Volume 64 — Pennsylvania Superior Court Reports

Appeal, No. 1, April T., 1916, by defendant, from judgment of C. P. Erie Co., Feb. T., 1913, No. 148, for plaintiff on case tried by the court without a jury in suit of Hellena B. E. Aubrey v. H. J. Curtze. Ejectment for land in Mill Creek Township. Before Walling, P. J. The case was tried by the court without a jury.

<p>Appeal, No. 10, April T., 1916, by defendant, from judgment of C. P. Washington Co., Aug. T., 1914, No. 4, on verdict for plaintiff in case of Monongahela River Consolidated Coal & Coke Company v. James E. Hines, Surviving Executor of the Estate of Isaac W. Rickards, deceased.</p> <p>Assumpsit to recover money which the defendant was compelled to pay under a judgment.</p> <p>At the trial the jury returned a verdict for plaintiff for $1,241.93. On a rule for judgment n. o. v. McIlvane, P. J., filed the following opinion:</p> <p>1. On May 28, 1887, Isaac W. Richards, being the owner of a tract of land in East and West Pike Run Townships, Washington County, Pennsylvania, containing 89% acres more or less, conveyed one acre of said tract to William Lundy, excepting and reserving all the coal underlying the said one acre, with the privilege of mining and carrying away the same. Under his deed there is no question raised but what William Lundy was entitled to the support of his surface from the owner of the coal reserved when he came to exercise his privilege of mining and carrying away the same.</p> <p>2. On the first day of March, 1892, Isaac W. Richards, by a proper deed of conveyance, granted, bargained, sold, aliened, enfeoffed, released, conveyed and confirmed unto The New York and Cleveland G-as Coal Company, all of the Pittsburgh or river vein of coal underlying his said farm of 89 acres and a half in East and West Pike Run Townships, which included the coal underlying the lot conveyed to William Lundy, and in the deed whereby said coal was conveyed, after the description of the same was therein given, the following paragraphs appeared:</p> <p>“Hereby giving and granting unto the party of the second part, its successors and assigns, the right to mine, remove and carry away all of the coal above described, without any liability for injuries caused thereby to the surface of the land overlying said coal, or to springs, streams or water-courses thereon or thereunder said surface; and also the right to transport under the surface of said land, all coal now owned or which may hereafter be owned by the said party of the second part, its successors and assigns; and also all usual and convenient mining rights and privileges, including drainage and ventilation.</p> <p>“And together with all and singular the improvements, ways, waters, water-courses, rights, liberties, privileges, hereditaments and appurtenances whatsoever thereunto belonging or in anywise appertaining, and the reversions and remainders, rents, issues and profits thereof; and all the estate, right, title, interest, property, claim and demand whatsoever of the said party of the first part, in law, equity, or otherwise, howsoever, of, in and to the same, and every part thereof. To have and to hold, the said tract of coal, mining rights, privileges, hereditaments and premises hereby granted,.or mentioned, and intended so to be, with the appurtenances, unto the said party of the second part, its successors and assigns, forever.”</p> <p>This was followed by a covenant of general warranty, whereby Isaac W. Richards “for himself, his heirs, executors and administrators, did. covenant, grant and agree with the party of the second part, its successors and assigns, all and singular the hereditaments .and premises granted or mentioned and intended so tq be, unto the said party of the second part, its successors and assigns, against him, the said Isaac W. Richards and his heirs, and against all and every other person or persons whatsoever lawfully claiming or to claim the same or any part thereof, to warrant and forever defend.”</p> <p>3. The New York and Cleveland Gas Coal Company* by a proper deed of conveyance, conveyed a part of said tract of coal, including that which was under the Lundy lot, to the Monongahela River Consolidated Coal and Coke Company; and the Monongahela River Console dated Coal and Coke Company afterwards conveyed the same to the Vesta Coal Company. The Vesta Coal Company mined the coal from under the surface of William Lundy’s lot and left no support for the surface, by reason of which the surface subsided and injury was done thereto. William Lundy, to No. 1041 of February Term, 1912, of this court, brought an action for trespass against the Vesta Coal Company to recover damages for the injury that was done to his surface by the Vesta Coal Company by its failing to leave sufficient support for his surface, and recovered in said action a verdict of $850.20, ■and the Vesta Coal Company in defending that action expended in costs and expenses the additional sum of $250. The Vesta Coal Company to No.- 483 May Term, 1913, of this court, brought a suit against the Monongahela River Consolidated Coal and Coke Company to recover from said last named coal company $1,100.20, which with the interest accrued thereon on the 11th day of May,' 1914, was $1,182.78. Judgment for this amount was obtained by the Vesta Coal Company against the Monongahela River Consolidated Coal and C.oke Company in this court and the same was paid by the defendant in that suit to the plaintiff. The Monongahela River Consolidated Coal and Coke Company then brought this present action to recover from the surviving executor of the estate of Isaac W. Richards the sum of $1,182.78 with interest from the 11th day of May, 1914.</p> <p>4. Isaac W. Richards died on the 16th day of July, 1908, leaving a will in which he appointed his wife, Margaret Richards, and James E. Hines, executors. Margaret Richards, one of the executors named, died before the bringing of this suit, leaving James E. ‘Hines as the surviving executor.</p> <p>5. At the time William Lundy brought suit against the Vesta Coal Company to recover damages against it for not leaving surface support, the. Vesta Coal Company notified James E. Hines, surviving executor of Isaac W. Richards, to appear and defend said suit; and he was also given notice of the suit of the Vesta Coal Company against the Monongahela River Consolidated Coal & Coke Company and requested to defend that suit. He appeared in neither of these suits to make a defense.</p> <p>Counsel for the defendant ajppear to consider this case as one that is based solely on the covenant of general warranty found in the last part of Isaac W. Richards’, deed, and considerable was said at the argument about what originally was the nature of a general warranty. This discussion of warranty in its original form may be interesting, but it has little or no application to the case in hand, as in this state, as well as the other states of the union, courts look at the intention of the parties and take the whole after language of a deed to determine their rights, and if either express or implied covenants are found in the deed, which have been violated, the breach of these express or implied covenants is made the basis of an action to recover damages, and the question at issue is not so much one of technical eviction but as to whether or not the grantor has made a covenant which has been broken to the injury of his grantee or some one holding under him.</p> <p>Looking then to the deed of Isaac W. Richards to the New York and Cleveland Gas Coal Company, we find first that he granted, bargained, sold, aliened, enfeoffed, released, conveyed and confirmed unto said coal company the acre of coal underlying the William Lundy surface, and then he used these words: “Hereby giving and granting unto the party of the second part, its successors and assigns, the right to mine, remove and carry away all of the coal above described, without any liability for injuries caused thereby to the surface of the land overlying said coal, or to springs, streams or water-courses thereon or thereunder said surface.” Out of these words which we have quoted arises an obligation of the grantor to make them good and a covenant on his part may be implied from their use that he has done nothing and will do nothing whereby the rights which he has thereby conveyed may be defeated. The very words which he makes use of under the law are a covenant that if the coal company mines, removes and carries away all of the coal above described, there is no one that can by reason of the act of him the grantor hold the company liable for injuries to the surface for thus mining, removing and carrying away all of said coal. This being the covenant on his part, the question arises whether or not it was broken when William Lnndy showed in this court in the trial of Lundy v. The Vesta Coal Company, that there was liability to him on account of injuries to the surface caused by mining, removing and carrying away all the coal under said surface and thus removing the support of the surface. We are clearly of the opinion, taking the whole deed together, that there was an implied covenant on the part of Isaac W. Richards to the New York and Cleveland Gas Coal Company that no one would sue it to enforce a liability growing out of the removal of all the coal under the Lundy surface; and we are also satisfied that this implied covenant was broken and that the damage done is to be measured by what was recovered in former suits of which the executor of Isaac W. Richards had notice and which he failed to successfully defend.</p> <p>This being the case, the question arises whether or not this covenant that is implied from the language used by the grantor in the deed to the New York and Cleveland Gas Coal Company is such a one as runs with the land, and we are clearly of the opinion that the parties so intended, for the reason that in the deed the grantor specifically binds himself, his heirs, his executors and his administrators; and he also says in his deed that the rights under the deed shall extend not only to the New York and Cleveland Gas Coal Company but to its successors and assigns. Again, the very nature of the property and rights which were conveyed and the provisions found in the deed taken as a whole, clearly show that this implied covenant of which we have spoken ran with the land and that not only Isaac W. Richards but his heirs, executors and administrators were liable for a breach of the conditipns of that covenant, to any one who might at the time being hold title to the coal.</p> <p>We are therefore of the opinion that the court did not err in refusing the defendant’s points and instructing the jury to find for the plaintiff the amount which this court to No. 483, May Term, 1913, found that the plaintiff, the Monongahela River Consolidated Coal and Coke Company, was liable for by reason, of the fact that Isaac W. Richards, his heirs, executors and assigns, had failed to meet' the liability caused by the subsidence of the surface conveyed to William Lundy, or had' failed to reimburse the plaintiff in, this case for what it had to pay by reason of that liability.</p> <p>There is no doubt where one conveys a fee simple title to a tract of land to another and in his deed of conveyanee inserts a covenant of general warranty, that the grantee in a suit for damages for violation of that covenant must allege and prove an eviction. Nor is there any doubt that the damages he can recover in such a case are limited by the price paid for the land from which he was evicted and interest thereon: Knepper v. Kurtz, 58 Pa. 480; Tyson v. Eyrick, 141 Pa. 296.</p> <p>But where the owner of a fee simple title of a tract of land divides it, either by a perpendicular or a horizontal line, and conveys one part to one person and the other part to another person and puts in his deeds of conveyance,—besides the covenant of general warranty,—restrictions and agreements affecting1 the rights of the grantees in the enjoyment of their respective parcels, covenants arise out of these restrictions and agreements which,—if they run with the land,—are binding not only upon the grantor and the respective grantees of the parts conveyed but upon their heirs and assigns. An illustration of this is found in the cases of Muzzarelli v. Hulshizer, 163 Pa. 643, and Landell v. Hamilton, 175 Pa. 327.</p> <p>A covenant is an agreement under seal, therefore every agreement contained in a deed'is a covenant, because a deed is a writing under seal and delivered by the parties: Mitchell on Real Estate and Conveyancing, page 437.</p> <p>Where the mineral estate is severed from the surface by a conveyance, the lower estate passes to the grantee subject to the servitude of access. The lower estates owe to each other and to the-owner of the surface an easement for support. The owner of the mine must leave enough of the mineral in place to answer the purposes of support for the surface, unless the owner of the surface has released his right of support. And the surface is entitled to support unless its right thereto has been clearly released by the owner: Robertson v. Youghiogheny, Etc., Coal Co., 172 Pa. 566.</p> <p>The man who grants the minerals and reserves the surface is entitled to make a bargain with reference to coals ’and minerals, as he is entitled to make a bargain with reference to anything else. The same rulé applies when one grants the surface and retains the minerals. In each case the question is, did the parties agree there should be no obligation in regard to support. Such an agreement is a covenant in regard to the enjoyment of a thing in being. It is a covenant which runs with the land. Subsequent purchasers take subject thereto. See Scranton v. Phillips, 94 Pa. 15.</p> <p>Let us see how these principles apply to the case in hand.</p> <p>Isaac W. Richards having inserted at the end of his deed to the New York and Cleveland Gas Coal Company a covenant of general warranty, thereby in substance said to his grantee: “I am solely possessed of the coal and all the incidental mining rights that I herein convey.” And in view of this fact, his words “hereby giving and granting unto the party of the second part, its successors and assigns, the right to mine, remove and carry away all of the coal above described, without any liability for injuries caused thereby to the surface of the land overlying said coal,” contained in the body of the deed, became a covenant by implication that there either could be no such liability (that is, that the surface would not subside if all the coal was taken out), or that if there was a subsidence and liability shown, he would take care of it by reimbursing the grantee or its assigns if it suffered loss.</p> <p>In the case at bar there was no occasion for the plaintiff to prove that either the New York and Cleveland Gas Coal Company or some one of its assigns had been evicted from the coal conveyed or some part of it, for such was not its complaint. Its complaint was that its right to mine all the coal without liability for injuries caused thereby to the surface had been invaded, and the implied covenant of Isaac W. Richards giving and granting full mining rights without liability had thus been broken to its injury; and that it was' injured .because of an act of Isaac W. Richards, to wit, his making a prior deed of conveyance to William Lundy for the surface'without reserving the full mining rights which he afterwards conveyed to the New York and Cleveland Gas Coal Company; or, to state it in another way, his implied covenant in the deed conveying the coal to the New York and Cleveland Gas Coal Company was an assertion that he had not conveyed the surface to another with the right of support, and the moment another successfully obtained judgment for injury to the surface caused by mining out all of the coal, that moment a breach of the covenant contained in the New York and Cleveland Gas Coal Company deed conveying full mining rights to it, was established. The issue therefore before the court in the case at bar did not involve the title to any part of the coal conveyed but did involve a right in mining the same which Isaac W. Richards covenanted in his deed that the grantee,—the New York and Cleveland Gas Coal Company,—and its successors and assigns- should have, and of which one of its assigns had been deprived, to its great loss, as shown by the records of this court introduced in evidence. This suit was in effect a suit to recover back what the plaintiff had lost by reason of the failure of Isaac W. Eichards to perform his covenants expressed and implied in the deed he gave to. the New York and Cleveland Gas Coal Company. The record evidence of the plaintiff showed the covenants, showed the breach of the same and showed the loss sustained by the plaintiff by reason of that breach, and the jury were, in our opinion, properly instructed to find the verdict which they did find.</p> <p>And now, April 15, 1915, motion of the defendant for judgment non obstante veredicto came on to be heard and was argued by counsel, whereupon, it is ordered, adjudged and decreed that said motion be overruled.</p> <p>Error assigned was in refusing to enter judgment for defendant n. o. v.</p>

Appeal, No. 73, April T., 1916, by Francis Rea Bailey, from decree of O. C. Washington Co., Nov. T., 1914, No. 33, dismissing exceptions to auditor’s report in case of Mary Elizabeth Bailey, deceased. Exceptions to report of Harry D. Hamilton, Esq., auditor.

Appeal, No. 17, April T., 1916, by defendant, from judgment of C. P. Washington Co., May T., 1914, No. 295, on verdict for plaintiff in case of H. H. Matthews v. Lilley Coal & Coke Co. Assumpsit for commissions. Before McIlvaine, P. J. At the trial it appeared that plaintiff claimed to recover under a special contract, commissions on purchases made by him for the defendant, of steel rails, frogs and switches.

<p>Appeal, No. 54, April T., 1916, by defendant, from decree of C. P. Westmoreland Co., May T., 1915, No. 475, awarding divorce in case of Isabelle J. Crawford v. John W. Crawford.</p> <p>Libel for divorce.</p> <p>Tbe master, Walter S. Wible, Esq., found and recommended in part as follows: '</p> <p>6. “That from about one year after tbe date of tbe marriage, tbe respondent began to treat his wife, the libellant, in an unkind and cruel manner, and together with his children, three of whom were then residing at home, apparently entered into a conspiracy to humiliate her and drive her from her home. That the husband did not use any physical violence toward the libellant, but continually used improper and insulting language to her; that he accused her of stealing money from him; circulated rumors and accused her personally of being untrue to him, and in the presence of others, humiliated her to such an extent that her health, both physically and mentally, became impaired; so that, according to Drs. Barkley and Krebs, who testified, she would have entirely lost her reason, if she had not been moved from the conditions existing in her husband’s home. That the libellant lost over fifty pounds in weight from the time of her marriage to the time of the separation.”</p> <p>7. “That the respondent permitted the eldest son, known as Hicks Crawford, to attack the libellant, and permitted his other children to criticise and humiliate her without criticism or objection, and went so far as to join with them and aid them in driving her from their home.”</p> <p>8. “That, iii accordance with the testimony of the physicians called, her health was such that she would have lost her life or reason, if she had not left her husband’s home.”</p> <p>9. “That during the time of their living together, the husband did not provide suitable or proper clothing, considering his resources.”</p> <p>10. “That the husband has an estate worth from six thousand to eight thousand dollars, and an annual income of from one thousand to twelve hundred dollars, and that the wife has a separate estate from her father worth about two thousand dollars.”</p> <p>The master recommended as follows:</p> <p>“In view of this testimony, the master is of the opinion that the .averments of the libel have been sustained and recommends that the prayer of the petition be granted and that a decree be entered by your honorable court, divorcing the said Isabelle Crawford from John W. Crawford, ‘a mensa et thoro.’ ”</p> <p>“The master further recommends that, in view of the fact that the husband, John W. Crawford, has a net income of between one thousand ($1,000) dollars and twelve hundred ($1,200) dollars, and in view of the fact that the wife’s estate is only two thousand ($2,000) dollars, from which no present income is derived, the respondent pay to the libellant the annual sum of three hundred ($300) dollars, from the date of this decree, in quarterly payments, for her support and maintenance.”</p> <p>Exceptions to the above findings and recommendations were overruled, and a decree entered in accordance with the master’s report.</p> <p>Error assigned was the decree of the court.</p>

<p> Mortgage—Extension of time—Restriction of lien—Reduction of interest—0 onsideration. </p> <p>Where a mortgage with interest at six per- cent, and restricted as to lien on a particular property, has run on to a date three years before its maturity, and the parties then agreed in writing under seal to .reduce the interest to five per cent, until maturity, and at maturity they enter into an oral agreement' that the mortgage should not then be enforced, but -that installments shall be paid at specified periods, and interest continued at five per cent, there is a sufficient consideration for the reduction of the interest to five per cent., and more than that amount cannot be collected for the whole period from the date of the agreement in writing.</p> <p>An agreement to.extend the time of payment of an overdue obligation must be based on a consideration, and such consideration may be a slight advantage to one party or a trifling inconvenience to the other.</p> <p>Where a lien of a mortgage is restricted to a particular piece: of land, an agreement to extend the time of payment after maturity at a less rate of interest, is based on sufficient consideration where it appears that the mortgagor binds himself to pay the amount due in installments at specified dates.</p>

<p>Appeal, No. 37, March T., 1916, by defendant, from order of C. P. Luzerne Co., Jan. T., 1915, No. 237, discharging rule to set aside claim for exemption in case of Miles F. Bixler Co. v. F. P. Kennedy, Defendant, W. L. Pace and First National Bank of Pittston, Garnishee.</p> <p>Rule to set aside claim for exemption. Before Woodward, J.</p> <p>Prom the record it appeared that November 13, 1912, the plaintiff sold to the defendant, P. P. Kennedy, a lot of jewelry and a show case, which was shipped by express to the defendant from Cleveland, Ohio; on November 22,1912, received by the defendant and a payment made by him on account.</p> <p>Subsequently the defendant sold his entire stock of goods in bulk to Jacob Wolf. No notice of the sale was given to the plaintiff, as required by the Act of March 28, 1905, P. L. 62, 5 P. D. 5991. Defendant gave a list of his creditors and their addresses to Wolf.</p> <p>The moneys derived from the sale of the defendant’s goods to Wolf were placed in the hands of W1 L. Pace,' as garnishee, who distributed a portion of the moneys received to various creditors of the defendant.</p> <p>The plaintiff, Miles F. Bixler Company, not having been paid a balance of their bill, brought suit against the defendant in the Court of Common Pleas of Luzerne County to No. 113, October Term, 1913, and recovered a judgment for $99, with interest and costs.</p> <p>On this judgment an attachment execution was issued on the 12th day of December, 1914, and the balance of the moneys remaining in the hands of W. L. Pace was attached, he was summoned as garnishee, and to the interrogatories served upon him he answered that there was still in his hands as attorney and agent for the defendant, P. P. Kennedy, a balance of $213.61, to protect which, defendant, Kennedy, claimed the benefit of the provisions of the act of assembly exempting property to the value of three hundred dollars from levy and sale on execution or distress for rent.</p> <p>The court discharged the rule for exemption.</p> <p>Error assigned was the order of the court.</p>

<p>Appeal, No. 136, April T., 1916, by defendant, from judgment of Q. S. Crawford Co., Sept. T., 1915, No. 33, on verdict of guilty in case of Commonwealth v. Joe Bone, et al.</p> <p>Indictment for arson. Before Prather, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>At the trial Elizabeth Birchard, a witness for the Commonwealth, was askfed this question:</p> <p>Q.—Where do you live, Mrs. Birchard?</p> <p>A.—In Cambridge Springs.</p> <p>Q.—What is your business or occupation?</p> <p>A.—I am a public stenographer and just now a school teacher.</p> <p>Q.—State whether or not you acted as stenographer and took the testimony of witnesses at the preliminary hearing in the case before M. H. Luce, the case of Commonwealth v. Joe Bone and Abe Bone?</p> <p>A.-—I did.</p> <p>(Paper marked as Commonwealth’s Exhibit “L.”)</p> <p>Q.—I show you Commonwealth’s Exhibit “L” and ask you if this is a correct transcript of the testimony that was taken there by you?</p> <p>A.—Yes,'sir; it is.</p> <p>By Mr. Best:</p> <p>Q.—Did you transcribe the testimony yourself?</p> <p>A.—Yes, sir.</p> <p>I now offer in evidence the testimony of Laslow Sermitzsky, taken in the preliminary hearing before M. H. Luce, the squire, before whom the case was heard.</p> <p>By Mr. Best: The objection is as to the competency of testimony taken by a stenographer employed by the Commonwealth before a magistrate, which is not a court of record, being introduced and read at the trial of this case. We claim that the Commonwealth could have had this witness here if they so desired and given us an opportunity to cross-examine him on a great many things we have ascertained since he testified at the hearing before the magistrate.</p> <p>By the Court: This man wasn’t subpoenaed, was he?</p> <p>By Albert Thomas: He was subpoenaed for the September Sessions and didn’t come at that time.</p> <p>Objection overruled and bill of exceptions sealed for the defendants.</p> <p>By Mr. Best: This testimony wasn’t taken by anyone appointed by the court, or any sworn officer of the court, and if the notes of testimony are introduced, they should be read by the person at least who took them.</p> <p>Objection overruled and bill of exceptions sealed for the defendants. (17)</p> <p>Verdict of guilty upon which judgment of sentence was passed. Defendant appealed.</p> <p>Errors assigned were various rulings on evidence, including the seventeenth as above, quoting the bill of exceptions and (22) in refusing binding instructions for defendant.</p>

<p>Appeal, No. 28, April T., 1916, by defendant, from judgment of C. P. Venango Co., Aug. T., 1913, No. 6, on verdict for plaintiff in case of Charles Szawcunas v. Oil Well Supply Company.</p> <p>Trespass to recover damages for personal injuries. Before Criswell, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $1,352.75. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for defendant.</p>

<p> Appeals—Attachment for contempt—’Review—Certiorari. </p> <p>On an appeal from an order in an attachment for contempt, the appellate court must treat the proceeding as in the nature of a certiorari, and will not review the case upon its merits, or consider the testimony.</p> <p>Contempt of court—Disobedience of order of court—Review— C ontracts—Monopolies—Parties.</p> <p>In reviewing an order in an attachment for contempt where it appears that the contempt charged was in violation of an injunction previously entered, the appellate court will not concern itself with the rightfulness of the decree entered in the original proceedings.</p> <p>Where an injunction is granted against a corporation and its officers and agents, and certain persons interested as stockholders and officers in the company form another corporation, but with some other persons-added as members, and the new company conducts its business in the same way as the old company, and in violation of the terms of the decree, all the persons in the old company who have participated in the organization of the new company, and the additional members, who have knowledge of .the decree, will be bound by the decree, and may be attached for contempt for violating it.</p> <p>Where the complainant in an equity suit is a New Jersey corporation, and after a decree is entered, another corporation is organized in Pennsylvania with the same name, and with the same members, and the Pennsylvania company is merely used as an agent for conducting the New Jersey business in Pennsylvania, and contracts are taken in the name of the Pennsylvania company for the use of the New Jersey company, the latter company may be a proper party to institute contempt proceedings against the defendants who had been enjoined from violating the conditions of such contracts, and who had disobeyed the decree of the court.</p> <p>Where a decree in a suit in equity enjoining the defendants from violating the conditions under which certain trading stamps and trading stamp books belonging to the plaintiff had been delivered to the defendants, is violated by the defendants, the latter cannot in attachment proceedings against them, claim that the contracts in question violated the antitrust statutes of the United States. Such contracts do not concern the buying and selling of articles of general commerce, but merely relate to things in the nature of personal contracts.</p>

<p>Boroughs—Annexation of land—Statutes—Repeal of statutes— Acts of May 11,1901, P. L. 177, and June 1,1915, P. L. 66\.</p> <p>• Where proceedings are instituted under the Act of May 11, 1901, P. L. 177, and a decre.e is entered separating land from a borough and annexing it to another borough, and' this decree is opened to permit exceptions to be filed to the findings of fact and conclusions of law, but before any disposition is made of such exceptions and before an auditor is appointed to adjust the fiscal matters as provided by Section 3 of the act, the Act of June 1, 1915, P. L. 664, is passed, repealing the Act of May 11,’ 1901, P. L. 177, an order entered after the date of the repealing act, reinstating the original decree, has no effect, inasmuch as the whole proceeding falls, in the absence of a final decree, with the repeal of the act.</p> <p>Proceedings which depend for their validity on a statute fall when the statute is repealed, unless such proceeding has ripened into a judgment or final decree.</p>

<p> Railroads—Eminent domain—Damages—Delay. </p> <p>Where a railroad company takes land under the right of eminent domain, the company is immediately liable for the damages occasioned by 'such appropriation, and if there is any delay in payment, the landowner is prima facie entitled to damages for such delay unless that right is defeated by some act of his own; but to entitle a recovery for damages for delay, it must appear in the evidence that there was in fact delay.</p> <p>In such a case it is reversible error for the court to instruct the jury that they may allow damages for delay where there is no evidence whatever indicating when the land was taken, or when the railroad was built, or any evidence of delay.</p>

Appeal, No. 79, April T., 1916, by defendant, ’ from judgment of C. P. Westmoreland Co., Feb. T., 1915, No. 6, on verdict for plaintiff in case of Mary Grandison v. J. N. Gregg. Feigned issue to determine ownership of goods taken in execution. Before Doty, P. J. At the trial-it appeared that the property in question was mainly household goods claimed by the plaintiff. The evidence in favor of the plaintiff is summarized in the opinion of the Superior Court.

Appeal, No. 79, April T., 1916, by defendant, from judgment of C. P. Westmoreland Co., fi. fa. No. 6, on verdict for plaintiff in case of Chalmers Remaley v. J. N. Gregg. Feigned issue to determine the ownership of three horses, a sled and a set of harness taken in execution as the property of Walter Grandison.

<p> Execution—Interpleader—Failure to pay appraisement fee—Replevin. </p> <p>Where property levied upon by execution process as the property of the defendant in a judgment is claimed by a third party, but the claimant refuses to pay to the sheriff the $4.00 appraisement fee provided by the Act of May 26, 1897, P. L. 95, as amended by the Act of May 8, 1909, P. L. 475, and the sheriff sells the property, the claimant is not barred .by his refusal to pay the fee from maintaining an action of replevin against the purchaser of the property in question.</p>

<p>Appeal, No. 39, April T., 1916, by plaintiff, from judgment of C. P. Allegheny Co., Feb. T., 1908, No. 142, on verdict for defendants in case of M. H. Pickering Company v. Mamie Lichenstein, Executrix of H. Lichtenstein, deceased, and Jacob Altman, et al.</p> <p>Replevin for goods leased. Before Carnahan, J.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>Verdict and judgment for defendants. Plaintiff appealed.</p> <p>Error assigned was refusal to enter judgment for plaintiff n. o. v.</p>

<p> Insurance—Fire insurance—Proofs of loss—Inventory. </p> <p>Where a policy of fire insurance covering personal property in a hotel provides that the insured upon the happening of a fire shall give immediate notice thereof to the company, shall make a complete inventory with cost of each article, and within sixty days file sworn proofs of loss showing the origin of the fire, interest of the insured, encumbrances and other matters, the filing of an inventory with the company will not take the place of the proofs of loss, and if the latter are not filed within the sixty days the insured cannot recover from the company.</p>

<p>Appeal, No. 76, April T., 1916, by Mary Sebillo, from decree of O. C. Allegheny Co., March T., 1915, No. 72, dismissing exceptions to adjudication in Estate of Anthony Schillo, deceased.</p> <p>Exceptions to adjudication.</p> <p>The opinion of the Superior Court states the facts.</p> <p>Errors assigned were in dismissing exceptions to adjudication.</p>

<p>Appeal, No. 87, April T., 1916, by defendant, from order of C. P. Allegheny Co., July T., 1915, No. 2514, refusing appeal from. County Court in case of Ella Marshall v. William Levy.</p> <p>Petition for an appeal from the judgment of county court of Allegheny County.</p> <p>Error assigned was in discharging petition for a rule to show cause why an appeal should not be allowed or judgment non obstante veredicto be entered.</p>

<p> Decedents’ estates—Debts due decedent—Bight of heirs to sue in their own name. </p> <p>One of two sisters, only children of a decedent, has no right to maintain an action at law to recover one-half of a sum of money alleged to have been wrongly paid out by an agent of the deceased, where the plaintiff shows no title from decedent in the latter’s lifetime to any part of the money sought to be recovered, nor that the money had been allotted' to her since the decedent’s death under any family arrangement.</p>

<p>Appeal, No. 151, April T., 1916, by defendant, from judgment of County Court of Allegheny Co., No. 142 of 1916, sustaining judgment of justice of the peace in case of Commonwealth v. James H. Aiken.</p> <p>Appeal from judgment of justice of the peace.</p> <p>Miller, J., filed the following opinion:</p> <p>This is an appeal by the defendant from the judgment of a justice of the peace in a proceeding instituted under the Act of Assembly of May 18, 1911, P. L. 309, known as The School Code, and particularly under Sections 1414 (page 383) and 1423 (page 386) of said act, providing for the compulsory education of the children of this Commonwealth and the punishment of persons having control of such children who fail to comply with the provisions thereof. Said Section 1414 is as follows:</p> <p>“Every child having a legal residence in this Commonwealth, as herein provided, between the ages of eight and sixteen years, is required to attend a day school in which the common English branches provided for in this act are taught; and every parent, guardian, or other person in this Commonwealth, having control or charge of any child or children, between the ages of eight and sixteen years, is required to send such child W children to a day school in which the common English branches are taught; and such child or children attend such school continuously through the entire term, during which the public elementary schools^ in their respective districts shall be in session: Provided, That the certificate of any principal or teacher of a private school or of any institution for the education of children in which the common English branches are taught) setting forth that the work of said school is in compliance with, the provisions of this act, shall be sufficient and satisfactory evidence thereof. Regular daily instruction in the English language, for the time herein required, by a properly qualified private tutor, shall be considered as complying with the provisions of this section, if such instruction is satisfactory to the proper county or district superintendent of schools.”</p> <p>And said Section 1423 is as follows':</p> <p>“Every parent, guardian or person in parental relation in this Commonwealth, having control or charge of any child or children, between the ages of eight and sixteen years, who shall fail to comply with the provisions of this act regarding compulsory attendance, shall be guilty of misdemeanor, and on conviction thereof before any alderman, magistrate or justice of the peace, shall be sentenced to pay a fine, for the benefit of the school district in which such offending person resides, not exceeding two dollars ($2.00) for the first offense, and not exceeding five dollars ($5.00) for each succeeding offense, together with costs, and, default of the payment of such fine and costs by the person so offending, shall be sentenced to the county jail for a period not exceeding five days.”</p> <p>The casé was heard ele novo.. The facts as developed at the trial are as follows: The defendant is the father of, and has control and charge of a child, a girl between eight and sixteen years of age, living in the school district of the Borough of Ingram in this county and State ; that the said child was not attending a day school where tfie common English branches were taught as provided in said act, and had not'been attending such a school since September, 1915; that he did not produce a certificate of any principal or teacher of a private school, or of any institution for the education of children in which the common English branches are taught, setting forth that the work of said school is in compliance with the provisions of the above act; that there was no evidence that said child was or had been receiving instructions in the English language by a properly qualified private tutor, and that defendant received due notice of his failure to comply with said act. The defendant did not go upon the stand, neither did he offer any testimony in his defense. It appeared in the evidence on the part of the prosecution that after the child had attended the public school in said district for a period of eight days in September, 1915, she was sent home by the principal of said school and was refused admission by him because a certificate was not produced setting forth that she had been vaccinated or had previously had smallpox, and also that she presented herself to said school again on January 24, 1916, and was again refused admission by , said principal for the same reason. It also appeared from the evidence that the board of school directors of said district had not excused said child from attending school bn account of any mental, physical or other reasons. _ •</p> <p>The question for our determination upon the above stated facts is whether the defendant is guilty of a failure to comply with the provisions of said act regarding compulsory attendance and education of his child. The contention of the defendant is that he complied with said provisions of the act when he sent his child to the public school, where she was réfused admission by the principal on account of a failure to produce a physician’s certificate of successful vaccination or of having previously had smallpox.</p> <p>The principal of the school refused to admit the child in pursuance of Section 12, of the Act of Assembly of June 18, 1895, P. L. 207, which provides as follows:</p> <p>“All principals or other persons in charge of schools as aforesaid are hereby required to refuse the admission of any child to the schools under their charge or supervision, except upon a certificate signed by a physician, setting forth that such child has been successfully vaccinated, or that it had previously had smallpox.”</p> <p>That the principal had a right to refuse to admit the child cannot now be questioned. Said act has not been passed upon by either of our appellate courts, however; a number of our lower courts have done so with approval: Nissley v. School Directors, 5 D. R. 732; Sprague v. Baldwin, et al., 18 Pa. C. C. R. 568.</p> <p>The State, in the interest of society and for the preservation of government, has passed the compulsory educational laws for its children, which cannot be avoided or frustrated because the parents, or other custodians, of some of them may be opposed to vaccination. A person having charge or control of a child of, school age in this State must send it to the public school, oc other institution of learning where the required branches are taught, and there present a certificate of successful vaccination, pr send it to a proper private school where no principal is in charge requiring such certificate, or give it 'proper instructions by a properly qualified tutor, or, upon failure to do any of these, subject himself to the punishment provided by said act. The question, as we' view it,, is not one of compulsory vaccination^ but one of compulsory education: A person having charge of a child of school age, in normal health and physical condition, may escape the former, but cannot escape the latter. He may escape having his child vaccinated by sending it to a proper private school, or have it instructed by a qualified private tutor. It may be' said that this is an invasion of his rights, and puts an additional burden and hardship upon him. He has his choice, and if he does not believe in vaccination he must endure the additional burden. The great importance of compulsory education cannot be overestimated,- and the right of the legislature to pass such a law as provided in said Act of 1911, cannot be successfully questioned. Neither can it be questioned that, in the interest of public health and for the purpose of preventing epidemics -of smallpox, the legislature acted within its powers in passing said Act of June 18, 1895. If one feels that these acts, construed either together or separately, invade his rights, yet, in the interest of society, he must submit to them. In this connection we quote from the opinion of the Supreme Court of the United States in the case of Jacobson v. Massachusetts, 197 U. S. 11, in which it was decided that the legislature of a state had a right to pass a compulsory vaccination law (page 26):</p> <p>“There are manifold restraints to which every person is necessarily subject for the common good. On any other basis organized society could not exist with safety to its members. Society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy. Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of Ms person or his property, regardless of the injury that may be done to others. This court has more than once recognized it as a fundamental principle that ‘persons and property are subjected to all Mnds of restraints and burdens, in order to secure the general comfort, health, and prosperity of the State; of the perfect right of the legislature to do which no question ever was, or upon acknowledged general principles ever can be made, so far as natural persons are concerned.’...... The possession and enjoyment of all rights are subject to such reasonable conditions as may be deemed by the governing authority of the country essential to the safety, health, peace, good order and morals of the community. Even liberty itself, the greatest of all rights, is not unrestricted license to act according to one’s own will. It is only freedom from restraint under conditions essential to the equal enjoyment of the same right by others. It is then liberty regulated by law.”</p> <p>It must be admitted that there has been some confusion in our State in the construction placed by its courts upon the former acts of assembly of this State relating to compulsory education, namely, the Acts of 1895, 1897 and 1901—the compulsory attendance features of which were somewhat similar to each other and are retained and enlarged in the present Act of 1911—when construed with said vaccination Act of 1895: We have not been referred by counsel to, nor have we found, any Supreme or Superior Court case in the State construing them, but there' are several Common Pleas and Quarter Sessions Court cases which have done so: The said case of Sprague v. Baldwin, et al., 18 Pa. C. C. 568, holds that the compulsory education Act of 1895 and said vaccination act must be construed together so as to give effect to both, while the case of Commonwealth v. Smith, 9 D. R. 625, holds that the compulsory education Act of 1897 and said vaccination act cannot be construed so as to give effect to both, and so does the case of Commonwealth v. Bauman, 33 P. L. J. 109, as to the educational Act of 1901. The last two cases are based upon the ground that to construe the acts so that both would stand meant compulsory vaccination. This appears on page 627 in the Smith case as follows:</p> <p>“In order to sustain this judgment, we must say that the defendant was obliged by the terms of the statute to procure, and his son to present, a certificate. We cannot say this.”</p> <p>And in the Bauman case, on page 110:</p> <p>“These acts are not in pari materia, and, even if they were, there is nothing in them, either separately or read together, which can reasonably be construed to make the vaccination of school children compulsory.”</p> <p>We hold that said vaccination act and the compulsory educational feature of the School Code of 1911 should be construed so as to give effect to both, and this may be done, as stated above, not by necessarily compelling vaccination of the child, but by giving it private instructions.</p> <p>We find a case very strongly supporting our position decided by the Court of Appeals of New York on June 2, 1914, People v. Ekerold, reported in 211 N. Y. 386, in which the statutes involved and the facts presented are very similar to those under consideration. In the syllabus of that case we find:</p> <p>“The law requiring vaccination of children in the public schools is a proper one. When a father sends his child .to school unvaccinated, and the school authorities refuse to allow said unvaccinated child to attend school, and the father refuses to permit vaccination and thereafter does not cause said child to attend on instruction as provided in the act, he is subject to the penalty provided.” 1</p> <p>The case seems to go to the extent of holding that vaccination may be compelled, but it also sustains its finding upon the ground that the defendant also had his choice of educating his child without incurring the condition of having it vaccinated. As to this feature of the case, we find on page 394 the following:</p> <p>“There is still another reason why the defendant was not excused for disobedience of the law requiring him to see to the education of his child. The vaccination statute which we have been considering applies only to the public schools. It is well known that there are schools of other kinds ,and classes which might have been attended by the defendant’s child where attendance would not have been subject to the condition which he now urges as an excuse for his failure to send his child to school. It is answered in his behalf to this suggestion that that would entail expense. This might or might not be so, and even if it were it would not be sufficient to excuse the present position and situation of the defendant. We aré made well aware at the present day that the government in the exercise of its police powers does impose many regulations which involve trouble and expense, and such trouble and expense have not been regarded as an excuse for noncompliance. If the defendant does not desire to take advantage of the public schools under the conditions prescribed for their operation, it very possibly may result that he will incur some additional trouble in the education of his children elsewhere. The choice of courses rests with him, and the burden of either will doubtless be fully compensated by the benefits to accrue from furnishing an education to his children.”</p> <p>Said case so fully and completely answers all the questions that have been raised in the case under consideration that we feel that we are justified in quoting liberally from it. (Page 391):</p> <p>“It is obvious that a parent should not be allowed to escape his duty to send his children to school as. provided by law on any excuse which is not an ample justification for such course. Our. public school system has been developed with great pains and solicitude, and its maintenance and support have been recognized as so important for the welfare of the State that they have been provided for and safeguarded in the Constitution itself. As a part of this system, a statute has been passed requiring attendance at school of children within certain limits. If indifferent or selfish parents for ulterior purposes, such as the desire to place young children at labor instead of school, or from capricious or recalcitrant motives, may be allowed to manufacture easy excuses for not sending their children to school, a ready method will have been developed for evading the statute compelling such attendance, and if the statute which requires parents to see to it that their children attend and take advantage of this school system may be lightly and easily evaded, the purposes of the State in providing and insisting on education will be frustrated and impaired. Failure to comply with the statute ought not to be excused except for some good reason.......But it is urged that while this law may properly be applied to those who, .in the face of its provisions, elect to attend the public schools, still it is of such a character that its remedies ought not to be indirectly'forced upoii any unwilling person through the compulsory attendance provisions of the education law, and we are .reminded of the familiar principle that a penal law should be strictly construed. Admitting all of the-force which this principle justly has, there is another rule of construction which seems to me more potent in this case, and that is the one that statutes relating to the same general subject are to be construed in harmony with each other if possible.......We find that the legislature adopted the statute providing for compulsory attendance at school the very next year after it had passed the statute requiring vaccination of those attending the public schools, and it does not seem reasonable to assume that it was the legislative intention in passing both of these statutes relating to attendance at school to provide and have it come to pass that unwillingness to comply with the one requiring vaccination might be turned into a good excuse for disobeying the other one concerning attendancé. It is hardly to be assumed that when the legislature passed the later statute there had slipped from its theo-' retical mind remembrance of the other law providing a very condition of attendance at public school, and if it had purposed that a child might be excused from attendance by reason of the unwillingness of its parent to have it vaccinated, I cannot but believe that something would have been said on that subject. It does not require much spirit of prophecy to foresee what will follow a contrary construction of the statutes. If a parent may escape all obligation under the statute requiring bim to send Ms children to school by simply alleging that he does not believe in vaccination, the policy of the State to give some education to all children, if necessary by compelling measures, will become more or less of a farce under existing legislation.”</p> <p>Authorities of other states might be multiplied in support of our position, many of which have enacted laws, sustained by their courts, making the vaccination of children a condition of their right to enter or remain in public schools: Jacobson v. Massachusetts, 197 U. S. 11, supra. See also Walker v. Cummings, 10 L. G. R. 728, and Duffield v. School District, 162 Pa. 476.</p> <p>And now, to wit, March 22, 1916, the above case having been heárd upon an appeal from a justice of the peace, testimony taken and arguments of counsel heard, after deliberation and due consideration, we find the defendant guilty of the offense of failure to educate and send his child to a school where the common English branches are taught, contrary to the provisions of the act of assembly, known as the school code, approved May 18, 1911, P. L. 309. The defendant is sentenced to pay a fine of two dollars, with costs, and in default of the payment thereof to undergo imprisonment in the county jail for a period of two days. It appearing, however, that a similar fine with costs was paid by the defendant (under protest) to the justice of the peace, said sentence is suspended.</p> <p>Error assigned was the judgment of the court as above, quoting it.</p>

<p>Appeal, No. 138, April T., 1916, by defendant, from judgment of Q. S. Somerset Co., May Sessions, 1915, No. 40, on Verdict for plaintiff in case of Commonwealth v. R. L. Byrd.</p> <p>Indictment for practicing medicine without a license in violation of the Acts of June 3, 1911, P. L. 639, and July 25,1913, P. L. 1220.</p> <p>The indictment charged that the defendant did wrongfully and unlawfully publicly profess to be a physician and surgeon, and did publicly profess to cure and heal diseases, nervous disorders, displacements, injuries, and ailments by means of a certain system and treatment having the spine for a base, known as Drugless Therapy and Chiropractic, without having first received a certificate of licensure from the Bureau of Medical Education and Li-censure and having such license properly recorded in the office of the superintendent of Public Instruction at Harrisburg, contrary to the form of the act of assembly in such case made and provided and against the peace and dignity of the Commonwealth of Pennsylvania.</p> <p>The evidence supported the averments of the indictment.</p> <p>Verdict of guilty upon which the defendant was sentenced to pay a fine of f 1 and costs.</p> <p>Error■ assigned was in entering judgment on the verdict.</p>

<p> Libel—Civil action—Innuendo—Province of court and jury. </p> <p>Where words are of dubious import, the plaintiff in an action for libel may aver' their meaning by innuendoes and the truth of the innuendoes i_s for the jury; but the quality of an alleged libel as it stands on the record either simply or explained by averments and innuendoes is purely a question of law for the court, and in civil cases it is reversible error for the court to fail to instruct the jury as to whether the publication is libelous supposing the innuendo to be true.</p> <p> Libel—Evidence—Mitigation of damages. ^ </p> <p>In an action for libel the defendant may under a plea of not guilty prove in mitigation of damage_s the facts and circumstances which induced the writer to erroneously make the charge, provided such facts and circumstances do not tend to prove the truth of the charge made.</p>

Appeal, No. 127, April T., 1916, by defendants, from order of C. P. Cambria Co., March T., 1915, No. 534, discharging rule to open judgment in case of Miller & Costlow v. S. E. Baker and the Globe & Rutgers Fire Insurance Co', of New York. Rule to open judgment. The opinion of the Superior Court states the case. Error assigned was order discharging rule to open judgment.

<p>Appeal, No. 146, April T., 1916, by Allemannia Fire Ins. Co. of Pittsburgh, from order of C. P. Allegheny Co., Jan. T., 1914, No. 2151, discharging rule to mark judgment to use in case of James H. Irons and H. M. Irons, Executors of and Trustees under will of Rachel D. Shannon, deceased, v. City of Pittsburgh.</p> <p>Rule to mark judgment to use. Before Brown, J.</p> <p>Prom the record it appeared that on January 4, 1916, The Allemannia Fire Insurance Company presented a petition, upon which a,rule was granted on the executors and trustees under the will of Rachel D. Shannon (who died August 19, 1912), to show cause why a verdict entered October 20, 1915, in favor of plaintiffs, should not be marked to petitioner’s use.</p> <p>• The insurance company was a holder of two mortgages aggregating $5,500 executed by Rachel D. Shannon— one dated November 12, 1908, the othér, December 2, 1909. By foreclosure proceedings upon the mortgages, at. the suit of the company, the property was sold at sheriff’s sale and purchased by it March '6, 1914, for $706.51. Thereafter it received a deed from the sheriff.</p> <p>In the meantime—between the dates of the mortgages in 1908 and 1909 and the sheriff’s sale in March, 1914, the-ordinance of the City of Pittsburgh of April 20,1911, relating to change of grade of the street and alley (upon which the property fronted) was passed and contract for the work let. The work began June 6,1911; and thereafter, on its completion, viewers were appointed at No. 417, April Term, 1913, to assess the damages caused by the change of grade.</p> <p>On November 21, 1913, the viewers filed their report. No damages were awarded the Shannon estate. From this report the executors and trustees took an appeal, and ' October 20,1915, recovered a verdict for $750.</p> <p>The court discharged the rule.</p> <p>Error assigned was the order of the court.</p>

<p>Appeal, No. 114, April T., 1916, by plaintiff, from decree of C. P. Allegheny Co., Jan. T., 1915, No. 614, refusing a divorce in case of John J. Mamaux v. Julia V. Mamaux.</p> <p>Libel for divorce on the ground of cruel and barbarous treatment.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>Error assigned was the decree of the court refusing-divorce.</p>

<p>Hoad law—Paving portion of public road in borough—Assessments on abutting owners—Liability pf borough—County road— Act of May 11,1911, P. L. £44.</p> <p>Where the county commissioners of a county and the authorities of a borough cooperate to pave a width of sixteen feet of a public road extending through the borough, under the Act of May 11,1911, P. L. 244, and agree that the county shall pay two-thirds of such improvement and the borough pay one-third thereof, abutting owners although they petitioned for the improvement, cannot be assessed for the one-third cost thereof payable by the borough.</p> <p>In such a case where the borough at the same time improves the portion of the road or street outside of the strip of sixteen feet paved, the borough may impose the cost of the latter improvement upon the abutting owners, but in proceedings to assess benefits, the width of the road outside of the strip of sixteen feet paved, must be made to appear as also the cost of the improvement outside the limit of such strip, so that no portion of the cost of paving the strip shall be -imposed upon the abutting owners.</p>

Appeals, by Ada Lowry, et al., from decree of O. C. Somerset Co., at No. 128, 1912, overruling exceptions to auditor’s report in Estate of A. N. Tissue. Exceptions to report of P. A. Holbert, Esq., auditor. The opinion of the Superior Court states the case. Errors assigned were in overruling exceptions to. auditor’s report.

Appeal, No. 110, April T.¿ 1916,' by plaintiff, from decree of C. P. Allegheny Co., Jan. T., 1915, No. 1034, dismissing libel for divorce in case of J. H. Reid McCampbell v. Mary E. McCampbell. Libel for divorce. The facts appear.by the opinion of the Superior Court. Error assigned was- in dismissing the libel.

<p>Appeal, No. 2, March T., 1917, by defendant, from order of Public Service Commission, Complaint Docket No. 295, in case of Glen Rock Motor Club v. The York & Maryland Line Turnpike Company.</p> <p>Petition by the Glen Rock Motor Club against the York & Maryland Line Turnpike Company to compel the company to put its road in good traveling condition.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was the following order: Now, to wit, January 26, 1916, It is ordered: That the York and Maryland Line Turnpike Company shall reconstruct the route named in its charter in accordance with the terms therein specified within six months from the date hereof and thereafter maintain the same as provided in said charter.</p>

<p>Appeal, No. 14, April T., 1916, by defendant, from judgment of C. P. Allegheny Co., Nov. T., 1909, No. 689, on verdict for plaintiffs in case of David Wahl and Bridget Wahl, his wife, v. Mc-Kees Rocks Borough.</p> <p>Trespass to recover damages for personal injuries. Before Macfarlane, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for David Wahl for $550 and for Bridget Wahl for $1,000. Defendant appealed..</p> <p>Error assigned was in refusing binding instructions for defendant.</p>

Appeal, No. 125, April T., 1916, by defendant, from judgment of C. P. Allegheny Co., Jan. T., 1915, No. 484, on verdict for plaintiff in case of H. Q. Walker v. Vet L. Brown. Assumpsit to recover commissions on the purchase of real estate.

<p>Appeal, No. 141, April T., 1916, by defendants, from order of C. P. Allegheny Co., April T., 1916, No. 910, discharging rule to strike off lien in case of Ben Avon Borough v. Eliza M. Crawford Estate, et al.</p> <p>Rule to strike off municipal lien. Before Hay-maker, J.</p> <p>The case turned upon the constitutionality of the Act of May 28, 1907, P. L. 287.</p> <p>Error assigned was order discharging rule to strike off lien, and in making absolute rule for judgment for want of a sufficient affidavit of defense.</p>

<p> Master and servant—Contract to sell securities—Exclusive right to sell—Compensation—Written contract—Signature. </p> <p>In an action to recover compensation for the sale of securities— based upon a written agreement by which the defendants gave to the plaintiff “the exclusive option on the sale of all the stock for and during the term of ninety days from date,” it is immaterial that the plaintiff did not formally sign the contract, if it appears that the defendants sign it, and that the plaintiff acted in concert with them in carrying out its provisions.</p> <p>In such a case the plaintiff is entitled to recover compensation for all the stock sold, although the defendants may have voluntarily negotiated some of the sales within the term of ninety days provided in the agreement.</p>

Appeal, No. 134, April T., 1916, by defendant, from judgment óf C. P. Allegheny Co., July T., 191Ó, No. 831, on verdict for plaintiff in case of Trivan Lazic v. The National Croatian Society of the United States of America, et al. Petition for mandamus. At the trial the jury by direction of the court returned •a verdict for plaintiff.

Appeal, No. 109, April T., 1916, by defendants, from decree of C. P. Allegheny Co., April T., 1915, No. 1222, on bill in equity in case of Emma L. Smith v. Mary Ridge, et al. Bill in equity for an accounting of rents. Before Brown, J. The opinion of the Superior Court states the case. Error assigned was decree awarding share of rents to complainant.

Appeal, No. 83, April T., 1916, by defendant, from judgment of C. P. Allegheny Co., April T., 1914, No. 158, on verdict for plaintiff in case of Walter F. Betcher v. Joseph Rinaman. Trespass to recover damages for personal injuries. Before Evans, J. The facts are stated in the opinion of the Superior Court. Verdict and judgment for plaintiff for $771. Defendant appealed. Error assigned was in refusing binding instructions for defendant.

Appeal, No. 128, April T., 1916, by plaintiff, from judgment of C. P. Allegheny Co., Jan. T., 1915, No. 1251, on verdict for defendant in case of Charles F. Miller v. Judd H. Bruff. Assumpsit against the sheriff by a watchman to recover wages. Before Evans, J. At the trial plaintiff claimed that he had been employed by the sheriff’s chief deputy to act as a watchman over goods levied upon under a fi. fa.

Appeal, No. 58, April T., 1916, by Malinda Beegle, from decree of O. C. Allegheny Co., May T., 1915, No. 166, sustaining exceptions to adjudication in Estate of Calvin J. Beegle, deceased. The auditing judge, Miller, filed the following adjudication : The alleged first wife of the decedent and their children, file exceptions and contest the right of the alleged second wife of decedent, to share in the distribution of his estate.

Appeal, No. 112, April T., 1916, by defendant, from order of C. P. Allegheny Có., Oct, T., 1913, No. 2061, refusing to enter nonsuit in case of F. H. Groves Piano Company v. The Dalton Adding Machine Company. Assumpsit for breach of contract to lease. Before Evans, J. The opinion of the Superior Court states the case. I Errors assigned were as follows: 1.

Appeal, No. 94, April T., 1916, by plaintiff, from order of C. P. Allegheny Co., Fourth Term, 1910, No. 9, discharging rule for attachment for contempt in case of Lucille W. Moore v. Alexander P. Moore. Rule for an attachment for contempt for not paying alimony. The case turned upon the validity of an order awarding permanent alimony to a wife after an absolute divorce had been granted to her. Error assigned was order discharging rule for an attachment.

Appeal, No. 116, April T., 1916, by defendant, from judgment of 0. P. Mercer Co., Oct. T., 1913, No. 45, on verdict for plaintiff in case of C. H. Batteiger v. Pennsylvania Company. Assumpsit to compel the return of money found by plaintiff and given into the custody of the defendant. Before Holt, P. J. The opinion of the Superior Court states the facts. Verdict and judgment for plaintiff for $85.24. Defendant appealed.

Appeal, No. 119, April T., 1916, by defendants, from judgment of C. P. Lawrence Co., Dec. T., 1915, No. 99, for plaintiff on case stated in suit of Elizabeth McKee y. Lawrence Savings & Trust Company, Trustee in the Estate of Andrew Woods, deceased, Rosanna Berger, et al. Case stated to determine title to real estate. From the case stated it appeared that Andrew Woods from whom the defendants claimed title died on June 1, 1913, testate and without issue.

Appeal, No. 135, April T., 1916, by defendant, from judgment of C. P. Armstrong Co., Sept. T., 1912, No. 109, on verdict for plaintiff in case of Wade H. Mast v. Pennsylvania Railroad Company. Trespass to recover damages for the taking of a railroad siding and injury to a derrick. Before King, P. J. The opinion of the Superior Court states the case. Verdict and judgment for plaintiff for $600.

<p>Beneficial associations—Railroad relief department—By-laws— Benefits—Failure to withdraw suit.</p> <p>Where one of the rules of a beneficial society provides that in the event of suit to recover damages for the death of a member “payment of benefits from the relief fund shall not be made unless such claim shall be withdrawn or such suit shall be discontinued before the trial thereof or decision rendered therein” and the beneficiary declines her benefits, brings suit for damages and after jury sworn presents her evidence and closes her case and the court enters a compulsory nonsuit at the instance of the defendant, which upon motion of plaintiff filed the following day, the court takes off and permits the plaintiff to enter a voluntary nonsuit, the beneficiary cannot recover such benefits by a suit subsequently brought 'against the same defendant.</p>

<p>Appeal, No. 153, April T., 1916, by defendant, from judgment of C. P. Butler Co.,. Sept., T., 1914, No. 55] for defendant n. o. v. in case of School District of Butler Borough for use, I. J. Maharg, v. Penn Township School District.</p> <p>Appeal from judgment of justice of the peace.</p> <p>Assumpsit for tuition, text books and supplies furnished a pupil resident in Penn Township. Before Reiber, P. J.</p> <p>Verdict for plaintiff for $36. The court entered judgment for defendant n. o. v.</p> <p>Error assigned was in entering judgment for defendant n. o. v.</p>

<p>Appeal, No. 121, April T., 1916, by plaintiff, from order of C. P. Butler Co., March T., 1916, No. 86, entering judgment for defendant n. o. v. in case of First National Bánk of Swissvale v. Thomas H. Greer, et al.</p> <p>Assumpsit on a guaranty of notes. Before Holt, P. J. At the trial it appeared that the defendants agreed to guarantee notes of the Household Manufacturing Company to the amount of $1,500, which might be discounted by the plaintiff. The notes in controversy were in the following form:</p> <p>$200.00 Swissvale, Pa., March 24,1915.</p> <p>Three months after date we promise to pay to the order of W. H. Bridenthal, Geo. F. Sherman and H. A. Keen Two Hundred........................00/100 Dollars At The First National Bank.</p> <p>Without defalcation for value received.</p> <p>The Household Manufacturing Co. (Corporate Seal)</p> <p>Household</p> <p>By Geo. F. Sherman, President. Due Ner. Manufacturing Incorporated 1912</p> <p>Delaware</p> <p>(Reverse side.)</p> <p>Endorse here—</p> <p>W. H. Bridenthal</p> <p>Geo. F. Sherman</p> <p>H. A. Keen, Sec.</p> <p>EXHIBIT “B”</p> <p>$500.00 ' Swissvale, Pa., April 7,1913.</p> <p>Three months after date we promise to pay to the order of Ourselves</p> <p>Five Hundred........................00/100 Dollars</p> <p>At The First National Bank.</p> <p>Without defalcation for value received.</p> <p>(Corporate Seal)</p> <p>Household Mfg. Co. Household</p> <p>By Geo. F. Sherman, Pres. Manufacturing</p> <p>W. H. Bridenthal. Company</p> <p>Due, R. Null. Incorporated 1912 Delaware</p> <p>(Reverse, side.)</p> <p>Endorse here—</p> <p>Household Manufacturing Co.,</p> <p>Geo. F. Sherman, Pres.</p> <p>W. H. Bridenthal, Treas.</p> <p>H. A. Keen, Sec.</p> <p>The court charged in part as follows:</p> <p>The defendants, gentlemen, who guaranteed to pay the notes, or such obligations as are mentioned in the contract of guaranty, take the position that these notes were not executed in accordance with the terms written in his contract of guaranty, for you will notice that this contract of guaranty provides that any such notes “shall be executed by the said Household Manufacturing Company, signed by its president and attested by its secretary and bear the corporate seal of the said corporation.” Now, gentlemen of the jury, each of these notes is signed by the Household Manufacturing Company, by its president, George F. Sherman, and each note also bears the corporate seal of the Household Manufacturing Company, and the important matter for consideration in this case is whether or not these notes were attested by the secretary within the meaning of this expression in the contract of guaranty which I read to you. H. A. Keen, the secretary of the Household Manufacturing Company, testified in this case as a witness and he says that he was present when each of these notes was executed by the Household Manufacturing Company, by its president, George F. Sherman, and that he saw George F. Sherman, the president of the Household Manufacturing Company, sign each one of these notes, and he has also testified, I believe, or someone else in the case—you will recall whether it was Keen or someone else—that the execution of these notes had been authorized by the Household Manufacturing Company, and H. A'. Keen has testified that he, as secretary of the company, appended the corporate seal of the Household Manufacturing Company to each one of these notes by his own hand and that he also signed each note on the back thereof as secretary of‘the Household Manufacturing Company as its secretary for the purpose of attesting the execution of th'ese notes. Now, gentlemen of the jury, the evidence in this case is uncontradicted that the secretary was present and did see each of these notes signed by George F. Sherman, the president of the Household Manufacturing Company, and that he, H. A. Keen, acting as secretary of the company, did append the corporate seal of the Household Manufacturing Company to each of these notes, and that when he signed each note on the back thereof he signed as secretary in attestation of the execution of the notes, Where he signs on each note is under the words “Endorse here,” and in one of these notes, the two hundred dollar note, he is named as a payee. It is also undisputed, gentlemen of the jury, that the First National Bank of Swissvale, Pa., the plaintiff in this case, furnished the money represented by these notes to the Household Manufacturing Company and that the Household Manufacturing Company got the benefit of the proceeds .of these notes and used the same in its business. Now, gentlemen of the jury, we say to you that, inasmuch as the testimony is not disputed that H. A. Keen was present when these notes where executed, saw them executed by the president of the Household Manufacturing Company and as secretary appended the seal thereto, when he signed he signed for the purpose of attesting the execution of these notes. The mere fact that he has signed under the words on the back of each note “Endorse here” would be an immaterial matter in the case, and there being-no dispute, gentlemen, as to the facts in the case we say to you that in the opinion of the court these notes were substantially executed in compliance with the terms of the guaranty as to the execution by .the president, the appending of the corporate seal and the attestation of the secretary, inasmuch as. he has testified that he was present, saw them executed, appended the seal and signed his name on the back thereof as secretary for the purpose of attesting the fact of the execution of the notes. We, therefore, gentlemen of the jury, give binding instructions to you to return a verdict in this case in favor of the plaintiff for the amount represented by these two notes, with interest on the amount of each note from the time that it became due according to the terms of the note.</p> <p>Verdict for plaintiff for $736. Subsequently the court directed judgment to be entered for defendant non obstante veredicto.</p> <p>Error assigned was in entering judgment for defendant n. o. v.</p>

<p>Appeal, No. 140, April T., 1916, by defendant, from judgment of C. P. Butler Co., March T., 1916, No. 179, on verdict for plaintiff in case of Ira L. Sefton v. Baltimore & Ohio Railroad Company.</p> <p>Trespass to recover damages for personal injuries. Before Reiser, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $693.77. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for defendant.</p>

<p>Appeal, No. 95, April T., 1916, by plaintiff, from decree of C. P. Beaver Co., Sept T., 1914, No. 7, dissolving temporary injunction in case of Korato Vincenzo v. Concetta Korato, et al.</p> <p>Motion to dissolve temporary injunction.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was decree dissolving temporary injunction.</p>

Appeal, No. 118, April T., 1916, by plaintiff;, from judgment of C. P. Beaver Co., Dec. T., 1914, No. 378, for defendant n. o', v. in case of J. L. Conner v. Ambridge Borough. Assumpsit on a contract for the construction of a sewer. Before Holt, P. J. The facts are stated in the opinion of the Superior Court. Verdict for plaintiff for $1,006.00. Subsequently the court entered judgment for defendant n. o. v. Error assigned was in entering judgment for defendant n. o. v.

Appeal, No. 122, April T., 1915, by plaintiffs, from judgment of C. P. Allegheny Co., Oct. T., 1912, No. 1638, on verdict for defendants in case of Emilie R. Abraham', et al., Guardian of George W. Heer, et al., v. H. B. Yardum and Virginie H. Yardum, his wife. Head, J., dissents. Trespass to recover damages for injuries to property from leakage from a water pipe. Before Dávis, J. The facts are stated in the opinion of the Superior Court.

<p>Appeal, No. 78, Oct. T., 1915, by defendants, from judgment of Municipal Court Philadelphia Co., March T., 1914, No. 168, for plaintiff on case tried by the court without a jury in suit of The Edwin Forrest Home v. Mary C. Shattuck and Frank R. Shattuck.</p> <p>Assumpsit to recover taxes which plaintiff was conn pelled to pay. Before Knowles, J.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>Error assigned was in refusing judgment for defendant n. o. v.</p>

<p>Appeal, Nov. 294, Oct. T., 1915, by plaintiff, from judgment of O. P. Huntingdon Co., Sept. T., 1912, No. 7, on verdict for plaintiff in case of S. S. Bolinger v. Nathan Earnhardt.</p> <p>Trespass quare clausum fregit for the unlawful cutting of timber. Before Woods, P. J.</p> <p>The facts are stated in the opinion of the Superior Court,</p> <p>At the trial the following offer was made:</p> <p>By Mr. Woods: I offer Continuance Docket “M” No. 2, page 238, being the record of the suit of Samuel Bolinger against Abraham Bolinger brought June 23,- 1880. I offer the record in evidence.</p> <p>By Mr. Beers: What is the purpose?</p> <p>By Mr. Woods: J. Murray'Africa having testified on cross-examination that the land described in the disclaimer filed in this suit was the Samuel Bolinger one hundred and twelve acre tract, and the disclaimer showing it was for trespass upon that tract, I offer the record and all the pleadings in the case together with the declaration, and the verdict of the jury, the declaration being identified as Defendant’s Exhibit No. 2, M. J. for the purpose of showing that this matter is res ad judicata, as far as this line is concerned.</p> <p>By Mr. Beers: It is objected to. First. That this suit mentioned in the offer was a trespass suit brought by Samuel Bolinger against Abraham Bolinger, and in no way involved the title to land. It was for damages. Second. What the verdict was or the(ruling cause of that case, the verdict being rendered for the defendant in the suit, whether a nonsuit or whatever it may have been, is wholly immaterial in this suit. An action of trespass does not settle title, and this suit could in no way bind the present plaintiff, who is simply a successor in title to Samuel Bolinger, the plaintiff in the former action.</p> <p>By the Court: The objection is overruled. Evidence admitted. ■ Bill of exceptions sealed plaintiff. (15)</p> <p>S. D. Bolinger, a witness called by the plaintiff, was asked this question: ,</p> <p>Q-—(By Mr. Beers) In 1871 was there a partition of this land between John C. Bolinger, your father, and Samuel Bolinger?</p> <p>By Mr. Woods: We object.</p> <p>By the Court: Where are the records.</p> <p>By Mr. Beers: I propose to show by the witness on the stand, on July 27, 1871, John C. Bolinger and Samuel Bolinger owners of the James McMullen survey, had an amicable partition made of that tract of land, dividing it into some four parts, and two of these middle parts were given, in that, partition, to John, C. Bolinger, and the northern end and southern end of the same tract" to Samuel Bolinger and that after this partition, each party entered into possession of his 'particular part.</p> <p>By Mr. Woods: It is objected to that if there was a partition of this land between these two parties, it must be evidenced In writing or it is within the statute of frauds, and therefore is not binding upon any one. Second. Title to land cannot be shown by proof of verbal or parole partition.</p> <p>By Mr. Beers. This to be followed. First. By proof that the tracts were divided by a surveyor and a draft made of the respective tracts. To be followed by further testimony that in 1881 John C. Bolinger made a deed for the one hundred and twelve acre tract involved in this suit, and also the northern end, about one hundred and twenty acres of land of this part of the James McMullen survey, to Samuel Bolinger, and that Samuel Bolinger, at the same time ihade a conveyance of the two middle tracts to John Q. Bolinger, the two middle parts of the James McMullen.</p> <p>By Mr. Woods: It is objected to as utterly immaterial, irrelevant and inadmissible. The testimony already in evidence shows that this entire tract of land, became vested in John C. Bolinger and Samuel Bolinger, in 1863, and they now say, under this offer, they propose to show John C. Bolinger conveyed to Samuel Bolinger a part of this tract of land, which would give him legal title, without any amicable partition. Any evidence of an amicable partition is immaterial, irrelevant and inadmissible.</p> <p>By the Court: Objection sustained. Evidence rejected. Bill of exceptions sealed for the plaintiff.</p> <p>By Mr. Beers: I now offer by itself, Plaintiff’s Exhibit No. 13, M. J. being draft of survey made July 27, 1871, by S. D. Caldwell, a surveyor of Huntingdon County, in running the lines of the James McMullen, and especially that part of the one hundred and twelve acres shown in red on the plaintiff’s map, and containing the identical description and boundaries of the land described in suit, in plaintiff’s statement, and in the deed for the one hundred and twenty acre tract, offered by the plaintiff in evidence. For the purpose of showing, like any other draft or survey, the description of the land in suit, and that the boundaries were recognized years ago, in 1871.</p> <p>By Mr. Woods: It is objected to. There is no proof that S. D. Caldwell,' the man who made, or is alleged to have made this survey, is dead. Second. That if he is alive, it is simply a declaration of a living witness, and therefore it is wholly immaterial and inadmissible, and is not the best evidence. The best evidence being the testimony of the man who made the draft, if he is in existence. There is no evidence that he is dead, and it is utterly immaterial and inadmissible for the purpose offered.</p> <p>By the Court: As offered now, we reject the evidence. Bill of exceptions sealed for the plaintiff. (17)</p> <p>The court charged in part as follows :</p> <p>[“In other words you must be satisfied by the preponderance of the evidence that this plaintiff, S. S. Bolinger, has title to the land, and not that the defendant Nathan Barnhardt has a weak title or anything of the kind, but you must decide from the evidence whether S. S. Bolinger has title to this land. It does not make any difference whether the title to the land is weak on the part of Nathan Barnhardt or not, the strength of the plaintiff’s title must control you.”] (1)</p> <p>[“You are to take into consideration the testimony of Mr. Africa on the part of the plaintiff, and Mr. Evans on the part of the defendant. These gentlemen have testified that they went on the lines and found marks, line trees which they designate, have been on there for a number of years, and I think Mr. Africa testified one place he blocked a tree or found a tree marked back to 1794 or 1795, the date of the original survey. If I mistake the evidence you will correct it. Mr. Evans testified he went on the ground and started about or near the same place. Both of these gentlemen testified they started at what they called the Weaver Corner.”] (2)</p> <p>[“But 'the defendant offers some testimony which shows there was a contention in 1881 or 1884 along there, and they show an agreement and this agreement is to the effect that the line has been established at a certain place and shows you a receipt for seventy-five dollars, and they say by reason of that- the plaintiff, predecessor in title stated and gave to Abraham Bolinger the land which is now in dispute. If that is the case, gentlemen of the jury, then we say to you that the plaintiffs have no right, if their predecessors in title handed over to the defendant or- their predecessors in title this piece of land, then of course, those who claim under that person could have no claim against them for damages.”] (3)</p> <p>[“And we say to you also, gentlemen of the jury, that under the evidence and pleading in this case, there being little, if any evidence, which justifies in allowing this plaintiff,, if you find for, any damages except nominal damages. There is no evidence to show when this timber was cut, and it cannot be left to the jury to guess when it was cut.”] (4)</p> <p>“2. The defendant having shown no title in himself or Laura Barnhart, his wife, and if the jury find from the evidence that the west boundary line of the James McMullen tract is North 27 East from the Southeast corner, of the said James McMullen survey and known as the Weaver corner, the defendant is liable for all timber which he cut or caused to be cut on the East side of the said line in the part of the James McMullen, described in the plaintiff’s statement and the plaintiff should recover the amount of damages he has sustained.</p> <p>' “Answer: This point is refused.” (5)</p> <p>“3. If the jury believe that the James McMullen tract was correctly located by J. Murray Africa and its West line also correctly run from the Weaver corner, the common corner of four surveys and was correctly represented on his map, or draft, the plaintiff would be entitled to recover from the defendant the market value of the timber trees cut or caused to be cut by the defendant over the West line of the James McMullen.</p> <p>“Answer: This point, is refused, because we have stated to you already in our general charge, gentlemen of the jury, no damages can be given to the plaintiff, if you find for him, except nominal damages, and that would be for you to determine, if you find for the plaintiff.” (6)</p> <p>“4. If the jury believe the alleged paper which Samuel Bolinger is alleged to have given Abraham Bolinger, in settlement of the action of trespass No. 40 April Term, 1874, was a receipt for the payment of $75 damages, and that by said paper or receipt, the said Abraham Bolinger was given the privilege of removing a fence to the old line, this would not give the said Abraham Bolinger or any other person the right to remove said fence to a new line, or new location, but to the old line or Valley line, running from the Weaver corner along the east side of the Josephus Murray, a survey of 1785..</p> <p>“Answer: This point is refused as put. It is for the jury to take this testimony .and consider it, with the other testimony in determining the location of this land.” (7)</p> <p>“5. If the jury find from the evidence that in the settlement of the action of trespass No. 40 April Term, 1874, Samuel Bolinger the plaintiff therein gave Abraham Bolinger the defendant, in the settlement of said suit a receipt for $75 and also in said receipt gave the said Abraham Bolinger the privilege of removing the fence to the old line, this privilege to remove-the fence would not vest any right or authority in the alienees of the real estate of the said Abraham Bolinger or run with any lands he may have been owner, and would be but a personal privilege in the said Abraham Bolinger»</p> <p>“Answer: This point is refused. This evidence is for the jury to consider in determining the location of this line.” (8)</p> <p>Verdict and judgment for defendant. 1 Plaintiff appealed.</p> <p>Errors assigned, among others, were (1-8) above instructions quoting them; (15-17) rulings on evidence quoting the- bill of exceptions.</p>

<p>Appeal, No. 85, Oct. T., 1915, by defendant, from judgment of C. P. Lancaster Co., June T., 1913, No. 39, for plaintiff on case tried by the court without a jury in suit of Union Trust Company of Lancaster v. Enos E. Mowrer.</p> <p>Assumpsit on promissory note against an accommodation endorser.</p> <p>The case Was tried by Landis, P. J., without a jury under the Act of April 22,1874, P. L. 109.</p> <p>The facts are.stated in the opinion of the Superior Court.</p> <p>Error assigned was in entering judgment for plaintiff on case stated. . •</p>

<p>Appeal, No. 30, Oct. T., 1915, by plaintiff:, from order of O. P. Delaware Co., March T., 1914, No. 132, discharging rule for judgment for want of a sufficient affidavit of defense in case of Norwood Borough v. Keystone Telephone Company of Philadelphia.</p> <p>Assumpsit to recover license fees.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>Broomall, J., filed the following opinion:</p> <p>“By the statement of plaintiff’s claim, it appears that thb plaintiff borough on December 14, 1911, grahted permission by resolution of council, approved by the acting chief burgess, to the defendant company to erect and maintain certain poles and wires in the streets of the borough, subject to certain conditions, among which is this condition, ‘Provided the Keystone Telephone Company shall pay the charges authorized by law and ordinances now in force, and comply with all the police regulations now in force or hereafter to be adopted.’ This resolution contains this clause, ‘Provided The Keystone Telephone Co. annually report to the borough clerk, in writing, the number of its poles and the number of miles of its wire maintained within the Borough of Norwood and shall pay the lawful charges therefor.’ Subjoined to this resolution is a stipulation signed by the acting chief burgess, in these words, ‘No work is to be done, until these resolutions are accepted in writing by the proper officials of the Keystone Telephone Co.’ Then follows an acceptance by the defendant in these words, ‘Accepted by the Keystone Telephone Company of Philadelphia.’ A further acceptance was signed by the general agent of the defendant on April 10,1912, as follows, ‘I have taken up the matter of. resolutions passed by your honorable body on December 18, 1911, relative to the Keystone Telephone Company of Philadelphia, and beg to advise you that the conditions stipulated and specified in said resolutions are hereby accepted.’ It further appears that by an ordinance of the plaintiff borough adopted on April 19,1901, all telephone companies are required to pay an annual license fee of one dollar for each pole and two dollars and fifty cents for each mile of wire maintained within the borough. This suit is brought to recover these charges due on May 1, 1912, and May 1,1913.</p> <p>“The affidavit of defense avers that the charges imposed by the ordinance of April 19,1901, are unreasonable and void, because they are greatly disproportionate to any expense which could be reasonably and fairly incurred by the plaintiff in the exercise of the police power and that from the facts set forth in the affidavit such reasonable charge would not exceed one-fifth of the amounts charged.</p> <p>“To this the plaintiff has replied that the question of reasonableness is not open to inquiry in this proceeding, because the defendant has obligated itself by contract to pay to the plaintiff annually one dollar per pole and two dollars and fifty cents per mile of wire.</p> <p>“The question presented therefore is, has the defendant so contracted?</p> <p>“It is not necessary to reason this question ab integro, because this case either trains with Cochranton Borough v. Cochranton Telephone Co., 41 Pa. Superior Ct. 146, or with Johnstown Telephone Co. v. Southport Borough, 47 Pa. Superior Ct. 468, and is, therefore, governed by precedent. In the first case the company by its predecessor accepted the provisions of a specified ordinance and agreed thereto. This ordinance fixed the license charges. It was held that this constituted a contract, and that the amount of the charges thus agreed upon was not open to be questioned for unreasonableness. In the latter case, the company agreed to be ‘governed by all the legal ordinances of a general nature now in force or that may hereafter be enacted.’ There was an ordinance previously passed fixing the amount of license charges. It was held that the company had not contracted itself from questioning the reasonableness of the charges. In our case there is no agreement to pay charges ordained by any particular ordinance. It is to pay the charges authorized by law and ordinances now in force. If the charges be unreasonable, they were not authorized by law,' nor were they in force. The charges to be paid are designated as lawful charges. If they are unreasonable they are not lawful. We are of opinion that the case is ruled by the latter case, which is followed in Kittanning Borough v. American Natural Gas Co., 239 Pa. 210, and plaintiff’s rule for judgment is therefore refused.”</p> <p>Error assigned was order discharging rule for judgment for want of a sufficient affidavit of defense.</p>

<p>Ejectment — Defenses — Adverse possession — Bes adjudicata — Easement.</p> <p>Where in an action of ejectment instituted after the passage of the Act of May 8, 1901, P. L. 142, the plaintiff establishes a complete record title, and the defendant under the plea of not guilty and in bis answer claims as tbe sole ground of defense a legal title based upon an open, notorious, exclusive and adverse possession of tbe premises in dispute for over twenty-one years, and a verdict and judgment is entered for tbe plaintiff, sucb judgment is res adjudieata of every interest that tbe defendant may claim in tbe land; and in a subsequent equity suit by the plaintiff for an injunction to restrain the defendant from interfering with a fence which tbe plaintiff bad erected to enclose the land, tbe defendant cannot set up that be bad an easement of way over tbe land in question. If be had sucb an easement it should have been set up in the action of ejectment.</p>

<p>Appeal, No. 291, Oct. T., 1915, by plaintiff, from judgment of Municipal Court, Philadelphia Co., Dec. T., 1914, No. 279, for defendant n. o. v. in case of John J. Hayes v. D. P. S. Nichols Company.</p> <p>Assumpsit for breach of a warranty. Before Crane, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>At the trial the jury returned a verdict for plaintiff. Subsequently the court entered judgment for defendant n. o. v.</p> <p>Error assigned was the judgment of the court.</p>

<p>Appeal, No. 134, Oct. T., 1915, by defendant, from judgment of C. P. No. 2, Philadelphia Co., June T., 1905, No. 4334, on verdict for plaintiff in case of Frank Johnson v. City of Philadelphia.</p> <p>Trespass for unlawful eviction. . Before Sulzberger, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $1,275. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for defendant.</p>

<p>Appeal, No. 163, Oct. T., 1915, by defendant, from order of Municipal Court, Philadelphia Co., April T., 1915, No. 564, making absolute rule for judgment for want of a sufficient answer in case of Benjamin J. Werbitsky v. Joseph C. Fisher, trading as Joseph C. Fisher & Son.</p> <p>Assumpsit to recover the price of a quantity of velvet sold and delivered.</p> <p>The material portions of the answer were as follows:</p> <p>1. Defendants admit that the plaintiff delivered to the defendants certain goods, wares and merchandise, in the quantities set forth in Exhibit “A” of plaintiff’s statement, but aver that the said goods were sold by sample, and the defendants purchased quality No. one velvets, being velvets of the best quality and were so purchased to be used in defendants’business as costumers, and this the plaintiff well knew; but defendants aver that the velvets so delivered by the plaintiff were not of the quality and value purchased by the defendants, but that the quality was No. two, and further that said velvets were very inferior and unsuitable for defendants’ use; and in no wise according to the contract between plaintiff and defendants.</p> <p>2. Further answering paragraph 1, defendants aver that as soon as they discovered the inferior quality of the said goods and that the same were not according to the contract, that they notified the plaintiff and complained to him and told him that they held said velvets for his order, and requested him to take the goods away; for the reason that the velvets were of no use whatever to the defendants in their said business, and many times thereafter they so notified him, but that plaintiff at all times has neglected and refused to take said velvets away.</p> <p>Error assigned was order making absolute rule for judgment for want of a sufficient answer.</p>

<p>Appeal, No. 243, Oct. T., 1915, by defendant, from judgment of Municipal Court Philadelphia Co., Dec. T., 1914, No. 463, on verdict for plaintiff in case of Sarah Lerner, a Minor by her next friend and father, William Lerner, v. Leon Felderman.</p> <p>Trespass for malicious prosecution. Before Crane, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>When the plaintiff was on the stand he was asked this question:</p> <p>“Q. Now, Miss Lerner, you appeared as a witness after that proceeding sometime before Magistrate Call, you appeared as a witness against Dr. Felderman in the criminal court, didn’t you?</p> <p>“(Objected to by Mr. Gross. Objection sustained.)</p> <p>“Mr. Oliensis: I offer to prove by the witness that before these proceedings were commenced this young lady and her parents and her uncle had started a criminal prosecution against the defendant, Dr* Felderman; they had him arrested and the case came up in court and they charged him with larceny' by bailee and receiving stolen goods; that she was one of the witnesses who testified against him and she testified to certain damaging facts, and that he was acquitted despite all that by direction of the court. That will be followed by the fact that the other three witnesses testified and There was enough testimony by her testimony, which showed that she was in the conspiracy, and as a result there was an acquittal of the defendant.</p> <p>“Objected to by Mr. Gross. Objection sustained. (1)</p> <p>“Q. What did she testify to at your trial against which you objected?</p> <p>“Objected to by Mr. Gross. Objection sustained.” (2)</p> <p>Defendant was. asked this question:</p> <p>“Q. Do you recall whether or not Miss Lerner testified at.your trial?</p> <p>“(Objected to by Mr. Gross. Objection sustained.)</p> <p>“Mr. Oliensis: I offer to prove that the witness, Sarah Lerner, appeared at the trial in room 653, at the trial of Dr. Felderman, the defendant in this case, in a proceeding there in the case of the Commonwealth against Leon Felderman, being September Session, 1914, No. 206, and that in that case she testified against Dr. Felderman to certain facts in connection with the prosecution in that case, which facts I propose to prove are untrue and that she did that in pursuance of a conspiracy which has been testified to" before by this witness on the standi</p> <p>“Objected to by Mr. Gross. Objection sustained. (3)</p> <p>“Q. Doctor, what became of that case against you in room 653?</p> <p>“Objected to by Mr. Gross. Objection sustained.” w</p> <p>Verdict and judgment for plaintiff for $600. Defendant appealed.</p> <p>Errors assignedmwere various rulings on evidence and instructions indicated above and appearing by the opinion of the Superior Court.</p>

<p>Appeal, No. 217, Oct, T., 1915, by plaintiff, from judgment of Municipal Court, Philadelphia Co., Feb. T., 1915, No. 457, on verdict for defendant in case of Pennsylvania Railroad Company v. Charles Farrell.</p> <p>Trespass to recover damages for injury to certain meat from the alleged negligent act of the defendant. Before Bonniwell, J.</p> <p>At the trial the plaintiff made the following offer;</p> <p>“Mr. Myers.—I expect to prove the plaintiff to be in this position: On December 30, 1914, a certain quantity of meat which had been delivered to it by three shippers for transportation by it as a common carrier, that this meat was lying on the plaintiff’s freight platform at the Walnut street wharf; that defendant was engaged in delivering a quantity of formic acid at the plaintiff’s freight station; that while doing so, he negligently, by his servant, allowed the barrel containing this acid to fall to the platform, breaking the barrel and causing the acid to run out and come in contact with this meat and destroying it. The meat was thereby damaged, and the plaintiff has paid the three shippers for the meat.”</p> <p>“Mr. Ambler:—I object to the offer.</p> <p>“Objection sustained. Exception for plaintiff.”</p> <p>The court charged as follows:</p> <p>Under the law as I view it, the offer of evidence by the plaintiff being that of a joint tort feasor, is not admissible against the other defendant, and for that and other . reasons, your verdict should be for the defendant.</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Error assigned was in overruling plaintiff’s offer.</p>

<p> Landlord and tenant—Léase—Principal and agent—Husband and wife—Parties—Indemnity fund—Term—Holding over. </p> <p>In an action to recover rent under a' written lease where it appears that the lease was signed in his own name by the husband of the plaintiff, who owned the premises, and it appears from the record that he signed it as the plaintiff’s agent, the defendant cannot after a trial on the merits object that the action was brought by the wrong party.</p> <p>In 'such a case where it appears that the action was brought against a husband and wife, that the name of the husband alone appeared in the body of the lease as lessee, although both husband and wife signed it, and the record shows that the wife was in fact the lessee, the wife cannot object after a trial on the merits that she was improperly joined as a party defendant.</p> <p>Where a lease is for one year from March 2d, it expires at midnight of March 1st of the following year; and if the lessee holds over and continues to occupy the premises during all of the day of March 2d of the following year, he will be liable for the whole rent for the second year, and he cannot allege as a defense, in an action for rent, that he occupied the premises during March 2d under a mistake of law as to the time his lease would expire; and this is the case although the lessee may have given a written notice of an intention to quit at the end of the term;, nor is the mere holding over under such circumstances conclusive on the landlord.</p> <p>Where á lessor holds a deposit of money under the terms of n written lease as a fund to indemnify him against loss from breach of any of the covenants of the lease by the lessee, the lessor is entitled to hold the money as long as the relation of landlord and tenant continues to exist.</p>

Appeal, No. 22, Oct. T., 1915, by defendant, from judgment of-C. P. Lehigh Co., April T., 1914, No. 151, on verdict for plaintiff in case of James O. Kraesley v. John B. Rickert. Assumpsit on a building contract. Before Groman, P. J. The opinion of the Superior Court states the case. Yerdict and judgment for plaintiff for $164.22. Defendant appealed. Errors assigned were various rulings and instructions.

Appeal, No. 139, Oct, T., 1915, by plaintiff, from judgment of C. P. Northampton Co., April T., 1912, No. 47, for defendant n. o. v. in case of Ovofrio Sacchetti v. C. Flemming Sandt, Executor of… Held: “To maintain an action in the case, it is necessary that the party charged should have committed an illegál act, from which positive or consequem tial damages has ensued.

<p>Equity — Injunction — Mandatory injunction — 0 bstruction of right of way.</p> <p>A court of equity will not award a mandatory injunction to compel the removal of a platform scale from land which the defendant owned in fee, on the ground that it obstructed an easement of way which an adjoining owner had in the land to enable him to reach a public highway, where the court below finds as a fact, that the interference was so slight as to be unappreciable, and that the defendant was willing to have a decree entered under which he would complete the improvement in such a way as not only to remove the slight inconvenience caused by the scale, but also to make the condition of the way better and more satisfactory than it had previously been.</p>

<p>Building and loan associations—Payment of dues to secretary— Estoppel—Waiver.</p> <p>In an action by a stockholder of a building and loan association to recover the withdrawal value of stock where the defendant claims a set-off for loans made to the plaintiff, and the plaintiff claims that the loans had been repaid, a verdict and judgment for plaintiff will be sustained where the evidence tends to show that the plaintiff was the confidential clerk of the secretary of the defendant association; that the secretary constantly kept in his possession some fifty or seventy-five .of the individual pass books of stockholders; that they were accustomed to pay their dues and fines to him without being required to be in personal attendance at the meetings of the directors as provided by the by-laws; that these small sums of money were by him mingled with his own funds and deposited in his bank account; that when the board would meet, his check- would be drawn for the aggregate of all these sums, and turned over to the board; that when the board was in session in the private office of the secretary, some one of the directors would go to the outside office in charge of plaintiff and inquire what moneys, if any, had been collected by the secretary; that in some instances where no check had been prepared in advance for the aggregate of these collections, she would draw such check, as she had a power of attorney from her employer authorizing her so to do; that this course of dealing was maintained for a very considerable period of time; and that she had paid her own dues at the office of the secretary in the manner specified.</p> <p>The authority of an officer of a corporation as its agent, although distinctly designated by the corporation, may be ascertained to be different, from circumstances covering a period of time long enough to manifest a course of dealing, provided such circumstances are known also to, and acquiesced in, by the board of directors and if the course of dealing is one the board had power to authorize.</p>

<p>Appeal, No. 339, Oct. T., 1915, by defendants, from order of C. P. No. 1, Philadelphia Co., March T., 1915, No. 523, making absolute rule for judgment for want of a sufficient affidavit of defense in 'case of William T. Reynolds, Clarence J. Reynolds and Harris S. Reynolds, trading as William T. Reynolds & Company v. Hunter, Robinson, Wenz Milling Company.</p> <p>Assumpsit for breach of contract to deliver ten car loads of Huntleigh bran.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was order making absolute rule for judgment for want of a sufficient affidavit of defense.</p>

<p>Appeal, No. 323, Oct. T., 1915, by defendants, from order of Municipal Court Philadelphia Co., Aug. T., 1915, No. 492, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Commonwealth to use of Louis I. Bellow, trading as Auto Transit Company v. Francis J. Lintott, et al.</p> <p>Assumpsit on a counterbond in replevin.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was order making absolute rule for judgment for want of a sufficient affidavit of defense.</p>

<p> Insurance—Fire insurance—Ownership—Sale of property—Executory contract of sale. </p> <p>A mere executory contract of sale does not amount to such a change of ownership as will render void a policy of fire insurance which requires that the interest of the assured shall he that of “unconditional and sole ownership,” and stipulates that “the sale of the property insured under this policy shall cancel guch policy immediately.”</p> <p> Insurance—Fire insurance—Dwelling house and barn—Vacation of dwelling house—Increase of risk. </p> <p>Where a dwelling house, barn and other farm buildings are insured under one policy, and the barn and other farm buildings are burned at a time when the insured had permanently vacated the dwelling house, and left it unoccupied, no recovery can be had against the insurance company for the loss of the barn and other farm buildings- where the policy provided that all buildings or premises insured “must be kept occupied by the owners, and as soon as any sueh buildings, or premises become vacant, or unoccupied by the owner, or a tenant under such owner, all liability on account of any policy of insurance issued thereon shall cease and determine,” and also provided that the policy should be void if the hazard was increased by any means within the control or knowledge of the insured.</p>

<p>Appeal, No. 25, Feb. T., 1913, by plaintiff, from judgment of C. P. Lycoming Co., June T., 1914, No. 173, on verdict for plaintiff in case of P. F. Hartranft, Trustee in Bankruptcy of Joseph V. Kuhns, v. E. F.- Ives.</p> <p>Assumpsit by trustee in bankruptcy to recover a preference.' Before Whitehead, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment-for defendant. Plaintiff appealed.</p> <p>Error assigned was in refusing'binding instructions for plaintiff,</p>

<p>Appeal, No. 60, April T., 1916, by defendant, from order of C. P. Allegheny Co., July T., 1915, No. 1325, reversing order of county court making absolute rule to strike off service of summons and vacate judgment in case of W. Murray Carr v. The AEtna Accident & Liability Company.</p> <p>Rule in county court to strike off service of summons and vacate judgment entered for want of an appearance.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was order reversing order of county court making absolute rule to strike off service of summons and vacate judgment.</p>

<p>Appeal, No. 117, April T., 1916, by plaintiff, from judgment of C. P. Clarion Co., Aug. T., 1912, No. 252, on verdict for defendant in case of Margaret E. Steltzer v. E. G. Beatty, Jennie O. Beatty, and E. G. Beatty, Executor of the last will and testament of Jennie O. Beatty, deceased.</p> <p>Issue to determine validity of a judgment entered in 1897 against a husband and wife. Before Sloan, P. J.</p> <p>Prom the record it appeared that a rule to open the judgment was made absolute on April 21,1914.</p> <p>- Other facts are stated in the opinion of the Superior Court.</p> <p>Errors assigned were in making absolute the rule to open the judgment, and in refusing at the trial binding instructions for the plaintiff.</p>

<p>Trespass—Unlawful cutting of timber—Treble damages—Title— Possession—Evidence—Act of March 29, 1821¡., P. L. 152—Ratifi-cation of tort.</p> <p>Where a husband and wife, tenants by entireties, bring an action of trespass quare clausum fregit to recover treble damages for the unlawful cutting of trees as provided by the Act of March 29, 1824, P. L. 152, they may establish their ownership and possession of the land on which the timber was cut, by showing a deed to themselves made about ten-years prior to the injury complained of, coupled with some evidence as to the history of title for twenty-five or thirty years; that the property from which the timber had been cut was originally a part of a piece of land that was cultivated; that plaintiffs had on several occasions cut timber, and had paid the taxes on the property from the time they bought it; and that the lines of the land were well defined by a survey from those of the defendant’s property.</p> <p>An action may be brought to recover treble damages for the unlawful cutting of timber on the plaintiff’s land, although it appears that the actual cutting had been done by an independent contractor of the defendant’s-without the latter’s knowledge or direction, if it also appears that after the cutting had been done, the defendants learned of it, and notwithstanding this knowledge, removed it to their mill and converted it to their own use'. <</p> <p>An action of trespass quare clausum fregit under the Act of March 24, 1824, P. L. 152, to recover treble damages for the unlawful cutting of timber is broad enough to include a common law action; and if the plaintiffs in such an action fail to establish their pase for treble damages, they may, if the facts warrant, recover single damages for compensatioii. *</p> <p>The Act of March 29, 1824, P. L. 152, creates two offenses (1) cutting down and felling timber, and (2) conversion to the offender’s own use. Both may be joined in an action of trespass, and treble damages may be recovered for the conversion, although the actual cutting may have been done by another person.</p>

<p>Appeal, No. 150, April T., 1916, by defendant, from judgment of C. P. Allegheny Co., April T., 1914, No. 1271, on verdict for plaintiff, in case of Fidelity Title & Trust Company, Administrator of Owen Hines, deceased, v. Metropolitan Life Insurance Company.</p> <p>Assumpsit on a policy of life insurance. Before Carnahan, J.</p> <p>At the trial the defendant claimed that the insured misstated in the application certain facts as to the last time that he had had medical services. The plaintiffs admitted that the application did not correctly present all the facts, but the widow and two other witnesses testified that the correct facts had been stated to the medical examiner who had neglected to write them into the application.</p> <p>The court charged in part as follows:</p> <p>[If that be true, then the medical examiner did what he ought not have done, and, as he put it himself, it would not be a proper paper because something would be placed in it after it had been signed by both parties. The plaintiff says that is exactly the way it was done. There, gentlemen, is a question of credibility. If that is the way it was done; if Mr. Hines did give the information which these three witnesses say he did give, and it did not appear in the answers given in the written application, then that is not Mr. Hines’ fault. The answers should have appeared there as they were given by Mr. Hines; therefore, that is a question for you: Was this information given to the medical examiner at the time, or was it not? Then, incidentally: Were those answers written at the time they were given in the house, or were they not?] (1)</p> <p>[We have this written paper, and we have the answers there. I would not hesitáte to say to you, if it were clear, if it were undisputed, that all of these answers were written right at that very time on the occasion of that visit, in the presence of Mr. Hines and these witnesses, that any attempt to overcome those answers must be accompanied by the clearest, most precisé and most indubitable evidence. We have, however, a disputed fact in reference to the writing of all these answers to the questions at that time. Notwithstanding that, in order to sustain the position taken by the plaintiff that a mistake was made when writing out these answers, that thé right answers were not given, it is necessary that you find the witnesses who have so testified are credible witnesses] that they distinctly remember the facts to which they testified; that they narrate the details exactly, and that their statements are true. The burden is upon the plaintiff to satisfy you, by the weight of the evidence, and by evidence such as I have just referred to, in order to entitle it to recovery.] (2)</p> <p>Verdict and judgment for plaintiff for $1,175.02. Defendant appealed.</p> <p>Errors assigned were (1,2) above instructions quoting them.</p>

<p>Set-off—Banks and'banhing—Suit by receiver—Trust and trustees—Executors and administrators. '</p> <p>A defendant, sued in his own right, by the receiver of an insolvent bank, on a note due the bank, may use as an equitable defense or set-off deposit accounts standing in his name in the bank, one'as trustee of one estate and the other as executor of another estate.</p>

<p> Municipalities—Assessments for sewers—Lease—Set-off. </p> <p>Where the municipal authorities of a city execute a lease of real estate by which the city agrees to pay a rental therefor, and also “to pay all city taxes or assessments,” and the city councils approve the lease by resolution, the city will be liable to pay assessments for sewers; but where such an assessment is made and a scire facias sur municipal lien to collect it is issued, the owner of the land cannot set up as a defense the covenant on the part of the city “to pay for all assessments”; but if he pays the assessment without execution and subsequently sues the city to recover 'the money as for breach of covenant the city cannot maintain that the claim was res adjudicata because the owner of the property had not set it up in the scire facias proceedings.</p> <p>In an action for taxes or for a municipal lien for improvements set-off of an indebtedness of the municipality to the tax debtor will not be allowed.</p> <p>A set-off cannot be allowed until the counter' right of action has accrued.</p>

<p>Appeal, No. 38, April T., 191'6, by defendant, from judgment of C. P. Allegheny Co., Oct. T., 1913, No. 2076, on verdict for plaintiff in case of David McCanuel v. Jones & Laughlin Steel Company.</p> <p>Trespass to recover damages for personal injuries. Bej fore Brown, J.</p> <p>The circumstances of the accident are stated in the opinion of the Superior Court.</p> <p>Yerdict and judgment for plaintiff for $1,125. Defendant appealed.</p> <p>Error assigned was refusal of binding instructions for defendant.</p>

<p> Equity—Chancellor’s finding of fact—Review. </p> <p>A chancellor’s finding of fact will not be reversed by the appellate court where such findings are based upon sufficient evidence, and there is not manifest error..</p> <p> Equity—Mandatory injunction—Removal of building. </p> <p>A mandatory injunction is a matter of discretion with a court of equity, and it will not be granted to remove a building or tear down a portion of a wall when it will operate inequitably or oppressively, or where the owner or one who afterwards becomes the owner, is actively responsible for the encroachment.</p>

<p>Appeal, No. 3, March T., 1917, by plaintiff, from order of Q. S. Luzerne Co., Nov. Sessions, 1915, No. 31, quashing appeal in case of Commonwealth v. Richard Jones.'</p> <p>Indictment for receiving money in violation of Section 1 of the Act of June 15,1897, P. L. 157.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was order quashing the indictment.</p>

Appeal, No. 113, April T., 1916, by defendant, from judgment of C. P. Mercer Co., Jan. T., 1915, No. 62, on verdict for plaintiff, in case of Lulu Mabel Carnes and Sarah E. Carnes v. Julia V. Minehan. Assumpsit for rent. Before Williams, P. J. At the trial it appeared that the defendant occupied certain premises under a written lease dated January 22, 1902, and signed by Sarah A. Carnes and Michael McCarthy. Michael McCarthy was a brother-in-law of the defendant.

<p> Contract—Agreement not to do business—Sale of business. </p> <p>Where a person sells a bottling business conducted in a city named, and in the bill of sale covenants that he “will not enter in any such business in said city,” he violates the covenant by engaging as a manager for his brother in the bottling business conducted in the same city.</p>

<p> Criminal law—Indictment—District attorney’s bill—Explanation of action. </p> <p>Where a district attorney upon his official responsibility and with leave of the court, lays before the grand jury a bill of indictment, he is not required to set forth upon the record his reasons for doing so, or to state them for the information of the defendant.</p> <p> Criminal law—Conspiracy—'Manipulation of corporations. </p> <p>On the trial of an indictment for conspiracy, a judgment on a verdict of guilty against two of the defendants will be sustained, where the evidence shows a long and complicated series of acts extending over a period of years; the creation of three corporations each of which constantly remained under the control of the 'defendant; a series of transactions by which the assets of one corporation were shifted to the treasuries of the other two, until all such assets disappeared from the vieiv of the stockholders who had furnished the real money embraced in the transactions; that such assets were appropriated by the defendants through illegal dividends or excessive salaries and commissions; and that the transactions in question constantly required the action and cooperation of at least the two defendants to do the things which were done.</p> <p>In such a casé evidence is properly admitted relating to the organization of tbe three companies, the manner in which the business of each was conducted, the contracts which the corporations made with each other, and with the defendants, and the various steps which led up to the final ruin of the companies. It is also proper to admit in evidence contracts made with certain persons as inducements to such persons to become directors of the company, where it appears that the contracts in question gave to such persons financial advantages of a 'character that would induce them to act in a friendly way to the defendants, and not to oppose any measures which they might advocate.</p> <p>• Criminal law—Trial—Improper remarles of district attorney— Continuance—Withdrawal of juror.</p> <p>The appellate court will not review the discretion' of the trial court in refusing to withdraw a juror and continue the case because of alleged improper remarks by the district attorney, where it appears that the remarks in question were called forth by a statement of the counsel for the defense, and that they were not of such a character as likely to have a prejudicial effect upon the defendant’s cause.</p>

Appeal, No. 231, Oct. T., 1915, by defendants, from judgment of Q. S. Berks Co., June Sessions, 1913, No. 168, on verdict of guilty in case of Commonwealth v. .Frederick G-. Anderson, et al. Indictment for conspiracy. Before Wagner, J. The facts appear by the report of the Commonwealth v. Rothensies, supra, and by the opinion of the Superior Court. Verdict of guilty upon which judgment of sentence was passed. Errors assigned were various rulings and instructions.

Appeal, No. 232, Oct. T., 1915, by defendant, from judgment of Q. S. Berks Co., June Sessions, 1913, No. 168, on verdict of guilty in case of Commonwealth v. Charles A. Stephens, et al. Indictment for conspiracy. Before Wagner, J. The facts are stated in the report of the case of Commonwealth v. Rothensies and in the opinion of the Superior Court. Verdict of guilty upon which judgment of sentence was passed. Errors assigned were various instructions and rulings.

Appeal, No. 242, Oct. T., 1915, by defendant, from decree of C. P. Bradford Co.; Sept. T., 1915, No. 2, on bill in equity in case of Lehigh Valley -Railroad Company v. James F. Graham. Bill in equity for an injunction.

Appeal, No. 325, Oct. T., 1915, by plaintiff, from judgment of C. P. Bradford Co., Dec. T., 1914, No. 4, for defendant n. o. v. in case of Jean Waltman v. Albany Township School District. Held: that in the absence of the evidence of her appointment, required by the Act of April 11, 1862, she could not recover.” Among other things, it was said by Mr. Justice Sterrett, in delivering the

Appeal, No. 200, Oct. T., 1915, by defendant, from judgment of C. P. No. 1, Philadelphia Co., March T., 1914, No. 4043, M. L. D., on verdict for plaintiff in case of City of Philadelphia, to use of Union Paving Company, v. Sara B. Edmonds. Scire facias sur municipal lien to recover an assessment for paving a street with stone. Before Shoemaker, J. The facts are stated in the opinion of the Superior Court. ' . Verdict and judgment for plaintiff for $596.98. Defendant appealed.

Appeal, No. 284, Oct. T., 1915, by plaintiff, from judgment of Municipal Court, Feb. T., 1915, Sheriff’s Interpleader No. 58, for defendant on case tried by the court without a jury in suit of William H. Bricker, Jr., v. Wm. H. Doyle, to the use of James J. McArdie and William E. Cooney, Copartners, trading as McArdie & Cooney. Issue on sheriff’s interpleader.

Appeal, No. 208, Oct. T., 1915, by plaintiff, from judgment of O. P. No. 3, Philadelphia Co., June T., 1915, No. 2787, for defendant n. o. v. in case, of Benjamin Goodritz v. John P. McMahon. Assumpsit for breach of a written agreement to purchase real estate. Before Davis, J. At the trial the jury returned a verdict in favor of the plaintiff for $1,302.13.

Appeal, No. 196, Oct. T., 1915, fc>y defendant, from order of O. & T. Northampton Co.,' Dec. T., 1914, No. 67, refusing to quash indictment in case of Commonwealth v. Hugo Gerstman. Indictment for receiving stolen goods.

Appeal, No. 196, Oct. T., 1915, by defendant, from judgment of O. & T. Northampton Co., Dec. T., 1914, No. 67, on verdict of guilty in case of Commonwealth v. Joseph Pearl. Indictment for receiving stolen goods. Before Stewart, P. J. The opinion of the Superior Court states the case. Verdict of guilty upon which judgment of sentence was passed. Errors assigned were in refusing to- quash the indict-, ment and in refusing to give binding instructions for defendant.

Appeal, No. 316, Oct. T., 1915, by Emanuel Breisch, et al., from order of Q. S. Schuylkill Co., Nov.' T., 1913, No. 3, Vacating a portion of the road In re Krebs Road.. Petitions for vacation of Krebs Road in whole or in part. The opinion of the Superior Court states the case. Error assigned was order vacating a portion of the road.

Appeal, No. 198, Oct. T., 1915, by defendant, from judgment of C. P. No. 3, Philadelphia Co., March T., 1913, No. 4755, M. L. D., on verdict for plaintiff in case of City of Philadelphia, to use of… Held: “When one sells and conveys lots according to'a plan which shows them to be on streets, he must be held to have stamped upon them the character of public streets.

Appeal, No. 192, Oct. T., 1915, by defendant, from judgment of Municipal Court, Philadelphia Co., Jan. T., 1915, No. 294, on verdict for plaintiff in case of Moses Stearh v. Prank C. Carbone and Ernesto Carbone, Individually and copartners, trading as Carbone & Co. Assumpsit for wages.

<p>Corporations—Insolvent corporations—Wages claims — Assignment of wage claims—Judgment.</p> <p>An action of assumpsit may be maintained by the assignee of twelve workmen to recover wage claims from tbe stockholders of an insolvent corporation under Sections 14 and 15 of the Act of April 29, 1874, P. L. 73; and this is the case although ten of the claims had been reduced to. judgment against the corporation before they had been assigned to the plaintiff; and in such a case the defendants cannot set up as a defense that the plant had been leased to another corporation, and that the work had been done for the latter corporation, if it appears that work went on as usual after the lease, and that nothing was done to notify the employees, or the public of any change in the management and control of the plant.</p>

<p>Insurance—Fire insurance—“Vacant or unoccupied”—Waiver— Estoppel—Authority of agent.</p> <p>Where a policy of fire insurance provides that the policy shall be void if the property “be or become vacant or unoccupied and so remain for ten days,” and that an agent could by endorsement on the policy* but not otherwise, grant permission for nonoccupancy for a longer period than ten days, a verbal assurance made by an agent to the insured when the latter informs him that the property is vacant, that a permit of vacancy endorsed on the policy is not necessary, will not estop the company from claiming a forfeiture of the policy if a fire occurs during the period of vacancy.</p>

<p>Appeal, No. 30, March T., 1916, by defendant, from judgment of C. P. Lackawanna Co., Jan. T., 1913, No. 365, on verdict for plaintiff in case of S. M. Reese v. Peoples Coal Company.</p> <p>Trespass for injuries for support to land alleged to have been caused by failure to furnish lateral and vertical support. Before Evans, J., specially presiding.</p> <p>The facts are stated in the opinion of the Superior .Court.</p> <p>Verdict and judgment for plaintiff for f1,500.</p> <p>Errors assigned were, among others, refusal to enter judgment for defendant n. o. v.</p>

<p> Wharves—Deed—Covenants—Rental. </p> <p>Where a municipality by deeds conveys land along a water front and agrees that the grantees in the various deeds might build wharves from their lots into a canal basin, and have the free and absolute use of them forever, and the further right to use the whole length of the public pier as a roadway, and the municipality covenants that it will not rent the pier to other individuals, the municipality may charge wharfage fees to others for the landing of merchandise on the pier, without violating the covenant relating to rentals.'</p> <p>In such a case where a covenant in the deed provides that each of the lot owners should “leave at the end of his wharf in front of his store house and adjoining the public pier, an open space of the same width of his lot and of the length of thirty feet,” for the convenience of each of the respective owners in loading and unloading goods, the municipality cannot construe the covenant as making the thirty-foot strip a part of the public pier and therefore a part of the public driveway.</p>

<p>Appeal, No. 31, April T., 1916, by defendant, from judgment of C. P. Allegheny Co., July T., 1913,' No. 2102, on verdict for plaintiff in case of Harry Meyers v. Jones & Laughlin Steel Company.</p> <p>Trespass to recover damages for personal injuries. Before Shafer, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $1,500. Defendant appealed.</p> <p>Error assigned was in refusing judgment for defendant n. o. v. .</p>

<p>Evidence—Presumption of death —Minor children — Beneficial associations—Beneficiaries of death benefits.</p> <p>The rule of law that seven years’ continuous and unexplained absence of a person from his last domicile raises the presumption of his death, applies to minor children of tender years who are taken away from their father’s home by their mother.</p> <p>Where a wife takes two of her four children aged five and six years respectively, and abandons her husband, and the father continues to live with the other two children, and nine years after the desertion of his wife becomes a member of a beneficial association and designates as his beneficiaries “his children” without naming them or specifying their number, and two years thereafter one of the older children who lives with him dies, and the husband himself dies twenty-two years after the desertion of his wife, the surviving daughter living with her father, in a suit against the beneficial association, for the death benefits, is entitled to rely on the presumption that the two children who had been taken away by their mother were dead at the time of the trial of the case.</p> <p>In such a case the plaintiff is entitled to show that the local lodge notified the general organization" that the plaintiff was the sole beneficiary.</p>

<p> Practice, G. P.—Judgment n. o. v.—Jury fee. </p> <p>The court in making an order directing judgment to be entered in favor of the defendant non obstante veredicto cannot incorporate in the order a direction requiring the defendant to pay the jury fee.</p> <p> Practice, G. P.—Judgment n. o. v.—Statement of reasons for the judgment. </p> <p>Where the plaintiff, after having taken an appeal from a judgment for defendant n. o. v. allows the case to rest for seven years, and after the trial judge has retired from office, he cannot object to the order because it did not point out the evidence which sustained the setting aside of the verdict; and especially is this the case where the court does cite in the order two eases upon the authority of which the order is stated to have been made.</p> <p> Sewers—Negligent construction—Diversion of waters—Municipalities—Grading street. </p> <p>A municipality has the right in grading a street in connection with the construction of a sewer, to make such changes in the system of drainage as it sees proper, and there is no presumption of negligence arising from the mere fact that such -change was made. In the absence of actual negligence in doing the work, the municipality cannot be held in damages in an action of trespass.</p>

<p>Appeal, No. 80, April T., 1916, by plaintiffs, from judgment of C. P. Greene Co., March T., 1912, No. 63, on verdict for plaintiff in case of James L. Varner, et al., v. South Penn Oil Company.</p> <p>Assumpsit for rentals under an oil lease. Before Inghram, P. J.</p> <p>The court charged as follows:</p> <p>In this case you have heard from the evidence, Joseph Varner, a resident of West Virginia, died some time in the year 1896, in August or September, I believe of that year leaving a widow and eight children surviving him.</p> <p>He was at the time of his death the owner of a very considerable body of real estate in West Virginia and Pennsylvania. There being, perhaps some claims against both the West Virginia and Pennsylvania land for purchase-money.</p> <p>It seems from the evidence in this case that the West Virginia land had been somewhat developed for oil and was producing a large amount of oil. That the Pennsylvania land was undeveloped.</p> <p>But after the death of Mr. Varner, it appears from the evidence, that the family entered into an arrangement among themselves for the division of the oil, or the collection of the amount due from the oil and application of it towards the payment of the purchase-money on the land both in West Virginia and Pennsylvania. And it was the arrangement or agreement entered into that the son-in-law of Mr. Varner, George W. Blaker, was to act as the agent for them in the collection of the money due for the oil and make payments on the claims against the estate.</p> <p>They also entered into a family arrangement for the division of the lands among themselves, which they had a right to do by having a guardian for the minors. That question is not before us, but as one of the facts developed in the case. The division was made between them and Mrs. Blaker was awarded the part of the lands in Greene County known as the John Shanes tract, upon which some of the gas companies are now building or have built a pump station.</p> <p>[It further developed from the evidence, that the parties were anxious to have as much out of their lands, both oil and gas as they could get, and they appointed the son-in-law and brother-in-law of the plaintiffs, the husband of Mrs. Blaker, who was one of the plaintiffs, attorney in fact for the purpose of leasing the lands in West Virginia and Pennsylvania,] (14) that had not already been leased, and for the purpose of collecting any money due the estate for the oil that was being produced from the wells already drilled, and for the leasing of the lands and collecting of rental from any gas wells that might be drilled afterwards. Mr. Blaker was appointed their attorney in fact and undertook to do the business for them, and the matter progressed for some time until as you have heard, Mr. Blaker became unsettled in his mind in some way and was taken to Weston, West Virginia, possibly is there now. His wife was a witness before you.</p> <p>But after a time, the children of Joseph Varner, besides Mrs. Blaker, she was not with them in that, discovered that Mr. Blaker had reduced the rental of the wells. They had drilled five oil wells and the production was about to stop or was not sufficient and the company proposed to drill some of the wells deeper for gas, if they could get a reduction on these wells. The lease called for three hundred dollars for each gas well per year while gas would be marketed off the premises. But the company was unwilling to develop for some reason unless they could get a reduction, and it is claimed by the defendants that Mr. Blaker, the attorney in fact for the heirs of' Joseph Varner and his wife, entered into an agreement with them by which he did reduce the gas rental on well No. 3 to fifty dollars a year and on wells Nos. 1 and 4 to seventy-five dollars each. They claim that is the amount they were to pay each year to Mr. Blaker and his wife, one of the plaintiffs, that it was paid up to a certain time, I don’t remember when, that will be a question for you. But they claim they paid it up to the time Mr. Blaker was taken away, at seventy-five dollars a year on wells 1 and 4 and at fifty dollars on well No. 3.</p> <p>The balance of it, the widow and children of Joseph Varner refused to receive, claiming it was not enough, and they have brought this, suit for what they claim is due on these wells, 1, 3 and 4, at three hundred dollars per year for each well.</p> <p>[As you have already heard us intimate to counsel, taking the papers,—all the papers submitted by the parties here, and the testimony as we have heard it and as you have heard it, we are of the opinion that George W. Blaker, the attorney-in fact, had a right under the power of attorney by which fie was appointed to act for the heirs, to lease the land for oil and gas, and had a right to reduce the rentals on those wells, if he found it to the advantage of the parties to do so.</p> <p>He reduced it—no question about that, and there is no question of bad faith on the part of Mr. Blaker or the South Penn Oil Company, the defendant here.</p> <p>We think the. agreement entered into between Mr. Blaker, that is George W. Blaker, and the South Penn Oil Company for the reduction of the rental receipts on these gas wells is binding upon the parties appointing Mr. Blaker as their attorney in fact.] (15)</p> <p>We have been requested by the plaintiff in this case to say to you:</p> <p>1. The letters of attorney from the widow and heirs of Joseph Varner, deceased, to George W. Blaker dated September 16, 1896, authorizing the said attorney to make sale of all the oil and collect all rentals due by reason of any contract for the lease of lands, to receive money by reason of such sale and to receipt for such moneys, and to do and perform all things that may be necessary to his duties in selling and disposing of the oil and receiving moneys therefor, but did not authorize or empower him to make or modify any contract already made in which the heirs of Joseph Varner, deceased, had any rights or interest and the reduction agreements dated respectively, November 3, 1905, and August 23, 1906, made by him, the said George W. Blaker, are without authority and do not bind the heirs of the said Joseph Varner, deceased, the plaintiffs in this action.</p> <p>Answer. That point, gentlemen of the jury, we have refused. We have already instructed you to the contrary. (17)</p> <p>3. That there is no sufficient evidence of an estoppel in this case against James L. Varner, Belle Lemley, Elizabeth J. Varner, Andrew J- Varner, Mary E. Phillips, Garnet Welsh, Sarah Mapel and Louraine Bump, all of whom are plaintiffs in this action.</p> <p>Answer. That point is correct, gentlemen of the jury. There is no evidence of estoppel sufficient to prevent them recovering the amount'for which we have instructed you to return a verdict. Beyond that they are not entitled to recover. (18)</p> <p>4. That under all the evidence in the case the verdict of the jury should be for the plaintiffs.</p> <p>Answer. That point is correct and is affirmed. Your verdict will be for the plaintiffs for the amount agreed upon between the parties at $737.36. (19)</p> <p>Verdict and judgment for plaintiffs for $737.36. Plaintiff appealed.</p> <p>Errors assigned were various instructions as above, quoting them.</p>

<p> Replevin—Horse—Agister s lien—_Evidence. </p> <p>In an action of replevin by an administrator to recover a horse, the defendant cannot set up an agister’s lien, where the evidence shows that while the defendant was not in actual possession of the horse when suit was brought he had been in possession of it at the time of the decedent’s death, and had handed it over to another person, under an arrangement by which both he and such other person should have the use of it, and that they both used the horse frequently and in whatever ways they chose.</p>

<p>Appeal, No. 98, April T., 1916, ‘ by plaintiff, from decree of C. P. Somerset Co. Equity Docket, 1915, No. 6, dismissing bill in equity in case of W. E. Crow and T. B. Palmer, Receivers of United Lumber Company v. Ursina & North Pork Railway Company.</p> <p>Bill in equity for an injunction.</p> <p>Ruppel, P. J., found the facts to be as follows:</p> <p>1. The United Lumber Company is a corporation chartered under the laws of Pennsylvania doing business in Somerset County, Pennsylvania, with a manufacturing plant at the village of Humbert, in said county, and by proceedings in equity, William E. Crow and Thoinas B. Palmer were duly appointed receivers of said plaintiff and have been continuing the operations of said company and are in possession of the property of said company.</p> <p>2. The defendant, Ursina and North Fork Railway Company, is a public service corporation chartered under .the General Railway Act of the State, and has as its northern terminus, Mays Run Transfer near the village of Humbert, and its southern terminus a junction with the Baltimore and Ohio Railroad, a little over half a mile west of the Borough of Ursina in said county; the said road is about five miles in length and is located and operated wholly within said County of Somerset and State of Pennsylvania.</p> <p>3. During the year 1910, or shortly prior thereto, the plaintiff, United Lumber Company, became the owner of large tracts of timber lands in the County of Somerset, some of which were situate near the village of Humbert, and others extending several miles northward from said village; and during said year of 1910 the said United Lumber Company procured the incorporation of the United Railway Company, a corporation which built lines of railway from said village of .Humbert northward to and through the timber lands of the plaintiff and over which United Railway Company the lumber of the plaintiff was delivered from its timber lands to the defendant company at Mays Run Transfer for transportation.</p> <p>4. On December 27, 1910, the plaintiff and defendant entered into a written article of agreement as set forth in paragraph 4 of Plaintiff’s Bill of Complaint, by which it was provided:</p> <p>“(1) The lumber company agrees to build a railroad from Humbert to its timber lands near Barronvale, about nine miles from Humbert.</p> <p>“(2) The railway company agrees to transport the lumber of the lumber company from Humbert to the B. & O. Railroad at Ursina at five dollars per car.</p> <p>“(3) The lumber company grants the right to the railway company to use the tracks of the lumber company from Humbert ‡0 .a coal mine known as Maud Mine No. 1, without charge.</p> <p>“ (4) The railway company agrees to transport empty cars from Ursina Junction to Humbert free of charge.”</p> <p>Other minor provisions are contained in the agreement, and it is further provided that the contract shall remain in force for a period of ten years, with the option of the lumber company to renew it for an additional period of ten years.</p> <p>5. As part of the arrangement between the plaintiff and defendant to this case, the Metropolitan Life Insurance Company of New York, which owned the stock of the Ursina and North Fork Railway Company and owned a large amount of real estate in the vicinity of Humbert, including coal lands, miners’ houses, etc., agreed to furnish a site for a mill seat of the plaintiff company at the town of Humbert, and also agreed to allow the lumber company the use of certain dwelling houses at the village of Humbert for the occupancy of the employees of the lumber company, the employees to pay the usual rent to the lumber company to be paid by them over to the Metropolitan Life Insurance Company.</p> <p>6. The defendant company complied with the terms of said agreement from its date until about the 26th day of April, 1915, during which period it transported for the plaintiff large quantities of lumber, ties, etc., in carload lots, for which it was fully paid, and payment was accepted by the defendant company at the agreed rate of five dollars per car; that said cars were intended to be and were in fact delivered to the Baltimore and Ohio Railroad at Ursina Junction for shipment over said B. & O. Railroad, and a large percentage of such cars delivered for transportation as aforesaid were destined to points beyond thé State of Pennsylvania.</p> <p>7. Shipments of lumber under-the contract between the parties were made as follows: Representatives of the plaintiff lumber company made requisition upon the defendant railway company for cars and indicated in said requisition the points to which said cars of lumber were destined, and when the cars were loaded, plaintiff delivered to the agents of the railway company a way bill to be attached to the car, upon which way bills the point of destination was designated; and at the same time the defendant’s agents were furnished with a standard bill of lading to be given to the agent of the Baltimore and Ohio Railroad at Ursina. The defendant railway company did not issue to the plaintiff lumber company through bills of lading on the shipments received from it, but transported the cars to Ursina Junction and there delivered them to the Baltimore and Ohio Railroad Company for shipment by it to the ultimate destination of such shipments, and the defendant received from the plaintiff lumber company the charges provided for in the said contract.</p> <p>8. The plaintiff sold its lumber and other products through the Palmer and Semans Lumber Compány, a corporation with an office at Uniontown, Pa., under a contract by which the Palmer and Semans Lumber Company was to sell the lumber for the plaintiff and was to receive a commission on the prices received for the products, and was to be responsible to the plaintiff for the prices reported at the time the shipments were made; and it is claimed by the plaintiff in this proceeding that the Palmer and Semans Lumber Company became the owners of the lumber when it reached Ursina Junction, and that the plaintiffs thereafter had no further connection with the lumber; but the lumber was not consigned in any instance to the Palmer and Semans Lumber Company nor did the defendant have any knowledge of the agreement between the plaintiff and the Palmer and Semans Lumber Company in connection with the shipments. The consignments were made direct to the parties who purchased the lumber from the Palmer and Semans Lumber Company.</p> <p>9. Prior to the execution of the contract between the plaintiff and the defendant in 1910, to wit, in 1907, the, defendant, Ursina and North Pork Railway Company had filed with the Interstate Commerce Commission at Washington, D. C., its tariff or schedule of rates for transportation over its line, and the rates or charges mentioned and agreed upon in the contract between the parties hereto were in accordance with the rates as designated in the schedule filed with the Interstate Commerce Commission—the said schedule or tariff is designated as Schedule No. 1.</p> <p>10. On March 25, 1915, the defendant railway company filed with the Interstate Commerce Commission at Washington, a new schedule or tariff of rates to become effective April 26, 1915, and this schedule was likewise designated as Schedule No. 1. This schedule was posted as required by law, and the plaintiff had notice of its filing; and thereafter the defendant refused to ship lumber for the plaintiff under the contract of 27th December, 1910, and demanded freight at the rate fixed in the schedule or tariff of rates above mentioned; thereupon, on the 28th of April, 1915, the plaintiff filed this bill in equity, asking for an injunction to restrain the defendant from enforcing the rates as provided by said schedule, and asking the court to compel an adherence to the contract between the parties. Pending the disposition of this case and while the preliminary injunction was in force, the defendant railway company filed with the Interstate Commerce Commission a new schedule of rates on the 8th of May, 1915, designated as Schedule No. 3, in which the rates or tariff were precisely the same as in the schedule filed March 25,1915; the purpose and effect of the last schedule being simply to change the number of the schedule, the former schedule having been inadvertently marked as No. 1, whereas it should have been No. 2, as the previous schedule filed in 1907 had been. marked as No. 1.</p> <p>11. For several years last past the defendant railway company has filed regularly with the Interstate Commerce Commission at Washington, D. C., the various reports required to be made by companies engaged in interstate transportation as required by the act of congress.</p> <p>12. There is very little evidence as to the transportation of passengers over the line of the defendant company. In June, 1911, two emigrants bought tickets in Philadelphia for transportation to the village of Humbert and were carried over the B. & O. Railroad to Ursina, thence over the railroad of the defendant company to Humbert, and the B. & O. Railroad Company accounted to the defendant company for its share of the transportation charges. This is the only instance of the carrying of passengers-'over the line of the defendant company from or to points outside of the State of Pennsylvania. There was also evidence of a few shipments of through freight from points outside of the State of Pennsylvania to the village of Humbert, the same having been carried over the railroad of the defendant, but there was evidence of some shipments from Humbert to points outside of the State of Pennsylvania by shippers other than the plaintiff, and on the shipments from Humbert to points outside of Pennsylvania and from points outside of Pennsylvania to Humbert the defendant received its proportionate share of the through freight charges.</p> <p>13. The defendant filed with the Public Service Commission of Pennsylvania at Harrisburg, its schedule of tariff rates, of which notice was given to the plaintiff. Neither the plaintiff company nor any other shipper filed a complaint with either the Interstate Commerce Commission at Washington, 1). C., or the Public Service Commission of Pennsylvania at Harrisburg, as to the schedule of rates filed by the defendant company.</p> <p>14. The defendant maintains an office and has an agent in said office at its station at Humbert, but neither the defendant nor the B. & O. Railroad Company maintains a station or an agent at the junction of the two railroads near Ursina. The line of the defendant passes near the station of the B. & O. at Ursina, but does not connect until at a point some distance west of the station.</p> <p>The court held as a matter of law that the shipments under the contract were governed by the provisions of the Interstate Commerce Act and accordingly dismissed the bill.</p> <p>Error assigned was decree dismissing the bill.</p>

<p>Appeal, No. 3, April T., 1916, by defendant, from order of C. P. Allegheny Co., July T., 1914, No. 1613, fixing amount of license fees in case of Dormont Borough v. West Liberty Street Railway Company and Pittsburgh Railways • Company.</p> <p>Petition to determine license fees under Act of July 26, 1913, P. L. 1371. Before Shafer, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was the order of the court.</p>

<p>Gift—Gift inter vivos — Husband and ivife — Constructive de>livery.</p> <p>To constitute a valid gift inter vivos, the purpose of the donor to make the gift must be clearly and satisfactorily established, and the gift must be completed by actual, constructive, or symbolical delivery, without power of revocation. Between a husband and wife a constructive delivery is sufficient to complete the gift.</p> <p>Where a husband who has left his wife, promises to give her all the household furniture in the house belonging to him in which she is living, if she will take him back, and she does take him back, the delivery of the furniture is constructive, and the gift of it .complete.</p> <p>In an action of replevin by a husband against his wife to recover household furniture, which the wife claims as a gift from her husband, where the evidence is conflicting, and the trial judge leaves the question of the value of the goods and punitive damages to the jury, and the jury returns a verdict for the wife in a sum stated for the value of the furniture, with an additional amount for punitive damages, the court, on a motion for a new trial and for judgment n. o. v., cures whatever error was committed in submitting the question of punitive damages upon insufficient evidence by directing a remittitur to be filed for that item.</p>

<p> Partnership—Account stated—Statute of limitations. </p> <p>Where a partner dies and thereupon the partnership books are balanced showing a balance due from the deceased partner, the statute of limitations begins to run against such indebtedness from the date when the hooks were balanced; and the surviving partner after the expiration of six years from such date cannot set up such indebtedness as a set-off in a suit brought against him for an accounting of other partnership assets which he had recovered after the date when the books were balanced; nor in such a case can the surviving partner claim subrogation because he had used some of his own funds to pay partnership debts after the balancing of the hooks, if it appears that more than six years had elapsed from the date of such payment to the date of the institution of the suit.</p> <p>If the assets for which such suit was brought were collected by the surviving partner within six years from the date of the beginning of the suit, he must account for a proper share of them to the representative of the deceased partner.</p>

<p>Appeal, No. 145, April T., 1916, by defendant, from judgment of C. P. Westmoreland Co., Feb. T., 1914, No. 103, on verdict for plaintiff in case of R. G. Greenawalt v. West Newton Borough.</p> <p>Appeal from award of jury of view in change of grade proceedings. Before Copeland, P. J., of the Orphans’ Court of Westmoreland County, specially presiding.</p> <p>At the trial various witnesses for the plaintiff were permitted under objection and exception to testify as to the cost of a retaining wall alleged to have been made necessary by the change of grade. (1-5)</p> <p>The court charged in part as follows:</p> <p>[“You have heard the testimony relating to the necessity of taking up the side walk and grading it down to correspond with the grade of the street and the cost thereof; the necessity for the construction of a retaining wall and the cost thereof; the necessity for the reconstruction of á portion of the steps leading up to the plaintiff’s property and the cost thereof; the necessity for readjusting the terrace to harmonize with the improvements, along the plaintiff’s property and the cost thereof; the necessity for grading the driveway into, the plaintiff’s property and the cost thereof; and the necessity of taking up and relaying the sewers and drains and the cost thereof. You also have heard the testimony in relation to what it would cost to do this work, in a lump sum. The plaintiff alleges that it is necessary to alter his side walk and change his property in these respects by reason of the change of grade, and, while we say that the rule for the measure of damages is the difference between the market value immediately before and after the improvement; yet, these items are competent and admissible in evidence, not that they, in themselves are items of damage, but as elements bearing on the difference in the market value.”] (6)</p> <p>[“There is a difference, and as we said in the early part of our charge, when the witnesses do not agree you draw your conclusions from the items and reasons upon which they base their estimate of the depreciation or appreciation in the market value.”] (7)</p> <p>Plaintiff presented these points:</p> <p>“2. In making up your verdict, if you find in favor of the plaintiff, you are entitled to take into consideration the items of cost, if you believe the plaintiff’s testimony and believe that such' changes are necessary to render the property as it was before the injuries were committed by the borough, the cost of a retaining wall, relaying the pavement, rebuilding the steps, changing the sewer pipes, reconstructing the drive way, loss of trees, and such other items of damage as the plaintiff’s testimony has shown as the result of the injury. These, however, are only to be taken into consideration in making up the difference in the market value before the injury complained of was committed and afterwards, and a sum that will compensate the plaintiff for the loss in the market value of his property is the sum that should be ascertained and found in favor of the plaintiff by your verdict.” Answer affirmed. (9)</p> <p>Defendant presented this point :</p> <p>“2. The testimony being that the property of the plaintiff was erected on an elevation, and that said improvement only increased that elevation in a fractional degree, the jury has not the right to consider the specific cost of changing the surface of the plaintiff’s property by the building of retaining walls, but has only the right to consider the difference in market value of the property, as affected by said improvement.”</p> <p>Answer. “That is true. You have no right to consider the cost of changing the surface of the plaintiff’s property by building retaining walls as the basis of specific recovery, but you have a right to consider it as an element affecting the market value of his property. With this modification this point is affirmed.” (12)</p> <p>Verdict and judgment for plaintiff for $850. Defendant appealed.</p> <p>Errors assigned were (1-5) rulings on evidence quoting the bill of exceptions; (6,7, 9 and 12) above instructions quoting them.</p>

<p>Appeal, No. 41, April T., 1916, by defendant, from judgment of C. P. Jefferson Co., Jan. T., 1914, No. 161, on verdict for plaintiff in case of U. J. .Matson, George R. Matson and Norman D. Matson, doing business as R. M. Matson’s Sons, v. W. E. Slaugenhaupt.</p> <p>Assumpsit for rent. Before Reed, P. J.</p> <p>Rent was claimed for the month of January, 1911, and $25 for each of the months of February and March, 1912, that being amount of loss on re-rental. Other facts appear by the. opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $205.83. Defendant appealed.</p> <p>Error assigned was refusal of binding instructions for defendant.</p>

Appeal, No. 143, April T., 1916, by plaintiff, from judgment of C. P. Butler Co., Dec. T., 1914, No. 5, for defendant n. o. v. in case of J. D. Perry v. Pittsburgh* & Butler Street Railway Company. Trespass to recover damages for the taking of land. Before Reiber, P. J. The opinion of the Superior Court states the case. At the trial a verdict was returned for the plaintiff for $275.

<p> Railroads—Switches—Construction of switch for shipper—Act of July 26,1918, P. L. 1871^. </p> <p>A railroad company cannot be compelled to construct a private siding on its right of way at its own expense for the sole accommodation of a milling company, and not for any general public use.</p> <p>Section 17, of Article V, of the Act of July 26, 1913, P. L. 1374, read in connection with paragraph o. of the first section of Article II relates to the manner in which a railroad shall conduct its business with reference to the convenience of the public rather than to the construction of tracks or the affording of switch connections.</p> <p>Section 2 relating to the construction of side tracks or switches under certain circumstances merely requires a railroad company to provide a switch connection, but does not require the company to build a side track or switch at its own expense.</p> <p>A shipper cannot require a railroad company to build a private siding on its own right of way at its own expense, merely because the company had maintained a private siding on the same spot for a former owner, which the company had subsequently abandoned, if it appears that the siding was not appurtenant to the property or that the shipper had any privity in the contract between the railroad company and the former owner, and that the shipper had been informed before he built his mill that the company would need the land for its general purposes.</p>

<p>Appeal, No. 101 and 102, April T., 1916, by defendant, from judgment of C. P. Allegheny Co., July T., 1913, No. 927, on verdict for plaintiff in case of Frederick William Livingstone, by his mother and next friend, Margaret Livingstone and Margaret Livingstone, in her own right, v. Pittsburgh Railways Company.</p> <p>Trespass to recover damages for personal injuries. Before Swearingen, J.</p> <p>The circumstances of the accident are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for Frederick William Livingstone for $500, and for Margaret Livingstone for $300. ■</p> <p>Error assigned was in refusing motion for judgment non obstante veredicto.</p>

<p>Contracts — Executors and administrators — Agreement to pay commissions on sale of real estate—Personal liability of administrator—Encumbrances—Proper purchaser.</p> <p>A contract to pay commissions on the sale of real estate, executed by an administrator, although not binding upon the estate, does bind the administrator personally; and if a co-heir of the administrator assents to the contract, he also is bound.</p> <p>A person who has contracted to pay commissions on the sale of real estate cannot object to such payment, on the ground that the purchaser offered was an unincorporated association, inasmuch as such an association may lawfully hold title to real property.</p> <p>Where, in such a ease, the real estate is encumbered by a widow’s dower and a mortgage, the broker who has secured a proper purchaser has earned his commissions, although the person with whom he contracted has been unable to procure a release or discharge of encumbrances.</p>

<p> Wills—Construction—Devise—Charge on land—Executors and administrators. </p> <p>Where a testator leaving to survive him a wife and several children including two imbecile daughters devises the larger part of his -land to his wife for life and directs that at her death “the family is to live on the farm,” and the two imbecile daughters are to have a living off of it, “as long as they both shall live, ánd at the death of both of them the farm may be sold and the money equally divided amongst the heirs,” the executrix of the estate, one of the daughters, is not authorized, after the death of the widow, to make expenditures in support of her imbecile sisters out of the general funds of the estate.</p> <p>In such a case the imbecile daughters were to have a living out of the farm, and if such a living should be regarded as a charge on tbe land, they bad a remedy given by statute wbicb they could invoke.</p>

<p>Appeal, No. 142, April T., 1916, by defendant, from order of C. P. Beaver Co., Sept. T., 1914, No. 271, discharging rule to open judgment in case of Arbuckles & Company v. Robert W. Cloughley, Administrator of Isabella Marshall, deceased, and Alexander Marshall.</p> <p>Rule to open judgment.</p> <p>Holt, P. J., filed the following opinion:</p> <p>The defendant, Isabella Marshall, has made an application to open the judgment and let her into a defense. A reading of the testimony will disclose that she delayed the matter of making application to open the judgment for several years after she had knowledge of its existence against her. She alleges in her petition that the note upon which the original'judgment was entered was not signed by her, nor'was any authority given to anyone to sign for her. The note purports to be executed by Isabella Marshall by her mark duly attested. This note seems to be regular and in due form. The original judgment was entered in the year 1909. The writ of scire facias was duly served on Isabella Marshall on July 27, 1914. Judgment was entered September 19, 1914. The petition to open the judgment was not filed until April 3, 1915.</p> <p>Error assigned was order discharging rule to open judgment.</p>

<p>Criminal law—Street walking•—Jurisdiction of courts—Municipal Court—Act of June 17, 1915, P. L. 1017—Statutes—Repeal— Words and phrases—“Exclusive</p> <p>Under the Act of June 17, 1915, P. L. 1017, the Municipal Court of Philadelphia County has exclusive jurisdiction in all proceedings concerning, or trials of charges brought against all persons, -whether adults or minors, accused of disorderly street walking. The Act of June 17, 1915, repeals the Act of June 2, 1871, P. L. 1801, in So far as the latter act gives jurisdiction in such case to magistrates or justices of the peace in the City of Philadelphia.</p> <p>A subsequent statute revising the whole subject-matter of a former statute, and evidently intended as a substitute for it, although it contains no express words to that effect, operates to repeal the former.</p> <p>The word “exclusive” in its usual and generally accepted sense, means,—possessed to the exclusion of others; appertaining to the subject alone, individual, sole; to confer exclusive jurisdiction on one court deprives all other courts of such jurisdiction, whether therefore exclusive or concurrent, conferred by statute.</p>