Volume 65 — Pennsylvania Superior Court Reports

Appeal, No. 4, March T., 1916, by Harvey Dietrich, from order of Q. S. Montour Co., granting retail liquor license. Petition for retail liquor license. Before Evans, P. J. Error assigned was order granting license.

Appeal, No. 42, April T., 1916, by Rudolph Schwartz, from order of Q. S. Allegheny Co., March Sessions, 1916, No. 1288, refusing to grant a retail liquor license. Petition for retail liquor license. Error assigned was order refusing a license.

<p>Appeal, No. 5, March T., 1916, by plaintiff, from order of Public Service Commission (Public Service Commission Complainant Docket No. 300), in case of West Virginia Pulp & Paper Company of New York & Pennsylvania Company; The D. M. Bare Paper Company and The York Haven Paper Company, v. The Public Service Commission of the Commonwealth of Pennsylvania; the Pennsylvania Railroad Company; Huntingdon & Broad Top Mountain Railroad Company; Philadelphia, Baltimore & Washington Railroad Company and West Jersey & Seashore Railroad Company.</p> <p>Petition to restrain an increase of freight rate on pulp wood.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was order dismissing the petition.</p>

<p>Liquor laws — Retail license — Practice, Q. 8. — T'erms of court.</p> <p>An order granting a retail liquor license will not be reversed, be- • cause, pending the filing of the petition, and the entry of the final order, the term of the judge of the Quarter Sessions terminated and another person succeeded him as judge.</p> <p>The exercise of the powers of the Court of Quarter Sessions, which require no assistance from juries,' are not in abeyance when the court is not sitting for the trial of causes and the attendance of grand and petit jurors; .all of such powers which can be properly exercised by the judge alone, may be performed at any time unless otherwise provided by law, and for the exercise of such powers each term lasts until the next one begins.</p> <p>Where an order is made by the Quarter Sessions refusing a liquor license, and a petition for reconsideration is filed in the same term, and a rule is granted returnable to the first Monday of the next term, the whole question is fairly before the court, and if in the second term the rule is made absolute and a hearing is had which results in the granting of the license, the court acts entirely within its lawful powers, and it cannot be held that such time had elapsed as made it legally impossible for a reconsideration of the earlier order.</p>

<p>Broker — B,eal estate hr oleen — Commissions—Division of commissions — Serving two masters.</p> <p>In an action against a real estate broker to recover one-half of the commissions on a sale of land based on an alleged promise made by the defendant to the plaintiff to share the eommissiohs for assistance in procuring a purchaser, the plaintiff is not barred from recovering such share of the commissions, because he assisted the purchaser in reselling, at the same time, a portion of a tract purchased, and received a compensation therefor; and if the evidence is conflicting as to whether the promise was actually made, and as to whether the resale of the land was not involved as a part of the transaction of the sale, the case is for the jury, and a verdict and judgment for the plaintiff will be sustained.</p>

Appeal, No. 103, Oct. T., 1915, by Edward H. Middleton, deceased, from decree of 0. O. Philadelphia Co., Jan. T., 1911, No. 279, dismissing exceptions to adjudication in Estate of Emma E. Middleton, deceased. Exceptions to adjudication.

Appeal, No. 364, Oct. T., 1915, by plaintiffs, from judgment of Municipal Court, May T., 1915, No. 381, for defendant n. o. v. in case of M. Lowenstéin & Sons v. Harry Greenbaum. Assumpsit for goods sold and delivered. The facts are stated in the opinion of the Superior Court. Error assigned was in entering judgment for defendant n. o. v.

Appeal, No. 213, Oct. T., 1916, by defendant, from order of Municipal Court, Philadelphia Co., directing respondent to pay for support of his two children in case of Commonwealth, ex rel., Maud L. Leidy v. Henry B. Leidy. Proceedings for an order of support. Errors assigned were in the following form: 1.

Appeal, No. 20, March T., 1916, by defendants from judgment of C. P. Luzerne Co., June T., 1912, No. 93, on verdict for plaintiff in case of Houston & Scott, Inc., to the use of Fred. W. Denniston, v. Maria Y. McCaslin and James McCaslin. Assumpsit by holder against makers of a promissory note. Before O’Boyle, J. The facts are stated in the opinion of the Superior Court. Yerdict and judgment for plaintiff for $560.92. Defendant appealed.

Appeal, No. 133, Oct. T., 1916, by defendant, from judgment of Q. S. Philadelphia Co., March Sessions, 1916, No. 167, sustaining judgment of magistrate in case of Commonwealth v. William Gillen. Appeal from judgment of magistrate. See 25 Dist. Rep. 401. The opinion of the Superior Court states the case. Error assigned was in sustaining judgment of magistrate.

Appeal, No. 366, Oct. T., 1915, by defendant, from judgment of Municipal Court, Philadelphia Co., April T., 1915, No. 65, on verdict for plaintiff in case of C. Elizabeth Hare v. Philadelphia & Reading Railway Company. Trespass to recover damages for injuries to two horses and a wagon. Before Crane, J. The circumstances of the accident are stated in the opinion of the Superior Court. Verdict and judgment for plaintiff for $700. Defendant appealed.

Appeal, No. 193, Oct. T., 1916, by defendant, from judgment of Q. S. Philadelphia Co., June T., 1915, No. 513, on verdict of guilty in case of Commonwealth, v. Prank D. Metz. Indictment for making false statement to obtain credit or property. Before Carr, J. At the trial the jury returned a verdict of guilty.

<p>Appeal, No. 115, April T., 1916, Joseph Schmidt, et al., from order of Q. S., Allegheny Co., June T., 1915, No. 8, quashing proceedings In re Petition for Change of Name of the Borough of Turtle Creek.</p> <p>Petition for change of name of a borough. Before Carpenter, J.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>Error assigned was order quashing the proceedings.</p>

Appeal, No. 46, April T., 1916, by plaintiff, from order of C. P. Mercer Co., Jan. T., 1912, No. 147, making absolute rule to discontinue suit and enter judgment of non pros, in case of Y. J. Schmitt, Receiver of the Inter-State Lumber Co. v. John Cook and Harry B. Cook, doing business as John Cook & Son. Rule to discontinue suit and enter judgment of non pros. The opinion of the Superior Court states the case.

Appeal, No. 116, Oct. T., 1910, by defendant, from judgment of Municipal Court, Philadelphia Co., Jan. T., 1916, Ho. 654, for plaintiff in case tried by the court without a jury in suit of Harmon Robinson v. Robert Wallace. Assumpsit for goods and labor. Before Crane, J. The opinion of the Superior Court states the case. Error assigned was in finding for plaintiff.

<p>Criminal law — Perjury—Charge—Improper charge — When prosecution may he instituted.</p> <p>A conviction'for the crime of perjury will he set aside on appeal, where a reading of the charge convinces the appellate court that it was a powerful argument for. conviction, and that its natural effect must have been to no longer leave the minds of the jurymen open, to be operated on by the convincing power of the evidence and by that alone.</p> <p>The preliminary steps in a prosecution for perjury, down to and including the finding of a bill by the grand jury, may .with propriety be taken, before the final determination of the proceedings in which the alleged perjury occurred; but a motion will always be granted to postpone the trial until the termination of the earlier proceeding.</p> <p>As it is an essential of the crime of perjury that the alleged false testimony be material to the subject-matter to be determined in a judicial proceeding, it is essential at the trial of an indictment for perjury, that the whole record of the earlier proceedings should be considered by the court conducting the criminal trial.</p>

<p>Mines and mining — Mining coal on another’s land — Treble damages — Evidence.</p> <p>A verdict for treble damages for.mining coal on the land of another cannot be sustained, where the only witness offered by the plaintiff to show that the improper mining was knowingly done, was a person without engineering knowledge of the dividing line, who fixed no time for the alleged intrusion, and based his opinion on a mere guess.</p>

<p>Appeal, No. 149, April T., 1916, by plaintiff, from order of C. P. Lawrence Go., Sept. T., 1914, No. 37, refusing petition to ascertain and fix damages in case of W. K. Nowling v. A. D. Newell, et al., Members of and Composing the City Council of (be. City of New Castle.</p> <p>Petition for mandamus and for the court to ascertain and fix damages.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned Avas refusal of court to ascertain and fix damages.</p>

<p>Appeal, No. 64, April T., 1916, by defendant, from judgment of G. P. Orawford Co., Feb. T., 1912, No. 119, on verdict for plaintiff in case of Republic Bank Note Company v Northwestern Pennsylvania Railroad Company.</p> <p>Assumpsit for engraved certificates of stock and bonds, sold and delivered. Before Pratpier, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $758.85. Defendant appealed.</p> <p>Error assigned, among others, was in refusing judgment for defendant n. o. v.</p>

Appeal, No. 47, April T., 1916, by Sarah B. Brady, from order of Q. S. Westmoreland Co., Feb. T., .1916, No. 48, granting a liquor license In re License of P. F. McCann. Petition for a retail liquor license. The facts are stated in the opinion of the Superior Court. Error assigned was the final decree quoted in the opinion of the Superior Court.

Appeal, No. 52, Oct. T., 1916, by defendant, from judgment of Q. S. Lancaster Co., Sept. T., 1915, No. 63, on verdict of guilty in case of Commonwealth v. Thomas E. Hartman. Indictment for arson. Before Hassler, J. The jury returned a verdict of guilty against both Hartman and Stoy.

<p>- Criminal law — Nolle prosequi — Action of court against protest of district attorney — Act of Maxell 12, 1866, P. L. 85.</p> <p>The Court of Oyer and Terminer is without jurisdiction to enter a nolle prosequi in a prosecution for robbery, notwithstanding the protest of the district attorney, where the record shows that the application of the prosecutor through private counsel for such action of the court, was not in writing, and was not verified by affidavit, as provided by the Act of March 12, 1866, P. L. 85.</p> <p>There is nothing in the Acts of March 29, 1819, P. L. 266, and March 31, 1860, P. L. 437, and the decisions of the courts in construing these acts, to indicate an intention to depart from the doctrine of the common law that a nolle prosequi can only be entered by the prosecuting ofiacer, or with his consent.</p>

<p>Municipalities — Sidewalks — Awnings — Philadelphia — Act of April 16,1838, Sec. 3, P. L. 636.</p> <p>Under the Act of April 16, 1838, Sec. 3, P. L. 626, which authorizes the councils of the Oity of Philadelphia “to make and establish such and so many rules and regulations as to them may seem expedient for the better regulation of awnings, awning posts” —projecting or occupying the sidewalks of the city, the councils may enact an ordinance providing that within ninety days all awnings and awning poles on sidewalks of a particular street, shown to he a busy trading street, shall he removed.</p>

<p>Statutes — Repeal—Local acts — General act — Billiard rooms— Acts of April IS, 1859, P. L. 61k,' March 16, 1866, P. L. 208; April 9, 1867, P. L. 976, and April 18,1905, P. L. 212.</p> <p>The local Acts of April 13, 1859, P. L. 614; March 16,1866, P. L. 203, and April 9, 1867, P, L. 976, which established regulations for pool and billiard rooms in Armstrong Oounty and certain other counties, were not repealed by the general Act of April 18, 1905, P. L. 212, entitled “An act for the better regulation of public billiard rooms, bowling saloons and ten pin alleys in the Commonwealth of Pennsylvania.”'</p> <p>A local act will not be repealed by a later general act where it appears that the local act was broader than the general act and contained regulations to which the later statute had no application.</p>

Appeal, No. 336, Oct. T., 1915, by defendant, from order of Municipal Court Philadelphia Co., May T., 1915, No. 113, in habeas corpus proceedings in case of Commonwealth, ex rel., Arthur E. Clifford v. Florence Bisel Clifford. Petition for habeas corpus.

<p>Appeal, No. 13, April T., 1917, by defendant, from judgment of Q. S. Greene Co., March T., 1915, No. 2, on verdict of guilty in case of Commonwealth v. Zacharia Taylor.</p> <p>Indictment for malicious prosecution. Before InGHRAM, P. J.</p> <p>At the trial the Commonwealth proposed to prove that various times prior to the 30th of August testified to by a witness that he had erected gates and bars at this particular point and the defendant had at different times broken down or destroyed or partly destroyed the gate, and bars ereqted at that partiquiar point.</p> <p>For the purpose of showing that the aet eommitted on the 30th day of August was wilful and with maliee. And for the purpose of showing the intent in the mind of the defendant at the time he committed the act testified to by the witness.</p> <p>To be followed by evidence that some 15 or 20 years ago the defendant had been arrested and convicted, prosecuted by the father of the witness, who at that time owned the land, on the charge of malicious mischief, for the breaking down of the fence at the same place as testified to by the witness.</p> <p>For the purpose of showing the defendant acted with malice at the time he destroyed the fence on the 30th of August. And for the purpose of showing the wilful disregard of the rights of others.</p> <p>objections :</p> <p>“Defendant objects to the offer of the testimony to be elicited for the reasons:</p> <p>“1. That the statement of facts proposed to be proven by this witness are incorrect.</p> <p>“2. That the indictment charging the crime for which the defendant is now on trial lays the time of the commission of that crime on the 30th day of August, 1914, and no other date is suggested in the indictment.</p> <p>“That there is no charge of dragging away or destroying any other property of the said Inghram Orndoff, the prosecutor in this case.</p> <p>“That the defendant by the pleadings has no notice of any other act of malicious mischief charged or preferred against him for which he is called to answer other than the one named in the indictment of the 30th of August, 1914.</p> <p>“And further that the testimony is incompetent, irrelevant and immaterial to the trial of the issue now before the Court.”</p> <p>ruling :</p> <p>“Objection overruled and exception sealed for the defendant. The district attorney should remember the defendant is not on trial for anything but malicious mischief committed at no other time than the 30th of August. But it is competent for the purpose of showing malice in his breaking down the gate if he did break it down.”</p> <p>By Mr. Ray: I propose to offer in evidence and do now offer in evidence the record of the Court of Quarter Sessions of Greene County, Pa., No. 4, June Sessions, 1892, as the same appears in Quarter Sessions Docket for the years 1892 to 1897, — in the case of the Commonwealth versus Zacharia Taylor, and I now propose to read this record.</p> <p>Being the indictment against Zacharia Taylor for the malicious breaking down the fence of Jesse Orndorff, the prosecutor.</p> <p>objections :</p> <p>By Mr. Wilkinson: The defendant objects to the offer of this record, in evidence as being incompetent, irrelevant and immaterial. Being the record of the case tried in this court 23 years ago or about, against the same defendant, but upon a different charge.</p> <p>The case upon which the defendant is being tried is one laid on a specific date, viz: August 30, 1914, and there can be no evidence from this case that would show or tend to show the guilt or innocence of the defendant in this matter.</p> <p>° That it is too remote for any purpose whatever, and a different prosecutor in that action.</p> <p>By Mr. Huss: For the purpose of showing that the prosecutor at that time was the owner and predecessor in title of this prosecutor, and the charge was the same, for breaking down the fences at the same point on the land not then owned by Mr. Taylor.</p> <p>For the purpose of showing wilful violation of the rights of Mr. Inghram OrndorfFs predecessor in title.</p> <p>For the purpose of showing the intent of the defendant in breaking down this fence, to show that the defendant had no right at the time he broke down the gate in suit and knew it, because it had been passed upon in a similar action in which he was tried and found guilty.</p> <p>ruling :</p> <p>By the Court: We think the testimony is competent. Exception. (2)</p> <p>And now January 3, 1893, the defendant, Zacharia Taylor, being in open court pleads “Not guilty.” District attorney similiter et issue, whereupon a jury being called, comes as follows: Joseph Phillips, W. P. Scott, Isaac H. Smith, Henry Davis, Alfred B. Day, Francis Roberts, Lazear Stoneking, Roland Turner, Charles Roberts, Thomas Smith, Lindsey Dulaney and C. N. Bowlby, twelve good and lawful men of the County of Greene, who being duly sworn according to law and after hearing the evidence and the charge of the court say they find the defendant, Zacharia Taylor, guilty in manner and form as indicted.</p> <p>Verdict at 12:15 o’clock p. m. Wednesday, January 4, 1893.</p> <p>And now January 4,1893, motion for new trial and in arrest of judgment filed, and leave granted the defendant to file reasons therefor on Saturday, January 7,1893.</p> <p>January 7, 1893, reasons for a new trial filed.</p> <p>January 12,1893, argued.</p> <p>And now February 6, 1893, order of Court filed of which the following is a copy:</p> <p>“And now January, 1893, this matter came on to be heard and was argued by counsel; and now February 6, 1893, after consideration thereof it is ordered and directed that the rule to show cause why a new trial should not be granted be discharged and a new trial refused. “Attest: “Per Curiam.</p> <p>“M. R. Travis, Clerk.”</p> <p>And now, March 6, 1893, defendant, Zacharia Taylor, being in open court the district attorney moves for sentence.</p> <p>Whereupon the court pass sentence as follows: “The sentence of the court is that you pay the costs of prosecution, that you pay a fine of $25, one-half to the informer, Jesse B. Orndorff and one-half to the directors of the poor, and you are now in the custody of the sheriff until the sentence of the court is complied with.”</p> <p>July 22,1893, petition for discharge filed.</p> <p>Frank Thomas sworn: “Are you acquainted with the location of this subject-matter here? Just state if you have at any time recently seen Mr. Taylor, the defendant, interfere and injure any part of that gate mentioned here within the last two years?”</p> <p>objections :</p> <p>We object to the question because it refers to matters prior to the date set in the indictment charging Mr. Taylor with malicious mischief. That the testimony of this witness to any matter prior to the date alleged in the indictment is incompetent evidence and immaterial in this matter.</p> <p>ruling :</p> <p>Objection overruled and exception sealed for defendant.</p> <p>EVIDENCE:</p> <p>Q. — Just state, Mr. Thomas, when if at any time you</p> <p>Statement of Facts — Opinion of the Oourfc. [65 Pa. Superior Ct. saw the defendant interfere with that particular gate or one at that place? A. — On July 17,1914.</p> <p>Q. — Just state what you saw. A. — I saw him lift the gate off the hinges and start to carry it across the road and carry it back and set it against the fence.</p> <p>Q. — Just stafe what all occurred. A. — And he went up about fifty or seventy-five feet from this gate and got a club or piece of iron, I could not tell what it was — it sounded like iron — and he come back and turned the top staple in the post. (3)</p> <p>Verdict of guilty upon which judgment of sentence was passed. Defendant appealed.</p> <p>Errors assigned were (1) in refusing to quash the indictment, (2,3) rulings on evidence, (5-11) various instructions.</p>

<p>Appeal, No. 40, March T., 1916, by plaintiff, from order of Public Service Commission Municipal Contract Docket No. 5, 1915, refusing to approve municipal contract in case of Jenkins Township and the Jenkins Twp. Electric Light, Heat & Power Co. v. Public Service Commission of Pennsylvania and the Citizens’ Electric Illuminating Company.</p> <p>Petition to approve municipal contract.</p> <p>Johnson, Commissioner, filed the following report:</p> <p>The township of Jenkins, Luzerne County, Pa., through its solicitor, W. L. Pace, Esq., makes application to the Public Service Commission for the approval of a contract executed on the 21st of December, 1914, by the Township of Jenkins and the Jenkins Township Electric Light, Heat and Power Company. The board of supervisors of Jenkins Township at a meeting held December 14,1914, directed the secretary of the board to advertise for bids for lighting the streets and alleys of the township for a period of two, three or five years from May 1, 1915, the date of the expiration of the then existing contract for street lighting. In pursuance of this resolution, the secretary advertised “for sealed proposals for lighting with electric light, or other illuminating medium, the streets, highways, lanes, alleys and other public places of and in said township for a period of two, three or five years, from the expiration of the lighting contract, with 72, or more, Westinghouse metallic flame arc lamps, or any other modern lighting system equally as good.”</p> <p>Bids submitted were to be presented to the board of supervisors at a meeting to be held December 21, 1914, and at the meeting held upon that date the board of supervisors received two bids. One was from the Jenkins Township Electric Light, Heat and Power Company — a company that was incorporated in 1909, but which has not yet equipped itself with facilities for rendering service. The company has no generating station, but has erected some poles and wires in the township with a view to doing domestic lighting with current which it expects to obtain from the Lackawanna and Wyoming Valley Railroad Company, operating the electric railway popularly known as the Laurel Line. The offer of the Jenkins Township Electric Light, Heat and Power Company was to furnish and maintain the desired number of General Electric arc lamps at the following rates per lamp per annum: For a period of two years, $51; for a period of three years, $50; for a period of five years, $48. This company also made four other proposals, one for furnishing and maintaining Westinghouse metallic flame arc lamps at a rate per lamp per year of $49, $48, $47.50, for periods of two, three and five years, respectively. The other three proposals made by this company were to provide Mazda lamps of different candle power and different fixtures. One of these proposals was to furnish and maintain 250 candle power, type C Mazda lamps, with street hoods, at rates per lamp per year, of $40, $39 and $37, for periods of two, three and five years, respectively.</p> <p>The other bid received by the board of supervisors for lighting the streets of Jenkins Township was submitted by the Citizens’ Electric Illuminating Company — the company that was then furnishing the light under an existing contract. The offer of the Citizens’ Electric Illuminating Company was to provide and operate 72 or more, arc lights at a rate of $45 each per annum, for a term of two, three or five years “in accordance with the specifications” in the advertisement, “and the contract conditions herewith.” The phrase “contract conditions herewith” contained in the bid submitted referred to a draft of a contract which accompanied the bid and which specified that the lamps proposed to be furnished were “arc lights known as series luminous, or magnetite, the same as now being furnished and operated in the township by the company.” The bid of the Citizens’ Electric Illuminating Company upon General Electric luminous arc lamps was three dollars per lamp per annum lower than the bid of the Jenkins Township Electrict Light, Heat and Power Company upon that type of lamp.</p> <p>At the meeting held upon the 21st of December, 1914, at which the two bids were opened, the board of supervisors by a divided vote decided to accept the offer of the Jenkins Township Electric Light, Heat and Power Company to supply 72, or more, 250 candle power, Type C, Mazda lamps with street hoods, for a period of five years, at the rate of $37 per lamp per annum; and the same evening a contract was executed by the township supervisors and by the officials of the Jenkins Township Electric Light, Heat and Power Company. The supervisors of Jenkins Township have applied to this commission for its approval of this contract. The Citizens’ Electric Illuminating Company has petitioned the commission to withhold its approval of the contract, and both sides have presented testimony in support of their petitions.</p> <p>In petitioning the commission to withhold its approval of the contract in question, the protestant' alleges among other things, that the petitioner has, since August, 1904, provided a reasonable, adequate, sufficient, and satisfactory service to the public in Jenkins Township at just, reasonable and fair rate, and in the complete discharge of its duty as an electric company; that the company has an efficient and modern plant with, all modern facilities for serving the public; that the “illuminating unit, namely, two hundred and fifty candle power, type C Mazda lamps, for which bids were submitted and received by the board of supervisors and upon the basis of which the contract was awarded and entered into, is not of an illuminating power equal to Westinghouse metallic flame arc lamp, or to general electric arc lamps, but is of much less and inferior illuminating power and is an entirely different form of illuminant”; that the Township of Jenkins, which is approximately two miles by seven miles in area, and which had a population of 4,196, according to the census of 1910, does not present a commercially attractive field for one company, much less for two, and to permit another electric light company to enter and operate in this township would “work, irreparable injury to your petitioner and its investment.”</p> <p>The following issues are raised by the petitions for and against the approval of this contract: (1) Were the bids in accordance with the specifications; (2) which of the two proposed lighting systems submitted would give the township a more effective lighting service for -the same expenditure; and (3) is the approval by this commission, of the proposed contract “necessary or proper for the service, accommodation, convenience or safety of the public.”</p> <p>The board of supervisors in advertising for proposals for lighting the streets of the township specified that the lighting should be by “Westinghouse metallic flame arc lamps, or any other modern lighting system equally as good.” The Citizens’ Electric Illuminating Company offered to light the streets with series luminous or magnetite arc lamps, such as the company was then using in lighting the streets of the township. The testimony shows that the lamps in use were the four ampere magnetite lamp made by the General Electric Company. The bid accepted by the board of supervisors, and the contract submitted to this commission for approval provides that the Jenkins Township Electric Light, Heat and Power Company shall “install and furnish in and for said township 72, or more, 250 candle power, type C Mazda lamps, with street hoods.” -Thus neither the bid accepted by the township board of supervisors nor the bid submitted by the Citizens’ Electric Illuminating Company contemplated the use of Westinghouse flame arc lamps. Both the bid accepted and the one rejected were covered by the clause, “or any other modern lighting system equally as good,” contained in the specifications adopted by the board of supervisors, in calling for proposals for lighting. The bids of both companies were in accordance with these specifications.</p> <p>As to the relative illuminating power of the four ampere luminous arc lamps and the 250 candle power type C Mazda lamp, each being equipped with hood, it was testified by Mr. E. L. Nash, an electric lighting expert called as a witness by the protestant, that “the four ampere lamps (at) an angle of 70 degrees yield seven hundred candles, the two hundred and fifty candle Mazdá with street hood yields two hundred and fifty.” (Record, p. 234.) Mr. Nash also stated that by the use of refractors “your two hundred and fifty candle Mazda lamp then yields four hundred and fifty candles at 10 degrees (below horizontal), and your arc lamp yields practically one thousand.” (Record, pp. 240-41.) The installation of refractors, however, was required neither by the bid accepted by the board of supervisors, nor by the bid submitted by the protestant company. The bid that was accepted designated a lamp of 250 candle power, and the one that was rejected referred to a lamp of 700 candle power, this intensity of illumination being at an angle of 10 or 15 degrees below horizontal in the case of each lamp.</p> <p>The four ampere luminous arc lamp has been on the market for several years; it is an efficient and satisfactory type of street lamp. This Commission In re Petition of the City of Pittston for the Approval of Street Lighting Contract with the Citizens’ Electric Illuminating Company (decided July 21, 1914), refers to this lamp as “one of several types of modern lamps that are in general use and giving satisfactory service in many cities.” The testimony shows that, while the 250 candle power type C Mazda lamp is one of the latest types of lamps, it would require to provide a given amount of illumination an appreciably larger number of such lamps than would be required if four ampere luminous arc lamps were used. For an equal expenditure of money, the Township of Jenkins can secure more illumination from the four ampere luminous arc lamps at $45 per lamp per year than from type C Mazda lamps of 250 candle power at $37 per lamp per year.</p> <p>The petition in this case raises a question of public policy that has been considered in passing upon several similar prior petitions. The Public Service Company Law of July 26,1913, provides that the commission’s approval of applications such as this “shall be given only if and when the said commission shall find or determine that the granting or approval of such application is necessary or proper for the service, accommodation, convenience or safety of the public.” Does the evidence show that the approval of the contract now before the commission is necessary or proper for the service of the public?</p> <p>The public necessity for the approval of the pending contract is not apparent from the evidence. For more than ten years, the commercial and street lighting in the Township of Jenkins has been done by a company fully equipped for the performance of the service required and amply able to make such extensions as may be needed. The complaints as to the services rendered by the company are of minor importance; and it may well be doubted whether a new company with more limited financial resources and with no experience in furnishing light would be able to serve the public as efficiently as it is now being served. The rates at which the company now in the field offers to continue the service of street lighting are not high in comparison with the rates paid elsewhere for similar service, and are fully as reasonable as are the rates offered by the company desiring to enter the field.</p> <p>Do the facts in this case warrant the commission in finding that the approval of the contract under consideration is proper for the service, accommodation and convenience of the public ? Is it proper that the street lighting which the public in Jenkins Township needs and desires to obtain shall be secured by the introduction of a new company into the service? Would this be for the best interest of the public?</p> <p>Jenkins Township is about fourteen miles square in area and has a scattered population which numbered only 4,196 when the census of 1910 was taken. The population is divided among five villages, one of which being several miles distant from the others is not included in the territory covered by the present or proposed street lighting service. The Citizens’ Electric Illuminating Company, which now provides both the street lighting and commercial lighting, has been receiving about $4,600 a year for street lighting, and in 1914 obtained about $3,400 from 141 individual consumers of current. The gross revenues of the company in the township in 1914 were thus about $8,000. The company’s offer to furnish street lighting in the future at $45 per lamp per annum Avould, if accepted, reduce the company’s revenue $20 per lamp, or $1,440 per year. Based upon the business of 1914, the company’s prospective gross revenue would be between $5,600 and $5,700. There is much force ifi the contention of the protesting company that there is not enough business in Jenkins Township to enable íavo companies permanently to operate successfully and provide good service at reasonable rates.</p> <p>When services that may be rendered with profit only by one company are divided among two companies neither one of which can conduct its business at a profit, the services are quite certain to deteriorate. HoAvever, the ultimate effect of unprofitable competition is a relatively high charge for a poor service.</p> <p>In its decision In re Petition of Schuylkill Light, Heat and Power Company for approval of an Ordinance of the Borough of Ashland (Municipal Contract Docket No. 1), this commission took the position that:</p> <p>“The passage of the Act of July 26,1913, and of similar acts in nearly all of the other states indicates a general judgment that a reliance upon competition between public service companies for securing adequate service and proper rates has not been successful and that hereafter supervision by properly, constituted authorities is to be substituted. Long experience has shown that while the temporary effect of competition between public utilities occupying the same territory is to secure lower rates, the final result is likely to be the absorption of one by the other and then an increase of rates to pay the expense of the warfare.”</p> <p>A siinilar view was expressed by the commission In re Petition of the Borough of Exeter for the Approval of a Franchise Contract Granted to the Consumers’ Electric Company of the Borough of Exeter (Municipal Contract Docket, No. 34), and'it was held In re Petition of the Borough of Avoca (Municipal Contract Dockets, Nos. 257 and 258) that the borough, which had a population of 4,600 was “not of sufficient size to sustain two systems of supply (for electric lighting) probably,” and the commission was “unable to find that the approval of the proposed contract is ‘necessary or proper for the service’ of the public or likely to be of permanent benefit to the people of Avoca.”</p> <p>It is our opinion that the facts do not warrant the commission in finding the approval of the contract for street lighting entered into, on the 21st of December, 1914, by the Township of Jenkins, Luzerne County, and the Jenkins Township Electric Light, Heat and Power Company tobe necessary or proper for tbqservice, accommodation or convenience of the public. The approval is therefore withheld and the application dismissed.</p> <p>After reargument, Rilling, Commissioner, reported inter alia, as follows:</p> <p>While we concur in the conclnsion arrived at in the report, yet having asked for a reargument upon the law points raised, with especial reference to the circumstance that the Jenkins Township Electric Light, Heat and Power Company was incorporated prior to the enactment of the Public Service Company Law, we think it is proper, and therefore will consider and pass upon that aspect of this case.</p> <p>The question we are asked to pass upon might properly be stated as follows:</p> <p>Where a public service company was duly chartered in our State prior to the enactment of the Public Service Company. Law, has the commission created by said law the power or authority to restrain such chartered public service company from making a contract for lighting the streets of the municipality covered by its charter after such contract has been approved by such municipality?</p> <p>The Jenkins Township Company claims that by reason of its having been chartered prior to July 26, 1913, and having been asked by Jenkins Township to bid for its street lighting, and having been awarded the contract, that it has the right to have said contract approved, notwithstanding the fact that there is already another public service company established in said township fully able to render the necessary public service therein and that to deny the said Jenkins Township Company the right to enter into such contract is an impairment of its chartered contract with the State as prohibited by the Constitution of the United States as well as the Constitution of Pennsylvania.</p> <p>The authority which the commission seeks to exercise' in this case is clearly the exercise of the police power inherent in our State as delegated to the commission by the provisions of the Public Service Company Law.</p> <p>We concede that the charter granted to the Jenkins Township Electric Light, Heat and Power Company to ■do business in Jenkins Township is in the nature of a contract between it and the Commonwealth; but we think that such charter was granted to it by the State subject to certain constitutional provisions and that the said charter was accepted by the company and is held by it subject to such constitutional provisions, one of which is the inherent right of the Commonwealth in the exercise of its sovereignty to exercise the police power as set forth in Article XVI, Section 3, of the Constitution of Pennsylvania, as follows:</p> <p>“The exercise of the police power of the State shall never be abridged or so construed as to permit corporations to conduct their business in such a manner as to infringe the equal rights of individuals or the general well-being of the State.”</p> <p>We take it that it is not necessary at this time to enter upon any discussion as to the extent of this so-called police power, nor that the State by and through its general assembly delegated to this commission the right to exercise the same.</p> <p>Order affirmed.</p> <p>Error assigned was in making the order of the court, but not quoting it.</p>

<p>Appeal, No. 21, March T., 1917, by defendant, from order of C. P. Luzerne Co., June T., 1916, No. 377, awarding mandamus in case of Jeremiah A. McGinley v. Puller R. Hendershot, County Controller.</p> <p>Petition for mandamus. Before Woodward, J.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was the order awarding mandamus.</p>

<p>Insurance — Life insurance — Misrepresentations as to health— Conflicting evidence — Trial by court without a jury.</p> <p>Where an action upon a policy of life insurance is tried by the court without a jury, and the defense is misrepresentations as to health, and the testimony raises two questions of fact (1) whether the insured had made any representations and (2) whether such, if made, were misrepresentations, and the trial judge finds generally for the plaintiff, the appellate court will conclude that the trial judge found that there had been no misrepresentation, and will .affirm the judgment.</p>

<p>Wills — Power of appointment — Bes adjudicata — Deed — Trust and trustee.</p> <p>Where a husband and wife by deed convey real estate to a trustee, to pay the income therefrom to the settlor and his wife for life, and upon their deaths to sell the real estate and distribute the proceeds among his children in equal shares, the portions of the daughters to be held in trust for life with power of appointment in them by will, and a daughter who survived her parents, and then died, appointed by will her share to a son, with power of appointment, and, if he failed to appoint, to a trustee for a daughter, and- the trustee under the deed of settlement files an account in the Common Pleas, after the son’s death, and that court awards the fund to the trustee under the daughter’s will, such decree unappealed from, is conclusive against the settlor’s heirs af law who subsequently, at the audit in the Orphans’ Court of the account of the trustee under the daughter’s will, claim the fund on the ground of the invalidity of the appointment by the settlor’s daughter.</p> <p>All persons are privies to a judgment whose succession to the rights of property adjudicated or affected were derived through or under some one of the parties to the action. To render a decree conclusive it is not necessary to be against one by name; it is enough that it is against his interest. The rule of res adjudicata extends to 'every question in the proceedings that was legally cognizable.</p>

<p>Carriers — Common carriers — Shipping receipt — Weight.</p> <p>In an action by a shipper against a railway- company to recover the value of three pieces of silk alleged to have been lost in transit, the plaintiffs cannot recover on evidence tending to show that twelve pieces of silk weighing 344 pounds packed in a box were delivered to their drayman; that the -drayman delivered the box on the same day at defendant’s wharf; that a shipping receipt made out'by the plaintiff’s clerk for 344 pounds was signed by defendant’s clerk before the box was weighed; that subsequently an agent of defendant weighed the box finding that it weighed 280 pounds; that the receipt contained the statement “weight subject to correction”; that the box when delivered showed no indication that it had been opened; that it contained only nine pieces of silk when delivered and weighed but 280 pounds; and that the dray-man was not called as a witness, his absence being accounted for by the plaintiffs, by stating that he had left their employment and could not be found.</p>

<p>Appeal, No. 178, Oct. T., 1916, by defendant, from judgment of Q. S. Centre Co., Sept. T., 1915, No. 11, on verdict of guilty in case of Commonwealth v. B. P. Swartz.</p> <p>Indictment for sending a threatening letter. Before Quigley, P. J.</p> <p>The letter was in the following form:</p> <p>“Pay Frank Columbine $20 for his wages and give him f 5 back on that wach, also pay his store bill at Kline and Wolfe. Keep your mouth shut you crooked- -. You have three days to do it, or up goes your barn.</p> <p>“Mum is the word.”</p> <p>It was printed with a pen, and below the writing was the drawing of a black hand.</p> <p>At the trial G. G. Zeth Avas called as an expert witness for the Commonwealth, and after having duly qualified explained to the jury points of resemblance which he found between the letter in question and certain proven writings of the defendant in script. Objection to his testimony was overruled.</p> <p>The court charged in part as follows:</p> <p>B. Paul Swartz, the defendant, stands indicted before you and is now on trial charged with the crime of extortion by threats.</p> <p>The prosecutor, W. H. Thompson, is a resident of the Borough of HoAvard and the OAvner, among other things, of a livery stable. He has testified that on or about the 30th of January, 1914, on the evening of that day, he found posted on his barn a threatening letter, unsigned, which has been identified as Corn’s. Ex. No. 1, and which you will have with you in the jury room.</p> <p>[This letter contains threats, and there is a black hand inscribed upon it, and what is supposed to designate a torch; and we say to you as a matter of law, gentlemen of the jury, that the writer of this letter, or any person who is responsible for its composition, or its publication, or posting, is guilty of a very serious crime. It is what has become known as a black hand letter or poisoned pen letter, and in all parts of the country, the sending or posting of letters of this kind is looked upon as a very serious crime against the public.</p> <p>In large cities, particularly in New York and Philadelphia, societies have been formed and through and by them letters are delivered or sent to certain citizens, sometimes demanding money, and sometimes demanding other things, even threatening the lives or the destruction of the property of our citizens if they fail to comply with the demands set forth in them.</p> <p>In this particular instance the letter in question threatens that unless certain sums of money are paid by Mr. Thompson his barn will be destroyed by fire.</p> <p>So I say to you that the person or persons who wrote this letter, or contributed to its writing or publication, are guilty of the crime set forth in this indictment:] (3)</p> <p>The question for you to determine, gentlemen of the jury, is whether or not the defendant either wrote the letter, Corn’s. Ex. No. 1, or caused its publication, or posting, or had anything to do with it, and you are the sole judges of the facts in that connection.</p> <p>The defendant comes into court with the presumption of innocence in his favor. Every man charged with crime is presumed to be innocent until proven guilty, and it is the duty of the Commonweálth, before a defendant can be convicted, to prove beyond a reasonable doubt that he is guilty. The burden is upon the Commonwealth in this case to convince you, beyond a reasonable doubt, that the defendant is guilty of this crime.</p> <p>The testimony is not very voluminous or complicated. There is no dispute about the fact that Mr. Thompson found this letter posted on his barn. Of course there is a dispute as to whether or not Mr. Swartz had anything to do with the preparation or posting of.it.</p> <p>The Commonwealth has called witnesses to identify the handwriting of Mr. Swartz, and there have been offered in evidence here specimens of his handwriting which are not disputed. I do not recall the numbers ot the exhibits, but certain exhibits offered here in evidence by the Commonwealth are the undisputed writing of Mr. Swartz.</p> <p>[The Commonwealth later called Mr. Zeth, who qualified as an expert in handwriting. In other words, the court, after preliminary examinations, permitted him to testify as an expert, as one who had sufficient experience in testing handwriting to be known in courts of law as an expert.</p> <p>Mr. Zeth, after examining the undisputed writings of Mr. Swartz, and also examining this letter designated as Com.’s Ex. No. 1, testified that the similarity was sufficient to convince him morally that the same person who had written the undisputed writings also wrote this paper found posted on Mr. Thompson’s barn.</p> <p>If yop believe Mr. Zeth’s testimony, and believe that he was sufficiently qualified to give an opinion of this kind, this would be a very strong piece of evidence against the defendant. Mr. Zeth testified he did not know of any expert who would be willing to say positively, by comparison, that the writings were the same, and that as far as he had ever gone, and as far as he knew of any oth,er expert having gone, was to testify they were morally sure they were the same. '</p> <p>I call this to your attention specially, because the court views this as rather an important piece of testimony in this case.] (4)</p> <p>The Commonwealth also called Robert P. Confer, who testified he had overheard a conversation between the defendant and Mr. Riddle, at the Perffisylyania Railroad station on the 3d of last September, in which the defendant stated that if he could only get rid of Columbine he would be all right.</p> <p>The Commonwealth contends that in view of the fact this letter refers to an indebtedness which Columbine owed Mr. Swartz that this conversation necessarily had reference to this transaction, but that is a question of fact for you.</p> <p>Mr. Thompson also testifies, and I do not recall that he is contradicted, that some time in October, 1913, preceding the posting of this.letter, Mr. Swartz had told him that Columbine owed him a note of twenty-five dollars, and that if he would give him twenty dollars he would give him the note.</p> <p>Yerdict of guilty upon which the defendant was sentenced to undergo imprisonment for a minimum period' of ten years, and a maximum period of fifteen years.</p> <p>Errors assigned were (2) ruling on evidence as above quoting the bill of exceptions; (3, 4) portions of charge as above quoting them; (5) refusal to withdraw a juror and continue the case, because of alleged improper remarks of the district attorney ; (7) in discharging rule for new trial; (8) in imposing an unduly severe sentence.</p>

<p>Appeal, No. 388, Oct. T., 1915, by plaintiff, from order of O. P. No. 5, Philadelphia Co., Dec. T., 1913, No. 534, refusing to take off nonsuit in case of Franklin Printing Company v. John W. Crum.</p> <p>Trespass for deceit.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was refusal to take off nonsuit.</p>

<p>Appeal, No. 20, Oct. T., 1916, by jplaintiff, from judgment of O. P. No. 2, Philadelphia Co., 'June T., 1912, No. 1353, on case stated in suit of Aaron Knoller v. Everett Realty Company.</p> <p>Case stated was as follows:</p> <p>1. Aaron Knoller, the plaintiff, brought an action of assumpsit against the Everett Realty Company, the defendant, a corporation, in C. P. No. 2, June Term, 1912, No. 1353, and obtained a verdict upon which judgment was entered October 10,1913, for $1,384.61.</p> <p>2. An appeal was taken by the defendant to the Superior Court and on July 15,1914, an opinion written by Mr. Justice Porter was filed, reported in 57 Pa. Superior Ct. 269, reversing judgment upon the ground that the defendant had erroneously been deprived of a credit of $279, to which he appeared to be entitled. A copy of said opinion is hereto annexed, marked “Exhibit A.”</p> <p>3. On July 21, 1914, plaintiff filed a petition in the Superior Court praying for a reargument and that the order reversing said judgment be modified by allowing said credit of $279, a copy of said petition is hereto attached marked “Exhibit G.” The said reargument was ordered and was heard on October 29,1914.</p> <p>4. On February 27,1915, the Superior Court made an order modifying said judgment and reduced said verdict by said amount of $279, and the judgment was affirmed in an opinion by Mr. Justice Oklady, a copy of which is hereto annexed marked “Exhibit B.”</p> <p>5. A controversy has arisen between the parties as to the meaning and effect of the closing sentence of said opinion which is in these words: “The costs of this appeal to be paid by plaintiff.”</p> <p>6. By assignment dated December 10, 1914, Aaron Knoller assigned said judgment to Charles L. Smyth and Henry J. Scott, his counsel, in consideration of professional services rendered and money loaned to him. A copy of said assignment is hereto annexed marked ‘¡^Exhibit C.” Notice of said assignment was served upon the Everett Realty Company on January 18, 1915, as appears by a letter accompanying same, a copy of which is hereto annexed marked “Exhibit D.”</p> <p>7. That on October 19, 1914, suit was instituted in the Municipal Court of Philadelphia by Joseph Feldman, against said Aaron Knoller, plaintiff in the above entitled case, and on December 2, 1914, a finding was rendered by said court in favor of said Feldman for $315.96. On December 4, 1914, a motion and reasons for a new trial were filed by defendant Knoller, which were dismissed on January 12, 1915. Judgment was entered on March 10, 1914, on said finding; and on April 10, 1915, said judgment was marked to the use of the Everett Realty Company defendant herein. A copy of docket entries in the suit of Feldman v. Knoller is hereto attached marked “Exhibit E.” By assignment dated December 5, 1914, said judgment was assigned by Joseph Feldman to the Everett Realty Company. A copy of said assignment is hereto annexed marked “Exhibit F.”</p> <p>8. No notice was given to said Aaron Knoller or his said assignees or counsel, that said judgment obtained in the Municipal Court by said Joseph Feldman against said Aaron Knoller, had been assigned to the Everett Realty Company prior to March 15,1915, on which latter date parol notice thereof was given to the said use-parties Charles L. Smyth and Henry J. Scott.</p> <p>9. On December 10, 1912, Bernard Magid obtained a judgment against said plaintiff, Aaron Knoller, in C. P. No. 3, December Term, 1912, No. 1298, for $94.15, and an attachment issued thereon attaching the defendant Everett Realty Company as garnishee and on March 15, 1915, said garnishee paid to the attorney for the said Magid, $85.18, who executed an order to satisfy said judgment on payment of prothonotary’s costs. No order has been made in that case by the court for payment of counsel fees to the said garnishee.</p> <p>10. On March 15, 1915, defendant paid to the use-plaintiffs $495.44, without prejudice pending determination of the matters in controversy herein stated. A statement of the amount claimed by plaintiff to be due is as follows:</p> <p>Amount of verdict,........................$1,384.61</p> <p>Allowance by order of Superior Court,...... 279.00</p> <p>Balance,.............................$1,105.61</p> <p>Interest thereon to March 15,1915,........... 116.19</p> <p>Total,................................$1,221.80</p> <p>March 15, 1915, paid on Magid at-</p> <p>tachment, .......................$ 85.15</p> <p>Amount reserved subject to adjudication of matters in controversy,..... 641.59 726.36</p> <p>Credit March 15,1915, amount paid on account,. $495.44</p> <p>11. The use-plaintiffs- demand payment of the said amount of $641.59, retained by defendant as aforesaid with .interest, and the following costs: Attorney, writ, etc., $8.25; prothy., $6.75; crier and sat., $.25; fi. fa., $3.75; service, $.25; jury fee, $4 and plaintiff’s bill, $20.54, aggregating $43.50, and execution has been issued to recover said amount.</p> <p>12. Defendant claims a set-off of the costs of said appeal and the debt, interest and costs of the judgment obtained by Feldman against Knoller which was assigned to defendant; and defendant also claims a garnishee’s attorney fee in the attachment in Magid v. Knoller of $13.</p> <p>The costs of said appeal consist of the following items: Certiorari, $12; prothy. C. P. certifying record, $3; printing paper books on appeal, $281; attorney’s fee in Superior Court, $3; total, $299.</p> <p>Defendant contends that the costs of said appeal include defendant’s record costs, as docketed in the prothonotary’s office, of the Common Pleas, as follows :</p> <p>Affidavit of defense,..................$ .50</p> <p>Attorney,........................... 3.00</p> <p>Prothonotary, ..................... 6.75</p> <p>Total,..........................$10.25</p> <p>Defendant, therefore, claims a set-off of</p> <p>Superior Court costs,................$299.00</p> <p>Common Pleas costs,................ 10.25</p> <p>Judgment in Feldman v. Knoller,.....315.96</p> <p>■ Interest thereon,.................... 5.50</p> <p>Garnishee Fee Magid v. Knoller,...... 13.00</p> <p>Total,.........................$643.71</p> <p>1.3. It is agreed by the parties hereto that upon the facts above stated the court shall determine whether defendant is entitled to credit for any of said items of set-off and shall adjudicate the rights of the parties in the premises, and that a rule may be-granted to show cause why the fi. fa. should not be set aside.</p> <p>The court made an order allowing the defendant to set off the cost of paper books on appeal, and the judgment of Feldman v. Knoller which it had acquired by assignment prior to the assignment of a judgment of Knoller v. Everett Realty Company to Messrs. Smyth and Scott. The court at first directed the defendant to satisfy the judgment. Subsequently it entered the following order:</p> <p>And now, to wit, December 23,1915, it appearing to the court that the plaintiff in the above entitled case still claims the sum of $630.71, as unpaid upon the judgment together with costs in this court aggregating $43.50, and it further appearing that the defendant has, by payments and set-offs as allowed by order entered by this court May 1, 1915, paid and discharged the said judgment in full, but that the plaintiff, by reason of the above claim, refuses to satisfy the said judgment,, and it further ap-_ pearing that the plaintiff alleges that he intends appealing from the order of this court allowing the set-offs whereby the said judgment was in part discharged, now therefore, on motion of Owen J. Roberts, Esq., counsel for defendant, it is ordered and decreed that upon the filing by defendant with the prothonotary of a bond, with surety approved by the court in the penal sum of $1,000, to be conditioned for the payment by the defendant to the plaintiff of any or all of the above sum of $630.71 with in-, terest and costs, to the payment of which the plaintiff may by appeal, establish his right, the prothonotary shall mark the judgment in the above matter satisfied of record^</p> <p>Errors assigned were the judgment and the orders of the court.</p>

Appeal, No. 26, Oct. T., 1916, by plaintiff, from judgment of Municipal Court of Philadelphia Co., July T., 1915, No. 208, on verdict for defendants, in case of the Tabard Inn Book Company v. Nathan Snellenburg, et al., copartners, trading as N. Snellenburg & Company. Assumpsit for books sold and delivered. Before Bon-NIWELL, J. The facts are stated in the opinion of the Superior Court. Verdict and judgment for defendants for ¡§278.20. Defendant appealed.

<p>Appeal, No. 149 Oct. T., 1916, by defendant, from judgment of Municipal Court, Philadelphia Co., Feb. T., 1916, No. 51, for plaintiffs, in case of A. Hagedorn, H. Rosenfelt and M. Myers, trading as Hagedorn’s Model Shop v. Henry Haber and Sadie Haber.</p> <p>Assumpsit for wearing material sold and delivered. Before Cassidy, J.</p> <p>The case was tried by the court without a jury.</p> <p>Yerdict and judgment was entered in favor of the plaintiff for $123.58. Sadie Haber appealed.</p> <p>Error assigned was in entering judgment for plaintiff.</p>

Appeal, No. 29, Oct. T., 1916, by defendant, from decree of O. P. Ho. 5, Philadelphia Co., Dec. T., 1913, Ho. 118, awarding divorce in case of Leedom Sharp v. Fannie A. Sharp. Libel for divorce. Before Ralston, J. The court charged in part as follows: The libellant in this case, Dr. Leedom Sharp, is suing the respondent, his wife, for divorce on the ground that she wilfully and maliciously deserted him on or about June '6, 1901.

<p>Appeal, No. 158, Oct. T., 1916, by defendants, from order of O. P. No. 4, Philadelphia Co., June T., 1915, No. 678, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Bernard Fee v.'J. EdAvard Lutz, Agent and Otto Zimmerman, Constable.</p> <p>Replevin for goods alleged to have been wrongfully distrained for rent. Before Audenried, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was order making absolute rule for judgment for want of a sufficient affidavit of defense.</p>

<p>Evidence — Witness—Memorandum to refresh memory — Deputy sheriff — Distribution of fund in sheriff’s hand.</p> <p>Where on the trial of a case involving a question as to the amount of a fund distributed by the sheriff, a deputy sheriff, although having no personal recollection of the transaction is a competent witness as to the amount distributed, where he uses a memorandum made by himself to refresh his recollection, and testifies positively, after refreshing his recollection from the memorandum, he could state how much money was distributed.</p> <p>Building and loan associations — Stock—Sheriff’s mortgage— Sheriff’s sale — Changing course of distribution.</p> <p>Where a building and loan association procures a sale of real estate on a mortgage given by a deceased member in his lifetime and the sale realized enough to pay the indebtedness and all arrearages, the association has no right, at the settlement with the sheriff, to credit the value of the stock assigned to it, on its judgment so as to leave a balance in the-sheriff’s hands which was paid to a junior creditor of the decedent. If it does so it will be liable in such amount to the executor of the decedent. In such a case, as soon as the sale was made, the stock was free, and the executor was entitled to it.</p>

<p>Bailment — Lease of piano — Improper retalcing — Trespass vi et armis — Witness—Husband and wife.</p> <p>In an action of trespass against a piano company, the plaintiff is entitled to damages where it appears that the defendant -had leased to him a piano under a lease which gave it the right to retake the piano “by forcible possession, if necessary,” in case of default, and that the defendant, in the temporary absence of the plaintiff entered the house by breaking a window, opened a locked door at the rear of the house, and after removing the piano left the door open, so that thieves subsequently entered the house and took therefrom personal property belonging to the plaintiff.</p> <p>In such a case the wife of the plaintiff who had been divorced from her husband between the date of the trespass and the day of the trial, may testify on behalf of the defendant that the personal property alleged to have been taken, had been removed from the house long prior to the date of the trespass.</p> <p>'The disqualification which remains after the dissolution of the marital relation is restricted to communications of a confidential nature and does not embrace ordinary business transactions.</p>

<p>Appeal, No. 6, March T.,</p> <p>1916, by Charles F. Widmyer, Assignee of Widmyér & Prangley, from order of C. P. Dauphin Co., Commonwealth Docket, 1909, No. 23, oyerruling exceptions to report of auditor in case of Commonwealth, ex rel., M. Hampton Todd, Attorney General, v. Guardian Fire Insurance Company of Pennsylvania.</p> <p>Exceptions to report of Frank B. Wickersliam, Esq., and Harry M. Davidson, Esq., auditors.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Errors assigned were in dismissing exceptions to auditors’ report.</p>

<p>Principal and agent — Insurance companies — Local agent — Gom pensation — Set-off.</p> <p>Where local agents of an insurance company have in their hands sums of money due to the company by reason of premiums paid to them which had not been turned over to the company in their monthly reports, prior to the time the company was placed in the hands of a receiver, they cannot set off as against the claim of the receiver for such moneys, a dividend on claims which they had taken by assignment from policyholders for return premiums due to policyholders.</p>

<p>Negligence — Municipalities—Highways—Defective bridge — Evidence — Gase for fury — Roadmaster—Notice—Townships.</p> <p>A township is liable for injuries to an automobile resulting from á defective bridge, where it appears that for two months prior to the night of the accident, the planks upon the bridge had been so loose that they rattled or sprung out of their places when vehicles passed over them, that when in this condition it was dangerous to drive or work on the bridge, and that the roadmaster attempted to fasten the plank to the sleepers, but because of the sleepers’ rottenness, the spikes would not hold.</p> <p>In such a case the township is not only charged with constructive notice, but also with direct notice through the knowledge of the roadmaster, inasmuch as he is such an officer that notice to him is notice to the township.</p>

<p>Evidence — Written instrument — Notice to produce — Secondary evidence — Criminal law — Arson—Conspiracy—Proof of corporate existence.</p> <p>On the trial of a prosecution for conspiracy to cheat and defraud an insurance company by tbe burning of a building, secondary evidence of tbe contents of a paper needed in evidence by the Commonwealth is admissible without prior proof of notice to produce, where it appears that the original is in the possession of the defendant.</p> <p>In such a case it is not error to admit in evidence testimony identifying certain tracks made by a horse around, leading to, and from the burned premises, where it appears that a blacksmith identifies the horse shoe produced in evidence, as being one on the horse hired by one of the defendants on the night of the fire; and also testimony that a "tie rope” had been found lying near the premises where the horse had been tied, where the liveryman who owned the horse testifies that he bought tie ropes of a certain description and the tie rope in evidence corresponded to the ropes he owned.</p> <p>In such a case it is also proper to admit in evidence testimony connecting a son of one of the defendants indicted with his father, showing that it was through the son that the oil had been bought and placed at a point where the fire was first seen; that a few nights before, in the middle of the night, he assisted in taking property from the premises subsequently burned; that he was the only one seen in charge of the premises; and that on the evening of the fire he went a mile or so to a telegraph office where he remained until late in the morning.</p> <p>It is not necessary in such a case for the Commonwealth to prove the corporate existence of the insurance companies which were defrauded, where it is shown that the policies were issued to one of the defendants who duly notified the companies of the destruction of the premises, and submitted proofs of loss.</p>

<p>Appeal, No. 384, Oct. T., 1915, by defendant, from judgment of Municipal Court, Philadelphia Co., July T., 1915, No. 59, for plaintiff on case tried by the court without a jury in suit of Nathan Marple, Lewis Marple and Alfred C. Marple, Copartners, trading as Nathan Marple & Sons, v. Morris L. Cooke.</p> <p>Assumpsit for materials furnished to the City of Philadelphia.</p> <p>The case was tried by the court without a jury.</p> <p>Gilpin, J., found as follows:</p> <p>Plaintiffs seek to recover from defendant, who is director of the Department of Public Works of the City of Philadelphia, the sum of four hundred twenty dollars ($420), with interest from October 7, 1912, for certain awnings, curtains, gonfalons, etc., which plaintiffs sold and delivered to defendant and erected at his request.</p> <p>Plaintiffs claim that the defendant, while director of the Department of Public Works, on his own behalf and without any warrant or authority from the municipal government of the City of Philadelphia, requested the plaintiffs to submit a bid or estimate for furnishing and erecting all the curtains, awnings, gonfalons, for the booths built to shelter a water conservation exhibit, which was planned, managed and maintained by defendant from October 7,1912, to November 9,1912.</p> <p>The defendant denied that he owed the plaintiffs anything, averring that they sold the defendant nothing whatever and that the goods were not delivered to the defendant, but to the City of Philadelphia and for its use exclusively.</p> <p>The defendant agreed of record that “the material was furnished to the water exhibit for the City of Philadelphia, was formally installed and the amount claimed is the amount bid for that work to the City of Philadelphia.”</p> <p>Counsel for plaintiffs based their right to recover from the defendant on Section 5 of the Act of April 21, 1858 (P. L. 385), which is as follows:</p> <p>“Section 5: That no debt or contract hereafter incurred or made shall be binding on the City of Philadelphia unless authorized by law or ordinance, and an appropriation sufficient to pay the same be previously made by Councils; Provided, that persons claiming unauthorized debts or contracts may recover against the person or persons illegally making the same.”</p> <p>It is unquestioned that there is no ordinance of councils in existence authorizing the furnishing of the goods claimed for on behalf of the city or making an appropriation sufficient to pay for the same, so the only question before the court is, Was the defendant the person illegally making the contract for the goods furnished by the plaintiffs?</p> <p>The oral testimony of the plaintiffs’ witness, standing alone, was not, in the opinion of the court, sufficient to sustain their claim against the defendant and establish his individual liability.</p> <p>At the close of the direct examination of Alfred C. Marple, one of the plaintiffs, their counsel offered in evidence defendant’s answer filed in the case, directing the court’s attention to paragraph four of the answer, which admits paragraph four of the plaintiffs’ statement, which is as follows:</p> <p>“Pour: The said materials and services were specified in detail to plaintiffs, by defendant or his agents, by means of plans or specifications now on file in the City Architect’s office and in the office of the Bureau of Water, under the custody and in the possession of the defendant or his agents. Plaintiffs were furnished by defendant or his agents with a copy of said plans, which was worn out since or destroyed during the progress of the plaintiffs’ work in and about the said exhibit. Plaintiffs cannot therefore furnish a copy of the plans, but aver that a true and correct copy of the same is on file in the suit of Martin H. Walrath versus Morris L. Cooke, in the Court of Common Pleas No.’ 1 of Philadelphia County, of June Term, 1913, No. 537, in the Prothonotary’s office. The original plans in the custody and possession of the defendant are marked as follows:</p> <p>“Plan for Water Conservation Exhibit to be constructed by Bureau of Water—</p> <p>“Sheet No. 21 E 709</p> <p>“Designed by Approved Sept. 18, 1912.</p> <p>“William E. Groben, S. M. Yan Loan, “Architect, Dept. P. W. Acting Chief, “Bureau of Water.”</p> <p>Counsel for plaintiffs also directed the court’s attention to paragraphs five and six, of defendant’s answer, responding to like numbered paragraphs of plaintiffs’ statement, the said paragraphs of the answer being as follows:</p> <p>“Five: It is admitted that plaintiffs’ bid was accepted by defendant or his agent, but solely for and on behalf of the City of Philadelphia, and not for or on behalf of the defendant.”</p> <p>“Six: It is true that plaintiffs were ordered to proceed with the delivery of the goods as averred in paragraph 6, but the order was given by the officers of the City of Philadelphia solely for and on behalf of the city.”</p> <p>As this contract with plaintiffs was entirely without authorization and as there was ho appropriation made to pay the debt created thereby it is clear' that the contract was illegal and imposed no liability upon the city; but it is equally clear that the admission of defendant in the sixth paragraph of the answer fixes on him the liability for the debt incurred as the person illegally incurring the debt on behalf of the city as provided in the 5th Section of the Act of 1858 above quoted.</p> <p>The court, therefore, finds for the plaintiffs in the sum of $497, judgment to be entered sec. reg.</p> <p>Error assigned was the judgment of the court.</p>

<p>Principal and surety — Bond—Suspension of an injunction order —Liability of surety.</p> <p>Where, on a bill in equity, it appears that the defendant, a coal company, had agreed with the plaintiff to ship its whole output to parties designated by the plaintiff who has to collect the proceeds of the sales, deduct commissions, and remit the balance to the defendant, and it also appears that the court had issued against the defendant an injunction order restraining it from shipping coal to other parties than those designated by the plaintiff, and that the court subsequently suspended the injunction, on the defendant’s filing a bond conditioned “for the protection of the proper interests of the plaintiff,” and the 'bond entered was conditioned to protect the plaintiff from any loss that might be sustained “by reason of the said suspension of the said injunction,” the surety on the bond thus entered will be liable for a loss sustained by the plaintiff by reason of improper shipments of coal by the defendant after the bond was entered.</p>

Appeal, No. 370, Oct. T., 1915, by plaintiff, from judgment of O. P. No. 5, Philadelphia Co., June T., 1911, No. 1422, for defendant n. o. v. in case of Erland Reuter, a minor by his next friend and father, G. Frederick E. Reuter, and G. Frederick E. Reuter v. Max Moskovitz. Assumpsit on an insolvent’s bond. Before Martin, J. From the record it appeared that plaintiffs recovered a verdict in an action of trespass against Samuel Zusen.

<p>Mechanics’ lien — Subcontractor—Contractor — Agreement that liens might be filed — Conflicting testimony — Case for jury.</p> <p>Where a dealer accepts from a general contractor a proposal for the plumbing and heating of a number of houses, but under an express agreement made with the owner personally that the latter would pay to the dealer directly for such material, the dealer is a contractor, and entitled to file a lien for the material furnished.</p> <p>Where the evidence is conflicting as to whether the owner agreed that the dealer should file liens, although the general contractor had under a recorded contract agreed that no liens should be filed by any one, the ease is for the jury.</p>

<p>Negligence — Master and servant — Tools and appliances.</p> <p>In an action by an employee against his employer to recover damages for personal injuries judgment n. o. v. for defendant is properly entered, where the evidence shows that the plaintiff, an experienced workman, was injured while working at a vise; that the vise was an ordinary appliance, with no complicated parts, but with the face of its jaws threaded or roughened so as to firmly clutch the object held; that at the time the accident occurred the thread on the jaws had become worn; that the plaintiff inserted a cap between the jaws and tightened them by turning the lever, and while doing so the cap slipped so as to release the lever which flew around and struck him; that both plaintiff and defendant knew of the worn surface of the jaws of the vise, but that while plaintiff had made complaints of its worn condition, he continued to use it for several weeks after the accident without further accident or complaint.</p>

Appeal, No. 409, Oct. T., 1916, by defendant, from judgment of O. P. No-. 4, Philadelphia Co., June T., 1915, No. 5056, overruling demurrer to statement of claim in case of Harry M. Nathan v. Sinclair and Valentine Company. Assumpsit for rent of premises No. 152 North Eleventh street, Philadelphia, for a year from July 1, 1915, to July 1,1916. The facts are stated in the opinion of the Superior Court.

<p>Contracts — Sales—Delivery—Passing of title — Price f. o. h.</p> <p>Where a contract in writing for the purchase of sugar provides that the sugar is to be shipped to purchaser’s siding in Philadelphia at a price named f. o. b. Hew York, and that payment was to be made upon the arrival of the sugar and the cheeking of weights at the siding, the title does not pass until delivery in Philadelphia; and if the sugar delivered is not according to the contract the purchaser does his full duty, if he is not able to obtain the same sugar in Philadelphia, by buying the best substitute there which will answer the same purpose.</p> <p>A purchaser of sugar is entitled to recover damages for a breach of contract to deliver a large quantity of clean and merchantable sugar where he is obliged to use six per cent, of the sugar before he can ascertain its real condition.</p>

<p>Appeal, No. 195, Oct. T., 1916, by defendant, from judgment of O. P. No. 4, Philadelphia Co., June T., 1915, No. 4795, on verdict for plaintiff in case of Theodore Hess v. Earle Kemmerer.</p> <p>Trespass to recover damages for personal injuries. Before Carr, J.</p> <p>At the trial the jury returned a verdict for $1,500 in favor of the plaintiff. On a rule for judgment n. o. v. and for a new trial, Carr, J., filed the following opinion:</p> <p>The plaintiff was injured on May 6, 1915, at three o’clock in the afternoon while crossing Broad street at Melon, which is the first street south of Ridge avenue. The plaintiff and three companions started to cross Broad street from the south side of Melon street, * from the west to the east. They waited on the west side of Broad street until that portion of the street was clear of traffic and reached the center line of Broad street where several automobiles were parked. Kohler and MeComber were walking in front. Kohler testified: “Lederman and Mr. Hess was walking in back of us. After the car had went down there was an open place there, we walked to the center of Broad street. We stood there until they all went up and this car was crossing Wallace street at this time. I walked across this way with my hand up this way (illustrating) looking right at him. He came for me, and I thought he was going to hit me. Instead of that he shot out back, and the first thing I saw Mr. Hess under the car about fifty feet up Broad street. Mr. Lederman was with Mr. Hess. Bight to the center of Broad street. First we stopped on the west side of the curbstone until they went down, until the cars had passed, and then we went to the center of Broad street. We left them go up until they were all up with the exception of this one, he was way down at the corner, down at Wallace street.”</p> <p>Lederman was walking with Hess and testified: “A. Mr. Kohler and Mr. Kilvington and Mr. Hess and myself and Mr. Me Comber went down to Broad street and went to cross Broad street. We stood on the west side of Broad street and left quite a few cars pass us, and we crossed over to the middle of Broad street. We stood there and left quite a few cars pass. It was about the time of the baseball and there were quite a few cars ran up at that time. We stood in the center of Broad street and we let those cars pass excepting this one car. Q.— What happened? You stopped in the middle of Broad street and you waited? A. — We waited and let quite a few cars pass up. Q. — Then you walked on? You went with whom? A. — I was with Mr. Hess. Q. — You were in front, were you, or behind? A. — I was behind. I was' with Mr. Hess behind Mr. Kohler and Mr. McCumber. Q. — Kohler and McCumber started over first? A. — Yes, sir. Q. — To.the east side, is that it? A. — Yes, sir. Q.— How far behind them came you and Hess? A. — Three or four feet. Q. — State what happened? A. — They started to cross the street and we saw this automobile coming, and I saw Mr. Kohler put his hand up, and we kept on walking over, and the machine came along, Mr. Kohler ducked around him and I jumped back, and the machine came to about ten or twelve inches of hitting me, and Mr. Hess went the other way. Q. — How do you mean he went the other way? A. — I jumped back this way and Mr. Hess ran forward, and Mr. Hess went kind of catacornered this way. Q. — Do you mean southeast or northeast? A. — It would be northeast. After he did this gentleman running the car, Mr. Kemmerer, his car followed Mr. Hess — his car didn’t go straight. After passing Mr. Kohler and after I jumped he turned his car and followed Mr. Hess up. After he hit Mr. Hess Mr. Hess turned head over heels underneath the car I judge eight times, and he dragged him for about forty feet— forty or fifty feet. When the car was stopped the car was, I should say, fifteen or sixteen inches away from the curb by the watering trough.”</p> <p>The plaintiff received very severe injuries. Two legs were broken, the right one being so badly injured as to require amputation below the knee; right arm and wrist broken, shoulder blade fractured, three ribs on the left side broken, and general contusions, and has suffered permanent injury. At the time of the trial he was 67 years of age. Before the accident he was in good health, sober and industrious habits, and had never suffered of any ailment or disease prior to the accident and was not able to work from the time of the accident until the trial. The verdict was in favor of the plaintiff for fl;500.</p> <p>The motion now pressed by the defendant is for judgment n. o. v., and is based upon the ground of contributory negligence by the plaintiff, and it is argued that the plaintiff, without looking or in any way observing the approach of automobiles from the south, stepped out and was struck, the plaintiff testified: “Q. — Did you see this automobile that struck you before you were struck? A:— I don’t know. Q. — Yon didn’t look for it, did yon? A.— No, I didn’t look, the witness will tell you this better. I can’t tell you any more. Q. — I am talking before you were struck. You don’t remember having seen that automobile at all before it struck you? A. — No. Q. — You didn’t look for it? A. — No. Q. — At the point in Broad street when you got out in the middle of Broad street, you can see south down to Spring Garden street, can you not? A. — You could, yes.” The defendant contends that the plaintiff when in a position of safety back of the automobiles parked in the center of Broad street, and where he could have a clear view of the street to the south to ascertain whether automobiles were approaching or not, failed in the exercise of his clear duty to look and take any other steps to ascertain whether cars were approaching and thereby protect himself. The testimony produced on behalf of the defendant was that his automobile was moving slowly on Broad street and could not have movéd otherwise by reason of the crowded traffic at that hour and date, and that instead, as the plaintiff said, there was a clear space between the point of the accident and Wallace street, that space was, according to the statement of the defendant and his witnesses, crowded with automobiles and that the plaintiff suddenly appeared from among the automobiles parked in the central part of Broad street in front of his automobile and he could not avoid the accident.</p> <p>' At the request of the defendant the jury were instructed that it was the'duty of the plaintiff to ascertain if vehicles were coming and if by reason of his failure to look he failed to see the machine of the defendant and was struck by it, then he could not recover.</p> <p>That ordinarily that is the principle which controls the question of contributory negligence of persons who are crossing the crowded city streets is not questioned: Kauffman v. Nelson, 225 Pa. 174. That principle, however, does not control the question before the court upon this motion, for the plaintiff may recover damages for an injury caused by the defendant’s negligence notwithstanding the plaintiff’s own negligence exposing him to the risk of injury, if such injury was more immediately caused by the defendant’s omission, after becoming aware of the plaintiff’s danger, to use ordinary care for the purpose of avoiding injury to him: 1 Sherman & Red-field, Sect. 99, p'. 248, 6th Ed., 1913; Vol. XXXIII, Cyc. p. 854. In Walsh v. Pittsburgh Railways Company, 221 Pa. 463, a recovery was sustained in the case of a trespasser who was standing near a cable on defendant’s premises. An employee of the defendant passed along very close to her, entered the power house, and put the machinery in motion. The cable which was frayed caught the plaintiff’s dress and injured her. There it was said: “If the man who started the motor, knew at that time that the plaintiff was standing between the rails close to the frayed cable, which would touch her dress when in motion, and from his knowledge of the circumstances, was conscious that she would be exposed to danger if the machinery was put in motion, a duty of care arose, as it would in the case of an engineer who sees a child upon the track in front of his engine. He had the fullest opportunity to see the plaintiff, to observe where she stood in relation to the cable, and to realize the consequences that would probably result from this act. Whether he actually saw her and was conscious that his act exposed her to danger were questions for the jury.” In Steele v. Lake Shore, Etc., Railroad Company, 238 Pa. 295 (1913), a workman employed at an industrial plant was about to make use of a permissive crossing over defendant’s railroad tracks. Finding the crossing obstructed by a freight train, he went further down the tracks to cross at a point where the freight train was divided. While so doing the train was suddenly moved without warning and injured him. -While plaintiff was in a helpless position after being struck, there was evidence that one of the crew had notice of his position. The train came back a second time and again injured Mm. • There it was held: “The plaintiff was not required to give notice directly to the engineer. The crew was in control of the train, and it appeared from the evidence that prior to the second movement the brakeman had notice of the plaintiff’s position and that he at once gave the proper signal to those in charge of the locomotive. It certainly goes without saying that it was the duty of the engineer to observe the signal and act promptly on the information thus communicated to him. A jury should have little difficulty in finding that the failure to perform this duty was negligence for which the defendant would be liable. We think it apparent that the second injury could have been avoided had the engineer seen and heeded the signal given by the brakeman. It must be presumed that the crew in charge of the train knew of the location of all crossings, etc.” In Lorah v. Rinehart, 243 Pa. 231, the plaintiff sought to recover damages for the death of her husband who was killed in collision with an automobile on Liberty street in the City of Pittsburgh. The accident occurred at a place where the traffic upon the street was congested. Early in the afternoon of October 26th, the plaintiff’s husband was on" the southerly side of Liberty street at a point opposite the line of Ninth street, which leads northwardly from but does not cross Liberty street. He left the curb and attempted to cross Letter street which is some fifty-eight feet in width. A loaded wagon was standing near the curb. After passing it and getting fairly into the street the plaintiff’s husband was struck by the automobile of the defendant with such force as to lift him from his feet and throw him upon the street pavement fracturing his skull. The testimony on the part of the plaintiff tended to show that the automobile was moving at a rate of from twelve to fifteen miles an hour; that plaintiff’s husband was struck by the front of the car near its center, and that it moved forty or fifty feet after the collision, but it was stopped. On the other hand, the testimony upon the part of the defendant tended to show that the automobile was running slowly, and that plaintiff’s husband stepped out from behind a wagon directly into the side of the mudguard on the car and that the front of the car did not strike him. The judgment for plaintiff was sustained. The court discussed the question of what would be negligence under different circumstances, and held that a speed of twelve miles an hour in a congested district might be negligence, but it was a question for the jury, and the court held that the trial court had not erred in permitting the jury to take into consideration, in judging the speed of the car, the distance which the machine traveled before it came to a stop after plaintiff’s husband was struck, and it was held: “That was an element very properly to be considered. The very purpose in running slowly is to enable the driver to bring the automobile quickly to a halt in case of an emergency. The test of control is the ability to stop quickly and easily. When this result is not accomplished, the inference is obvious that the car was running too fast, or that proper effort to control it was not made.” In Rose v. Southern Cambria Railway Company, 58 Pa. Superior Ct. 143, it was held: “In an action against a street railway company to recover damages for injuries to a team of horses and wagon sustained in a head-on collision, the question of the defendant’s negligence and plaintiff’s contributory negligence is for the jury, where the evidence tends to show that the team, consisting of four horses attached to a heavily loaded wagon of stone was being driven from a public street of an eight per cent, grade, with which the driver was familiar; that owing to the bad repair of a portion of the cartway plaintiff straddled with his team the tracks in driving up the hill; that in attempting to get his wagon from the tracks the wheel caught and slid along the rail; that the car which struck the team approached around a curve at a point where the motorman could not see the team until within fifty or sixty feet of the place of the collision, and the evidence as to signals was contradictory,” In Dyer v. Philadelphia Rapid Transit Company, 58 Pa. Superior Ct. 634, the plaintiff’s version of the accident in that case was that he was driving a milk wagon eastward on the car track on Norris street on which there was a single track trolley road. He was approaching Trenton avenue, a cross street, upon which there were five railroad tracks crossing Norris street at right angles. Plaintiff saw defendant’s car approaching about thirty yards away, just crossing Trenton avenue. The conductor was standing in the center of Trenton avenue. Having run ahead of the car to see whether the railroad tracks were clear when the car came up, he boarded it and at once started at full speed. The plaintiff commenced to leave the trolley track about twenty yards from Trenton avenue, but some escaping steam caused his horse to shy, and brought him back to the car tracks, and before he cleared the tracks the car came along and struck the hind wheel of the wagon. There it was held: “This certainly does not present a case so clear that it can be ruled as a matter of law. Whether he (the driver) exercised proper care under the circumstances, or simply remained upon the car track after he saw the approaching car, was for the jury, and if they found he was not negligent then it remained for them to decide whether the motorman for the defendant saw, or should have seen, the plaintiff attempting to get out of the way of the car, and exercised such watchful care as was required or negligently operated his car and thus caused the injury to the plaintiff.”</p> <p>The motions are dismissed.</p> <p>Error assigned was in refusing defendant’s motion for judgment n. o. v.</p>

<p>Appeal,'No. 61, Oct. T., 1916, by defendant, from judgment of C. P. Carbon Co., Oct. T., 1911, No. 4, on verdict for plaintiff in case- of D. GL Blank v. Phaon Shoemaker. .</p> <p>Appeal from judgment of justice of the peace.</p> <p>Assumpsit to recover a balance alleged to be due on the sale of a tvagon.</p> <p>The jury returned a verdict in favor of the plaintiff for $40.</p> <p>On a rule for a new trial Barber, P. J., filed the following opinion:</p> <p>In this action plaintiff sought to recover a balance of forty dollars, claimed to be due upon a contract for the sale of a wagon, delivered to the defendant. Defendant contended that the agreed price for the wagon was but twenty dollars, which he had paid and for which he produced a receipt reading “Received from P. E. Shoemaker, twenty (20) dollars in full on wagon.” Plaintiff admitted the receipt of the twenty dollars, but denied having signed the receipt in question. The jury found a verdict in favor of the plaintiff for forty dollars. At the trial, defendant, to sustain his contention that twenty dollars was in full, offered to show by several witnesses, what was the market value of the wagon; and the principal reason assigned for a new trial is that the court erred in sustaining plaintiff’s objection to this testimony.</p> <p>In this suit plaintiff sought to recover an express contract, and would not have been permitted to introduce evidence as to the value of the wagon.</p> <p>In Kelley v. Foster, 2 Binney 4, where the plaintiff has declared upon an indebitatus assumpsit and quantum meruit, evidence can be introduced of a contract to pay a specific sum, and Tilghman, O. J., said:</p> <p>“The only objection to this general manner of declaring is, that the defendant may be taken by surprise. But with proper caution he never can; for he may demand the plaintiff to specify the nature of the evidence he means to offer, and until this is done the court will not suffer the plaintiff to bring on the trial.”</p> <p>The plaintiff here specifically sets forth his contract, which he must prove, for allegations and proofs must correspond.</p> <p>“The law implies a promise to pay what services are worth when they are, upon request, performed, and the parties have not expressly agreed upon a raté of compensation; but if the amount of compensation has been agreed upon, or a rule adopted by which it is to be ascertained, the law lets the contract stand as the parties have made it......When evidence is contradictory as to whether the parties have agreed upon the compensation which is to be paid for services, or for goods sold and delivered, there is no presumption of law that the contract as made was not complete in all its terms. The truth is to be determined from the evidence produced as in any other disputed question of fact”: Johnson v. Wanamaker, 17 Pa. Superior Ct. 301.</p> <p>If the plaintiff’s proofs must correspond with the allegation, then it would be equally unfair to allow defendant to introduce evidence which the plaintiff could not be expected to meet.</p> <p>In the case of Seibert v. Householder, 9 Cent. Rep. 157, plaintiff made a parol contract with defendant to do carpenter work on five houses. At the trial there was a conflict of evidence as to what the contract price was, when the defendant offered to prove what the work which the plaintiff did was worth, for the purpose of leading to the conclusion that the defendant is more likely correct in his statement as to what the contract price was. The court below sustained the objection to offer of proof and upon appeal the Supreme Court affirmed the ruling, being the only question involved.</p> <p>And now, February 10, 1916, the motion for a new trial is denied and judgment directed to be entered upon the verdict upon payment of the jury fee.</p> <p>. Error assigned was the refusal to admit evidence relating to the market value of the wagon at the time of the sale.</p>

Appeal, No. 279, Oct. T., 1916, by defendant, from order of O. P. Blair Co., Oct. T., 1915, No. 104, sustaining judgment of justice of the peace in case of Commonwealth v. Clark Kane. Certiorari on a summary conviction before a justice of the peace. The opinion of the Superior Court states the facts. Error assigned was in sustaining the judgment of the justice of the peace.

Appeal, No. 122, Oct. T., 1916, by plaintiff, from judgment of C. P. No. á, Philadelphia Co., June T., 1913, No. 3627, for defendant n. o. v. in case of Charles Tracey Levick, v. J. A. Patterson Company. Trespass to recover damages for personal injuries. At the trial it appeared that plaintiff was injured on January 7, 1913, by falling into a coal hole in the pavement in front of 202 Market street, Philadelphia.

<p>Negligence — Damages—Neglect to apply for medical relief.</p> <p>A working woman who was injured in the leg through the negligence of the employees of a street railroad company, while she was alighting from a car, is not precluded from maintaining a judgment on a verdict against the company for four hundred dollars where it appears that immediately after the injury, she applied the usual and simple remedies in general use by persons in her walk of life, that upon growing worse she consulted a physician five days after the accident, that her case was complicated by the fact of her having varicose veins, and that as a result of the injury her earning power was considerably diminished.</p>

Appeal, No. 187, Oct. T., 1916, by defendant, from judgment of Municipal Court, Philadelphia Co., Feb. T., 1916, No. 215, for plaintiff on case tried by the court without a jury in suit of Harry Shapiro v. Solomon Rosenstein. Assumpsit on a check. The case was tried by the court without a jury.

<p>.Appeal, No. 407, Oct. T., 1915, by plaintiff, from order of O. P. No. 4, Philadelphia Co., June T., 1915, No. 4777, discharging rule for judgment on garnishment proceedings in case óf Commonwealth v. Woodford H. Thomas and Fidelity Trust Company, Garnishee.</p> <p>Sur rule for judgment on answers to interrogatories.</p> <p>From the record it appeared that the defendant was arrested by a warrant issued under the provisions of the Act of April 13,1867, P. L. 78, and after a hearing before the magistrate was bound over for the Court of Quarter Sessions where, after hearing, he was ordered to pay $3 per week for the support of his two minor children on September 29,1911, as of September Sessions A. D. 1911, and to give bond in the sum of $500 for the faithful performance of said order.</p> <p>The bond was entered as a judgment against him in Court of Common Pleas No. 4, as June Term, 1915, No-. 4777.</p> <p>The defendant being in arrears in the sum of $267 an attachment execution was issued in accordance with the terms of the Act of April 15th, A. D. 1913, P. L. 72, amending the Act of 1867, supra, and the income in the hands of the Fidelity Trust Company, trustee of a spendthrift trust under the will of Elizabeth P. Hopple who died February 16, 1910, attached and the Fidelity Trust Company summoned as garnishee.</p> <p>Section 17 of the will of Elizabeth P. Hopple, provides as follows:—</p> <p>“Item: I give and bequeath unto the Fidelity Trust Company the sum of five thousand dollars ($5,000) in trust nevertheless, to invest the same and keep the same invested, to collect interest and income therefrom and after deducting charges and expenses to pay the net income therefrom arising, quarterly to my nephew, Wood-ford Hopple Thomas, for and during all the term of his natural life, upon his receipt only, the principal of said estate and income thereof not to be liable to or for his contracts or debts, or to execution or attachment at the suit of any creditor of Woodford Hopple Thomas, but to be absolutely free from the same, and the said Woodford Hopple Thomas to have no power to sell, assign or encumber either the principal or income of said bequest or to anticipate the income. And further I authorize the said trustee to pay to the said Woodford Hopple Thomas such part or portion of the principal of said sum as shall in the judgment and discretion of the said trustee be necessary or proper for the support and maintenance of the said Woodford Hopple Thomas, or in case of sickness or other emergency; my said trustee shall not be liable to any person or persons for the exercise or non exercise of the discretion so given by me, and said trustee shall.not be called upon by any person to give any reason for the payment or non payment of any portion or all of the said sum to said Woodford Hopple Thomas, and the power and discretion so given to the said trustee shall not, under any circumstances, give said Woodford Hopple Thomas the right to demand said principal or any portion thereof, and from and immediately after the death of the said Woodford Hopple Thomas then to pay the said sum of five thousand dollars ($5,000) or such part thereof as shall remain in the hands of the said trustee unto such children as he shall leave surviving him.”</p> <p>Error assigned was the order of the court discharging the rule.</p>

<p>Negligence — Street raihvay — Automobiles—Might angled collision — Contributory negligence.</p> <p>In an action by the owner of an automobile to recover damages ■for injuries to the automobile in a right angled collision between the defendant’s electric car and the motor car, the plaintiff cannot recover where it appears that the driver of the automobile approached a crossing at the rate of three or four miles per hour, that when at a sufficient distance from the track of the defendant to permit him to stop safely, he saw a street car approaching and slowing down to what is called a “safety stop,” that assuming that the car would stop, he drove ahead without waiting to see whether the car would in fact stop, with the result that a collision occurred in which the motor car was practically destroyed.</p>

Appeal, No. 378, Oct. T., 1915, by defendant, from judgment of O. P. No. 3, Philadelphia Co., June T., 1912, No. 2820, on verdict for plaintiff in case of John J. McLoughlin v. Philadelphia Rapid Transit Company. Trespass for personal injuries. Before McMichabl, P. J. The^ facts are stated in the opinion of the Superior Court. Verdict and judgment for plaintiff for $600. Defendant appealed. Error assigned was in refusing binding instructions for defendant.

Appeal, No. 139, Oct. T., 1916, by defendant, from judgment of Municipal Court, Philadelphia Co., Jan. T., 1916, No. 259, on verdict for plaintiff in case of Louise D. Stevens v. Market Street Title & Trust Company. Trespass for dishonoring checks.

Appeal, No. 124, Oct. T., 1916, by defendant, from judgment of Municipal Court, Philadelphia Co., Jan. T., 1916, No. 342, on verdict for plaintiff in case of Jacob Weiner v. North Penn Bank. Trespass to recover damages for dishonoring checks.

Appeal, No. 127, Oct. T., 1916, by Maurice J. Hoover, from, decree of O. 0. Philadelphia Co., July T., 1914, No. 124, dismissing exceptions to adjudication in Estate of John M. Fisher, deceased. Exceptions to adjudication. The opinion of the Superior Court states the case. Error assigned was in dismissing exceptions to adjudication.

Appeal, No. 51, Oct. T., 1916, by defendant, from judgment of Municipal Court, Philadelphia Co., June T., 1915, No. 420, on verdict for plaintiff in case of Francis J. Loughran and Catharine Lough-ran v. Thomas Brothers Company. Trespass to recover damages for the death of a child two years and four months old.

Appeal, No. 4, Feb. T., 1917, by plaintiff, from judgment of O. P. Lycoming Co., Dec. T., 1915, No. 89, for defendant in case stated in suit of Lycoming County Fair Association v. Lycoming County. Case stated to determine the liability of Lycoming County for the amount of premiums paid by plaintiff on exhibits at the fair held by the plaintiff in the County of Lycoming in.October, 1915. The case turned upon the constitutionality of the Act of June 18, 1915, P. L. 1035.

Appeal, No. 231, Oct. T., 1916, by defendant, from judgment of C. P. No. 1, Philadelphia Co., June T., 1915, No. 2582, on verdict for plaintiff in . case of C. Wm. Spiess, trading as Lewis A. Taulane, v. Francis Simon. Assumpsit for rent. Before Bregy, P. J. The facts are stated in the opinion of the Superior Court. Verdict and judgment for plaintiff for $689. Defendant appealed. Error assigned was in giving binding instructions for plaintiff.

Appeal, No. 367, Oct. T., 1915, by defendant, from judgment of O. P. No. 3, Philadelphia Co., June T., 1911, No. 3706, on verdict for plaintiff in case of Marie Boyajian v. Garabed Ohanian. Trespass for. slander.. See former report of the case in 60 Pa. Superior Ct. 614. At the trial the court refused defendant’s point as follows : “If the jury believed that the alleged defamatory words are true, the plaintiff cannot recover.” Verdict and judgment for plaintiff for $1,000.

<p>Appeal, No. 5, April T., 1917, by plaintiff, from judgment of C. P. Erie Co., May T., 1911, No. 166, for defendant n. o. v. in case of Eunice Powell v. Bessemer & Lake Erie Railroad Company.</p> <p>Trespass to recover damages for death, of plaintiff’s husband.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was in entering judgment for defendant non obstante veredicto.</p>

<p>Practice, G. P. — Affidavit of defense — Bailment.</p> <p>In an action to recover rental for goods leased, an affidavit of defense is insufficient in which the defendant avers that he had paid a portion of the rental, and says that since the plaintiff had not insisted on the performance of the conditions of the lease, and since the goods were never satisfactory, and the plaintiff had promised to repair, he is only liable for a reasonable amount for rental, and that the amount already paid was more than enough to cover anything due the plaintiff.</p>

Appeal, No. 346, Oct. T., 1916, by defendant, from order of O. P. Bradford Co., Dec. T., 1913, No. 75, refusing to remit forfeiture of recognizance in case of Commonwealth, to use of Bradford County, v. Michael Smith. Petition to modify or remit recognizances. Plaintiff’s statement alleged a forfeited recognizance in the Quarter Sessions in two cases in each of which three transcripts were filed with bail of $200 on each transcript, making a total of $1,200.

<p>Appeal, No. 248, Oct. T., 1916, by plaintiff, from judgment of Municipal Court, Philadelphia Co., Feb. T., 19T6, No. 492, on verdict for defendant in case of Women’s Wear Manufacturing Cooperative Banking Association v. Jacob Lochter, Israel Friedman, et al.</p> <p>Issue to determine the amount due on a judgment entered on a judgment note. Before Knowles, 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>Negligence — Pedestrian struck by wagon — Grossing.</p> <p>In an action by a boy eleven years old to’ recover damages for personal injuries resulting from his being struck by a wagon at a street crossing a verdict and judgment for plaintiff will be sustained where the evidence shows that the plaintiff stopped at the curb and looked both ways, and after he had started to cross, and was three or four feet into the street, he was struck by the front of the shaft of the wagon which had turned abruptly and sharply around the corner and into the street which the boy was crossing.</p>

Appeal, No. 102, Oct. T., 1916, by defendant, from judgment of Municipal Court, Philadelphia Co., Oct. T., 1915, No. 169, on judgment for plaintiff in case of Mary Callahan v. Samuel Gorson, trading as Gorson’s Automobile Exchange. Assumpsit for breach of warranty. The case was tried by Bonniwell, J., without a jury. The facts are stated in the opinion of the Superior Court. Error assigned was in entering judgment for plaintiff for $195.

<p>Corporations — Transfer of property — Dealings with stockholders.</p> <p>A private corporation may transfer to certain of its stockholders a portion of the assets of the company in consideration of the transfer to it of shares of stock held by such stockholders, and in liquidation of claims for services by such stockholders, if it appears that no creditors existed at the time of the transfer, that the transfer was not made with the intention of placing the property beyond the reach of probable future creditors, that there was no fraud on the stockholders, and that all of the stockholders knew of and consented to the transfer. If the company subsequently becomes insolvent and goes into bankruptcy, the trustee in bankruptcy cannot recover the assets so transferred.</p> <p>. A corporation has the right to acquire stock of its own where the transaction is not prohibited by statute.</p> <p>A strictly private corporation owing no peculiar duties to the public has the same dominion over and power to dispose of its property as an individual has.</p>

Appeal, No. 93, Oct. T., 1916, by defendants, from judgment of O. P. Municipal Court,. Philadelphia Co., July T., 1915, No. 423, for plaintiff on case tried by the court without a jury in suit of George I. Pox v. Jacob Cohen and Benjamin Shuman, late copartners, trading as Cohen & Schuman. Trespass for conversion of goods. From the record it appeared that by a mistake the writ was issued in assumpsit.

Appeal, No. 198, Oct. T., 1916, by defendant, from judgment of O. P. No. 1, Philadelphia Co., June T., 1912, No. 4700, overruling demurrer in' case of Central Trust & Savings Co. v. Henry Kraan Furniture Co. Assumpsit on a bond of indemnity. Demurrer to statement. For the facts see 57 Pa. Superior Ct. 221, and the opinion of the Superior Court infra.

<p>Negligence — Street railways — Injury to pedestrian at crossing.</p> <p>In an action against a street railway company by a pedestrian, to recover damages for personal injuries sustained when he was struck by an electric car while he was diagonally crossing the intersection of two streets, a verdict for the plaintiff will not be sustained where it appears that the car in question had been standing for three minutes at the crossing by reason of a fire in the vicinity; that plaintiff thought it would not start because of the fire; that in obedience to a signal from the traffic officer the car proceeded at a slow speed to cross the street; and that the plaintiff did not look at the ear, although it was in full sight, after he left the curb, and was struck upon reaching the car tracks.</p>

<p>Insurance — Live stock insurance — Failure to pay loss — Premiums — Rescission—Cancellation—Time of suit.</p> <p>1. In a mutual policy of insurance, the refusal, without right, to pay loss occurring under a policy of insurance, may, at the option of the insured, be treated as an avoidance or rescission of the contract, and entitle the insured to recover damages for such repudiation.</p> <p>2. Where a policy of insurance provides that an insurer shall, within sixty days approve the loss, if the company fails to act on a claim for loss within that time, it will be deemed to have abandoned or waived this feature of its contract.</p> <p>3. An insurance company which collects a stipulated amount quarterly for the insurance on eight separate horses, under one policy, cannot obtain judgment for want of a sufficient affidavit of defense for premiums alleged to be due, when the company itself has failed to pay a loss due on the policy, when the policy was in full force and effect, and the insured has notified the company that he had elected to cancel the policy.</p>

<p>Insurance — Mutual insurance — Set-off-—Premiums—Act of April m, 1911, P. L. 70.</p> <p>Where a person admits the issuance and delivery to and receipt by him of a policy of insurance of a mutual insurance company, wherein he agrees to pay without notice a stated premium quarterly, until the expiration of the term, or the prior cancellation of the policy, and further admits the nonpayment of such premiums, and produces the uncancelled policy at the trial, and alleges as a sole ground of defense, a default by company, in paying losses thereunder, and the evidence is undisputed that the company had deducted the loss from the premiums due and was not in default, the company is entitled to binding instructions for the balance of premiums due, and upon submission of ease to and disagreement of jury, to judgment upon the whole record, under Act of April 20, 1911, P. L. 70.</p>

Appeal, No. 125, Oct. T., 1916, by defendant, from judgment of Municipal Court, Philadelphia Co., Dec. T., 1915, No. 306, for plaintiff on case tried by the court without a jury in suit of W. Rogers Edelman v. H. M. Scholl. Assumpsit on a loan. Before Crane, J: At the trial it appeared that H. M. Scholl and H. W. Snyder were partners in the taxicab and automobile business, and that the plaintiff Avas indebted to the firm in the sum of $243.90 for taxicab service.

Appeal, No. 110, Oct. T., 1916, by defendant, from order of the Municipal Court of Philadelphia Co., Feb. T., 1914, No. 57, refusing to stay execution in case of Commonwealth, to use of Lazar Jacobsohn, v. Frank A. Carey, et al., trading as Frank A. Carey & Co. Assumpsit on appeal. The bond was in the following form: Lazar Jacobsohn v. Frank A. Carey, Joseph F. Newman and Joseph G. Carey, Copartners, trading as Frank A. Carey & Co. Municipal Court, February Term, 1914.

<p>Negligence — Automobiles—Collision between wagon and automobile.</p> <p>In an action by the owner of a horse and wagon against the owner of an automobile to recover damages for the death of a horse, the ease is for the jury and verdict and judgment for plaintiff will be sustained, where it appears that the defendant drove along a street at a high rate of speed, and in attempting to pass through a narrow space between the plaintiff’s horse and wagon and another team, struck the horse and injured it so that the animal had subsequently to be killed.</p>

<p>Jury — Selection of jurymen — List furnished by party committee.</p> <p>An array of jurors will not be quashed merely because certain names furnished by a party committee were placed in a general book along with many others without any indication of party or religious connection, or other matter to indicate bias or prejudice, and the members of the jury board alternately selected from the many names thus placed in the book, the names to fill the jury wheel.</p>

<p>Bailment — Fledge of booh accounts — Negligence in failing to collect — Case for jury.</p> <p>Where overdue accounts due by a trading partnership have been assigned to a bank with sole right of collection as collateral security for advances under an agreement whereby the assignor guarantees payment in full at maturity of the accounts assigned, the bank will be liable in damages to the assignor for a loss resulting from negligence in failing to collect the accounts, where it appears that the bank made no effort to collect the accounts, except by telephone and letter, that no effort was made to collect them by suit, and that no notice was given to the assignor of the nonpayment of the accounts until after a receiver in bankruptcy had been appointed in proceedings against the partnership.</p> <p>In such a ease the general course of conduct of the bank in collections is not material, to show that it was not negligent as to the particular accounts in question; nor is it material what the defendant might have done under the circumstances.</p> <p>Appeals — Assignment of error — Defective assignments.</p> <p>Assignments of errors setting forth general statements in relation to the charge without setting forth portions of the charge, are in violation of the rules and will not be considered.</p> <p>Assignments of error refusing to affirm points, setting forth the points, but not the answer thereto, are insufficient.</p>

<p>Appeal, No. 35, Oct. T., 1916, by defendant, from judgment of O. P. No. 2, Philadelphia Co., March T., 1915, No. 778, on verdict for’ plaintiff in case of John A. Brown v. William D. Chambers.</p> <p>Trespass to recover damages for personal injuries. Before Staples, P. J.</p> <p>The circumstances of the accident are stated in the opinion of the Superior Court.</p> <p>Verdict-and judgment for plaintiff for $500. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for defendant.</p>

Appeal, No. 394, Oct. T., 1915, by defendant, from judgment of Municipal Court, Philadelphia Co., May T., 1915, No. 561, on verdict for plaintiffs in case of Isaac Geisenberger and Georgia B. Geisenberger, his wife, v. The Pennsylvania Railroad Company. Trespass to recover damages for personal injuries. Before Knowles, J. The facts are stated in the opinion of the Superior Court. ' Verdict and judgment for Isaac Geisenberger for $461, and for Georgia B. Geisenberger $125.

<p>Corporations — Transfer of stock — Forgery of name of registered owner — Guarantee of signature — Rules of stock exchange.</p> <p>A corporation may maintain an action against a person who presents a forged power of attorney to transfer stock on the faith of which the corporation issues a new certificate of stock, although such person acted in good faith; and it is immaterial that the person who forged the name of the registered owner, guaranteed, as a member of the stock exchange and in accordance with its rules, the genuineness of the signature.</p>

<p>Appeal, No. 5, Oct. T., 1915, by plaintiff, from judgment of C. P. No. 2, Philadelphia Co., Sept. T., 1914, No. 4225, for defendant on case stated in suit of Executors of Mary Van Beil v. Daniel E. Brogan and Finance Company of Pennsylvania.</p> <p>Case stated to determine liability for income tax on ground rent.. Before Sulzberger, P. J.</p> <p>The opinion of the Superior Court spates the facts.</p> <p>Error assigned was in entering judgment for defendant on ease stated.</p>

<p>Negligence — Railroads — Collision between train and wagon — “Stop, loolc and listen."</p> <p>Where a wagon is driven over a highway at a place where the road crosses two parallel single track railroads, with a space between the two railroads sufficient to permit the wagon to be stopped with safety, and the wagon is struck by a train while crossing the tracks of the second railroad, no damages can be recovered for the injuries sustained, where it appears that the driver stopped before crossing the first track and looked and listened and then drove at á trot over the first track and the intervening space and on to the second track without further stopping, and that there was a safe place to stop in the intervening space, from which a clear view of the track under existing atmospheric conditions could have been had for about a mile in the direction from, which the train came.</p>

<p>Appeal, No. 330, Oct. T., 1915, by William Wyllner, Ancillary Administrator of Estate of Morris Albert Wyllner, from decree of O. 0. Philadelphia Co., Jan. T., 1908, No. 85, sustaining exceptions to adjudication in Estate of Morris Wyliner, deceased.</p> <p>Exception to adjudication of Gest, J. •</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Errors assigned were in sustaining exceptions to adjudication.</p>

<p>Appeal, No. 53, Oct. T., 1915, by defendant, from judgment of O. P. No. 2, Philadelphia Co., March T., 1914, No. 382, on verdict for plaintiff in case of James P. Dunn, by his father and next friend James Dunn, and James Dunn v. Philadelphia & Reading Railway Company.</p> <p>Trespass to recover damages for personal injuries. Before Barratt, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for James P. Dunn for $100 and for James Dunn for $235. Defendant appealed.</p> <p>Error assigned was in refusing defendant’s motion for judgment n. o. v.</p>

<p>Appeal, No. 54, Oct. T., 1916, by defendant, from judgment of C. P. No. 2, Philadelphia Co., March T., 1914, No. 54, 382, on verdict for plaintiff in case of James P. Dunn, by his father and next friend James Dunn, v. Philadelphia & Reading Railway Company.</p>

<p>Criminal law — Adultery—Fornication—Trial of two offenses together — Evidence.</p> <p>Where a woman is indicted for adultery and a man is indicted for fornication, and the two indictments refer to the joint act of the man and woman, the parties may be jointly tried if they so elect; and the woman, if convicted, cannot allege as error the action of the court below in allowing a joint trial.</p> <p>In such a case declarations of the man, made in the absence of -the woman, tending to show the guilt of the woman, are inadmissible, if they are offered for the purpose of establishing the guilt of the woman as well as the man; and if such evidence is admitted the conviction of the woman will be set aside, if there is nothing on the record to show that the court instructed the jury that such evidence was to be considered only against the man.</p> <p>On the trial of an indictment for adultery against a married woman, where it appears that the husband had employed a detective to watch his wife and had instituted the prosecution, a woman witness for the prosecution called to prove incriminating declarations by the defendant may be cross-examined, to show her inti-' maey with the husband and her bias.</p> <p>Evidence — Conversations—Pari of conversation.</p> <p>When a witness has given a part o’f a conversation it is always competent on cross-examination to bring out all that was said on the occasion.</p>

<p>Appeal, No. 328, Oct. T., 1915, by defendant, from judgment of O. P. Clearfield Co., May T., 1915, No. 302, on verdict for plaintiff in case of Arthur D. Cowdrick v. New York Central Railroad Company.</p> <p>Trespass to recover damages for personal injuries. Before Bell, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $875. Defendant appealed.</p> <p>Error assigned, among others, was in refusing motion for judgment for defendant n. o. v.</p>

<p>Railroads — Contract as to cars — Interchange of traffic — Custom —.Evidence.</p> <p>Where a railroad company agrees in writing with another railroad company “to furnish all cars required for the interchange of traffic under the usual rules for such interchange,” and the first company subsequently sues the second company to recover for the loss of three cars which had been destroyed by fire on a private siding, where they had been placed by the second company, the plaintiff in such action may show that the “usual rules for such interchange” recognized by railroad companies were the rules of an association of which the defendant company was not a member, and that one of such rules was as follows: “Eor the mutual advantage of railway companies interested the settlement for a car owned or controlled by railway company when damaged or destroyed upon a private track, shall be assumed by the railway company delivering the car upon such track.”</p>

<p>Insurance — Fire insurance — Vacant premises — Conflict of testimony — Case for jury.</p> <p>In an action on a policy of fire insurance where the defense is that the premises had been vacant at the time of the fire for ten days in violation of the policy, the case is for the jury where the plaintiff testifies that on April 20th, the premises had been vacated by his tenant, that on the evening of that day notice had been given to the company, and that the fire occurred on April 30th, while a witness for the defendant testifies that the premises had been vacated on April 16th.</p> <p>Insurance — Fire insurance — Sole ownership — Equitable ownership — Adverse possession.</p> <p>A defense by a fire insurance contpany in an action on a policy, that the insured was not the sole owner of the premises destroyed, is met by proof that the insured some years before had owned the premises in fee, that being insolvent the property had been sold at sheriff’s sale and bought in by his brothers-in-law, that subsequently the purchasers made a parol agreement to sell their interest to the insured, that the latter remained in possession of the premises from the sheriff’s sale and without a lease for over twenty-five years, made improvements and repairs thereon, paid the taxes, took out insurance in his own name and paid the premiums, paid a part of the purchase-money, rented the premises for a time and collected the rents, without the owners of the legal title ever interfering with his possession or control of the property, or asserting ownership: Prospect Dye Works v. Ins. Co., 33 Pa. Superior Ct. 223, distinguished.</p>

<p>Appeal, No. 270, Oct. T., 1916, by defendant, from order of O. P. Blair Co., Jan. T., 1914, No. 10, discharging rule to open judgment in case of Barney Friediand v. Altoona & Logan Valley Electric Railway Company.</p> <p>Rule to open judgment. Before Baldrige, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned Avas order discharging rule to open judgment.</p>

<p>Decedents’ estates — Debts of decedents — Interest—Insolvency— Debt secured by collateral.</p> <p>Where a person dies insolvent, unsecured creditors are allowed interest to the date of the death. Where a creditor holds collateral, and sells the same after the death of the decedent for a sum insufficient to pay the principal and interest to date of sale, he may have recourse for the balance to the general estate of the decedent, hut he will not he allowed interest accruing after the date of the sale of the collateral.</p>

<p>Appeal, No. 212, Oct. T., 1916, by defendant, from judgment of O. P. No. 2, Philadelphia Co., Sept. T., 1915, No. 2462, on verdict for plaintiff in case of Augusto Neri v. Atlantic Refining Company.</p> <p>Trespass to recover damages for personal injuries. Before Wessel, 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 motion for judgment for defendant n. o. v.</p>

<p>Appeal, No. 41, April T., 1917, by defendant, from judgment of Q. S. Somerset Co., Feb. T., 1916, No. 18, on verdict of guilty in case of Commonwealth v. B. W. Hull.</p> <p>Indictment for selling liquor without a license.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict of guilty upon Avhich judgment of sentence was passed.</p> <p>Errors assigned were instructions set forth in the opinion of the Superior Court.</p>

<p>Divorce — Master’s findings of facts — Review by the court — Duty of appellate court.</p> <p>On an appeal from a decree of the Common Pleas sustaining an award of a master in divorce in favor of the libellant it is the duty of the appellate court to examine and carefully consider the evidence, and determine whether it satisfactorily establishes the facts which, under the express authority of the statutes, authorize the court to enter a decree.</p> <p>While it is the duty of the court to give consideration to the opinion of the master, particularly where the veracity of witnesses is involved, yet even on such a question the court must exercise its own judgment from an examination and consideration of the evidence, and is in no sense bound to adopt the finding of the master or treat it as casting the burden on the party excepting to his report.</p> <p>Divorce — Collusion—Credibility of libellant — Conflicting statements.</p> <p>Where a libellant, a husband, in a divorce suit swears to an affidavit that the suit was not brought through collusion between him and his wife, but in his testimony swears that he told his wife that he was going to bring the suit, and that she agreed not to defend it, such conflicting statements greatly impair the credibility of the libellant, relying on which, a master awarded a decree in his favor. Such conduct in itself is ground for dismissing the libel.</p> <p>In examining the record in a divorce suit, where a master has recommended a decree in favor of the libellant based upon the credibility of the libellant, the court will consider of little weight in determining the question of credibility, a finding by the master that the respondent and her witness were directly contradicted by a disinterested witness, where it appears that the disinterested witness testified as to what occurred at one time while the respondent and her witness testified as to what occurred at other and different times,-and that there was no contradiction at all between them.</p> <p>A master’s finding that a decree of divorce should be awarded in favor of a husband against his wife for desertion will not be sustained where the evidence shows that the libellant wronged the respondent when she was under sixteen years of age, was forced to marry her, that shortly afterwards he began to address her with brutal and offensive language, left her for a week, did not provide her food or money to purchase it, and forbade the members of her family to bring her food, with the result that the respondent left the libellant’s house with her young child and returned to her mother’s house.</p>

<p>Appeal, No. 52, April T., 1917, by defendant, from judgment of Q. S. Allegheny Co., May T., 1916, No. 401, on verdict of guilty in case of Commomvealtk v. Fred M. Merrick et al.</p> <p>Indictment for riot and inciting to riot. Before Prather, P. J., specially presiding, Cohen, J., presiding during examination of jurors on voir dire.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict of guilty upon which judgment was passed.</p> <p>Errors assigned were in sustaining the objection of the Commonwealth to questions asked jurors on their voir dire, various rulings on evidence, and instructions.</p>

<p>Criminal law — Riot—Inciting to riot.</p> <p>The conviction of several persons on indictments for riot and inciting to riot will be sustained, where the evidence shows that the defendants, while serious strike riots were going on, made speeches at crowded meetings of strikers in which they encouraged their hearers in the violence then prevailing and spurred them on to further effort, during a time when property was being destroyed and human life taken.</p>

<p>Courts — Municipal Court of Philadelphia County — Jurisdiction —Amount of claim — Personal injuries — Injury to personal *property — Act of July 12, 1918, P. L. Ill — Carriers.</p> <p>Under the Act of J uly 12,1913, P. L. 711, creating the Municipal Court of Philadelphia County and providing that it “shall have jurisdiction in all civil actions at law and in equity where the value of the matter or thing in controversy exclusive of interest and costs, does not exceed the sum of $600, except that in actions for damages for personal injuries it shall have jurisdiction where the sum demanded by the plaintiff does not exceed $1,500,” the words “personal injuries” mean injuries to the person, and not injuries to property, so that the jurisdiction of the court in cases involving the right to recover damages for deprivation of, or injury to personal property is limited to the sum of $600.</p> <p>In an action in the Municipal Court of Philadelphia County to recover damages for injuries to personal property where the plaintiff avers in her statement that she had sustained a loss in the sum of $1,500 and no certificate as to the amount involved is filed, and the plaintiff does not in fact claim more than $388 and recovers a verdict and judgment for that amount, the appellate court will permit the plaintiff to amend the statement by striking out the allegation as to a loss of $1,500, and inserting in lieu thereof- the sum of $600.</p> <p>In an action to recover damages for loss or injury to personal property carried in a handbag and due to the negligence of a porter of a parlor car company the amount that may be recovered is not limited by a statute which by its terms refers only to such baggage as the carrier takes into its possession and for which it gives a receipt.</p>

<p>Appeal, No. 399, Oct. T., 1915, by defendant, from judgment of the Municipal Court, Philadelphia Co., March T., 1915, No. 400, on verdict for plaintiff in case of J. Clifford Wilson v. The Pullman Company.</p> <p>Trespass to recover damages for injuries to personal property.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $46.50. Defendant appealed.</p> <p>Error assigned was in submitting the case to the jury.</p>

Appeal, No. 162, Oct. T., 1916, by Bert T. Conn, from decree of O. O. Philadelphia Co., April T., 1915, No. 96, dismissing exceptions to adjudication in Estate of Lucy W. Conn, Deceased. Exceptions to adjudication. From the record it appeared that testatrix died on Feb. 23, 1911, leaving a will quoted in the opinion of the Superior Court. On Feb. 11, 191-1, she gave birth to a second son, Lane K. Conn, and on February 23,1911, she died.

<p>Appeal, No. 104, Oct. T., 1916, by Frederick 0. Dussoulas, Executor, from decree of O. C. Philadelphia Co., Oct. T., 1915, No. 12, awarding-specific performance in Estate of William T. Hoffert, deceased.</p> <p>Petition for specific performance. Before Anderson, J.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was decree awarding specific performance.</p>

<p>Appeal, No. 83, Oct. T., 1916, by defendant, from judgment of O. P. Ho. 1, Philadelphia Co., Sept. T., 1913, Ho. 2, on verdict for plaintiff in case of Theodore R. McAllister v. Pittsburgh Water Heater Co.</p> <p>Assumpsit to recover salary as a salesman. Before Bregy, P. J.</p> <p>At the trial it appeared that the plaintiff claimed to recover salary at the rate of $83.33 per month for three months from June to September, 1912, and at the rate of $100 per month for four months from September, 1912, to January 1, 1913, and also expenses at the rate of $2 per day for a certain period. The alleged contract of employinent was made with the secretary of the defendant company.</p> <p>The by-laws gave the directors power “to appoint, and at their discretion remove or suspend such managers, officers, subordinate, assistant or otherwise, and clerks, agents and servants, permanently or temporarily as they may from time to time think fit, and to determine their duties and fix, and from time to time change, their salaries or emoluments, and to require security in such instances and in such amount as they think fit.”</p> <p>The president’s powers were, inter alia, as follows:</p> <p>“The President shall be the chief executive officer and the head of the company, and (in the recess of the Board of Directors and of the Executive Committee), shall have the general control and management of its business and affairs, subject, however, to the right of the directors to delegate any specific power, except such as may be by the statute exclusively conferred upon the president, to any other officer or officers of the company, to the exclusion for the time being of the president.”</p> <p>The contract was not ratified by either -the directors or the president, and the plaintiff did not in fact enter upon his employment. Other facts appear by the opinion of the Superior Court.</p> <p>The court gave binding instructions for plaintiff.</p> <p>Yerdict and judgment for plaintiff for $975. Defendant appealed.</p> <p>Error assigned was in giving binding instructions for plaintiff.</p>

<p>Negligence — Street railways — Right angled collision between wagon -and street car — Contributory negligence — Case for jury.</p> <p>In an action against a street railway company to recover damages for personal injuries sustained by the driver of a wagon in a right angled collision between the wagon and a street car, it appeared that the plaintiff drove from a lane into a turnpike road on the near side of which the defendant operated a single track electric railway. Plaintiff testified that when he came near the track he stopped and looked, but did not see a car. The view in the direction from which the car came was obscured by trees and bushes, and there was a crest on the road about 150 feet from where plaintiff came on to the turnpike. The car came up a grade and reached the crest of the hill where a toll house was located. There was evidence that the car was running at about eighteen miles an hour, and that it ran two car lengths after the collision with the wagon which weighed about 2,000 pounds. The evidence showed that the motorman saw the team on the track from the toll house which was 150 feet away. The lane was a stopping place for cars on signal, and a sign was posted there bearing the notice “Oars stop here.” Held, (1) that the plaintiff was not guilty of contributory negligence as a matter of law, and (2) that the question of defendant’s negligence was for the jury.</p>

<p>Appeal, No. 262, Oct. T., 1916, by plaintiff from order of Public Service Commission of the Commonwealth of Pennsylvania, on petition of order .of Railway Conductors and Brotherhood of Railway Trainmen.</p> <p>Petition for order to compel respondent to operate a train with one man more than had been employed in operating it.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was order in accordance with the prayer of the petition.</p>

Appeal, No. 160, Oct. T.> 1916, by defendant, from order of Municipal Court Philadelphia Co., Feb., 1914, No. 127, for support in case of Commonwealth ex rel. Helen Kaercher v. Julius Sachse and Franklin P. Kaercher. Petition for order for support. The opinion of the Superior Court states the case, Error assigned was order for support.

Appeal, No. 380, Oct. T., 1915, by defendant, from decree of C. P. Huntingdon Co., May T., 1911, No. 205, on bill in equity in case of Anna Eosensteel and H. Y. Eosensteel her husband et al. v. John D. Long. Bill in equity for the cancellation of deeds conveying real estate. The court sustained the bill on the ground that the grantor was mentally incapable of making a contract or executing a deed. Error assigned was the decree of the court.

<p>Insolvency — Bond of insolvent — Failure to file petition — Surrender on first day of term — Principal and surety.</p> <p>Where a person who has been committed to jail by virtue of a ca. sa. and has given a bond conditioned upon his presenting his petition for the benefit of the insolvent laws, has failed to present his petition, his bond is properly forfeited; and the fact that he voluntarily surrendered himself on the first day of the term will not relieve his bondsman.</p> <p>'Where the condition of an insolvent’s bond is that the debtor on the failure to obtain his discharge shall surrender himself to the jail at the proper county, a surrender to the sheriff, not followed by imprisonment, is not in compliance with the condition of the bond.</p> <p>An insolvent is not' excused from attending a hearing on his petition to be discharged under the insolvency laws because of the death of an uncle, where it does not appear that his presence at court was rendered impossible by the death of his uncle. If his bond is forfeited for failure to appear, his bondsman cannot complain.</p> <p>The continuance of a hearing on a petition for an insolvent’s discharge to a later date, without the knowledge and consent of the bondsman, is not a ground to relieve the bondsman of his liability on the bond.</p> <p>Where a person has been committed to jail by virtue of ca. ,sa. issued on a judgment recovered against him on a suit for breach of promise'to marry, and has given bond to take the benefit of the insolvent laws in accordance with the Act of June 16, 1836, P. L. 729, he cannot thereafter claim that the proceedings should have been instituted under the Act of June 4, 1901, P. L. 404. The insolvent in such a case does not come within the classes exempted from the operation of the Federal Bankruptcy Law.</p>

<p>Appeal, No. 259, Oct. T., 1916, by defendants, from judgment of O. P. Huntingdon Co., Dec. T., 1915, No. 23, on verdict for plaintiff in case of Gilbert W. Covert v. Mary T. McCarthy and A. R. McCarthy.</p> <p>Assumpsit against husband and wife to recover commissions for the sale of the wife’s real estate. ■ Before Johnson, P. J., specially presiding.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $390.30. Defendants appealed.</p> <p>Error assigned was in refusing motion for judgment for defendants n. o. v.</p>

<p>Contract — Sale—Failure to deliver goods — Purchase of other goods on the marlcet — Written contract — Shortage of cars.</p> <p>Where purchasers of lumber notify the sellers that deliveries are being delayed in violation of a contract, and notify the sellers that if the goods are not delivered by a date stated, they will go into the market and buy similar lumber and charge the sellers with the difference in price, and the sellers respond that they will make no further delivery, the purchasers may immediately purchase other lumber without waiting for the expiration of the time mentioned in their letter.</p> <p>In such a ease the test of the question of market value is the price at the place where the sellers engaged to deliver the lumber.</p> <p>Where the contract of sale in such a case was in writing, testimony on the part of the sellers to show what passed prior to the making of the contract, and any conditions attached to the contract, is properly excluded.</p> <p>Where a shortage of cars is set up as an excuse for the nondelivery of goods and counsel of both parties concede that such shortage had to be general, the refusal of the court to allow proof of local shortage is not reversible error.</p>

<p>Negligence — Street railways — Passenger—Sudden jerk of car.</p> <p>In an action by a woman passenger against a street railway company to recover damages for a fracture and sprain of a thumb, no recovery can be had against the company where the only witness who described the accident is the plaintiff, and she testifies that the car was standing when she got on, that she paid her fare and started to walk back in the car when “with a sudden jerk of the car it threw me, and I went to protect myself from falling to the floor, struck my hand on the end of the seat and sustained the fracture.”</p> <p>In such a case it is error for the trial judge to refuse to charge that unless the evidence shows that the jerk was unusual and extraordinary, the verdict must be for the defendant.</p> <p>There is no presumption of negligence arising from the use of the words “sudden jerk.”</p>

<p>Appeal, No. 371, Oct. T., 1915, by defendants, from decree of Municipal Court, Philadelphia Co., March T., 1915, No. 746, on bill in equity in case of Fannie Luks v. Isaac Blatt, President of Imre Noam Horovitz Lodge, M. Koppleman, Vice-President thereof, Joseph Abrams and Sigmund Silverman, Secretary thereof, associated with others under the name of Imre Noam Horovitz Lodge.</p> <p>Bill in equity against the members of an unincorporated beneficial association to recover for death benefits. Before Knowles, J.</p> <p>The opinion of the Superior Court states the facts.</p> <p>Error assigned was decree in favor of the plaintiff.</p>

<p>Appeal, No. 79, Oct. T., 1916, by defendant, from judgment of C. P. No. 5, Philadelphia Co., March T., 1914, No. 1043, on verdict for plaintiff in case of William J. McAdams v. Ellen Smith.</p> <p>Assumpsit to recover a balance alleged to be due on a building contract. Before Henry, P. J., specially presiding.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $426.28. Defendant appealed. '</p> <p>Error assigned was in refusing binding instructions for defendant.</p>

<p>Appeal, No. 204, Oct. T., 1916, by defendants, from judgment of Municipal Court, Philadelphia Co., March T., 1916, No. 42, on verdict for plaintiff in case of Joseph Dorety v. J. Howard Horrocks and Charles M. Horrocks, Copartners trading as Horrocks & Brothers.</p> <p>Trespass to recover damages for personal injuries. Before Gilpin, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Yerdict and judgment for plaintiff for $759.50. Defendant appealed.</p> <p>jErrors assigned, among others, were in refusing binding instructions for defendants, and portions of charge quoted in the opinion of the Superior Court.</p>

Appeal, No. 214, Oct. T., 1916, by plaintiff, from order of C. P. No. 3, Philadelphia Co., March T., 1914, No. 2707, discharging rule for judgment for want of a sufficient affidavit of defense in case of Donatelle Lamponi v. George Barrie et al, trading as George Barrie & Sons. Assumpsit for money held for plaintiff’s use. The averments of the statement of claim and affidavit of defense are set forth in the opinion of the Superior Court.

<p>Appeal, Ho. 121, Oct. T., 1916, by defendant, from order of C. P. Ho. 3, Philadelphia Co., Sept. T., 1913, M. L. D., Ho. 1159, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Philadelphia v. Frederick Phillips, Registered Owner, and The Pennsylvania Company for Insurances on Lives and Granting Annuities, Trustee under the will of William A. M. Fuller, deceased, and the Girard Trust Company, Trustee of the Estate of Moro Phillips, deceased, real owners.</p> <p>Scire facias sur municipal lien for taxes.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>The material portions of the affidavit of defense were as follows:</p> <p>4. That the said property described in the said lien and scire facias filed was assessed for taxation by the City of Philadelphia for the year 1911 as containing fifty-nine acres at $65,000, at said rate of .725 per $100, making the total tax on the same for said year $471.25, which would be at the rate of $1,101.69 per acre.</p> <p>5. That said property described in said lien did not in the year 1910 or 1911, or never did, contain 59 acres. That a survey of said property was made by the official surveyor of the City of Philadelphia in December, 1911, from which it appeared that the property in question consisted only of 42.7399 acres.</p> <p>6. That defendants are advised and therefore aver that it was beyond the power of the city authorities to tax and assess said property for taxation for the year 1911 as containing 59 acres when it contained only 42,7399 acres, and that such assessment and taxation were illegal and unauthorized, and therefore that the tax lien based on such assessment and filed against said property in this case, on which a scire facias has issued, is illegal and void to the extent of the amount representing the tax on the excess over 42.7399 acres, and that defendants are entitled to a credit for the amount of the tax imposed on all over 42.7399 acres, or 16.3601 acres.</p> <p>7. That taking the valuation per acre at $1,101.69, defendants are entitled to a credit for the 16.3601 acres improperly assessed amounting to $123.42.</p> <p>8. That defendants are further advised that the said plaintiff has no right to the interest or penalties as calculated, but only for the interest and penalties on that portion of the amount representing the tax on 42.7399 acres.</p> <p>9. That an application was made on behalf of defendants to the board of revision of taxes of said city to adjust and reduce said assessment, but said board of revision of taxes refused to adjust some or make any allowance for said excess taxation on the ground that said application had not been made within the time required by law.</p> <p>10. That said property is now, for the year 1915, and was, for .the years 1914 and 1913, assessed for taxation as 42.7399 acres at $51,000.</p> <p>McMichael, P. J., filed the following opinion:</p> <p>This is a scire facias upon a tax lien for taxes for the year 1911, which are assessed against Frederick Phillips, registered owner, and The Pennsylvania Company for Insurances on Lives and Granting Annuities, trustee under the will of William A. M. Fuller, deceased, and the Girard Trust Company, trustee of the éstate of Moro Phillips, deceased, real owners.</p> <p>The affidavit of defense sets forth that the property described in the lien fronts on Tacony street, or State road, from Shelmire street to Rhawn street (formerly Delaware avenue), and is intersected by the Philadelphia and Trenton Railroad and the Bustleton Railroad, and .contained in area in 1910 and. 1911, and now contains 12.7399 acres only. That the property described in the lien and scire facias filed was assessed for taxation by the City of Philadelphia for the year 1911, as containing fifty-nine acres at $65,000. That the property described in the lien did not in the year 1910 and 1911 or it never did contain fifty-nine acres. That a survey of said property was made by the official surveyor of the City of Philadelphia in December, 1911; from which it appeared that the property in question consisted only of 12.7399 acres.</p> <p>The affidavit contains a further averment, paragraph nine, that an application was made on behalf of defendants to the board, of revision of taxes of said city to adjust and reduce said assessment, but the board of revision of taxes refused to adjust the same or make any allowance for said excess taxation on the ground that said application had not been made within the time required by law. The other averments of the affidavit of defense are not material.</p> <p>It is contended on behalf of the city that matters that affect the assessment of taxes should be raised by appeal in the statutory way; that they cannot be raised as a defense on a sci. fa. on a claim filed therefor; and that as the owners of the property.did not file an appeal from the assessors to the board of revision of taxes, or from the board of revision of taxes, to the Court of Common Pleas, as they should have done under the Act of May 13, 1857 (P. L. 567), and the Act of April-19,1889, they have waived their rights, and cannot now avail themselves of any defense which they may have.</p> <p>This is an interesting and novel question. It is to be noticed that the affidavit of defense does not contain any averment that there was an appeal from the assessment made by the assessor within the time prescribed by the Act of May 13, 1857. Nor does it contain an averment that there was any appeal made to the Common Pleas under the Act of April 19,1899, or to the Supreme Court as provided by the Act of June 20, 1901.</p> <p>In Moore v. Taylor, 147 Pa. 481, it was held that the. only remedy of taxpayers who' feel themselves aggrieved by the action of the board of revision of taxes is by appeal. If no appeal is taken, the decision becomes final and conclusive, not only as to the owners, but also' as to those claiming under them by subsequent conveyance. In that case, Mr. Justice Sterrett, delivering the opinion of the court, used the following language (page 483) : “If the trustees considered themselves aggrieved by the official action of the board, their only remedy was by appeal from its decision; but no complaint was made, no appeal was taken, and the decision became final and conclusive, not only as to the owners, but also as to those claiming under them by subsequent conveyance. The duty of taxing officers is quasi judicial; and it is well settled that when the general power to assess exists, the remedy for illegal taxation is by appeal; if none be given, neither the Common Pleas nor this court can reverse the judgment of the taxing officer. On the other hand, if a specific remedy is provided, it must be pursued : Hughes v. Kline, 30 Pa. 227; Clinton School District’s App., 56 Pa. 315; Stewart v. Maple, 70 Pa. 221; Van Nort’s App., 121 Pa. 118.”</p> <p>In the case of Philadelphia v. Pennsylvania Company for the Instruction of the Blind, 124 Pa. 138, the opinion of the court being delivered by Mr. Justice Fell, it was held, citing Moore v. Taylor, supra, that a defense to a scire facias on a tax lien, which alleges that after the liability for tax became fixed for the year the property was. devoted to a use which exempted it from taxation, is not available.</p> <p>In Van Nort’s App., 121 Pa. 118, it was held “(1) For an erroneous assessment of taxes for State purposes under the Act of June 30, 1885, P. L. 193, the remedy afforded to a taxpayer on an appeal to the commissioners, is an ample remedy, and may be regarded as exclusive, except perhaps in ordinary cases. (2) When a taxpayer, refusing to make a return of property taxable under said act, by his silence acquiesced in that made by the assessor, and, having had knowledge of an erroneous assessment, when the day of appeals had passed still refuses on an application for relief to make the corrected return authorized by the act, he is without equity to entitle him to have the collection of the tax restrained by an injunction. (3) Where the general power to assess for taxes exists, the proper remedy for illegal taxation is by an appeal to those to whom the appeal is required to be taken;' and if none be given the courts cannot revise the judgment of the tax officers: Hughes v. Kline, 30 Pa. 227; Clinton Sch. D.’s App., 56 Pa. 315, followed.” In that case the assessors made a mistake in assessing two mortgages aggregating over six hundred thousand dollars. To that estimated return the county commissioners added fifty per cent, in the nature of a penalty. Mr. Justice Sterrett, delivering the opinion of the court, used the following language (page 127) : “The assessment was not rendered void by the alleged mistake of the assessor in erroneously pointing off the figures showing the aggregate amount, or in not returning the mortgages as trust instead of individual securities. At most, these were mere irregularities or errors that could be corrected whenever discovered, subject to complainant’s right to be heard, as on an appeal, after the correction was made. ......(citing Hughes v. Kline, 30 Pa. 227; Clinton D.’s School App., 56 Pa. 315, page 129). In Clinton School District App., supra, it was said: “All the cases assert the doctrine that when the general power to assess exists, the proper remedy for illegal taxation is by appeal to those to whom the appeal is required to be taken; and, if none be given, neither the Common Pleas nor this court can revise the judgment of the tax officers. Indeed, it would be a most ruinous consequence, if, just, when the collector comes around with his warrant to demand taxes assessed in due form of law by those having the general power to tax, a court of equity could interfere by injunction.......It will not do to permit the collection of ‘taxes to be interfered with by such persons, unless in the clearest cases of want of jurisdiction in the assessing and collecting officers.’ ”</p> <p>We think that the case of Yan Nort’s Appeal is. closely analagous to the present case, because that was a case in which the assessors appear to have made an error in returning securities that were alleged to have been previously paid, and therefore not subject to assessment. An error in the amount of property assessed does not render an assessment void, but it should be corrected by the. proper statutory appeal. If a right to attack an assessment collaterally for a mistake in dimensions or quantity exists, it is without limitation, and every assessment could be severally collaterally attacked, however trifling the discrepancy.</p> <p>It is to be noted that it is stated in the paper books for the City of Philadelphia, and not denied, that taxes on the larger acreage had been assessed and collected since .the year 1901, during all which time the owners of the property had full opportunity to have a survey of their property made and the mistake corrected; and as soon as the matter was brought to the attention of the board of revision of taxes, the mistake was corrected and the assessment reduced. The board, however, declined to reduce the assessment for the year for which this tax lien is filed, because the period for filing the appeal had expired.</p> <p>The rule for judgment for want of a sufficient affidavit ■ of defense is made absolute.</p> <p>jError assigned was the order of the court.</p>

<p>Appeal, No. 71, Oct. T., 1916, by pláintiffs, from judgment of C. P. Lancaster Oo., Aug. T., 1914, No. 37, on verdict for defendant in case of John E. Malone and James H. Cleaver, Executors of Joseph Haefner v. Franklin Grocery Co.</p> <p>Sheriff’s interpleader to determine ownership of personal property. Before Hassler, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The court gave binding instructions for defendant.</p> <p>Verdict and judgment for defendant for $1,000. Plaintiff appealed.</p> <p>Error assigned was in giving binding instructions for defendant.</p>

<p>Practice, 0. P. — Affidavit of defense — Sufficiency of affidavit— Allegations of set-off.</p> <p>The allegations in an affidavit of defense must not vaguely suggest a defense, but must strike at the basis of the plaintiff’s action. The affidavit must set forth the facts upon which the defense rests.</p> <p>Allegations of set-off in general terms are not to be regarded. The averments must be as specific as those used in a statement of claim.</p> <p>In an action to recover a balance due on a contract for the sale of fire escapes, an affidavit of defense is insufficient which avers that the goods furnished did not conform to the requirements of a State statute as specified, in the contract, and that the defendant had been required to correct the defects at a cost stated, which he claimed to set off as he had a right to do under the contract, but without stating the defects; but if the affidavit goes further and avers that the defendant had admitted that the claim of set-off was a proper charge and .agreed to pay the same, the affidavit will be sufficient to carry the case to the jury on the question of such set-off.</p>

<p>Appeal, No. 305, Oct. T., 1916, by plaintiff, from order of O. P. No. 2, Philadelphia Co., June T., 1915, No. 287, vacating the appointment of a master and allowing jury trial in case of Alonzo H. Stewart v. Ethel J. Stewart.</p> <p>Libel in divorce.</p> <p>From the record it appeared that the court made the following orders:</p> <p>“And now, to wit, this 4th day of February 1916, upon consideration of the within petition and motion of James Gay Gordon, the court grants a rule to show cause why the proceedings in divorce should not be withdrawn from Robert S. Bright, Esq., master, and why the issues of fact, as stated in the within petition, shall not be tried by a jury; all proceedings to stay meanwhile; returnable 11th day of February, 1916, at 1 p. m. Wessel, J.” (P. 49a.)</p> <p>By the court: “2/17/1916. Rule absolute for jury trial. Leave granted to either party to present a petition to have case advanced on trial list.”</p> <p>And now, to wit, this 25th day of April, A. D. 1916, on consideration of the within petition and on motion of Robert S. Bright, the court grants a rule on Alonzo H. Stewart, the libellant in the above case, to show cause why he should not pay a master’s fee of $200 in addition to the $50 on deposit with the prothonotary to Robert S. Bright. Rule returnable Mhy 7, 1916, at 1 p. m.</p> <p>May 12, 1916, rule absolute.</p> <p>Errors assigned were the orders of the court quoting them.</p>

<p>Appeal, No. 105, Oct. T., 1915, by defendant, from judgment of O. P. No. 1, Philadelphia Co., Sept. T., 1913, on verdict for plaintiff in case of Hub Machine, Welding & Contracting Co. v. Franklin W. Loux and Eugene C. Loux, trading as Loux Sons.</p> <p>Assumpsit on a book account for repairs to automobile trucks. Before Shoemaker, J.</p> <p>At the trial the defendants produced testimony tending to show that the time charged in the book accounts for the repairs claimed was exorbitant and excessive.</p> <p>The court admitted under objection and exception a number of time slips, one of which was as follows:</p> <p>TIME SLIPS.</p> <p>The Hub Machine, Welding & Contracting Co. 22nd & Race Streets, Philadelphia.</p> <p>Philadelphia, 9-5-1913</p> <p>Job No. 14208 For Loux & Son</p> <p>State Nature of Work</p> <p>To fix wheel & Repair engine</p> <p>Material used 1 gal. gas. 2 Gal. oil</p> <p>Hours 4.50</p> <p>Job No. 14216 For Loux & Son</p> <p>State Nature of Work</p> <p>To puting in new crank bearing</p> <p>Material used T gal. gas.’</p> <p>Hours 5</p> <p>Job No. For</p> <p>State Nature of Work</p> <p>Material used Hours</p> <p>Workman’s Name M. H. Jerome</p> <p>Total Hours 9.50</p> <p>Other facts appear by the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $531.44. Defendant appealed.</p> <p>Errors assigned, among others, were in admitting the time slips, and portions of the charge.</p>

Appeal, No. 13, Oct. T., 1916, by defendant, from judgment of O. & T. Schuylkill Co., Sept. T., 1915, No. 1153, on verdict of guilty in case of Commonwealth v. William Dietrich. Indictment for statutory rape. Before Koch, J. At the trial plaintiff went on the stand and denied the charge. He then introduced the testimony of other witnesses as to his general good reputation.

Appeal, No. 37, March T., 1917, by J. S. Kauffman, from order of Q. S. Columbia Co., Feb. T., 1916, No. 40, revoking a wholesale liquor license. Petition of Warren S. Sharpless, District Attorney, to revoke wholesale liquor license of J. S. Kauffman. Before Evans, P. J., and Hauck;, A. J. The opinion of the Superior Court states the case. Error assigned was order revoking the license.

Appeal, No. 352, Oct. T,, 1916, by defendant, from order of O. P. No. 2, Philadelphia Co., Sept. T., 1915, No. 813, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Caddie White v. Stacy H. White. Rule for judgment for want of a sufficient affidavit of defense. The facts are stated in the opinion of the Superior Court. Error assigned was order making absolute rule for judgment for want of a sufficient affidavit of defense.

<p>Appeal, No. 159, Oct. T., 1916, by defendant, from judgment of O. P. No. 2, Philadelphia Co., Sept. T., 19Í5, No. 701, on verdict for plaintiff in case of Antonio Scavello v. Joseph Perha.</p> <p>Trespass to recover damages for personal injuries. Before Barratt, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $500. Defendant appealed.</p> <p>Errors assigned were in the following form:</p> <p>1. The court below erred in charging the jury as follows :</p> <p>“It appears that among other things this saw was for cutting wedges, which required that a piece of wood one foot in length should be sawed diagonally across from one corner to the other making of the piece of wood two irregular triangles.”</p> <p>2. The court below erred in charging the jury as follows :</p> <p>“In cutting diagonally or against the grain, and especially if a knot or nail were encountered,- both the saw and the wood were apt to jump or jerk according to one witness for the defendant.”</p> <p>3. The court below erred in charging the jury as follows:</p> <p>“If you believe this (plaintiff’s) testimony then you may find as a fact that the defendant was negligent in not having instructed the plaintiff in the proper way of manipulating that saw so as to reduce the danger to a minimum. You would be entirely justified in finding as a fact that the mere sawing of three wedges, which would probably take but the fraction of a minute, would not be sufficient instruction to a man entirely unfamiliar with the operation of that kind of a dangerous machine.”</p> <p>i. The court below erred in refusing to charge the jury as requested by the defendant in his third point which is as follows:</p> <p>“A circular saw is a known dangerous machine and the danger is apparent and the employee takes the risk of all such known dangers and cannot recover unless some defect in the machine is shown.”</p> <p>5. The court below erred in refusing to charge the jury as requested by the defendant in his sixth point which is as follows:</p> <p>“The danger alleged which caused the injury was apparent and not such as required instructions as to the use of the machine.”</p> <p>6. The court below erred in refusing to charge the jury as requested by the defendant in his seventh point which is as follows:</p> <p>“A jury cannot be permitted to guess a cause of injury and as the plaintiff has not shown any defect or want of proper appliance or negligence on part of defendant your verdict should be for defendant.”</p> <p>7. The court below erred in refusing to charge the jury as requested by the defendant in his eighth point.</p> <p>“Under the evidence your verdict should be for defendant.”</p>

Appeal, No. 390, Oct. T., 1915, by plaintiff, from order of C. P. No. 3, Philadelphia Co., Dec. T., 1905, No. 906, refusing to take off nonsuit in case of Ella M. Pay, Administrator of the Estate of Edward Pay, deceased, v. James S. Moore. Assumpsit to recover a balance alleged to be due on a building contract. Before Ferguson, J. The facts are stated in the opinion of the Superior Court. The court entered a compulsory nonsuit which it subsequently refused to take off.

<p>Insurance — Fire insurance — Sole ownership — Vendor and vendee.</p> <p>Where a fire insurance policy in the standard form and containing the usual provision as to unconditional and sole ownership, specifies a particular person as the insured, but contains a rider prepared by the agent of the company which states that the loss, if any, shall be payable to two persons named as their interests shall appear, and recites that the persons thus named are the vendors of the premises to the person named as the insured under an agreement of sale, and it appears that the vendors paid the premiums, and that the vendee never knew of the existence of the policy until the premises were burned down, the vendors are entitled to recover the insurance money, and the unconditional and sole ownership clause does not apply.</p>