he released because he had been previously tried and acquitted of the same charge.</p> <p>Where a person has been charged with the killing of several persons by an act of alleged-criminal negligence, and it appears. that he had been tried and acquitted in one county, by change of venue, on an indictment charging involuntary manslaughter of two of the persons, and that he was arrested subsequently and indicted in another county for involuntary manslaughter of a third person who was killed at the same time as the two persons mentioned in the previous proceeding, he will be entitled to be released on habeas corpus under a plea of autrefois acquit.</p> <p>The protection afforded by the fifth amendment of the Constitution of the United States that a person shall not be twice placed in jeopardy for the same offense, is not only to protect against the peril of a second punishment, but as well against being tried a second time for the same offense.</p>

<p>Vendor and vendee — False representation as to value — Suit to recover overcharge — Evidence—Rescission.</p> <p>In an action to recover an alleged overcharge in the price of real estate sold by defendant to plaintiff, a verdict and judgment for plaintiff will be sustained, where the testimony of the latter and other witnesses, without contradictory testimony by defendant, tended to show that defendant had made the plaintifE certain representations respecting the water supply of the land that were false and untrue, that he did not know the facts which he represented of his own knowledge, but had made them from statements made to him by a person whom he had employed to dig a well on the property.</p> <p>In such a case the defendant cannot contend that the plaintiff should have asked for a rescission of the contract, if it appears that she did not so ask because of the request of the defendant not to. do so, he stating that 1¡o do so would cause him more injury than if she retained the property with the abatement asked for by her.</p>

<p>Appeal, No. 327, Oct. T., 1915, by defendant, from order of C. P. No. 2, Philadelphia Co., March T., 1915, No. 4546, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Clara Strauss v. Charles J. Mendelsohn.</p> <p>Assumpsit for money loaned.</p> <p>From the record it appeared that the claim was for thirteen hundred dollars less fifteen per cent., and that suit was brought on May 10,1915. The action was based on an agreement in writing which was as follows:</p> <p>CHARLES J. MENDELSOHN, maker of the BUILT TO PIT Cloaks and Suits</p> <p>153 N. Tenth St., Philadelphia, Pa.</p> <p>January 1,1913.</p> <p>April 15,1914,1 promise to pay Clara Strauss thirteen hundred ($1300) dollars upon the terms and conditions following to wit:</p> <p>1. In place of paying interest on the above amount I agree to give Clara Strauss forty (40) per cent, of the profits earned by my business known as Charles J. Mendelsohn provided the profits earned shall exceed $2,500. Prom this profit I shall for valuable consideration deduct the sum of five.hundred ($500) dollars to be put back into the business.</p> <p>2. In the event of the aforesaid business showing a profit of less than $2,500 I agree and Clara Strauss by the acceptance of this agrees to accept another promise to pay on the same terms and conditions for another year.</p> <p>3. In the event of the aforesaid business showing a loss I agree and Clara Strauss by the acceptance of this agrees to accept another promise to pay 1300 dollars less 15 per cent, upon the same terms and conditions for another year. Charles J. Mendelsohn.</p> <p>The case turned upon the construction of the written instrument.</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>Under this agreement the plaintiff became the partner of the defendant, first, as to creditors, at least to the extent of her investment; and second, as to the defendant to the extent of sharing the profits and losses of the business: Wessels v. Weiss, 66 Pa. 490; Edwards v. Tracy, 62 Pa. 374; Poundstone v. Hamberger, 139 Pa. 319; Lord v. Proctor, 7 Philadelphia 630; Com. v. Arnheim, 3 Pa. Superior Ct. 104.</p>

<p>Mines and mining — Goal lease — Option—Gontract—Damages.</p> <p>The owners of coal land executed a writing by which they gave to other persons “the option to lease on or before April 1, 1912, all of the coal underlying the land” at a certain rate per ton royalty. The lease further provided that “the parties of the second part agree to bore ■ and thoroughly test the said property within six months from the date hereof, and within one year erect a breaker.” The tests were made by the parties of the second part and they demanded a lease from the owners before the expiration of the year, and within a time sufficient to build the breaker. The lease was refused without any proper reason, and the owners subsequently leased the coal to another person for a larger royalty. Held, that an action would lie against the owners for a breach of the contract, and that they were liable in compensatory damages to the party injured.</p>

<p>Practice, O. P. — Affidavit of defense — Affidavit by representative of corporation — Buies of court.</p> <p>Where a rule of court provides that where a defendant is a corporation the affidavit of defense “may be made by the principal -officer, or any agent, or .employee having knowledge of the necessary facts,” an affidavit is insufficient which merely avers that deponent “special agent of the above named defendant, having knowledge of the necessary facts hereinafter set forth,” and concludes, “as to such of the facts as are hereinabove stated, and of which the affiant has been informed, he verily believes the same to he true, and expects to be able to prove the same upon the trial of this ease.”</p> <p>Such an affidavit is insufficient because the deponent does not aver that he is an officer of the association, or define the scope of his agency, or give any reason why it was not made by an officer of the company; and because he fails to specify what facts were of his own knowledge, and what are from information, and does not state what knowledge or opportunities for knowledge he had of the matters set up.</p>

<p>Appeal, No. 16, March T., 1916, by defendant, from judgment of C. P. Cumberland Co., Sept. T., 1914, No. 248, on verdict for plaintiff in case of Margaret Spencer v. Carlisle Borough.</p> <p>Trespass to recover damages for injuries to an alley. Before Sadler, P. J.</p> <p>The opinion of the Superior Court states the facts. Verdict and judgment for plaintiff for $200. Defendant appealed.</p> <p>Error assigned, amongst others, was in submitting the case to the jury.</p> <p>Plaintiff showed only nominal damages: Hankey v. Philadelphia Co., 5 Pa. Superior Ct. 148; Hare v. Ry. Co., 10 Pa. Superior Ct. 647; Thompson v. Citizens Traction Co., 181 Pa. 131; Rider v. York Haven Water & Power Co., 251 Pa. 18; Pittsburgh, Etc., Ry. Co. v. Vance, 115 Pa. 325; Hewitt v. R. R. Co., 19 Pa. Superior Ct. 304; Shimer Easton v. Ry. Co., 205 Pa. 648; Schuylkill River, Etc., R. R. Co. v. Stocker, 128 Pa. 233; Gorgas v. P. H. & P. R. R. Co., 215 Pa. 501; Jones v. Erie, Etc., R. R. Co., 151 Pa. 30; Willock v. Beaver Val. R. R. Co., 222 Pa. 590.</p> <p>Exemplary damages were not allowable: Rider v. Power Co., 251 Pa. 26; Keil v. Chartiers, Etc., Gas Co., 131 Pa, 466; Rider v. Power Co., 251 Pa. 22; Hankey v. Philadelphia Co., 5 Pa. Superior Ct. 153; Hare v. Ry. Co., 10 Superior Ct. 647; Thompson v. Traction Co., 181 Pa. 131.</p>

<p>Appeal, No. 15, March T., 1916, by defendant, from judgment of C. P. York Co., Oct. T., 1914, No. 44, on verdict for plaintiff in case of George W. Hoover v. J. P. Reichard.</p> <p>Trespass to recover damages for personal injuries and injuries to an automobile. Before Wanner, P. J.</p> <p>The circumstances of the accident are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $134. Defendant appealed.</p> <p>Errors assigned were (1) answer to point quoted in the opinion of the Superior Court; (2, 3) rulings on evidence referred to in the opinion of the Superior Court.</p>

<p>Criminal law — Obtaining money under false pretenses — Misrepresentation as to financial condition — Chech.</p> <p>A conviction for obtaining money under false pretenses will be sustained, where the evidence upon which the verdict was based, shows that the defendant represented to the prosecutor that he and his partner were owners of real estate and in good financial condition, that on the faith of such representations the prosecutor sold to the defendant two cows, that subsequently he accepted a check of the defendant and partner in payment, and that when he deposited it two weeks later there were no funds to pay it.</p> <p>In such a ease the defendant cannot claim that the prosecutor’s delay in presenting the check caused the loss, if the trial judge leaves it to' the jury to determine whether the delay was negligence under the circumstances.</p> <p>Where, in such a case, the trial judge admits in evidence a statement of the daily balances of the defendant and his partner in the bank on which the cheek was drawn, the judge cannot he convicted of error because he refused to admit in evidence a number of paid checks during the period in controversy.</p>

<p>Appeal, No. 17, March T., 1916, by defendant, from judgment of C. P. Dauphin Co., June *T., 1912, No. 160, on verdict for plaintiff in case of Paul Snyder v. Hershey Chocolate Company.</p> <p>Assumpsit for wages. Before McCarrell, J.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>Verdict and judgment- for plaintiff for $144.25. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for defendant.</p> <p>cited: Richards v. Richards, 46 Pa. 78; Butler v. Kemmerer, 218 Pa. 242; Briggs v. Morris, 244 Pa. 139.</p>

<p>Appeal, No. 31, March T., 1916? by defendant from- judgment of Q. S. Lackawanna Co., May T., 1915, No. 98, on verdict of guilty in case of Com. v. E. M. Lettieri.</p> <p>Indictment for embezzlement under Section 114, of the Act of March 31, .1860, P. L. 382. Before Evans, P. J., specially presiding.</p> <p>The material portion of the indictment was as follows:</p> <p>“And the grand inquest aforesaid inquiring as aforesaid upon their oaths and affirmations aforesaid do further present that the said Ernesto M. Lettieri heretofore to wit, on the 7th day of Juné, 1913, at the county aforesaid and within the jurisdiction of this court, with force and arms, &c., being then and there an agent and being then and there employed as such by and for the said Hartfield, Solari and Company, and being then and there in said capacity as agent entrusted with for safe custody certain property of another person, to wit,” etc.</p> <p>The defendant presented the following points:</p> <p>1. “Under all the evidence in the case the verdict must be for the defendant.”</p> <p>Answer: “Refused without reading.” (2)</p> <p>2. “There is no evidence in the case to show that E. M. Lettieri was engaged in the business of an agent at the time when the transaction involved in this case occurred and therefore he cannot be convicted under this indictment.”</p> <p>Answer: “Refused without reading.” (3)</p> <p>2y2. “Unless the jury are satisfied beyond a reasonable doubt, that the defendant, E. M. Lettieri, was engaged in the business of an agent generally at the time when the transaction involved in this case occurred, and that he was not merely the agent for Hartfield, Solari and Company at the time, there can be no conviction under the indictment in this case.”</p> <p>Answer: “Refused without reading.” (4)</p> <p>3. “There is no evidence in the case to show that the note given by Scoblick was given to the defendant for safe keeping and therefore he cannot be convicted of embezzling this note.”</p> <p>Answer: “Refused without reading.” (5)</p> <p>4. “Unless the jury find beyond a reasonable doubt that the note given by Scoblick was the property of Hart-field, Solari and Co., and that it was left with the defendant for safe keeping, and that he fraudulently appropriated it to his own use, there can be no conviction in this case under the indictment.”</p> <p>Answer: “Refused without reading.” (6)</p> <p>Point: “If the defendant held the note or its proceeds and any other money collected by him which was the property of Hartfield, Solari and Company under a bona fide claim of right, this claim would negative the felonious intent necessary to constitute the crime of which he was charged, and in such case the verdict must be for the defendant.”</p> <p>. Answer: “That proposition is correct as an abstract proposition and is affirmed.” (7)</p> <p>Verdict of guilty upon which judgment of sentence was passed.</p> <p>Errors assigned were (1) refusal to quash the indictment (2-7) above instructions quoting them; (8) admission of letter referred to in the opinion of the Superior Court; (9) refusal to direct verdict for defendant.</p> <p>The indictment does not set forth that Mr. Lettieriis engaged in the “business” of an agent, or that he conducted a general agency for all those who might desire his services as agent. The most that appears from the indictment is, that he was agent for a single principal, to wit: Hartfield, Solari and Company. This is plainly insufficient under the authorities: Com. v. Fahenstock, 15 Pa. C. C. R. 598; Com. v. Beeby, 3 Del. 75; Com. v. Hottenstein, 2 Woodw. 477; Com. v. Newcomer, 49 Pa. 478.</p> <p>There was no evidence to show that the notes were left Avith Mr. Lettieri “for safe custody” within the meaning of the act, and therefore the Commonwealth did not make out a case: Com. v. Chathams, 50 Pa. 181; Com. v. Leisenring, 11 Philadelphia 389.</p> <p>The indictment in the case at bar was not only a substantial but a literal compliance with the provisions of Section 114 of the Criminal Code: Brown v. Com., 78 Pa. 122; Com. v. Newcomer, 49 Pa. 478.</p> <p>One may be an “agent” and be in the business of acting as an agent, and come within the provisions of Section 114 of the Criminal Code, even though he is the agent or representative of but one principal: Com. v. Gouger, 21 Pa. Superior Ct. 217; Bartolett v. Achey, 38 Pa. 273.</p> <p>The property described in the indictment was received “for safe custody”: Com. v. Barton, 20 Pa. Superior Ct. 477.</p>

<p>Insurance — Fire insurance — Proof of loss — Time when proofs were received.</p> <p>In an action upon a policy of fire insurance 'it appeared that the company defended on the ground that the proofs of loss had not been received, “within sixty days after the fire” as required by the policy. The evidence showed that the proofs were mailed from Scranton to Milwaukee, the home office of the company, on March 4th, were registered by the post office authorities; had a special ■ delivery stamp thereon, and were put on a train leaving Scranton at 1:50 p. m., March 4th. The assistant postmaster of Scranton testified from his own experience and from the records of the post office that the mail on the train specified should have reached Chicago the next morning, and Milwaukee before three p. m. of March 5th. The defendant offered no evidence to controvert this testimony, but did place in evidence the return register receipt signed by the secretary of the company, and showing date of delivery March 6th. The secretary was not called. Held, that it was not error to leave the time of the delivery and receipt of the proofs of loss to the jury, and that a verdict and judgment for plaintiff should he sustained.</p>

Appeal, No. 14, March T., 1916, by defendant, from judgment of C. P. York Co., Aug. T., 1914, No. 123, on verdict for plaintiff in case of John B. Bruggeman v. City of York. Trespass to recover damages for injuries to real estate alleged to have been caused by the backing of surface water on plaintiff’s premises. Before Ross, J. The facts are stated in the opinion of the Superior Court, Verdict and judgment for plaintiff for $800. Defendant' appealed.

<p>Decedents’ estates — Decedent’s deht — Beneficial associations — Designation of heneficiary — Gift inter vivos.</p> <p>Where a brother indebted to his sister in the sum of $1,600 confesses a judgment to her for that amount, and also designates her as a heneficiary in a certificate of membership of a beneficial association for $2,000, and hands her the certificate, telling her to put it away carefully, and by his will directs that the $1,600 borrowed money shall be paid out of the proceeds of his real estate, and the beneficial association after the member’s death pays the benefit to the sister, the Orphans’ Court commits no error in finding that the transfer of the certificate was a gift inter vivos, and that the debt due to the sister was payable out of the estate.</p>

<p>Criminal law — Suspension of sentence — Discharge on probation —Rearrest and sentence — Act of June 19,1911, P. L. 1055.</p> <p>Where a woman has beeii convicted o£ conducting herself as an idle and disorderly streetwalker, but sentence has been suspended and the prisoner has been placed on probation under the provisions of the Act of June 19, 1911, P. L. 1055, she may be subsequently rearrested on a bench warrant and sentenced to the house of correction without the record of the second proceeding showing a formal adjudication that the defendant was guilty of being an idle and disorderly streetwalker. In such a case the court is merely imposing the sentence suspended by the court at the previous hearing at which time the question of her guilt had been adjudicated.</p>

<p>Judgment — Opening judgment — Evidence—Lapse of time.</p> <p>A judgment on a verdict in favor of tbe plaintiff on an issue to determine the amount due on a judgment note dated May 19, 1894, payable three months after date, and entered October 25, 1913, by the trustees of the deceased payee’s estate against two joint makers, will not he reversed where the evidence is fairly submitted to the jury with instructions that the burden of proving that the note had been paid is on the defendant, that the mere lapse of time less than twenty years does not raise a legal presumption of payment, and that in order to create a presumption of payment in fact there must be persuasive evidence of payment in addition to lapse of time.</p> <p>In such a case testimony in regard to admissions or statements made of payments,-are to be received with caution, especially where the party who is said to have made them is dead.</p>

<p>Mechanics’ lien — Maierials furnished continuously — Acts of April 'H, 1855, P. L. 288, and J une 4,1901, Sec. 12, P. L. 481.</p> <p>Under the Acts of April 14, 1855, P. L. 238, and June 4, 1901, .See. 12, P. L. 431, the right to file a mechanics’ lien is not defeated by- the fact that an interval of over two months intervened between the furnishing of the first portion of the materials and the furnishing of the last portion, if it appears that there was such continuity in the furnishing as would prima facie tie the several deliveries from the first to the last. Whether the material is furnished under one or more contracts does not affect the right to file the lien, inasmuch as the 12th Section of the Act of June 4, 1901, P.'L. 431, provides that if the labor and materials be furnished continuously “the claimant may file a single claim though furnished under more than one contract.”</p>

<p>Appeal, No. 33, March T., 1916, by plaintiff, from judgment of C. P. Luzerne Co., Oct. T., 1913, No. 394, for defendant n. o. v. in case of E. J. Taylor v. Wm. M. Siers and Bussell Uhl, doing business as Wm. M. Siers Cigar Company.</p> <p>Assumpsit for goods sold and delivered. Before Woodward, J.</p> <p>From the record it appeared that pending suit, but before the trial of the case, one of the joint defendants, Russel Uhl, died, and plaintiff, upon learning of his death, suggested of record his death, and a substitution thereon, of John H. Uhl, executor, and Sarah H. Uhl, executrix, but no service of a sc-ire facias, or a rule to show cause was made upon them.</p> <p>On the trial of the cause, Bush Trescott, Esq., á member of the bar, appeared at the trial, and directed that his appearance should be entered of record as follows: “Bush Trescott, Esq., for Wm. M. Siers, individually, and Wm. M. Siers Cigar Company, and for the Estate of Russel Uhl, deceased.”</p> <p>In the course of the trial no objection was made by the attorney for the defendants to the manner in which the executors were substituted on the record.</p> <p>On June 5, 1915, the jury rendered a verdict in favor of the plaintiff.</p> <p>On June 9, 1915, defendants, through their counsel, filed reasons for a new trial and judgment non obstante veredicto, on the ground that plaintiff had not proven the existence of a partnership.</p> <p>On July 9,1915, the attorneys for the executors of the estate of Russell Uhl, deceased, filed additional reasons for judgment non obstante veredicto, wherein they averred that the executors of the estate of Russel Uhl, deceased, not having.been properly made parties to this suit, the verdict could not be sustained.</p> <p>The court entered judgment for the executors non obstante veredicto.</p> <p>Error assigned was in entering judgment for executors non obstante veredicto.</p> <p>Failure to deny, by affidavit, answer, or depositions, the right of counsel to appear for them, is equivalent to admission that he had proper authority: Danville, Etc., R. R. v. Rhoades, et al., 180 Pa. 157; McAlphine Street, 40 Pa. Superior Ct. 268.</p> <p>While a writ of scire facias, or rule to show cause may be the usual methods employed, plaintiff is not obliged to resort to such methods: Ash, et al., v. Guie, to use, etc., 97 Pa. 493; Dingman v. Amsink, 77 Pa. 114.</p> <p>At common law, the death of a partner, joint defendant, pendente lite, terminated the liability of the deceased partner or his estate, and the surviving partner sued was alone liable: Walter v. Ginrich, 2 Watts 204; Given v. Albert, 5 Watts & Sergeant 333; Miller v. Reed, 27 Pa. 244.</p> <p>A liberal construction of the Act of March 22, 1861, P. L. 186, permits the plaintiff to bring in the executor or administrator and proceed against him and the survivor at the same time to judgment: Dingman v. Amsink, 77 Pa. 114; Brady v. Reed, 87 Pa. 111; Dowling v. McGregor, 91 Pa. 410; Ash v. Guie, 97 Pa. 493; Mochette v. Magee, 9 Philadelphia 24.</p> <p>In the case at bar, it is patent, that until the substitution of the Uhl Estate executors under the statute, all proceedings in the cause, on the part of the plaintiff, could only be directed toward and contemplate the surviving defendant, Wm. M. Siers; that the.attorney of record, Rush Trescott, Esq., had only authority to represent him in the matter.</p>

<p>Negligence — Automobiles — Testimony as to insurance — Evidence.</p> <p>In an action to recover damages for injuries to an automobile resulting from an accident, it is reversible error for the court to permit evidence to be introduced relating to the defendant’s insurance in a liability company.</p> <p>The rule permitting the introduction of the whole of a conversation where a part has been admitted relates to relevant conversations but not to all of the matters concerning which the witnesses may have talked.</p>

<p>Divorce- — Desertion—Offer of home.</p> <p>Where a husband, and wife have separated by mutual consent, the husband cannot allege in subsequent proceedings for divorce, desertion by the wife because she made no response to a letter in which he said “I will have a house somewhere on the road, and if you wish you and the children can come,” without any statement as to the locality of the house, or its character; and this is especially so where it appears that the husband did not have a house at the time the letter was written, but merely contemplated renting one.</p>

<p>Habeas corpus — Summary conviction — Magistrate’s record.</p> <p>Where a person has been committed on a summary conviction before a magistrate, defects in the magistrate’s record are immaterial and will not be considered on a hearing in habeas corpus proceedings.</p> <p>Criminal law — Summary conviction — Discharge on parol — Sentence — Words and phrases — "Modify”—Appeals—Procedendo— Besentence.</p> <p>Where a person has been sentenced to imprisonment for six months on a summary conviction before a magistrate, and over one month thereafter the prisoner is discharged on probation for one year, the Court of Quarter Sessions has no jurisdiction, one month after the last order was made, to commit the prisoner to prison “to serve the balance of the period of probation,” inasmuch as such sentence would operate to make the prisoner serve an imprisonment of over ten months when she was originally only committed for six months by the magistrate. The imposition of such a sentence creates a new thing, viz: an additional term of imprisonment, and is not a modification of the commitment within the meaning of the 19th Section of the Act of June 2, 1871, P. L. 1301, which gives to the Quarter Sessions in habeas corpus proceedings the power to “either discharge the individual,' modify or confirm the commitment.”</p> <p>In such a case the appellate court in reversing the order of the Quarter Sessions will do so with a procedendo and with a direction to the court below to recommit the prisoner to six’months imprisonment, or any part thereof that had not been performed at the time the appeal was made a supersedeas.</p>

Appeal, No. 357, Oct. T., 1915, by plaintiff, from decree of C. P. No. 2, Philadelphia Co., March T., 1914, No. 281, dismissing bill in equity in case of Charles L. Smyth v. Alfred J. Goebel and Maggie Harris.- Bill in equity to establish a lien for attorney’s fees. Sulzberger, P. J., found the facts to be as follows: 1.

Appeal, No. 63, April T., 1916, by plaintiff, from judgment of C. P. Erie Co., Sept. T., 1913, No. 143, on yerdict for defendant in case of Sturgeon Bay Bank y. John McLaughlin, doing business as the North East Preserving Works. Issue in foreign attachment to determine title to a fund attached. Before Benson, J. The facts are stated in the opinion of the Superior Court. Verdict and judgment for defendant.

Appeal, No. 66, April T., 1916, by defendant, from judgment of C. P. Yenango Co., Nov. T., 1913, No. 29, on verdict for plaintiff in case of W. D. Bunce v. Franklin Odd Fellows Hall Association and S. A. Moore, Contractor. Scire facias sur mechanics’ lien. Before Criswell, P. J. The facts are stated in the opinion of the Superior Court. The court gave binding instructions for plaintiff. Verdict and judgment for plaintiff for $835.52. 'Defendant appealed.

Appeal, No. 92, April T., 1916, by plaintiff from, judgment of C. P. Venango Co., Aug. T., 1913, No. 19, on verdict for defendant in case of Outcault Advertising Company v. Claude C. Ritchey and Frank H. Bower, doing business in the name of Ritchey & Bowers. Assumpsit for goods sold. Before Criswell, P. J. , The facts are stated in the opinion of the Superior Court. Verdict and judgment for defendants. Plaintiffs appealed.

Appeal, No. 91, April T.,' 1916, by Amos Pierce, from decree of O. O. Warren Co., Dec. T., 1908, No. 18, awarding partition in Estate of Marsh Pierce, deceased. Exceptions to auditor’s report in partition. Error assigned was in dismissing exceptions to auditor’s report and awarding partition.

Appeal, No. 24, April T., 1916, by plaintiffs, from order of C. P. Allegheny Co., July T., 1914, No. 976, making absolute rule to open judgment in case of Lee B.-Purdy and W. G-. Purdy, Copartners, trading as Purdy Brothers, v. Potter Title & Trust Company, Administrator of the Estate of Ada M. McKinnie, deceased. Rule to open judgment. The facts appear by the opinion of the Superior Court. Error assigned was order making absolute rule to open judgment.

Appeal, No. 22, April T., 1916, by defendants, from judgment of C. P. Allegheny Co., April T., 1914, No. 805, on verdict for plaintiff in case of William Whittaker v. John McDonnell and Henry McDonnell, trading as John McDonnell & Brothers. Trespass to recover damages for personal injuries. Before Evans, J. The circumstances of the accident are stated in the opinion of - the Superior Court. Verdict and judgment for plaintiff for $250. Defendant appealed.

Appeal, No. 36, April T., 1916, by plaintiffs, from judgment of C. P. Allegheny Co., Oct. T., 1912, No. 2851, on verdict for defendant in case of Sarah Sutmeyer and Ethel Sutmeyer McKee v. James J. Thornton. Assumpsit for use and occupation of real estate. Before Haymaker, J. The facts are stated in the opinion of the Superior Court. Verdict and judgment for defendant. Plaintiff appealed.

Appeal, No. 48, April T., 1916, by defendant, from judgment of C. P. Allegheny Co., Jan. T., 1914, No. 1499, on verdict for plaintiff in case of Fred M. Guinn v. Paul Vitte. Replevin for the head and hide of a deer. Before Reid, J. At the trial it appeared that the plaintiff claimed the head and the hide under an agreement made with the defendant at the time the two men started on a hunting trip, that the one who first shot a deer should have the trophies.

Appeal, No. 4, April T., 1916, by defendant, from judgment of C. P. Allegheny Co., May T., 1911, No. 333, on verdict for plaintiff in case of Katherine Henegan v. The Colonial Life Insurance Company of America. Assumpsit on a policy of life insurance. Before MacFARLANE, J. • At the trial the jury returned a verdict for plaintiff for $1,259.50.

Appeal, No. 50, April T., 1916, by defendant, from judgment of C. P. Allegheny Co., July T., 1915, No. 1540, on verdict for plaintiff in case of Annie Jarosa v. A. K. Stoughton. Trespass to recover damages for personal injuries. Before Miller, J. At the trial the jury returned a verdict for $525 for plaintiff.

Appeal, No. 59, April T., 1916, by plaintiff:, from judgment of C. P. Allegheny Co:, April T., 1913; No. 2;87, for defendant n. o. v. in case of Bridget Flaherty v. Pittsburgh, Cincinnati, Chicago & St. Louis Railway' Company. Trespass to recover damages for injuries to land, alleged to have been caused by the improper diversion of water.