Volume 66 — Pennsylvania Superior Court Reports

<p>Contract — Building contract — Materials and labor — Conveyance of a house as part payment — Tender of deed after suit brought— Affidavit of defense — Practice, C. P.</p> <p>In an action to recover a balance alleged to be due to the plaintiff for furnishing to the defendants material and labor necessary to install the plumbing and gas fittings in a building operation covering a number of houses, it appeared that the consideration to be paid was $11,000 of which $900 was to be paid by the conveyance of one of the houses. This conveyance was to be made when plaintiff had finished “$4,800 worth of labor under this contract.” As the work progressed'disputes arose between the parties, and after $4,800 worth of labor had been furnished the parties entered into a compromise agreement by which plaintiff agreed to accept $2,930 although he claimed a sum larger than $2,930 plus the value of the equity in the house. The defendant paid the amount agreed upon in the settlement, but refused to make the conveyance of the house. Plaintiff therefore brought suit to recover the value of the equity in the house. After suit was brought the defendant tendered a conveyance of the house. The defendants also claimed a set-off by reason of failure of the plaintiff to do certain work he agreed to do under the compromised settlement. Plaintiff entered rule for judgment for want of a sufficient affidavit of defense as to part of the claim. The court allowed a defense as to the set-off, but entered judgment for the plaintiff for the balance. Held, (1) that the compromise agreement had nothing to do with the conveyance of the housé; (2) that the tender of the conveyance after suit brought did not defeat plaintiff’s right to a money judgment; and (3) tbat tbe disposal of tbe rule for judgment by tbe court below was proper.</p>

<p>Contract — Covenant in lease — Breach of covenant — Damages.</p> <p>In an action to recover damages for the breach of a covenant in a lease of a quarry in which the lessee agreed “to use the stripping of this property to fill the building lots facing” on a road named, where it appears that the action was brought while the defendants still had time to perform the covenant, but no plea in abatement was filed, and no .objection to the time was made until after the plaintiff’s testimony was closed which was subsequent to the</p> <p>termination of the lease, the defendant will be held to have waived a right to object, by pleading the general issue, and going to the trial on the merits.</p> <p>In such a case the correct measure of damages is the reasonable cost to the plaintiff to place the stripping where the contract provided it should go. The effect on the market value of the lots from failure to fill them, is a collateral matter in which the court has no concern.</p>

Appeal, No. 285, Oct. T., 1916, by plaintiff, from decree of C. P. Northumberland Co., No. 401, in Equity, dismissing bill in equity in case of Funeral Benefit Association of the United States v.… Held: in effect, that the defendant’s contract with the association was unilateral; that it was in the nature of a life insurance contract, where the insured is given insurance and protection so long as he pays for same and complies with the requirements of the policy.

<p>Road law — Change of grade of a street — Established grade— Natural grade — Appeals.</p> <p>In a proceeding against a borough to recover damages for an alleged change of grade of a street where it appears that there had been in fact a physical change of grade which left the plaintiff’s house below the level of the street, and that the grade at which the houses had been built had remained the same for over thirty years, the presumption is that such grade was the established grade, or that the plaintiff had built at the natural level. Under such circumstances plaintiff is entitled to recover damages for the establishment of the grade at a different level. An appeal lies from the viewers to the Common Pleas.</p> <p>Road law — Change of grade — Laches.</p> <p>In a proceeding against a borough to recover damages for a change of grade, the defendant borough cannot set up laches on the part of the plaintiff, where there is nothing to show that there had been a change in the status of the parties under the belief that plaintiff did not intend to assert his rights; and that this change would inequitably accrue to the advantage of the plaintiff and the disadvantage of the defendant, or innocent third parties.</p> <p>Road law — Change of grade — Ordinance—Petition for viewers.</p> <p>In a change of grade proceeding against a borough, the defendant borough cannot complain in the appellate court that the ordinance was not attached to the petition for the appointment of viewer, where the record fails to show that this question was raised in the court below, but does show that the ordinance was introduced in evidence, was a part of the record, and that for purposes of review, as well as of trial, the pleadings were in such form that no harm could have come to the defendant by the omission.</p> <p>Change of grade — Boroughs—Ratification of acts of officers.</p> <p>In a change of grade proceedings against a borough the borough cannot defend because it had not authorized a change of grade, where it appears that the borough had delegated authority to its officers to construct a paving, that a change of grade had actually been made, and that the borough had accepted the work.</p> <p>Road law — Change of grade — Petition for change.</p> <p>In a change of grade proceedings against a borough, the defendant cannot claim that the plaintiff was estopped from proceeding for damages because be bad signed tbe petition'for tbe change'of grade, where there is nothing in tbe petition releasing tbe borough expressly or impliedly from tbe claim for damages resulting from tbe change of grade.</p>

Appeal, No. 105, Oct. T., 1916, by defendant, from order of C. P. No. 4, Philadelphia Co., Dec. T., 1915, No. 1156, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Marine City Salt Co., Inc., v. Thomas J. Carrigan, trading as Somers Salt Co. Assumpsit for goods sold and delivered. Error assigned' was order making absolute rule for judgment for want of a sufficient affidavit of defense.

<p>Malicious prosecution — Probable cause — Malice—Case for jury.</p> <p>Where an owner of a store building .and a stock of goods rents the building to a woman and sells her the stock by bill of sale, and the tenant thereafter removes from the premises with the goods, and rent accrues which she does not pay, and the landlord has her arrested for larceny in stealing the goods, but she is discharged by the magistrate on her producing the bill of sale, and subsequently the landlord causes her arrest a second time, and she is acquitted by a jury, and it appears that the prosecutor had declared that he “intended to put her in prison before he was through with her,” a verdict and judgment for $1,000 will be sustained against him in an action by the woman for malicious prosecution.</p>

<p>Appeal, No. 174, Oct. T., 1916, by defendant, from judgment of Municipal Court, Philadelphia Co., Feb. T., 1916, No. 814, for plaintiff on trial by the court without a jury in case of Louis C. Emmons and James. A. Emmons, copartners trading as Emmons Coal Mining Co. v. Patrick J. Courtenay.</p> <p>Assumpsit for goods sold and delivered.</p> <p>Knowles, J., who tried the case without a jury, found as follows:</p> <p>“In this case claim is made for the payment of 94 tons of coal which admittedly was delivered by the plaintiff to. the defendant and for which the plaintiff is asking a payment of $177.48. The defendant contends that the coal was guaranteed to be low in sulphur and low in ash, and that it was practically worthless. The court, as a question of fact, finds that whatever statements, if any, were made by the salesman, Emmons, to the defendant, at the time when the coal was sold to him, were in the nature of a puff, and not in the nature of a guarantee. It appears from the evidence that the coal was delivered and was used, and that the defendant did not make any tests in order to discover whether or not the coal was low in sulphur or low in ash. The defendant testifies that when used with other coal, the consumption of the coal delivered by the plaintiff; was sufficient to enable him to provide power for the various tenants in the building. For this reason, as a question of fact, the court finds in favor of the plaintiff for $123.93.”</p> <p>Error assigned was the judgment of the court.</p>

Appeal, No. 369, Oct;- T., 1915, by' plaintiff,' from judgment of Municipal Court, Philadelphia Co., May T., 1915, No. 423, for defendant on trial by the court without a jury in case of John R. Deacon v. ■Edith S. Hendricks. Assumpsit on a promissory note. Before Bonniwell, J. Error assigned was the judgment of the court in favor of the defendant for $496.80.

<p>Appeals — Assignments of error — Several questions iñ one assignment.</p> <p>An. assignment of error which groups the refusal of three points for charge in one assignment, is contrary to Rule 14, and will not be considered.</p> <p>Malicious prosecution — Discontinuance of prosecution — Burden of proof.</p> <p>The discontinuance of a prosecution upon the payment of half of the costs by each party is such a termination of the proceeding before the magistrate as will raise a presumption of want of probable cause, and shift the burden of proof to the defendant in a subsequent action for malicious prosecution.</p> <p>Malicious prosecution — Malice—Collection of debt.</p> <p>Where one institutes criminal proceedings without probable cause for the purpose of collecting a debt or otherwise coercing the person arrested or sued, he is prima facie guilty of malice.</p>

<p>Appeals — Assignments of error — Admission of evidence.</p> <p>An assignment of error to the admission of evidence is fatally defective if it is not founded on an exception taken in the court below.</p> <p>Contract — Statute of frauds — Primary liability — Debt of another.</p> <p>When a promise is to be primarily and unconditionally liable for goods delivered to, or work done for a third party, the fact that the promisee parts with the goods, or does the work is a sufficient consideration to support the contract; and such an undertaking is not within the statute of frauds.</p>

<p>Appeal, No. 287, Oct. T., 1916, by defendant, from judgment of O. P. No. 2, Philadelphia Co., Sept. T., 1914, No. 2762, on verdict for plaintiff in case of Isaac Katzenberg, Lucien Katzenberg et al., trading as Jacob Stern & Sons, v. Jules Star, trading as Jules Star & Company.</p> <p>Assffmpsit for breach of contract, and to recover a loss on a resale of goods. Before Wessel, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $899.26. Defendant appealed.</p> <p>Errors assigned were in the following form:</p> <p>1. The learned court below erred in not directing a verdict for the defendant as requested.</p> <p>2. The learned court below erred in not entering judgment non obstante veredicto in favor of the defendant.</p> <p>3. The learned trial judge erred, in that his charge did not adequately call attention to the admissions made by the plaintiffs witnesses.</p> <p>4. The learned trial judge erred in overruling the objection to the following question to Lucien Katzenberg, page 27a:</p> <p>“Q. Now, what, in your judgment, from your experience with those hides and your experience generally in trading and keeping in touch with the market — about September 1st, what, in your judgment, was a fair market price for those hides?</p> <p>“(Objected to. Objection overruled. Exception allowed to defendant.)</p> <p>“Q. What was the fair market price?</p> <p>“A. The price that we secured.</p> <p>“Q. What was that price?</p> <p>“A. One dollar and eighty-five cents.”</p> <p>5. The learned trial judge erred in not affirming the defendant’s third point, which was as follows:</p> <p>“3. Plaintiffs have not presented any competent evidence as to the market price of horse butts on or about September 1, 1914.</p> <p>“The Court: I will grant an exception to the defendant to' my refusal to affirm the third and fifth points.”</p>

<p>Railroads — Carriers—Suit for freight charges — Interstate Commerce — Affidavit of defense.</p> <p>In an action by- a railroad company to recover freight charges on an interstate commerce shipment, where the statement of claim sets forth a portion of the Interstate Commerce Act and avers that the charges were in accordance with the schedules filed by the plaintiff, the defendant cannot in his affidavit of defense demand that the act of congress and the schedules be proved. The rates established by the schedule are matters of positive law, and shippers and consignees alike are charged with knowledge of them.</p> <p>When a purchaser orders goods from a vendor residing at a great distance, without directing in what manner the goods are to be delivered, the order to ship necessarily authorizes the vendor to ship by the usual routes of commerce. If the vendor delivers the goods to the initial carrier of the usual route, the title to the goods passes to the consignee, and the latter will be liable for the freight charges.</p> <p>A consignee of lumber who refuses to accept delivery thereof from the carrier at destination, because the lumber was not of the kind and character which he ordered, will not be relieved from liability for the charges of transportation.</p>

<p>Appeal, No. 237, Oct. T., 1916, by Clara Middleton et al., from decree of O. C. Philadelphia Co., Óct. T., 1915, No. Ill, dismissing exceptions to adjudication in Estate of Lydia A. J. Middleton, deceased.</p> <p>Sur account of the Commonwealth Title Ins. & Trust Co., Executor of Estate of Lydia A. J. Middleton, deceased.</p> <p>By her will testatrix appointed the accountant executor, and also trustee for her two daughters, Clara Middleton and Susan G. Middleton, until their marriage or death.</p> <p>Gest, J., filed the following adjudication:</p> <p>The accountant in its accounting claims credit for commissions at the rate of 5 per cent, on the approximate sum of $15,000, to which Mr. Harrington, representing Clara Middleton and Susan G. Middleton, objected, maintaining that 3 per cent, would be a proper allowance. The estate consists of two mortgages of $1,-500 and $3,000, respectively, shares of stock of the Pennsylvania Railroad, United States Steel Company, American Dredging Company, United New Jersey Railroad and Canal Company and bonds of sundry railroads, industrial corporations and public utilities companies, together with public loan of the State of Virginia; in all, seventeen different investments, together with jewelry, silverware and furniture specifically bequeathed, and four other assets appraised as of no value, but which may involve some care and responsibility. These all belonged to the testatrix at the time of her death, and all remained intact except $3,000 bonds of the Sandusky Gas and Electric Company, which have been sold.</p> <p>The entire balance for distribution, after deduction of the silver, household furniture, etc., specifically bequeathed, is given to the executor as testamentary trustee under the will, in trust, as above mentioned, until the death or marriage of the two daughters of testatrix. This trust may continue for many years. It is impossible to say how long. But under the Act of March 17, 1864, P. L. 53, Stew. Purd. 1127, the executor and trustee must at this time receive a single commission, which shall be deemed full compensation for its services in the double capacity of executor and trustee. No matter how long the trust may continue, the trustee cannot at its termination charge any further commissions on the principal of the estate.</p> <p>It may well be that a 5 per cent, commission on an estate of this size, distributable at once in specific and pecuniary legacies, would be excessive; but the Act of 1864 makes a material difference, as appeárs from the decisions, among which the auditing judge will refer to Davis’s App., 100 Pa. 201; Barclay’s Est., 2 W. N. 0. 447; Roger’s Est., 17 W. N. C. 29.</p> <p>In O’Brien’s Est., 23 D. R. 198, 59 Pa. Superior Ct. 19, a specific legacy of 175 shares of stock of a certain company was directed to be held in trust for five years for the son of the testator, at the expiration of which period the trustee was directed to transfer and deliver the stock to the son of the testator absolutely. The executor had no duty to perform than to hold the stock and collect and pay over the dividends. The executor was allowed $250 as compensation for his services in relation to said stock. This case, which is among those relied on by Mr. Harrington, is materially different from the case above.</p> <p>The accountant, even if merely executor and charged only with the duties of administration during the year following the decedent’s death and of distribution at its termination, would be entitled to 2 or 2% per cent.; indeed, Stevenson’s Est., 4 Wharton 104, seems to lay down the general rule that 2% per cent, is a proper allowance for responsibility in all cases. See Sunderland’s Est., 203 Pa. 155; Taylor’s Est., 17 D. R. 395. Surely 3 per cent, would be a meagre allowance for the responsibility and labor of the executor during the year of administration, and for that also which will continue thereafter for the lifetime of the cestui que trust. The will directs that reinvestments be made in legal securities, and it is not always easy to find mortgages that shall be satisfactory both as to security and rate of interest. Whether the Act of June 10, 1911, Sec. 2, P. L. 870, Stew. Purd. Supp. 219, imposes any further duty on the trustee is a question upon which the auditing judge hesitates to express an opinion, but the question is one that may well be considered by the trustee and its learned counsel.</p> <p>Too much importance should not be attached to the fact that the securities have not been converted: Fitzpatrick’s Est., 12 D. E. 730; Thewlis’s E.st., 15 D. E. 361; Holt’s Est., 12 D. E. 205. In the last case, Judge Ash-man said:</p> <p>“The fact itself that investments continued to be held intact is sometimes indicative of a very high order of business ability in their custodian. The market may point to a decline in values on the one hand, or to a rise on the other hand, and the temptation to sell may be equally strong, although for different reasons in either direction; that the trustee yields to neither may be the result of a wise forecast, at the same time it may involve a severe mental strain. Another and very practical reason against the adoption of such a standard is in the incentive which it would hold out to an executor to convert his securities and by a show of activity increase his commissions. This evil was pointed out in Shunk’s App., 2 Pa. 304, and is indeed self-evident. The earlier cases in Pennsylvania, Pusey v. Clemson, 9 S. & R. 203; Walker’s Est., 9 S. & R. 223; Luken’s Est., 47 Pa. 356, and Lloyd’s Est., 82 Pa. 143, upon which the exceptant relies, fixed a lower rate of commissions than is allowed to-day, but they were decided when monetary conditions were very different from those which now prevail. The later authorities, almost without exception, justify us in holding that a commission of 5 per cent, on $45,000, which amount is somewhat in excess of the fund before us, was properly awarded.”</p> <p>The auditing judge is of opinion, upon the whole, that the executor is entitled to the commissions claimed. Our law proceeds upon the theory that executors, trustees and guardians should be reasonably and fairly compensated for their labor and responsibility, and it is to the interest of the cestui que trust that they should be. If the executor in this case had renounced its right to act as testamentary trustee, it would have been entitled to the usual executor’s commission, and the substituted or succeeding trustee would then, at the termination of the trust, charge and be entitled to receive another commission.</p> <p>The law provides that one commission shall be charged now that shall compensate the services of the accountant in both capacities, and there is no apparent reason why the executor-trustee should be paid a smaller sum.</p> <p>Lamorelle, J., filed the following opinion on excep- ' tions to the adjudication:</p> <p>It would appear to be well settled in this State, where the amount is not in dispute, that an executor is entitled to his commissions because he qualifies and at the time he qualifies. In Sweatman’s Est., 17 D. B. 594, testator had provided that each of his three executors should receive the sum of $6,000 “in lieu of all commissions.” One of them died four months after he qualified, and this court, in its opinion, said:</p> <p>“And when the executor once qualified as executor he became entitled to some compensation — whether little or much is immaterial. His death did not deprive his estate of his right to what had been earned, and it was in lieu of that compensation that he was given his legacy.”</p> <p>In a per curiam opinion, the Supreme Court said, in 223 Pa. 552:</p> <p>“The order dismissing the exceptions to the adjudication is affirmed, for the reasons stated in the opinion of the learned judge of the Orphans’ Court.”</p> <p>It would appear to be equally well settled that a trustee is not entitled to his commissions until the trust terminates or his relation therewith ceases.</p> <p>In Bosler’s Est., 161 Pa. 457, it appeared from the report of the auditor that the trustee had taken credit for commissions amounting to upwards of ten thousand dollars, and had depleted the estate to this extent. It was held that it should return these commissions to the estate, with interest thereon. In a. most exhaustive report, the exceptions were dismissed, and the Supreme Court, in a per curiam opinion, said :</p> <p>“All that can profitably be said, in relation to the questions involved in this case, will be found in the clear, concise and very satisfactory report of the learned auditor. We are quite content to adopt his opinion and affirm the decree thereon.”</p> <p>It is said in many cases that the amount of work and its character are to be considered in arriving at a conclusion as to what compensation the fiduciary is to be paid. The cases are reviewed in Harrison’s Est., 217 Pa. 207, wherein Mr. Justice Mestrezat, in delivering the opinion of the court, at page 209, says:</p> <p>“It will be observed, therefore, that the rule as to commissions in all cases is compensation for the responsibility incurred and the service and labor performed. In arriving at the compensation to which a trustee in any capacity is entitled, it is necessary to consider the amount of the estate, the labor performed and the responsibility imposed. These are all elements which enter into' and determine not only the amount of the compensation, but the right to compensation at all. It also necessarily follows that if there has been no service performed nor liability incurred by a trustee, he is not entitled to and should not receive any compensation whatever. The onus is upon him, before he can demand compensation for services, to show to the satisfaction of the court a responsibility incurred and services performed in the execution of the trust.”</p> <p>In the present case, one and the same person is both executor and trustee. Under the provisions of the Act of March 17,1864, P. L. 53, in all cases where the same person shall fulfill the duties of executor and trustee, it is unlawful for him to charge or receive more than one commission, which single commission is to be deemed full compensation for his services in the double capacity in which he acts. The difficulty lies in the application. To say that one commission is to be paid in one amount and at one time, and that time to be when the executor fulfilled his duties as such, would seem to run counter to the above quoted authorities, because in such cases the auditing judge can at best but guess as to what services are to be performed. In the case where a corporation is concerned, there is no hardship in allowing a certain sum when its account as executor is audited and a further sum when the trust has terminated, provided the total charge be not in excess of what is a proper commission for the entire service. To thus interpret the act, however, would be unfair to an individual, because his estate and not he would receive the compensation for his services as trustee, unless the trust terminated in his lifetime.</p> <p>In the present case, the record does not disclose that any testimony was offered. The auditing judge, however, took under consideration the objection made to an allowance of 5 per cent, on an estate of approximately $50,000, a corporation being both executor and trustee, and his summary would appear to be based on the items in the account and possibly on the statements of counsel. He held that but one commission could be allowed, that it must be allowed in a lump sum and at the time of the audit of the executor’s account. The commission he fixed at 5 per cent., while admitting, however, that if the corporation was not also trustee, this rate would seem to be in excess of what should be charged under all the circumstances of the case.</p> <p>It is well settled that the finding of an auditing judge, both as to commissions and counsel fees, will not be disturbed, unless there be manifest error. (See Fisher’s Est., 25 D. R. 362; Bergdoll’s Est., 25 D. R. 102, and cases therein cited.) That there is authority for the ruling is found in the cases cited by him.</p> <p>In Roger’s Est., 17 W. N. C. 29, the executor, who was also testamentary trustee, was allowed a commission of 5 per cent, on $70,000. Judge Penrose, who delivered the opinion of this court, saying in effect that an allowance of not over 3 or 3% per cent, would be ample if the accountant’s connection with the estate ceased at the settlement of his account; but that a different rule appeared to have been established where the estate is awarded to him as trustee and where, under the Act of 1864 (supra), but one commission was to be allowed, and also that the labors required of him in the latter capacity, that is, of trustee, would have to be taken into consideration.</p> <p>Just how the amount of the labor to be performed can be determined by anticipation is not apparent.</p> <p>In Milliken’s Est., 36 Pa. C. C. R. 187, it was held that where the same persons were both executors and trustees, they were entitled to deduct their commissions in their account as executors, and that payment of such commissions at the time was proper. Moore’s Est., 13 D. R. 137, was cited as authority, wherein the action of the lower court, which stated in its opinion, “we see no reason why the payment of the executors’ commissions should be postponed to the termination of the trust, which lasts during the lifetime of the three sons of the testator,” was in effect affirmed by the Supreme Court (Moore’s Est., 211 Pa. 343), in that such ruling was upheld and the language of the opinion not criticised.</p> <p>The auditing judge has set forth at length in his adjudication the terms of the trust, the services already performed and the possible duties which the trustee may be called upon to perform in the future, and, as the authorities sustain his findings and his rulings, the exceptions are dismissed, and the adjudication is confirmed absolutely.</p> <p>Error assigned was decree dismissing exceptions to adjudication.</p>

<p>Appeal, No. 321, Oct. T., 1916, by plaintiffs, from decree of C. P. Franklin Co., Vol. Ill, Equity Docket page 201, dismissing bill in equity in case of Chambersburg Woolen Company and John C. Melville and William H. Duval, partners trading as Melville Woolen Company v. John K. Hager.</p> <p>Bill in equity for an injunction.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was decree dismissing the bill.</p>

<p>Appeal, No. 273, Oct. T., 1916, by defendant, from judgment of Municipal Court, Philadelphia Co., April T., 1916, No. 355, on verdict for plaintiff in case of Eugene L. Shute, trading as E. L. Shute and Company, v. N. Levin.</p> <p>Assumpsit for goods sold and delivered. Before Wheelee, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $45.36. Defendant appealed. -</p> <p>■ Error-assigned was in giving binding instructions for plaintiff, - ...</p>

<p>Appeal, No. 224, Oct. T., 1916, by defendant, from judgment of .Municipal Court, Philadelphia Co., Feb. T., 1916, No. 338, on verdict for plaintiff in case of George C. Gallagher v. Harry Hurwitz'.</p> <p>Assumpsit for goods sold and delivered. Before Crane, J.</p> <p>The opinion of the Superior Court states the case.</p> <p>Verdict and judgment for plaintiff for $341.26. Defendant appealed.</p> <p>‘Errors assigned were in the following form:</p> <p>1. The learned trial judge erred in admitting in evidence the six receipts, dated respectively March 9th, March 15th, September 18th, September 18th, and' September 21st, 1912. (See page 15a.)</p> <p>2. The court below erred in refusing a nonsuit on the ground that the allegata.and probata differed. (See page 16a.)</p> <p>3. The court erred in sustaining the objection to the defendant’s offer to prove through B. R. Cohn, Esq., that in March, 1913, subsequent to the date of the items charged in this suit, the plaintiff had sworn to a certain statement of claim that the only sum justly due and owing to the plaintiff from the defendant was less than $100, and that that sum had been paid. This was to attack plaintiff’s credibility. (See page 20a.)</p> <p>4. The court below erred in refusing to allow defendant to answer the question propounded by counsel, as follows :</p> <p>“Q. You were sued by Mr. Gallagher for some $46 in C. P. No. 5, March Term, 1913, No. 716, is that right?”</p> <p>This was to prove a declaration against interest. (See pages 22a and 27a.) •</p> <p>5. The court below erred in refusing to admit the two, checks in evidence prior to March 9, 1912, in his charge to the jury, as follows:</p> <p>“1 will exclude the two checks dated prior to March 9th, which is the date of the first delivery of merchandise covered in the claim before us. The other two checks there is no objection; we will receive those in evidence. (Exception for defendant to the exclusion of the two checks.) ” (See page 27a.)</p> <p>6. The verdict was against the law.</p> <p>7. The verdict was against the evidence.</p> <p>8. The verdict was against the weight of the evidence.</p> <p>9. The verdict was excessive.</p>

<p>Appeal, No. 238, Oct. T., 1916, by defendants, from decree of C. P. No. 2, Philadelphia Co., Dec. T., 1911, No. 931, on bill in equity in case of Martin L. Wolf and Hannah Wolf his wife v. First Nat. Bank of Camden, New Jersey, David Baird et al.</p> <p>Bill in equity for an injunction and an account.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned, among others, was the decree of the court.</p>

<p>Appeal, No. 236, Oct. T., 1916, by defendant, from judgment of C. P. No. 1, Philadelphia Co., Sept. T., 1914, No. 7, on verdict for plaintiff in case of Peter Holscher and Joseph J. Holscher trading as Peter Holscher & Son, v. Ingalls Stone Company.</p> <p>Assumpsit by a subcontractor against a contractor to recover the balance alleged to be due on a contract for hauling, setting, cleaning and painting limestone on a building erected at Nineteenth street and South Rittenhouse Square, Philadelphia. Before Shoemaker, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiffs for $1,456.48. .Defendant appealed.</p> <p>Error assigned was in refusing motion to enter judgment for defendant n. o. v.</p>

<p>Orphans' Court sale — Sales—Confirmation—Passing of title.</p> <p>The confirmation by the Orphans’ Court of the sale of real estate made by an executor in pursuance of his authority, is not complete until the purchase-money be paid, and a deed delivered. A sale and confirmation alone does not divest the title of the heir. If after the confirmation of the sale, but before the purchase-money is paid and a deed delivered, and while the executor is still in possession, a tree on the land, admittedly in bad condition, breaks, and in its fall, injures another person’s building, the purchaser of the land is not liable in damages for the injuries to such building.</p>

<p>Appeal, No. 404, Oct. T., 1915, by defendant, from order of C, P. No. 4, Philadelphia Co., June T., 1915, No. 4717, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Milton Stern and Louis L. Bellow, trading as Auto-Transit Company v. Ralph Sica and Thomas Rynone and Automobile Sales Corporation.</p> <p>Replevin for an automobile.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>Carr, J., found the facts to be as follows :</p> <p>This is a suit in replevin, in which the writ was issued August 23, 1915, and an automobile was delivered to the plaintiffs which was found in the possession of the intervening defendant, the Automobile Sales Corporation. The statement alleged that the automobile was brought by the plaintiffs upon July 17,1915, and that on that same date, the defendants, Sica and Rynone, obtained possession of it under a lease from the plaintiffs, which provided that it was demised to them for the full term of thirty-four weeks, and that they were to pay for the use of it $400 at the time of the signing of the lease and $12.50 to be paid every Saturday for thirty-four weeks. It provided further that in case Sica and Rynone failed to pay the rent or should remove or attempt to remove the leased property from the limits of the city without the consent of the party of the first part, or should fail to surrender up the leased property at the expiration of the lease, or should fail to perform any of the covenants to be performed, then the plaintiffs should have the right to declare the lease void so far as the right of Sica and Rynone were concerned; The statement averred that the plaintiffs defaulted in the payment of the weekly sum of $12.50 upon July 31, 1915. The affidavit of defense and supplemental filed by the Automobile Sales Corporation, intervening defendant, denied that the lease was made in good faith on the part of the pretended lessors, and that the writing in the form of a lease attached to the plaintiffs’ statement was only a cloak or disguise for the really intended transaction, which was that of a sale with an attempted retention of title to secure the balance of purchase-money; and that the plaintiffs did not notify Sica or Rynone of an exercise of and option by the plaintiffs to declare the pretended lease void or require possession of the automobile by Sica and Rynone forfeited, before it was entrusted to the Automobile Sales Corporation, the intervening defendant, for repairs. The affidavit also alleged that .on August 17, 1915, Sica and Rynone delivered the automobile to the defendant, the Automobile Sales Corporation and employed it to make certain repairs upon it, “believing them to be, as they had every appearance of being, the owners, said company undertook said repairs and performed them fully, in reliance for proper compensation upon the right of lien upon said automobile for the same.” It set forth an itemized statement of the repairs, amounting to $44.41, and claimed that the automobile was subject to a lien for that amount.</p> <p>The court made absolute rule for judgment for want of a sufficient affidavit of defense.</p> <p>Error assigned was the order of the court.</p>

<p>Appeal, No. 242, Oct. T., 1916, by defendant, from judgment of C. P. No. 2, Philadelphia Co., Dec. T., 1915, No. 800, on verdict for plaintiff incase of Knights of Joseph Building & Loan Association v. The Mechanics’ Fire Insurance Company of Philadelphia.</p> <p>Assumpsit on a fire insurance policy.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Wessel, J., charged in part as follows:</p> <p>[“The insurance company claims that the building association, being the holder of the second mortgage, when it took title to the real estate the lesser estate, that is, the mortgage, became merged in the greater estate, that is, the estate in fee simple. As a matter of law that is true, and I so instruct you that there was a merger by reason of that act, unless you find as a fact that the building association intended that the merger should not take place. In other words, if the building association became the owner of the fee, and it already was the owner of the mortgage, if it signified by any of its acts an intention on its part to be the owner of the fee and keep the mortgage alive at the same time, then its intention controls the situation. The association did become the owner of 1426 South street by deed from Sclarenco dated March 18, 19,15, or deed from the sheriff dated January 4, 1915, whichever you conclude was the actual conveyance to the association. Did it intend by the conveyance of the property to it as owner to merge the mortgage in the fee simple title? In the first place, it appears of record before you that they did not satisfy the mortgage. In the second place, it appears by the deeds which you will have out with you, that in each one of these two deeds there is a provision that the property is conveyed subject to the payment of certain mortgage debts or principal sums of $5,500 and $3,500 with interest due thereon. So you have the writings before you, and you would be justified from these writings, if you believe them, in concluding that it (the building association) did not intend to have a merger by taking title as owner in fee, that is a question of fact for you, and it is a question for you to determine from the evidence......If you conclude there! was not a merger but the mortg'age was kept alive, that it intended to keep it alive, as you may conclude from the evidence of these deeds and the nonsatisfaction of the mortgage, then you will pass to the consideration of another question.”] (1)</p> <p>[“If you conclude that there was an actual change of ownership here, then it became the duty of the building-association within a reasonable time to notify the insurance company of that change of ownership. There is no time fixed in the policy within which the notice is to be given of a change of ownership. Therefore the law says that they have a reasonable time within which to give notice, and you have heard the explanation of the plaintiff here as to the cause of the delay, that the secretary had run away, and that they had a great deal of difficulty in finding papers, and it took them two months to get the papers together, and that there was all this delay about the property and about securing title papers and everything else. That is their explanation as to the reason for not notifying this company as to their having you conclude that a reasonable time did not elapse. That is a question of fact for you to consider. If you come to tlje conclusion that there was a change of ownership, as evidenced by the facts to which I have already directed your attention, and you find that a reasonable time had already expired then it is your duty to return a verdict for the defendant. If you find that a reasonable time had not expired, then you will pass to consider another question to which I will briefly hereafter call your attention.”] (2)</p> <p>Verdict and judgment for plaintiff for $1,054.44. Defendant appealed.</p> <p>Errors assigned, among others, were (1, 2) portions of charge as above quoting them and (14) refusal of binding instructions for defendant.</p>

<p>Bailment — Lien for world done — Lien on subsequent goods. A general lien for -work done on previous goods sent by the owner will be sustained in law against goods subsequently sent by. the owner, although no work has been done on such goods; but this rule does not apply where a third party, who received the goods' from the owner, transmits them to one who is claiming a lien'-for work done on previous goods sent by such third person. To subject the owner’s property to the lien, there should be such action on his part as would show assent, or through the equities of the case estop him from denying the workman’s right of lien.</p> <p>Where an owner replevies his goods and defendants in the replevin claim a general lien for a balance alleged to be due by a third person who delivered the owners’ goods to defendant to be dyed and finished, and no work has been done on such goods, .it is proper for the jury to determine whether the owners had knowledge that their goods were delivered to defendant subject to the lien for the balance due defendants by such third person.</p>

<p>Appeal, No. 206, Oct. T., 1916, by defendant, from judgment of O. P. Berks Co., June T., 1915, No. 70, on verdict for plaintiff in case of Albert F. Reid v. Reading Transit & Light Company.</p> <p>Trespass to recover damages for injuries to an automobile in a head-on collision. Before Endlich, 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 $127. Defendant appealed.</p> <p>Error assigned was in refusing defendant’s motion for judgment n. o. v.</p>

Appeal, No. 134, Oct. T., 1916, by plaintiff, from judgment of G. P. Lancaster Co., Feb. T., 1915, No. 29, on verdict for defendant in case of John D. Bair v. Adams Express Oo. Assumpsit to recover the value of certain horses shipped under a live stock contract. The court gave binding instructions for defendant. Verdict and judgment for defendant.

<p>Life tenant — Remainderman—Agreement as to improvements.</p> <p>Where a person having a life tenancy in unimproved real estate delivers an interest-bearing bond to the remainderman under an agreement in writing hy which the latter is to use “the value and proceeds in full,” of the bond to improve the property for the purposes of securing income, and the remainderman proceeds with the improvements, spending out of her own money thereon more than four times the amount contributed by the life tenant, the remainderman is entitled after the death of the life tenant to a decree against his administratrix to compel her to execute an assignment of the bond.</p>

Appeals, Nos. 348 and 349, Oct. T., 1915, by defendant, from judgment of O. P. Delaware Co., March T., 1914, No. 288, on verdict for plaintiff, in case of Fannie Ginsberg by her next friend and mother, Bessie Ginsberg, and Bessie Ginsberg,. individually, v. -Philadelphia Rapid Transit Company. Trespass to recover damages for personal injuries. Before Johnson, P. J. The facts are stated in the opinion of the Superior Court.

<p>Appeal, No. 1, Oct. T., 1916, by defendant, from order of O. P. Delaware Co., Sept. T., 1913, No. 89, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Tborne, Neale & Co. v. Irving & Leiper Mfg. Co.</p> <p>Assumpsit for coal sold and delivered.</p> <p>The statement of claim was as follows:</p> <p>The above-named plaintiff, Thorne, Neale & Company, a corporation of the State of Pennsylvania, by its attorney, William I. Schaffer, Esq., claims from the above-named defendant, Irving & Leiper Manufacturing Company, a corporation, the sum of four hundred and eight dollars and fifty cents ($408.50), with interest thereon from the twenty-sixth day of February, A. D. 1913, at six per cent, upon the cause of action, of which the following is a statement:</p> <p>That the said defendant, the Irving & Leiper Manufacturing Company, a corporation, having its place of business in the City of Chester, did on or about the thirteenth day of February, A. D. 1913, order, and agree to purchase, from the above-named plaintiff, certain coal to be furnished by the said plaintiff and received by the said 'defendant, the cargo to consist of No. 1 buckwheat coal.</p> <p>That the said defendant then and there agreed to purchase and pay for the said coal at the rate of $2.15 per ton “Alongside,” thereby meaning the said coal should be delivered and sold to it, the said plaintiff, at the said rate, at the wharf of the said defendant company, in the City of Chester.</p> <p>That pursuant to the said undertaking and contract of sale, the said plaintiff did deliver to the said defendant at its wharf aforesaid, on the twenty-sixth day of February, A. D. 1913, a cargo of No. 1 buckwheat coal, consisting of one hundred and ninety (190) tons, which cargo was received by the said defendant.</p> <p>That there, then and there, became and was due by the said defendant to the said plaintiff the sum of four hundred and eight dollars and fifty cents ($408.50) for the said cargo of one hundred and ninety (190) tons of No. 1 buckwheat coal, delivered as aforesaid, at the rate of two dollars and fifteen cents ($2.15) per ton, in accordance with the agreement as aforesaid, which said sum or any part thereof the said defendant had neglected and refused to pay to the said plaintiff, although repeatedly requested so to do.</p> <p>Wherefore, the said defendant was then, and is now, indebted to the said plaintiff in the sum of four hundred and eight dollars and fifty cents ($408.50), with interest thereon from the twenty-sixth day of February, 1913, at six per cent., for which sum the plaintiff brings this action.</p> <p>The case turned on the sufficiency of the statement of claim.</p> <p>The court made absolute rule for judgment for want of a sufficient affidavit of defense.</p> <p>Error assigned was the order of the court.</p>

<p>Appeal, No. 220, Oct. T., 1916, by defendant, .from judgment of Q. S. Chester Go., on verdict of guilty in case of Commonwealth v. Rollin E, Clevenstine.</p> <p>Indictment for embezzlement. Before Haitse, J.</p> <p>At the trial the jury returned a verdict of guilty. In an opinion overruling a motion in arrest of judgment Haijse, J., stated the facts to be as follows:</p> <p>On April 26, 1916, the grand jury returned as true an indictment charging the defendant with having, as collector of taxes for the school district of the Borough of Spring City, embezzled taxes collected by him for the district. He was indicted under the Act of June 3,1885, P. L. 72, entitled, “An Act to punish defaulting tax collectors,” making the offense a “misdemeanor.” The offense was laid in the indictment as having been committed on February 12, 1916. He was tried April 26, 1916, and convicted of having embezzled taxes collected on duplicates for the years 1909, 1910, 1911, 1912 and 1913.</p> <p>For several years past defendant has been elected tax collector in the Borough of Spring City. He duly qualified, received duplicates of taxes for collection from the school board of the district and proceeded with their collection. In December, 1915, he reported to the school authorities that there were balances of taxes then out-, standing as follows: On the duplicate for 1909, $15.30; duplicate for 1910, $80.29; duplicate for 1911, $775.47; duplicate for 1912, $230.16, and duplicate for 1913, $346.11. The district insisted that these balances should be forthwith paid and they were paid by the defendant’s bondsmen. His arrest followed an interview had with him on January 24, 1916, by the solicitor for the school district and one of his bondsmen.</p> <p>At this interview he was asked whether or not the taxes as previously reported by him were uncollected and he admitted, in substance, that but a small amount, on the five duplicates, was unpaid but insisted that there must be a mistake in his accounts. When charged by the bondsmen with having collected the taxes referred to and misappropriating them, he admitted, in effect, that he had done so but stated that he would not admit he had done so “wrongfully.” On these admissions, and there was no other testimony as to misappropriations, he was convicted. The exact date or dates of the misappropriations did not appear. The indictment charged the embezzlement of the balance of the taxes on the five duplicates named.</p> <p>Error assigned, among others, was in refusing binding instructions for defendant and in overruling motion in arrest of judgment.</p>

<p>Appeal, No. 191, Oct. T., 1916, by Laura W. Cadwallader, Administratrix of Estate of Llewellyn Cadwallader, deceased, from decree of O, C. Del. Co., No. 10276, dismissing exceptions to auditor’s report in Estate of Mary Lewis, deceased.</p> <p>Exceptions to report of Isaac E. Johnson, Esq., auditor.</p> <p>Broomall, J., filed the following opinion:</p> <p>These exceptions involve the construction of the following clause of the will of Mary Lewis:</p> <p>“I give and bequeath to the Solicitors’ Company of Philadelphia, its successors and assigns, the further sum of two thousand five hundred dollars, in trust nevertheless to pay the net income to David S. Cadwallader, for and during the term of his natural life, and upon his decease or in case he should not survive me, then in trust to pay over the net income thereof to his wife Louisa S. Cadwallader, should she then be living for and during the term of her natural life, and upon the death of both of them, in trust to divide the said principal sum into two equal parts of twelve hundred and fifty dollars each and to pay the income of one of the said equal parts ......, And to pay the income of the other equal portion or sum of twelve hundred and fifty dollars to Llewellyn Cadwallader for and during the term of his natural life, and upon his death or in case he should not survive his parents, then to divide the said sum of twelve hundred and fifty dollars among his children share and share alike. The child or children of any deceased child or children of the said......Llewellyn Cadwallader to represent his, her or their parent or parents in the distribution.”</p> <p>David S. Cadwallader and Louisa S. Cadwallader, who were the parents of Llewellyn Cadwallader, both predeceased the testatrix. At the time of the death of the testatrix, Llewellyn Cadwallader was unmarried and without children.</p> <p>The exceptants contend that the latter part of the recited clause, which gives to Llewellyn Cadwallader the income of the principal sum for life, and at his death the principal to his children, vests the principal sum absolutely in him; in other words, that the word children is used by the testatrix as a word of limitation. The auditor has decided that “children” is used as a word of purchase, and has awarded this legacy to the trustee, who is directed by the will to pay the income to Llewellyn Cadwallader for life and at his death to his children.</p> <p>If the word “children” is to be construed as a word of purchase, they take by way of purchase, and the trust is not an executed one, but must be kept alive to support the remainder, and the auditor’s conclusion is right; if, on the other hand, the word “children” is to be construed as a word of limitation, then the word operates by analogy to the rule in Shelley’s Case, to define the interest of the life beneficiary as an absolute one, and the ex-ceptant is right.</p> <p>Prima facie the word “children” is a word of purchase, and will be construed as such, unless it appear from the will that the word has been clearly used as a word of limitation. This is the ordinary case of a legacy in trust for one for life and at his death to his children, with but two special features, one is the superadded words of distribution, share and share alike, the children of deceased children taking a parent’s share, and the other is the fact that at the death of the testatrix Llewellyn Cadwallader had no children. The first feature in the use of the word children is inconsistent with the thought of heir in a long line of lineal descent, because it provides for a division transversely: Chew’s App., 37 Pa. 23. The second feature goes back to Wild’s Case, 6 Coke 6 a, the first resolution in which is, “that if A devises his lands to B and to his children or issue, and he hath not any issue at the time of the devise that the same is an estate {ail.” This is for the reason that being real estate, unless the children were in esse at the death of the testator, the gift of the remainder would be void, but there was an expressed desire to provide for them, hence it was inferred that he intended to give the first taker an estate tail. But the rule in Wild’s case does not apply to personal property: Myer’s Appeal, 19 Pa. 113; Coursey v. Davis, 16 Pa. 29; Peale’s Est., 31 Weekly Notes of Cases, 551. Moreover, in our case the gift is to a trustee in whom the entire interest vests, so that it makes no difference that there were no children in esse to take at the death of the testatrix.</p> <p>The auditor has so well supported his conclusion on reason and authority, that it would be superfluous to traverse the same ground. To the many authorities cited by the auditor may be added Meyer’s App., supra, which in itself is decisive of the question.</p> <p>It only remains to notice the authorities cited by the exceptant. In Simpson v. Reed, 205 Pa. 53, the word children is construed as a word of limitation, because in a subsequent clause of the will he uses the word heirs as synonym for children. There is no such feature in this case. A similar use of the word children as synonymous with heirs is to be found in Gilland v. Hallett, 210 Pa. 268; also in Asher v. Stewart, 216 Pa. 251, and in Smith v. Lindsey, 37 Pa. Superior Ct. 171. In Pifer v. Locke, 205 Pa. 616, the word issue is used as a synonym for children, which distinguishes it from our case. To the same effect is Haldeman v. Haldeman, 40 Pa. 29, and Campbell’s Est., 202 Pa. 159. It is an estate tail in realty and an absolute estate in personalty, where the first taker takes for life with remainder to issue, and nothing to show that issue meant children in the restricted sense: Potts’s App., 30 Pa. 168. Yarnall’s App., 70 Pa. 335, was a case of limitation for life and then to those entitled under an intestacy of the life tenant, which sheds no light on our case. Brinton v. Martin, 197 Pa. 615, was an ultimate limitation to the heirs of the first taker which is essentially different from our case. In Blair v. Miller, 30 Weekly Notes of Cases, 186, there was no limitation to the first taker for life, which differentiates it from our case. In Packer’s Est. (No. 2), 216 Pa. 116, the gift was to the first takers and their issue, which, of course, does not aid us.</p> <p>The authorities cited by the exceptant do not support his exceptions. On the other hand the authorities cited by the auditor abundantly support his conclusion, to which, as heretofore stated, may be added Myer’s App., supra, and note on children as a word of purchase or limitation, 12 Lawyers’ Reports Annotated (N. S.), page 283, and note on the rule in Shelley’s Case, 29 Id. page 963.</p> <p>We therefore dismiss the exceptions and enter the following decree:</p> <p>And now, December 4, 1915, it is ordered, adjudged and decreed that the exceptions to the auditor’s report be dismissed, and that the said report be confirmed, and that distribution be made in accordance therewith.</p> <p>Error assigned was the decree of the court.</p>

<p>Beneficial associations — Expulsion of member — Remedies provided by constitution and by-laws-r-Evidence.</p> <p>On a bill in equity praying for an injunction to restrain the members of a beneficial association from denying the plaintiff the rights and privileges of membership in such'association, a decree in favor of the plaintiff will be sustained where it appears that the defendant had exhausted all of the remedies provided by the constitution and by-laws of the association, and the court below found as fact that there was no evidence to support the charges that the plaintiff by his actions and. conduct had violated several provisions of the constitution of the association.</p> <p>In such a case the fact that the plaintiff had filed a bill in equity to restrain a proposed merger of the association with another association on the ground that many illegal votes had been polled at the meeting which voted for the merger, is not “conduct unbecoming a member” of the association within the meaning of such words as used in the constitution.</p> <p>Where the constitution of a beneficial association provides for the appointment of a committee to try a member against whom charges are made, and directs that the report of the committee shall be read, and if “approved by a majority of the members present, it shall be the judgment of the lodge, and shall be so declared by the president,” an expulsion of a member who has been tried, will not be sustained, where it appears that the committee reported that they found the accused “guilty in manner and form as charged,” and that such report was submitted to a meeting of the lodge, and on motion it was carried that “above report be received and recommendation complied with,” without any other action, and with no declaration by the president that the report of the committee was the judgment of the lodge.</p> <p>Where a person has been for many years a member of a beneficial association, and has paid his dues, and the association is called upon in judicial proceedings to support its act in expelling him, all the facts essential to the conviction of a member both as to the cause of disfranchisement and the mode of proceeding, must be made to appear.</p>

<p>Appeal, No. 14, Oct. T., 1916, by John W. Sheets, Sr., from order of Q. S. Philadelphia Oo. Court No. 4, Dec. T., 1912, dismissing exceptions to report of Board of Viewers in the Matter of the Striking from the City Plan and Vacating Edgemont Street from Boston Avenue to Cumberland Street.</p> <p>Exceptions to report of board of view.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was in dismissing the exceptions.</p>

<p>Appeal, No. 233, Oct. T., 1916, by George Wright, from judgment of C. P. No. 3, Philadelphia Co., Sept. T., 1913, No. 820, on verdict for plaintiff in case of Henry E. Worthington, Mtge., to the use of William H. Good v. William Levis, Mtgr. and Real Owner, and George Wright, Intervening defendant.</p> <p>Issue to determine the validity of a judgment entered for want of an affidavit of defense on a scire facias sur mortgage. Before Ferguson, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $1,457.17. George Wright, intervening defendant, appealed.</p> <p>Error assigned was in refusing to admit in evidence the petition and answer on the rule to open, and in refusing binding instructions for the intervening defendant.</p>

<p>Appeal, No. 34, Oct. T., 1916, by defendant, from judgment of O. P. Lancaster Co., Sept. T., 1914, No. 25, on verdict for plaintiff in case of William F. Meyer and David F. Woodoth, trading as William Meyer Company, Limited, v. S. R. Moss Company.</p> <p>Assumpsit to recover the cost of a humidor. Before Hassler, J.</p> <p>The facts are stated in the Superior Court.</p> <p>Verdict and judgment for plaintiff for $1,402.70. Defendant appealed.</p> <p>Error assigned was in refusing defendant’s motion for judgment n. o. v.</p>

Appeal, No. 363, Oct. T., 1915, by plaintiff, from decree of C. P. No. 4, Philadelphia Co., June T., 1914, No. 277, dismissing libel for… Held: in an action by a surviving husband claiming an estate by courtesy in land, of which his wife died seized, that the record of an order in the Court of Quarter Sessions adjudging him on complaint of the wife to pay her a weekly allowance for maintenance, is evidence persuasive of a prior wilful desertion by him, but not conclusive…

Appeal, No. 85, Oct. T., 1916, by plaintiff, from judgment of C. P. Schuylkill Co., Jan. T., 1915, No. 355, on verdict for defendant in case of Commonwealth ex rel. Ryan Township v. W. H. Heidenreich. Assumpsit to recover a penalty of $20 for filling up a ditch. Before Brumm, J. The opinion of the Superior Court states the case. Verdict and judgment for defendant. Plaintiff appealed. Error assigned was in refusing binding instructions for plaintiff.

<p>Appeal, No. 86, Oct. T., 1916, by defendant, from order of O. P. Schuylkill Co., Sept. T., 1915, No. 338, making absolute rule to quash attachment execution in case of Commonwealth to use of Dora E. Fronk v. Oliver Rarick.</p> <p>Rule to quash writ of attachment execution.</p> <p>From the record it appeared that an order had been made on the defendant in the Court of Quarter Sessions for the payment of a specific sum in fornication and bastardy proceedings. The order was subsequently certified and indexed in the Court of Common Pleas. On August 23,1915, an attachment execution was issued to attach the defendant’s interest in the estate of Abraham C. Rarick. On Nov. 8, 1915, the court in an opinion by Bechtel, P. J., made absolute a rule to quash the writ on the ground that an attachment execution could not be issued on a demand founded in tort.</p> <p>Error assigned was the order making the rule absolute.</p>

<p>Bes -adjudicata — Joint action — Separate action — Parties—Practice, C. P. — Subject-matter.</p> <p>Where two persons bring separate actions and their right of action is on a joint contract, and in each case a verdict is directed in favor of the defendant because the actions were wrongly brought, and without consideration of the merits of the case, such disposal of the two cases is not res adjudicata of a joint action subsequently brought by the two parties on the contract with the defendant. In such a case neither the parties nor the subject-matter are the same in the two proceedings.</p>

Appeal, No. 278, Oct. T., 1916, by defendant, from judgment of C. P. Northampton Co., June T., 1915, No. 55, on verdict for plaintiff in case of The Joseph Schlitz Brewing Company v. W. Fay Stephens, trading under the name of the A. A. Gordon Bottling Works. Assumpsit for goods sold and delivered. Before McKeen, J. The facts are stated in the opinion of the Superior Court. Verdict and judgment for plaintiff for |526.68. Defendant appealed.

<p>Appeals — Theory on which case is tried below.</p> <p>A party will not be heard to question the correctness of the submission of a case where the court below has submitted it from the standpoint in which both parties to the issue manifestly tried it. The appellate court reviews only questions considered and determined in the court below.</p> <p>A litigant may not sit silent and take his chance of a verdict, and afterwards, if it is adverse, complain of a matter which would have immediately been corrected at the time of trial.</p> <p>Appeals — Assignment of errors — Charge—Admission or exclusion of testimony.</p> <p>Detached excerpts which do not give the completed thought of the trial judge áre not proper assignments of error, inasmuch as they are always misleading and unfair.</p> <p>Assignments of error to the admission or exclusion of testimony must quote the questions or offers, the objections thereto, and the ruling of the court thereon.</p> <p>When an offer of evidence contains relevant and irrelevant matters, and is made as a whole, the judge is not bound to separate the good from the bad, but may reject all.</p>

<p>Appeal, No. 280, Oct. T., 1916, by defendant, from Judgment of O. P. Northampton Co., June T., 1915, No. 34, on verdict for plaintiff in case of Adam C. Germanton v. Howard S. Shafer.</p> <p>Trespass to recover damages for personal injuries.</p> <p>At the trial the jury returned a verdict for plaintiff, '.subsequently a motion for judgment n. o. v. was overruled, Stewart, P. J., filing the following opinion:</p> <p>The argument and brief involved but one proposition, that we should have affirmed defendant’s last point, and directed the jury to return a verdict in his favor on the ground that the plaintiff was guilty of contributory negligence. The sole question is, was plaintiff’s contributory negligence a question for the jury, or to be declared as a matter of law by the court? We have been helped by the references to authorities contained in the briefs of counsel on both sides of this case. After a careful examination of the authorities we think that the question involved was for the jury. The position of the .learned counsel for the defendant is that, conceding the plaintiff followed the orders of Spengler, yet nevertheless the' method of carrying out the orders was the plaintiff’s, and that .the orders would not excuse the plaintiffs following a method which was obviously dangerous. If the charge is examined, it will be seen that we not only charged the jury to that effect, but that we called their particular attention to the element of warning which Spengler testified he had given the plaintiff at the place where they had worked before. It will also be seen that the defendant’s position was well stated in his third, fourth and fifth points, all of which we affirmed. It is a mistake to assume just what the plaintiff’s position was at the time of the accident. The boss, Spengler, did not deny that he had ordered the plaintiff to guide or steady this tool as it was going up in the air. When the tool was just leaving the ground, it would require one position. As it was going up in the air, it would require a different position. The different witnesses testified to his different positions. One testified that he had both feet on the wheel, another that he had one foot on the wheel. The different witnesses varied as to the different amount of force which he used. The plaintiff himself said that he took ahold of the drill bar, and as it was raised to a certain height, it dropped very sudden, and his hand was caught; that he had both hands ahold of it, and that it was between five and seven feet from the ground at the time it fell. The witness indicated that he had his arm stretched up holding it, and that one foot was against the wheel to keep the tool from hitting the machine. It is very plain that the height of the tool and the degree of force were very pertinent questions, and only a jury could decide them. This appeared upon the cross-examination by the learned counsel for the defendant. No court could say that his method was an obviously dangerous one. Our charge was in strict line with Solt v. Williamsport Radiator Co., 231 Pa. St. 585. In that case Mr. Justice Moschziskek quotes with approval, the following: “Where two ways of discharging the service áre apparent to an employee, one dangerous and the other safe or reasonably so, the employee must select the latter, whether or not it is the less convenient to him; and if he chooses the former, and the danger is such that a reasonably prudent man would not incur the risk under the same circumstances, he is guilty of such negligence as will bar a recovery, although the master may also have been negligent”: 20 Am. & Eng. Ency. of Law (2d Ed.), 146. In Fortney v. Breon, 245 Pa. St. 47, the same judge said on page 51: “The rule in the Solt case eahnot be applied by a trial judge as a governing principle of law that requires a nonsuit or binding instructions for the defendant, unless the evidence not only demonstrates that the plaintiff was performing work in a way which was obviously dangerous, when another reasonably safe way was known to him, but it also must show that this other way was clearly and readily available and such as the ordinarily prudent man would have adopted under similar circumstances; and it is far from plain that this was the condition in the present case. Where one is charged with contributory negligence in doing work in an obviously dangerous manner when a safe way was open to him, unless the manner of performance was so unusual and clearly careless that no two minds could reasonably disagree as to the alleged negligence,” etc. It would be impossible for us to declare as a matter of law, that every mind would agree that this was a dangerous method of steadying the bar, when there is so much disagreement as to how plaintiff performed the work. We have examined all the cases cited by the learned counsel for the defendant in support of his position. In our judgment they are entirely different from the facts of the present case. In the present case, unless you presuppose that the entire method of raising this drill was dangerous, there is no proof that there was a safer method of steadying the drill. Spengler was admittedly the boss. It was the plaintiff’s duty to obey. His duty is defined in a large number of cases which are cited on page 593 of Hartman v. Beading Wood Pulley Co., 38 Pa. Superior Ct. 587. See also Franczak v. NazVOL. LXVI — 12 areth Cement Co., 42 Pa. Superior Ct. 263; Maines v. Harbison-Walker Co., 213 Pa. 145; Poster v. National Steel Co., 216 Pa. 279; Ralston v. Baldwin Locomotive Works, 240 Pa. 14; Pfeifer v. Allegheny Steel Co., 243 Pa. 256. In conclusion we think that the general rule stated in many of the cases, applies to the present case, as follows: “The question of contributory negligence cannot be treated as one of law, unless the facts and the inferences from them are free from doubt. If there is doubt as to either, the case is for the jury. In an action to recover damages for personal injuries the burden is on the plaintiff to prove negligence on the part of the defendant, and that this negligence caused the injury. He is not bound to go further and prove that he did not contribute to the result by his own negligence; that burden is on the defendant, unless the evidence adduced by plaintiff discloses contributory negligence.” Coolbroth v. Pennsylvania R. R. Co., 209 Pa. 433. See also Davidson v. Lake Shore, Etc., Railway Co., 171 Pa. 522; Gray v. Penna. Railroad Co., 172 Pa. 383.</p> <p>And now, July 10, 1916, motion for judgment non obstante veredicto is refused, and rule discharged, and judgment is directed to be entered on the verdict in favor of the plaintiff upon the payment of the jury fee, and the evidence taken upon the trial, is certified and filed and made part of the record.</p> <p>Error assigned was in overruling motion for judgment for plaintiff n. o. v.</p>

<p>Appeal, No. 340, Oct. T., 1916, by plaintiff, from judgment of Q. S. Lancaster Co., Jan. T., 1914, No. 43, on verdict of not guilty in case of Commonwealth v. S. E. Weber.</p> <p>Indictment for not reporting a tuberculosis cow.</p> <p>At the trial the court directed a verdict for defendant.</p> <p>Verdict and judgment for defendant. The Commonwealth appealed.</p> <p>Error assigned was in directing a verdict for defendant.</p>

<p>Trusts and trustees — Principal and income — Stock dividend— Decrease of booh value of stock — Reimbursement of principal.</p> <p>When the stock of a corporation is by the will of a decedent held in trust by a trustee to pay the income to one person for life, and the principal over to a remainderman, and the corporation at the date of the death of the decedent has a large surplus, so .that the book value of the shares is above par, and four years after the death of the life tenant, and after a large addition had been added to the surplus during the life tenancy, the company declares an extraordinary stock dividend equalling practically the amount of the surplus earned since the death of the testator, and at the same time increases its capital stock, selling a large number of the new share_s at less than the previous book value of the shares, with the result that all of the shares of the company after the transaction is completed, have a less book value than at the date of the death of the decedent, the stock dividend awarded to the trust estate is not to be distributed wholly to income, but enough of the stock must be set aside to reimburse the principal for the loss it suffered by reason of the stock dividend in connection with the stock increase, but not for any loss due to the sale of new stock at less than the value of the old stock.</p>

<p>Assault and battery — Givil action for — Evidence—Damages.</p> <p>In an action against a father and son to recover damages for an assault and battery in which the plaintiff’s leg was broken, where the son’s name is withdrawn as a defendant before trial, and the plaintiff gives evidence which indicates that his leg was broken by the son, although disinterested witnesses on both sides gave testimony which' indicated that it was broken by the father, and no one testified that it was broken by the son, the trial judge cannot be convicted of error in instructing the jury that if they found the leg was broken by the father, they could assess damages against the latter for the injury. In such a case the testimony of the plaintiff is not conclusive against himself.</p> <p>It seems that the trial judge would have been warranted under the evidence in the case, in instructing the jury that if they believed the testimony of the plaintiff, this was a joint assault by father and son, and each of them would be responsible for all the consequences that resulted.</p>

<p>Practice and .pleading — Municipal Court of Philadelphia County — Beneficial ■associations.</p> <p>In an action in the Municipal Court of Philadelphia County against a beneficial association to recover sick benefits, plaintiff in his statement set forth a ljy-law providing for sick benefits and averred that he had broken his leg, that he had notified the defendant of the same, and was confined to his room for a stated number of weeks. The defendant in its answer admitted the by-law and averred that it had no knowledge of the nature of plaintiff’s illness, and called for proof of the same, hut admitted receiving notice of the illness. After answering all the paragraphs in the statement, the defendant added two additional paragraphs to its answer, the first of which recited a by-law to the effect that no benefits could be recovered for a sickness due to intemperance. The second averred as follows: “Deponent is informed and believes, and therefore avers that the illness for which this claim is made was caused by the plaintiff’s intemperance.” No reply was filed to these additional paragraphs of the answer. At the trial defendant produced no testimony to show that the illness was caused by intemperance, but maintained that under the Act of July 12, 1913, P. L. 711, establishing the Municipal Court, the facts alleged in the additional paragraphs of the answer were admitted. Held, that the answer did not sufficiently aver that plaintiff’s illness had been caused by intemperance, and that there was consequently no admission of this by the failure to reply.</p> <p>In such a case the defendant must go further than merely to allege that he is informed and believes, he must aver that ¡he expects to be able to prove the facts at the trial.</p>

Appeal, No. 9, Oct. T., 1916, by defendant, from judgment of O. P. Huntingdon Co., May T., 1913, No. 35, on verdict for plaintiff in case of T. M. Kessler v. J. Murray Africa. Assumpsit for services. Before Woods, P. J. The facts are stated in the opinion of the Superior Court.

Appeal, No. 234, Oct. T., 1916, by defendant, from order of O. P. No. 1, Philadelphia Co., March T., 1916, No. 3275, making absolute rule to show cause why the appeal -filed should not be stricken off in case of Philip Orliner v. Raymond Borowski. Rule to strike off appeal. Error assigned was order making absolute rule to strike off appeal.

<p>Appeal, No. 312, Oct. T., 1916, by plaintiff, from order of O. P. Lancaster Co., March T., 1914, No. 42, refusing to take off nonsuit in case of H. L. Stauffer and J. G. Stauffer, trading as John Stauffer & Sons, v. New York Central & Hudson River Railroad Company and The Pennsylvania Railroad Co., Garnishee.</p> <p>Foreign attachment in assumpsit for breach of a contract for the transportation of cattle. Before Hassler, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>At the trial the court entered a compulsory nonsuit which it subsequently refused to take off.</p> <p>Error assigned was refusal to take off nonsuit.</p>

<p>Appeal, No. 308, Oct. T., 1916, by plaintiff, from judgment of C. P. No. 5, Philadelphia Co., Sept. T., 1914, No. 1980, for defendant n. o. v. in case of J. Jacob Shannon & Co. v. American Iron & Steel Mfg. Co.</p> <p>Assumpsit for tools and machinery used in the erection of an addition to a steel plant. Before Martin, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>At the trial the jury returned a verdict for plaintiff for $1,456.23. Subsequently the court in an opinion by Staake, J., entered judgment for defendant n. o. v.</p> <p>Error assigned was in entering judgment for defendant n. O', v.</p>

<p>Divorce — Fraud—Misrepresentations as to pregnancy.</p> <p>A husband will not be granted a divorce on the ground that his wife falsely represented to him before marriage that she was pregnant by him; and especially is this the case where it appears that the husband had condoned whatever offense was originally committed in that respect and had confirmed the marriage by subsequent intimacy.</p> <p>Divorce — Adultery—Dvidence.</p> <p>A husband will not be granted a divorce on the ground of adultery where it appears that the wife was induced to the misconduct charged against her by friends of the husband acting on his behalf and with his concurrence.</p>

<p>Negligence — Automobiles—Liability of mother for act of son.</p> <p>If an automobile belongs to a mother, and is used by her minor son with her permission in part for the improvement of his health, and in the ordinary course of the life of the family, the mother will be liable for an injury caused by the negligent act of the son in operating the machine.</p>

<p>Sheriff’s interpleader — Execution — Value of goods — Bond — Principal and surety.</p> <p>The verdict of a jury in an interpleader isgue, wherein the claimant was plaintiff and the execution plaintiff was defendant, finding “for the defendant for the goods levied upon,” and fixing the value of the goods in controversy, is binding as respects value upon the execution defendant, who is the owner of such goods; and not made a party to such issue; when the owner brings an action to recover upon the bond filed in the interpleader proceedings.</p>

<p>Custom, — Farm lease — Bight to hay — Evidence—Landlord and tenant.</p> <p>A provision in a lease of a farm for one year giving the landlord one-half the grain, and two loads of hay as. rental, cannot be varied by proof of a custom to the effect that no hay could be sold off the place without the landlord’s consent, and that the landlord was entitled to have half of the proceeds thereof, where there is no evidence as to the time of the existence of the custom, nor of its extent, and where the two witnesses called to establish it may have described as a custom what was merely a prevailing practice with reference to terms of farm leases. Such a custom is also unreasonable.</p>

<p>Appeal, No. 218, Oct. T., 1916, by defendant, from judgment ofC. P. Northampton Co., Dec. T., 1915, No. 44, on verdict for plaintiff in case of Nazareth Foundry & Machine Co. v. Granville Beck.</p> <p>Assumpsit for repairs to an automobile owned by defendant’s son. Before McKeen, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $47.29. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for defendant.</p>

<p>Street railways — Carriers—Bates—Change of rates — Posting and publication — Public Service Commission — Act of July 26, 1918, P. L. 187k-</p> <p>A street railway company which files with the Public Service Commission a schedule of a change of rates, does not comply with the provisions of paragraph seven of See. 1 of Art. II, of the Act of July 26, 1913, P. L. 1314, requiring that no change in any tariff or schedule shall be effective, except after thirty days’ notice to the commission and to the public, “posted and published” in the manner required with respect to original tariffs, if it appears that the schedule of the change was deposited in the different stations in rooms occupied by employees of the company, but to which the public did not resort, and notices were posted in stations, car barns or other places to which passengers did resort, informing them that information of the rates would be furnished them on request.</p>

<p>Appeal, No. 67, Oct. T., 1916, by defendant, from order of O. P. Schuylkill Co., Nov. T., 1915, No. 281, awarding writ of peremptory mandamus in case of The Panther Yalley Water Company v. H. F. Blaney, Burgess of Coaldale Borough.</p> <p>Petition for peremptory mandamus. Before Bechtel, P. J.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was in awarding writ of mandamus,</p>

<p>Divorce — Indignities to person — Life "burdensome.</p> <p>A husband is entitled to a divorce where he shows by competent and disinterested witnesses that his wife persistently and for a long- period of time accused him in the presence of others of vile and degraded conduct and of crimes, the punishment of which would have been imprisonment for long terms. In such a case there is no burden on the husband to prove express malice.</p>

<p>Appeal, No. 271, Oct. T., 1916, by plaintiff, from judgment of C. P. No. 3, Philadelphia Co., March T., 1916, No. 4886, for defendant on case stated in suit of William H. B. Bennett, Trustee of the Estate of H. W. Thomas and Edgar T. Hill, individually and trading as Edgar T. Hill & Co. v. North Philadeh phia Trust Company.</p> <p>Case stated to determine the application of the proceeds of sale of securities accompanying a collateral note. Before McMiohael, P. J.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was in entering judgment for defendant.</p>

<p>Negligence — Street railways — Collision between wagon and car— Contributory negligence — Case for jury.</p> <p>In an action against a street railway company to recover for injuries to a horse, wagon and contents resulting from a collision with defendant’s car, the case is for the jury where the evidence is clear that the defendant’s motorman was guilty of negligence, and the evidence as to the conduct of the driver was of such a character, that the jury might well draw the inference that he looked when the ear was 300 feet away and his horse’s head was within two or three feet of the track upon which the car was approaching.</p>

<p>Appeal, No. 373, Oct. T., 1915, by Fairmount Savings Trust Co., Garnishee, from order of C. P. No. 2, Philadelphia Co., Sept. T., 1912, No. 12, refusing motion to quash writ of foreign attachment in case of Elizabeth T. Wright v. George Wright.</p> <p>Motion to quash writ of foreign attachment. Before Barratt, P. J.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was order refusing motion to quash writ of foreign attachment.</p>

<p>Appeal, No. 141, Oct. T., 1916, by defendant, from judgment of O. P. Lehigh Co., Sept. T., 1915, No. 39, on verdict for plaintiff in case of Noah A. Kistler et al. v. The Fidelity Mutual Life Ins. Co.</p> <p>Assumpsit to recover cash surrender value and share of profits on a policy of life insurance. Before Groman, P. J.</p> <p>The opinion of the Superior Court states the case.</p> <p>Verdict and judgment for plaintiff for $853. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for defendant.</p>

<p>Appeal, No. 119, Oct. T., 1916, by defendants, from judgment of Q. S. Blair Co., Jan. T.\ 1916, Nos. 23-24, on verdict of guilty in case of Commonwealth v. William K. Baird and Ross Klein.</p> <p>Indictment for violating the Cold Storage Act of May 16,1913, Sec. 15, P. L. 216. Before Baldrige, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict of guilty upon which the defendants were sentenced to pay a fine of $ 100 and costs.</p> <p>Error assigned was in refusing to take the case from the jury.</p>

<p>Liquor law — Wholesale license — Insufficiency of notice — Newspaper notice — Act of July SO, 1897, P. L. J/.67 — Jurisdiction.</p> <p>A license to sell liquor at wholesale cannot be granted where notice of the application has been published in only two newspapers instead of three as required by the Act of July 30, 1897, P. L. 467. The mere fact that a third paper published as a matter of news the names of the applicants for liquor licenses, will not give the court jurisdiction, inasmuch as the statutory requirements are mandatory, and the court has no jurisdiction if they are not strictly complied with.</p>

<p>Appeal, No. 317, Oct. T., 1916, by defendant, from judgment of Q. S. Lancaster Co., Jan. T., 1916, No.-24, on verdict of guilty in case of Commonwealth v. D. Frank Kline, M.D.</p> <p>Indictment for abortion. Before Hassler, J.</p> <p>At the trial the court admitted under objection and exception the following statement:</p> <p>“My name is Pearl Spence. I live 9 Second Street. (Dr. Atlee informs her that she is not going to get well.) Friday November 12, 1915, I went to Dr. Kline’s office, corner of Mulberry and Orange Streets. I went there to get rid of a child. He passed an instrument into me and screwed it open, and then passed a sharp instrument into me. Dr. Kline did the same thing again the next Tuesday. I had pain when I went home and the baby came the next Thursday.</p> <p>“Sworn and subscribed to before me this 22d day of November, A. D. 1915.</p> <p>W. S. Doebler,</p> <p> Alderman. </p> <p>her Pearl X Spence.</p> <p>mark</p> <p>Witnesses present: H. C, Kinzer, John L. Atlee, Charles J. Shillott,</p> <p>The court charged as follows:</p> <p>[“She cried; after being quieted she made the statement that is here for your consideration. That she made about two o’clock and she died about seven. If you find that this statement was made with the belief on her part that death was impending, then you may consider it.”] (4)</p> <p>“During the progress of the argument, Mr. Keller, representing the Commonwealth, in his speech to the jury said: ‘If you fail to convict this defendant under the evidence in this case it will be a license to all the abortioners in Lancaster City to commit their offences with impunity.’ ”</p> <p>Verdict of guilty upon which the defendant was sentenced to pay a fine of $100, and ,to undergo imprisonment in the Eastern Penitentiary for not less than five years and not more than six years. Defendant appealed.</p> <p>Errors assigned were (1) in admitting the statement offered in evidence as above; (2) in allowing the Commonwealth to withdraw the second count after the testimony had been closed; (3) in not withdrawing a juror on account of improper remarks of counsel; (4) portion of charge as above quoting it.</p>

<p>Municipalities — Civil service — Reemployment of person wrongfully dischcurged.</p> <p>Where an employee of the City of Philadelphia has been wrongfully discharged by the Director of the Department of Public Safety, he may be subsequently reinstated by the director with the approval of the Oivil Service. Commission, after it is discovered that the charges against the employee were unfounded; and this may be done although one year has not expired from the date of, the dismissal, as provided by Rule No. 13, Section 4 of the Civil Service Commission.</p>

Appeals, Nos. 47 and 48, Oct. T., 1916, by defendant, from judgment of C. P. No. 2, Philadelphia Co., Dec. T., 1914, No. 2477, on verdict for plaintiffs in case of Harry Kleiman, by his next friend - and father, Abraham Kleiman, and Abraham Kleiman in his own right v. Pennsylvania Railroad Company. Trespass to recover damages for personal injuries. Before Barratt, P. J. The opinion of the Superior Court states the case.

Appeal, No. 194, Oct. T., 1916, by plaintiff, from order of C. P. No. 4, Philadelphia Co., June T., 1915, No. 5331, discharging rule for judgment on answers in case of Lewis Newhoff v. Rubin Rochester and Ettie Rochester, defendants, and Richard Building & Loan Association, Garnishee. Rule for judgment on answers in attachment execution.

<p>Municipalities — Contracts—Removal of garbage.</p> <p>Where a contract between the City of Philadelphia and a contractor'for the removal of garbage provides that in case of default the Director of Public Works may “proceed to do such neglected work in the manner set forth” in the specifications annexed to the contract, the Director of Public Works has authority in an emergent condition resulting from a default on such contract, orally to contract with another party to do the emergent work for two days, and if this work has been properly done and the charges are fair, the person doing it may recover the value thereof from the city.</p>

Appeal, No. 307, Oct. T., 1916, by plaintiff, from order of Municipal Court Philadelphia Co., Feb. T., 1915, No. 478, entering judgment for defendant n. o. v. in case of Fanny J. Gosling v. Carl S. Gross. Trespass to-recover damages for injuries to an automobile. Before Knowles, J. The circumstances of the accident are stated in the opinion of the Superior Court. At the trial the jury returned a verdict for $300.

<p>Railroads — Rates—Freight rates — Carriers—Public Service Corn* mission.</p> <p>Where on an appeal from an order of the Public Service Commission fixing a freight rate, the Superior Court finds upon the record that the order appealed from is unreasonable, or based upon incompetent evidence materially affecting the order of the commission, or otherwise not in conformity with the law, it may reverse the order of the commission.</p> <p>The fact that a rate is prohibitive does not make it per se unlawful. There are many elements which may enter into the fixing’ of a rate, such as the factor of distance, ton-mile revenue, car-mile revenue, earnings per ear, and a comparison of the rates on other commodities of equal, or higher value, the volume of movement, the value of the service to the shipper or consignee, and the cost of service. When all, or some of these matters, and possibly others, are taken into consideration it does not follow that they will always result in the fixing of rates that will make it profitable for •every shipper to use the means of transportation. His need may be a factor to be considered, but it is not a determining one. The fact that traffic does not move is not conclusive that the rates are not reasonable.</p> <p>It is not proper for the Public Service Commission to fix a rate for a route of a mileage of thirteen miles upon a basis of what the rate should be upon a route of seven and six-tenths miles, when it does not appear that the shorter route is available, or that the carrier whose road comprises part of the shorter route is a party to the proceedings.</p>

Appeal, No. 284, Oct. T., 1916, by plaintiff, from judgment of C. P. No. '5, Philadelphia Co., Sept. T., 1913, No. 1917, for defendant n. o. v. in case of Lee W. Squier v. The Grand Fraternity. Assumpsit for death benefits. Before Staake, J. The facts are stated in the opinion Of the Superior Court. At the trial the jury returned a verdict for the plain, tiff for $1,192.

Appeal, No. 345, Oct. T., 1916, by defendant, from decree of Municipal Court of Philadelphia Co., May T., 1916, No. 41, on bill in equity in case of Samuel Horwitz v. Louis Wohlmuth and Eva Wohlmuth. Bill in equity for an injunction and for damages.

Appeal, No. 80, Oct. T., 1916, by plaintiff, from decree of O. P. No-. 1, Philadelphia Co., June T., 1915, No-. 2370, dismissing bill in equity in case of Jennie M. Davis v. W. L. Gilroy et al. associated under the name of Clerks’ Aid Society, Pennsylvania Railroad. Bill in equity against an unincorporated society to compel the payment of death benefits. Before Shoemaker, J. The opinion of the Superior Court states the case. Error assigned was decree dismissing the bill.

<p>Husband -and wife — Family necessaries — Liability of wife — Wife's promise to pay — Act of April 11,18J/-8, P. L. 586.</p> <p>In. an action brought against a husband and wife under the Act of April 11, 1848, P. L. 536, for the price of family necessaries, no recovery can be had against the wife, unless it is proven that she promised to pay for them. Proof that the goods were necessaries, that they were purchased by the wife and charged to her, is insufficient in the absence of a promise to pay on her part. :</p>

Appeal, No. 274, Oct. T., 1916, by plaintiff, from judgment of O. P. Lancaster Co., Nov. T., 1914, No. 38, on verdict for plaintiff in case of Park H. Trout v. Pennsylvania Railroad Company. Trespass to recover damages for personal injuries and injuries to an automobile. Before Hassler, J. The opinion of the Superior Court states the case. Verdict and judgment for f500. . Plaintiff appealed. Errors assigned were (1-21) various instructions.

<p>Justice of the peace — Termination of office — Annulment of borough charter — Void judgment.</p> <p>Where the charter of a borough has been’ annulled by an order of the Gourt of Quarter Sessions, .the office of a justice of the peace who has been commissioned for .the borough is at once extinguished, and a judgment entered by him thereafter is wholly void.</p>

<p>Appeal, No. 144, Oct. T., 1916, by plaintiff, from judgment of C. P. Northampton Co., Nov. T., 1912, No. 3, on verdict for defendant in case of Afina Kalincsak v. The Russian Orthodox Catholic Mutual Aid Society, U. S. A.</p> <p>Assumpsit for death benefits. Before Stewart, P. J.</p> <p>The statement of the question involved was as follows:</p> <p>(a) Is a plaintiff wife an “heir” within the meaning - of an appendix to a by-law which reads as follows: 47— Note. — “If his last confession was administered to the member by a nonorthodox priest, or if he was buried by a nonorthodox priest, unless this was done from extreme necessity, to which the brotherhood of the late member bears testimony, the heirs of the deceased shall have no right to the money the society is to pay on his death (see Sec. 32) ?</p> <p>(b) Is an attempted ex parte interpretation by a corporation of a by-law paying death benefits by way of an appendix to the by-law binding upon beneficiary, who is not a member of the corporation?</p> <p>(c) Is the following by-law as interpreted by its note reasonable and valid, to wit: 47 — “In case of the death of a member or his wife (or husband), the brotherhood shall immediately inform the board of directors and present according to established form, (a) a swoijn doctor’s certificate as to the cause of death, (b) a burial certificate from the priest, and (c) an application for the sum the society is to pay on his (or her) death, stating whether the deceased was a semi or a full member, whether the wife (or the husband) of the deceased was a member (in what brotherhood, and whether a full or semi member), and whether the deceased ever received any aids from the society (to what amount, when, and for what cause)”?</p> <p>Note. — “If his last confession was administered to the member by a nonorthodox priest, or if he was buried by a nonorthodox priest, unless this was done from extreme necessity, to which the brotherhood of the late member bears testimony, the heirs of the deceased shall have no right to the money the society is to pay on his death (see Sec. 32).”</p> <p>Verdict and judgment for defendant. Plaintiff appealed,</p> <p>Errors assigned were in the following form:</p> <p>The learned trial judge erred in overruling the motion of the appellant for judgment n. o. v., which motion was as follows:</p> <p>“And now, to wit, October 18,1915, the trial judge in the above-entitled case having declined a point on behalf of plaintiff, Anna Kalincsak, by her counsel, Joseph A. Richman and J. T. Woodring, now moves the court to have all the evidence taken upon the trial of the above case duly certified and filed so as to become a part of the record and have judgment for the full amount of her claim with interest from the 23d day of August, 1911, entered for the plaintiff non obstante veredicto upon the whole record.”</p> <p>2. The learned trial judge erred in not granting the motion of the appellant for judgment n. o. v., which motion was as follows:</p> <p>“And now, to wit, October 18, 1915, the court at the trial in the above-entitled case having declined a point on behalf of the plaintiff,' Anna Kalincsak, by her counsel, Joseph A. Richman and J. T. Woodring, noAV moves the court to have all the evidence taken upon the trial of the above case duly certified and filed as to become a part of the record and have judgment for the full amount of her claim with interest from the 23d day of August, 1911, entered for the plaintiff non obstante veredicto upon the whole record.”</p> <p>3. The learned trial judge erred in directing that judgment be entered for the defendant upon the verdict.</p> <p>4. The learned trial judge erred in not entering judgment for the plaintiff and against the defendant for the amount agreed as set forth in the notes of testimony (Appendix, 13a).</p>

<p>Appeals — Assignments of error — Quashing appeal.</p> <p>An appeal will be quashed where it appears that assignments of error printed in the appellant’s paper book do not comply with the rules, and that no assignments of error had been filed with the record.</p>

Appeal, No. 5, March T., 1917, by defendant, from judgment of C. P. Dauphin Co., Jan. T., 1910, No. 64, on verdict for plaintiff in case of Arthur C. Mead v. Central Pennsylvania Traction Company. Trespass to recover damages for injuries to an automobile. Before Kunkel, P. J. See 54 Pa. Superior Ct. 400, and 63 Pa. Superior Ct. 79. After the second appeal judgment was entered on the verdict. The opinion of the Superior Court states the case.

<p>Public officers — County treasurer — Pees — Collection of liquor licenses — Boroughs.</p> <p>Money collected by a county treasurer for the use of a borough, which represents liquor license fees, must be paid over to the borough 'by such treasurer without any deduction for services rendered.</p>

<p>Appeal, No. 5, Feb. T., 1917, by defendants, from orders of C. P. Tioga Co., Sept. T., 1915, No. 177, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Commonwealth to use of Emma Miller v. Charles Schanbacher and Frank H. Sheffer.</p> <p>Assumpsit on an insolvent’s bond.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>Whitehead, P. J., filed the following opinion:</p> <p>This action was brought by the plaintiff, Emma Miller, to recover from the defendant, Chas. Schanbacher, the sum of three hundred dollars with interest from May 3, 1915.</p> <p>Plaintiff’s statement was filed on August 2, 1915, and the defendant filed an affidavit of defense on August 21, 1915. On March 6, 1916, upon motion of plaintiff, the court granted a rule upon the defendant to show cause why judgment should not be entered for want of a sufficient affidavit of defense. On March 25, 1916, a supplemental affidavit of defense was filed.</p> <p>At the argument on the rule both parties treated the supplemental affidavit as though filed before the rule for judgment was granted; counsel for plaintiff claiming that the supplemental affidavit did not remove the defects of the original affidavit of defense.</p> <p>From the statement filed in this case it appears that one of the defendants, Chas. Schanbacher, was convicted in the Court of Quarter Sessions of the Peace of the crime of fornication and bastardy and sentenced by the court to pay certain sums to the plaintiff and one dollar and a half per week for the support and maintenance of the child until the said child arrived at the age of seven years; that on January 8, 1914, the said defendant presented his petition to the court for a discharge under the insolvent law, and in order to secure his release under said petition, the defendants, Chas. Schanbacher and Frank H. Sheffer, made, executed and delivered their bond to the Commonwealth of Pennsylvania for the use of all parties interested in the sum of three hundred dollars, which bond conditioned among other things as follows :</p> <p>If therefore the said Chas. Schanbacher shall comply with all the requirements of said law for his appearance, surrender and compliance with the decrees of the court and abide all the order of court shall deem requisite in that behalf; or in default thereof, and if he fail in obtaining his discharge as insolvent debtor, that he shall surrender himself to the jail of said county, then the obligation to.be void, else to be and remain in full force and virtue.</p> <p>The statement further alleges that the said Charles Schanbacher failed to secure his discharge as an insolvent debtor and failed to surrender himself to the jail of said county according to the terms and conditions of the said obligation, and that the said defendants broke the conditions of said obligation and by reason thereof the plaintiff was injured in the sum of three hundred dollars.</p> <p>The affidavit of defense admits all the material allegations set out in the plaintiff’s statement, but alleges, as a defense, that the first information the defendants or either of them, had that their appeal to the Supreme Court had been dismissed, was when the papers in this case were served upon them on August 3,1915, and that thereafter the defendant, Charles Schanbacher, did deliver himself to the sheriff of Tioga County, to wit, on August 21, 1915, and was at the time of filing the said affidavit in the custody of the sheriff and in the jail of said county, in full compliance with the decree and sentence of the court and in full compliance with the condition of the obligation given to secure his release under the insolvent law.</p> <p>The defendants further state that at no time were they, or either of them, requested that the said Charles Schanbacher deliver himself to the jail of said county.</p> <p>The supplemental affidavit of defense is as follows:</p> <p>“1. The plaintiff’s statement of claim in this case sets forth no legal cause of action.</p> <p>“2. The plaintiff’s statement of claim filed in this case is not verified as required by law.”</p> <p>These reasons are very indefinite and no brief or statement has been filed to. sustain either of them and therefore they will not be considered.</p> <p>The questions for the court to determine under the rule are: Did the court refuse to discharge the defendant and did the defendant, Charles Schanbacher, deliver or surrender himself to the jail of said county as he had agreed to do?</p> <p>As above stated, the court refused to discharge the defendant and on May 2, 1915, his appeal was dismissed by Superior Court, and he admits that he did not deliver himself to the sheriff of Tioga County till August 21, 1915, after this action had been brought. Was this delivery or surrender a compliance with the obligation of the bond? We think not.'</p> <p>Defendant’s statement that no one requested him to deliver himself up to the jail or sheriff cannot relieve him from doing what he obligated himself to do. It was the duty of defendant to make inquiry as to his appeal and to deliver himself up to the jail within a reasonable time after the appeal was dismissed, and it was not incumbent upon any official to request such action.</p> <p>See Heilner v. Best et al., 1st; Penrose and Watts 267; Berkstresses v. The Commonwealth, 127 Pa. 15.</p> <p>Under the provisions of the insolvent law the debtor seeking relief, and he only, is bound to keep in motion the proceedings which are to result in his discharge, and if he fail to do so or surrender himself to prison the condition of his bond is forfeited.</p> <p>See Bartholomew’s Administrator v. Bartholomew et al., 50 Pa. 194; Irwin v. Hudson, 24 Pa. Superior Ct. 72.</p> <p>The surety óf the bond of an insolvent debtor is not relieved from liability by the fact that the insolvent surrendered himself for imprisonment eight days after the order against him was made, although no time was fixed in the order for the surrender and the insolvent had no knowledge that the order had been made till his counsel informed him of the fact, and he then immediately surrendered himself.</p> <p>Marks v. Willenski, 31 Superior Court 177.</p> <p>In the case of Frick v. Kitchen, 4 W. & S. 30, the defendant surrendered himself the next day after the order, but it was held too late; the court said: “I would not for myself divide a day and say he must set out to jail the instant the opinion of the court was delivered; but it must be on that day; if we allow surrender at any time after, at what time are we to stop, a week, a month or a year? His return to jail, then, was a useless and, for all legal effect, a void act.”</p> <p>In case at bar the defendant did not deliver himself to the jail, as he had agreed to do, until more than three months after his case was dismissed, and not for eighteen days after this action was brought. Under the decisions, this was too late, and the rule therefore will be made absolute.</p> <p>And now, April 24, 1916, rule for judgment for want of a sufficient affidavit of defense made absolute.</p> <p>Error assigned was order making the rule for judgment absolute.</p>

<p>Appeal, No. 348, Oct. T., 1916, by defendant, from orders of Municipal Court, Philadelphia Co., July T., 1916, No. 11, discharging defendant’s rule for judgment for want of a sufficient statement, and in making absolute plaintiff’s rule for judgment for want of an answer in case of Frank J. O’Donnell y. Robert A. Neely.</p> <p>Rule for judgment for want of a sufficient statement.</p> <p>Rule for judgment for want of an answer.</p> <p>Defendant’s rule for judgment was as follows:</p> <p>“And now, September 21, 1916, the defendant, by his attorney, J. M. Mitcheson, Esq., moves the court for judgment for want of a sufficient statement, motion returnable Thursday, September 28th, 1916.</p> <p>“The said statement is deemed to be defective in substance and form, inter alia, in that</p> <p>“(a) It does not clearly set forth the terms of any agreement;</p> <p>“(b) it does not clearly set forth a breach of any agreement;</p> <p>“(c) The words hinder and subject’ in the deed of Pennington, et ux to defendant did not import any liability as between the plaintiff and defendant.”</p> <p>The averments of the statement of claim are fully set forth in the opinion of the Superior Court.</p> <p>Errors assigned were (1) in discharging defendant’s rule, and (2) in making absolute plaintiff’s rule.</p>

<p>Appeal, No. 47, Oct. T., 1916, by plaintiff, from decree of O. P. Schuylkill Co., Jan. T., 1916, No. 4, dismissing bill in equity in case of William A. Engle v. Pottsville Division No. 90, Brotherhood of Locomotive Engineers, P. J. Hayes, H. E. Wilson, N. L. Hippie and others members of the Pottsville Division No. 90; The Grand International Brotherhood of Locomotive Engineers, W. S. Stone/Grand Chief Engineer of the said Brotherhood.</p> <p>Bill in equity to compel reinstatement of membership in a beneficial association. Before Bechtel, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was decree dismissing the bill.</p>

<p>Insurance — Life insurance — Certificate of loan — Lien on policy —Parol evidence to vary written instrument — Absence of fraud— Evidence.</p> <p>In an action upon a policy of life insurance by the insured to recover the surrender value upon the maturity of the policy, the defendant company may offer in evidence a certificate - of loan executed contemporaneously with the policy in which it is stated that the insured had borrowed on the policy a sum stated which was to be a lien against the policy, and be deducted from the results of the policy at the end of the distribution payment period; and the plaintifE will not be permitted to show by paról evidence that there was no consideration for the certificate, or that he had never borrowed the money referred to therein, unless he also shows that he was induced to sign the paper by fraud practiced upon him at the time.</p>

<p>Statute of limitations — Forced payment of taxes — Subrogation to tax collector — Fguity.</p> <p>Where a person has been forced to pay taxes on land for which another person was liable, and has delayed for over six years in instituting’ a suit against a person in default, he cannot thereafter maintain ,a suit to his own use in the name of the tax collector against whose claim the statute has not become a bar. The plaintiff haying lost his legal right, has also thereby lost his equitable right to subrogation.</p> <p>In such a case it is immaterial that the plaintiff was not in a position to ask for substitution until the tax collector’s warrant had expired.</p>

Appeal, No. 223, Oct. T., 1916, by defendant, from decree of C. P. No. 3, Philadelphia Co., Sept. T., 1915, No. 61, awarding divorce in case of William L. Hilton v. Marguerite A. Hilton. Libel for divorce. The opinion of the Superior Court states the facts. Error assigned was decree awarding divorce.

Appeal, No. 254, Oct, T., 1916, by defendant, from judgment of O. P. No. 1, Philadelphia Co., June T., 1911, No. 5189, on verdict .for plaintiff in case of Richard D. Crear and Edith M. Grear v. William Buholz. Assumpsit for breach of contract. Before Patterson, J. The opinion of the Superior Court states the case. Verdict and judgment for plaintiff for $275. Defendant appealed.

Appeal, No. 286, Oct. T., 1916, by defendant, from orders of C. P. No. 2, Philadelphia Co., June T., 1916, No. 472, making absolute rule for judgment for want of a sufficient affidavit of defense in case of George W. Kendrick, 3d, and Murdock Kendrick, Executors of the Estate of George W. Kendrick, Jr., Deceased, v. Holmes Fibre Graphite Manufacturing Co. Assumpsit on a promissory note. The note was in the following form: “$900.

<p>Appeal, No. 311, Oct. T., 1916, by plaintiff, from order of C. P. Franklin Co., Sept. T., 1915, No. 157, making absolute rule to strike off levy in case of J. C. Rankin, Executor of Rebecca McCullough, deceased, to use of J. C. Atkinson, now to use of C. M. Kunkle, v. R. J. Rinehart, Executor of George Barnes, deceased.</p> <p>Rule to strike off levy.</p> <p>The case was referred to J. A. Strife, Esq., as master, who reported as follows:</p> <p>EIRST.</p> <p>(a) On June 19, 1903, a judgment was entered in the Court of Common Pleas of Franklin County, to No. 94 of September Term, 1903, against R. J. Rinehart and in favor of J. C. Rankin, executor of Rebecca McCullough, for the sum of $132.62, by confession of an attorney upon a note dated April 1,1903.</p> <p>(b) On May 22,1908, the judgment was revived tq No. 53 of September Term, 1908, against R. J. Rinehart and George Barnes, terre-tenant, by amicable revival signed by both, the judgment at that time being revived to use of J. C. Atkinson, now to use of C. M. Kunkle, it having-on August 8,1903, been assigned by the original plaintiff to J. C. Atkinson who on April 13,1904, assigned it to C. M. Kunkle, the present use-plaintiff.</p> <p>(c) On May 13, 1915, a scire facias was issued to revive and continue the lien of judgment No. 53 of September Term, 1908, wherein J. C. Rankin, executor of Rebecca McCullough, deceased, to use of J. C. Atkinson, now to use of C. M. Kunkle, was plaintiff, against R. J. Rinehart and George Barnes, terre-tenant. This writ was duly returned by the sheriff, served upon R. J. Rinehart and as to George Barnes, nihil habet.</p> <p>(d) On June 12, 1915, R. J. Rinehart, defendant in. said writ, voluntarily appeared and confessed judgment against himself individually in favor of the use-plaintiff, O. M. Kunkle, in the sum of one hundred ninety-seven and 86-100 ($197.86) dollars, with costs.</p> <p>(e) By amicable scire facias filed July 1, 1915, bearing date June 12,1915, and signed R. J. Rinehart, executor of George Barnes, deceased, terre-tenant, a judgment of revival of No. 53 of September Term, 1908, was entered to No. 157 of September Term, 1915, in favor of the same use-plaintiff, C. M. Kunkle, and against R. J. Rinehart, executor of George Barnes, deceased, terre-tenant, for the same amount one hundred ninety-seven and 86- ■ 100 ($197.86) dollars. On this latter judgment the fi. fa. in question, No. 26 of September Term, 1915, was issued and reached the hands of the sheriff on July 26, 1915, who levied on the real estate involved in this proceeding.</p> <p>(f) On August 28,1915, the petition of Nancy Barnes to stay the fi. fa. and set aside the levy was presented and the fi. fa. was stayed.</p> <p>SECONU.</p> <p>(a) The real estate, consisting of a small tract of about two acres, upon which the judgment in question was originally a lien was conveyed by J. O. Rankin, executor of Rebecca McCullough to Roy J. Rinehart by deed dated April 1,1903, for a consideration of two hundred sixty-five and 25-100 ($265.25) dollars, which deed was recorded August 23, 1906, in Franklin County Deed Book, Yol. 143, page 89. R. J. Rinehart by deed dated the 28th day of May, 1905, recorded in Franklin County Deed Book, Yol. 143, page 90, conveyed the same land to George Barnes. Barnes at the time of purchase of the land by Rinehart from McCullough’s executor and at the time of the conveyance by Rinehart to him was in the employ of Rinehart, who was a farmer owning the farm which the property conveyed to Barnes adjoined. Rinehart bought the property for the purpose of enabling Barnes to obtain a home, took the title in his name and gave the original judgment to secure the unpaid purchase-money. Barnes paid Rinehart the cash advanced by the latter in the purchase of the property and when conveyed by Rinehart to Barnes the property was subject to the lien of the judgment given by Rinehart to McCullough’s executor. The judgment was not mentioned in the deed from Rinehart to Barnes.</p> <p>(b) Barnes died September 21, 1908. His will dated September 7, 1908, probated September 28, 1908, recorded in Franklin County Will Book, Yol. S, page 147, provides for the payment of his debts and devises the remainder of his estate to his wife, Nancy Barnes. Letters testamentary on the estate were granted to Roy J. Rinehart, the executor named in the will and the same person as the original defendant in the judgment. The estate left by Barnes consisted of eighty-three and 47-100 ($83.47) dollars of personal property and the land conveyed to him by Rinehart. A widow’s appraisement in the estate of George Barnes was filed November 24,1908, by which all the personal property was set apart to Nancy Barnes, the widow, and the remainder of her $300 exemption, namely two hundred sixteen and 53-100 ($216.53) dollars was charged upon the real estate. Rinehart, as executor, wanted to sell the real estate and pay the judgment. The widow, Nancy Barnes, preferred not to have the real estate sold and agreed, after a conference with the executor and his attorney, H. H.' Spangler, Esq., that she would pay the debts of George Barnes, including the purchase-money judgment which is in controversy. She did, in fact, pay to Rinehart, who acted as her agent in the matter, the amount required to pay the debts of Barnes .other than the judgment. She was then advised that the judgment was a lien on the real estate and that the property might be sold in order to pay it off and that the property would not be hers until the lien was paid.</p> <p>(c) After this arrangement was made she leased the property to various tenants and has continued to do so until the present time. She insured the property against loss by fire in her name. She gave no written promise to pay the judgment.</p> <p>THIRD.</p> <p>0. M. Kunkle was the owner of the judgment when George Barnes died and has been continually its owner to the present time. It does not appear that he had any knowledge of any understanding on. the part of Nancy Barnes to pay the judgment until more than five years after the death of George Barnes and more than five years after May 3,1909.</p> <p>CONCLUSIONS OF LAW : — FIRST.</p> <p>Inquisition having been waived in the note upon which the original judgment was entered, and the judgment having been confessed by an attorney, thereby making the waiver of inquisition a part of the judgment, an inquisition and condemnation were not prerequisites to the issuance of fi. fa. No. 26 of September Term, 1915, sur judgment No.' 157 of September Term, 1915, nor would inquisition and condemnation be necessary in order to proceed with the sale of the real estate in question if the judgment at the time of the issuing of the writ of fi. fa. Avere a lien on the real estate.</p> <p>SECOND.</p> <p>The real debtor, as between Rinehart and George Barnes, having been Barnes himself, at least after the conveyance by Rinehart to Barnes, Nancy Barnes, the devisee of George Barnes, has no right to compel the plaintiff to exhaust the property of Rinehart before having recourse to her land if the judgment is a lien on her land.</p> <p>THIRD.</p> <p>The judgment having been revived against the land in question May 22,1908, Barnes having died September 21, 1908, and the judgment No. 157 of September Term,' 1915, against R. J. Rinehart, executor of George Barnes, deceased, terre-tenant having been entered on July 1, 1915, after the lapse of more than five years after the death of George Barnes and five years after the approval of the Act of May 3, 1909, the judgment had lost its lien on the real estate in question and the real estate could not therefore be sold in satisfaction of the judgment.</p> <p>FOURTH.</p> <p>The judgment having lost its lien upon the real estate by the lapse of more than five years from the death of George Barnes and the approval of the Act of May 3, 1909, the revival of the same by R. J. Rinehart, executor of George Barnes, filed July 1, 1915, did not revive the lien upon the land in question.</p> <p>The court overruled exceptions to master’s report and made the rule absolute.</p> <p>Error assigned was in making the rule absolute.</p>

<p>Negligence — Boroughs—Depression in street — O ase for fury.</p> <p>In an action by an elderly woman to recover damages for personal injuries sustained as the result of a fall in a depression in a street, the case is for the jury, where the evidence tends to show that at the time of the accident water had gathered in the depression and had frozen, that die icy surface was temporarily concealed from view by a slight fall of snow, and that the depression had been caused by the laying of a sewer by the borough some months before the accident.</p>

<p>Appeal, No. 189, Oct. T., 1916, by defendant, from judgment of Municipal Court, Philadelphia Co., Jan. T., 1916, No. 344, for plaintiff on case tried by the court without a jury in suit of Nathan Nadel v. Peoples Bank.</p> <p>Trespass for dishonoring a check. Before Knowles, J.</p> <p>The opinion of the Superior Court states the case.</p> <p>The court entered judgment for • plaintiff for $100. Defendant appealed.</p> <p>Error assigned was the judgment of the court.</p>

<p>Evidence — Improper cross-examination — Attempt to inject defense — Assignments of error — Appeal.</p> <p>In an action by attorneys-at-law to recover compensation for professional services, a judgment on a verdict for plaintiffs will be sustained on appeal, where the assignments of error are based on the refusal of the trial judge to permit the defendants' to cross-examine the witnesses of the plaintiff for the purpose of eliciting evidence to support the defense of payment, and it appears from the record that the defendant offered no evidence at all at the trial. In such a case the burden of showing harmful error rests clearly on the appellant.</p> <p>The order of proceedings in the trial court must of necessity be left largely to the discretion of the trial judge. If a party be told he may not offer certain evidence at one stage of the case, but will have ample opportunity to introduce it later, no substantial harm is apparently done to the party.</p>

<p>Appeal, No. 138, Oct. T., 1916, by plaintiff, from order of Public Service Commission of the Commonwealth of Pennsylvania, Complaint Docket 384, in case of Baltimore & Ohio Bailroad Company v. Public Service Commission of the Commonwealth of Pennsylvania and E. W. Wilson, Intervenor.</p> <p>Complaint by E. W. Wilson against milk rates. •</p> <p>The opinion of the Superior Court states the case.</p> <p>The commission in an opinion by Billing, Commissioner, reported the following conclusions from which an appropriate order was made:</p> <p>I. That the milk and cream rates of all of the respondents complained of for carrying intrastate milk and cream to Pittsburgh and its suburban towns are excessive and unreasonable.</p> <p>II. That the rates for carrying milk should be approximately 75 per cent, of the rate for carrying cream, and the rate for carrying a five-gallon can should be approximately 7-10 of the rate for carrying a ten-gallon can; and rate for carrying an eight-gallon can should be approximately 9-10 of the rate for carrying a ten-gallon can.</p> <p>III. That it is proper to establish a zone system, in order that proper rates may be fixed for transporting intrastate milk and cream into Pittsburgh and its suburban towns.</p> <p>IV. That the fair, just and reasonable rates for transporting intrastate milk and cream into the City of Pittsburgh, Pa., and its suburban towns, are hereby fixed as per the following schedule, which is to take effect as of May 1,1916, and an order will be issued accordingly.</p> <p>Rate in Cents per Can.</p> <p>Zones. MILK CREAM.</p> <p>Size of Can in Gals. Size of Gan in Gals.</p> <p>Miles. 5 '8 10 5 8 10</p> <p>Gents Cents Gents Gents Gents Gents</p> <p>1 to 25. me., 10 13 15 14 18 20</p> <p>Over 25 to 30 inc., 10 13 15 15 19 21</p> <p>Over 30 to 35 inc., 11 14 16 15 20 22</p> <p>Over 35 to 40 inc., 11 15 17 16 21 23</p> <p>Over 40 to 45 inc., 12 16 18 17 22 24</p> <p>Over 45 to 50 inc., 12 16 18 17 22 25</p> <p>Over 50 to 60 inc., 13 17 19 -18 23 26</p> <p>Over 60 to 70 inc., 14 18 20 19 24 27</p> <p>Over 70 to 80 inc., 14 18 21 20 25 28</p> <p>Over 80 to 90 inc., 14 18 21 20 26 29</p> <p>Over 90 to 100 inc., 15 19 22 21 27 30</p> <p>Error assigned was the order of the commission.</p>

<p>Appeal, No. 168, Oct. T., 1916, by defendant, from judgment of O. P. No. 2, Philadelphia Co., March T., 1915, No. 1025, on verdict for plaintiff in case of Max Roth v. Knights of Joseph Building and Loan Association.</p> <p>Assumpsit on a promissory note. Before Wessel, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $1,280.31. Defendant appealed.</p> <p>Error assigned was in refusing motion for judgment for defendant n. o. v.</p>

<p>Appeal, No. 22, Oct. T., 1916,' by plaintiff, from judgment of Municipal Court, PMladelpMa Co., April T., 1915, No. ISO, for defendant n. o. v. in case of Edmund Wolsieffer v. PMladelpMa Rapid Transit Company.</p> <p>Trespass to recover damages, for personal injuries. Before Knowles, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was in entering judgment for defendant n. o. v.</p>

<p>Appeal, No. 215, Oct. T., 1916, by defendant, from judgment of C. P. No. 1, Philadelphia Co., Dec. T., 1913, No. 895, on verdict for plaintiff in case of Andrew Safian v. American Ice Company.</p> <p>Trespass to- recover damages for personal injuries. Before Patterson, 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 defendant’s motion for judgment n. o. v.</p>

Appeals, Nos. 354 and 355, Oct. T., 1916, by defendant, from judgment of C. P. Berks Co., Jan. T., 1915, No. 18, on verdict for plaintiff in case of Julia Hagos by her nest friend and father, Stefan Hagos, and tbe said Stefan Hagos v. Beading Transit & Light Company. Trespass to recover damages for personal injuries to a child seven years old. Before Endlich, P. J. The opinion of the Superior Court states the case.

<p>Appeal, No. 301, Oct. T., 1916, by plaintiff, from judgment of C. P. Bradford Co., Dec. T., 1911, No. 317, for defendant non obstante veredicto in case of First National Bank of Canton v. John A. Innes.</p> <p>Amicable action to determine defendant’s liability on a note. Before Maxwell, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>At the trial the jury returned a verdict for plaintiff. Subsequently the court entered judgment for defendant n. o. v.</p> <p>Error assigned was in entering judgment for defendant n. o. v.</p>

<p>Appeal, No. 106, Oct. T., 1916, by plaintiff, from order of Public Service Commission, Complaint Docket No. 365, dismissing petition against discrimination in case of Fred N. Bradley v. The Pennsylvania Railroad Company and the Public Service Commission of the Commonwealth of Pennsylvania.</p> <p>Petition against discrimination in passenger rates.</p> <p>The facts are stated in the opinion of the Superior Court..</p> <p>Error assigned was the order of the court dismissing the petition.</p>

Appeal, No. 130, Oct. T., 1916, by defendant, from judgment of Q. S. Blair Co., Oct. T., 1915, No. 38, on verdict of guilty in case of Commonwealth v. B, J. Berney. Indictment for leasing a house to- be conducted as a common bawdy house. Before Baldrige, P. J. The facts are stated in the opinion of the Superior Court. Verdict of guilty upon which judgment of sentence was passed that defendant pay costs and undergo an imprisonment in the county jail for forty-five days.

Appeal, No. 131, Oct. T., 1916, by defendant, from judgment of Q. S. Blair Co., Oct. T., 1915, No. 22, on verdict of guilty in case of Commonwealth v. B. J.’ Berney. Indictment for leasing a house to be conducted as a common bawdy house. Before Baldrige, P. J. The facts are substantially the same as in Commonwealth v. Berney (No. 1) supra.

Appeal, No. 15, March T., 1917, hy defendant, from judgment of C. P. Union Co., Sept. T., 1915, No. 40, on verdict for plaintiff in case of John E. Everitt v. Henry Auchu. Trespass to recover damages for personal injuries and injuries to a team of horses. Before Johnson, P. J. The facts are stated in the opinion of the Superior Court. Verdict and judgment for plaintiff for $250. Defendant appealed.

Appeal, No. 9, March T., 1917, by Pennsylvania Power Co., protestan!, from order of Public Service Commission approving application of charter in case of Pennsylvania Power Company v. The Public Service Commission of the Commonwealth of Pennsylvania. Application for approval of charter.

<p>Appeal, No. 10, March T., 1917, by protestan!, from order of Public Service Commission approving application of charter in case of Lawrence Hydro Electric Co. v. Public Service Commission.</p>

<p>Landlord and tenant — Lease of flat — Covenants—Construction of . covenants.</p> <p>Where a clause in a lease of a fiat provides that in consideration of the lessor’s furnishing heat, and cold and hot water without extra charge, he “shall not be liable for any failure to supply the same not due to gross negligence on his part, nor for .any damage to property caused by fire, water or steam,” and by another clause the lessor agrees “to keep public halls, heating apparatus and electrical appliances, gas and drainage pipes up to said apartment and all portions of said building in the general use of the tenants in good and thorough order and repair,” the lessee cannot recover damages from the lessor for injuries to property caused by a leaky radiator within the flat occupied by him.</p>

<p>Appeal, No. 202, Oct. T., 1916, by defendant, from judgment of O. P. No. 4, Philadelphia Co., June T., 1914, No. 3598, on verdict for plaintiff in case of Fannie Brodsky and Morris Brodsky v. City of Philadelphia.</p> <p>Trespass to recover damages for personal injuries. Before Audenried, P. J.</p> <p>The accident happened on November 18, 1913, at the corner of Twentieth street and Catherine street in the City of Philadelphia.</p> <p>Verdict and judgment for Fannie Brodsky for $500 and for Morris Brodsky for $350. Defendant appealed,</p> <p>Error assigned was in refusing binding instructions for defendant.</p>

<p>Appeal, No. 2, Oct. T., 1916, by defendant, from judgment of O. P. Chester Co., April T., 1915, No. 47, on verdict for plaintiff in case of Pennsylvania Railroad Company v. R. Smith Guthrie.</p> <p>Trespass for encroaching on a railroad right of way. Before Gawthrop, J.</p> <p>The opinion of the Superior Court states the case.</p> <p>Verdict and judgment for plaintiff for one dollar. Defendant appealed.</p> <p>Error assigned was in refusing judgment for defendant n. o. v.</p>

Appeal, No. 244, Oct. T., 1916, by defendant, from judgment of Municipal Court, Philadelphia Co., Sept. T., 1915, No. 118, on verdict for plaintiff in case of John A. Eebold v. Louis J. Kolb. Trespass to recover damages for alleged unlawful distraint for rent. Before Knowles, J. The opinion of the Superior Court states the case. Verdict and judgment for plaintiff for $225. Defendant appealed.

<p>Appeal, No. 49 March T., 1917, by defendant, from order of Public Service Commission, No. 937, year 1916, forbidding operation of a jitney bus service in case of Scranton Railway Company v. Giuseppi Fiorucci.</p> <p>Petition for an order restraining operation of a jitney bus service.</p> <p>The commission made the order requested.</p> <p>Error assigned was the order of the commission.</p>

<p>Negligence — Master and servant — Safe appliances — Latent defects — Inspection—Crushing hammer.</p> <p>A workman employed to feed a crushing hammer with scrap iron, who has been injured while at work, is entitled to maintain a judgment on a verdict in his favor against his employer, where it appears that the hammer revolved at a speed of thirty-eight ¡strokes to the minute; that among the scrap handed to him by the helper was a pipe or tank about six feet long and six inches in diameter charged with gas, which exploded under the hammer, causing the injury; that the front of the pipe was seen by the plaintiff to be closed; that the rear did not have that appearance; that the movement of the hammer required quick action in serving the scrap; and that the accident occurred in the dusk of evening.</p> <p>When the dangerous character of material furnished to an employee can only be determined by inspection and investigation, and is not open and obvious, the obligation resting on the master to furnish suitable material is continuing, and no intervening agency relieves the master from his primary obligation, and where injury results the fault is imputable to the master in the selection of his materials.</p>

<p>Appeal, No. 37, Oct. T., 1916, by defendant, from order of O.P. Lancaster Co., April T., 1915, No. 12, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Frank Brown v. The Pennsylvania Bailroad Company.</p> <p>Assumpsit to recover excess freight charges. Before Landis, P. J.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was order making absolute rule for judgment for want of a sufficient affidavit of defense.</p>

Appeal, No. 235, Oct. T., 1916, by defendant, from judgment of C. P. Lehigh Co., Sept. T., 1915, No. 63, on verdict for plaintiff in case of John A. Grosch v. D. D: Trexler. Assumpsit for work and labor. Before Groman, P. J. At the trial the court admitted under objection and exception a time book offered to corroborate oral testimony as to work and labor done.

<p>Appeal, No. 325, Oct. T., 1916,' by defendants, from judgment of Municipal Court, Philadelphia Co., Nov. T., 1915, No. 212, on verdict for plaintiffs on trial by court without, a jury in case of K. J. Kuyk, to the use of William Beylin v. Thaddeus N. Yates and Walter N. Yates, trading as Thaddeus N. Yates & Co.</p> <p>Assumpsit for goods sold and delivered. Before Gorman, J.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>Yerdict and judgment for plaintiffs for $182.90. Defendants appealed.</p> <p>Error assigned was in entering judgment for plaintiffs.</p>

Appeal, No. 258, Oct. T., 1916, by defendant, from judgment of Municipal Court, Phila-. delphia Co., April T-, 1916, No. 299, on verdict for plaintiff in case of Peter Majane v. Louis L. Winkelman and Angus K. Nicholson, trading as Winkelman & Company. Trespass for conversion of stock. Before Knowles, J. Verdict and judgment for plaintiff. Defendants appealed. Errors assigned were: (1) In refusing motion for judgment n. o. v. (2) Refusal of binding instructions for defendant.

Appeal, No. 96, Oct. T., 1916, by defendant from judgment of O. P. Montgomery Co., Oct. T., 1914, No. 255, on verdict for plaintiff in case of Albert Volk and Augusta 0. Volk v. Springhouse & Hilltown Turnpike Eoad Go. Trespass to recover damages for personal injuries. Before Miller, J. The facts are stated in the opinion of the Superior Court. At the trial defendant presented the following points: “1.

Appeal, No. 186, Oct. T., 1916, by defendant, from judgment of O. P. Montgomery Co., Dec. T., 1914, No. 68, on verdict for plaintiff in case of Harry H. Francis v. Ardmore & Llanereh Street Railway Co. Trespass to recover damages for personal injuries. Before Miller, J. The facts are stated in the opinion by Miller, J., as follows: No reasons were filed in 'support of the motion for a new trial, it was not argued, nor is it pressed. It is therefore overruled.

Appeal, No. 318, Oct. T., 1916, by defendant, from judgment of O. P. No. 4, Philadelphia Co., Sept. T., 1915, No. 1493, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Swift & Co. v. Hafleigh & Co. Assumpsit for breach of contract to purchase bones.

Appeal, No. 11, Oct. T., 1916, by plaintiff, from judgment of Municipal Court, Phila-. delpbia Co., April T., 1915, No. 337, on verdict for defendant in case of S. Newburger v. Central Trust & Savings Company, a corporation, and J. NeAvburger and D. NeAvburger, trading as the London Raincoat & Clothing Company. Sheriff’s interpleader to determine title to a stock of goods.

<p>Principal and guaranty — Building contract — Inspection of work by guarantor.</p> <p>Where a corporation agrees to guarantee the payment for cement work on a building operation furnished to the general contractor the guarantor cannot assert that it is relieved of liability because of a departure from the specifications in the building contract, where it appears that it had assented to the changes, and that from time to time its inspector had certified that the work had been properly done in accordance with the plans and specification, and that the amount named in the certificate was due, and such certificates had been approved by the corporation.</p>

<p>Appeal, No. 68, Oct. T., 1916, by defendant, from judgment of 0. P. No. 4, Philadelphia Co., Dec. T., 1912, No. 3868, on verdict for plaintiff in case of Thomas J. Dever v. The Pennsylvania Railroad Company.</p> <p>Trespass to recover damages for personal injuries. Before Audenried, P. J.</p> <p>At the trial it appeared that the plaintiff was employed by one James Gracey, as a stevedore, in loading and unloading cars upon piers of the Girard Point Storage Company, and that he was injured while in such employment by defendant’s servants. Both the defendant and the storage company moved cars on the pier. The circumstances of the accident are detailed in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $1,140. Defendant appealed.</p> <p>Error assigned was in refusing motion for judgment for defendant n. o. v.</p>

<p>Appeal, No. 16, Oct. T., 1916, by defendant, from judgment of Q. S. Philadelphia Co., Feb. Sessions 1915, on verdict of guilty in case of Commonwealth v. Solomon Brown.</p> <p>Indictment for cruelty to animals. Before Crane, J.</p> <p>At the trial there was testimony which tended to show that the defendant on Dec. 28, 1914, applied an acid to the hoofs of two horses belonging to one Morris Gaffin. Gaffin had formerly been in the employ of the defendant, but had withdrawn from that employment and set up a similar business of his own. On December 24th defendant purchased from a druggist a bottle of nitric and sulphuric acid. At three o’clock of the morning of December 28th defendant was seen in the stable where Gaffin kept his horses. Later on the same day Gaffin first observed that his horses were lame. Dr. Bredt, a veterinarian, was summoned, and gave it as his opinion that the trouble was caused by the application of some strong acid. A bottle containing a solution of nitric and sulphuric acid was subsequently, found in the loft of defendant’s stable, behind a loose brick, wrapped in burlap. During the course of the trial Annie Brown, a witness for the defendant, testified as to the latter’s good reputation. On cross-examination she was asked this question:</p> <p>. “Q. — You say he was never in any trouble before?</p> <p>“A. — No.</p> <p>“Q. — Do you know Dago Pete?</p> <p>“A. — I do not know him.</p> <p>“Q. — Ever hear of him being arrested for stealing a swingletree from Dago Pete?</p> <p>“A. — The stable boss loaned him that. He did not take that.</p> <p>“Mr. Gray: I desire now to move the court, unless my friend establishes the fact that he has insinuated by his question, that this case again be — I move that this case be withdrawn from the jury. My friend has no right to put any such question unless he is ready to prove it. If he is ready to prove it I will open the door wide for him.</p> <p>“Q. — Did you know Max Kane?</p> <p>“A. — No. »</p> <p>“Q. — Did you ever hear of his being arrested for stealing a cut-under?</p> <p>“Mr. Gray: I make the same objection, and I intend to follow it by the same motion, so that my friend may have warning.</p> <p>“A. — No,</p> <p>“Q. — You did not hear that?</p> <p>“A. — Never.”</p> <p>Nichi Lichtman was questioned as follows:</p> <p>“Q. — Do you know Mr. Kane, Max Kane?</p> <p>“A. — Who is Max Kane?</p> <p>“Mr. Welsh: Stand up, Mr. Kane.</p> <p>“(Mr. Kane does so.)</p> <p>“Q. — Do you know him?</p> <p>“A. — I do not know him.</p> <p>“Q. — Ever hear of him being arrested and taken before Magistrate Coward?</p> <p>.“(Objected to,)</p> <p>“(Objection sustained.)</p> <p>“Q. — Did you ever hear of his being arrested for taking a cut-under?</p> <p>“Mr. Gray: I am not going to object.' I will let it go,</p> <p>“A. — I never heard of it.</p> <p>“Q. — You never heard of it?</p> <p>“A. — No, sir.”</p> <p>The court refused a request to instruct the jury that the questions asked Annie Brown and Nichi Lichtman be disregarded. (6, 7)</p> <p>Other facts appear by the opinion of the Superior Court.</p> <p>• Verdict of guilty upon which the defendant was sentenced to pay a fine of $100, and to undergo' an imprisonment of six months in the Philadelphia County prison. Defendant appealed.</p> <p>Errors assigned were various rulings on evidence and instructions.</p>

Appeal, No. 358, Oct. T., 1916, by plaintiff, from order of O. P. No. 1, Philadelphia Co., March T., 1916, No-. 596, discharging rule for judgment for want of a sufficient affidavit of defense in case of Farmers’ & Breeders’ Mut. Reserve Fund Live Stock Insurance Company of the United States v. Fred T. Beck. Assumpsit to recover a premium of $80.40 alleged to be due on a policy of live stock insurance. Rule for judgment for want of a sufficient affidavit of defense.

Appeal, No. 53, March T., 1917, by defendant, from order of C. P. Luzerne Co., June T., 1916, No.' 378, awarding mandamus in case of John F. Brislin v. Fuller R. Hendershot, Controller of Luzerne Co. Petition for mandamus to compel approval of claim for wages for repairing county roads. The opinion of the Superior Court states the case. Error assigned was order awarding mandamus.

<p>Waters — Diversion, of waters — Laying pipe on highway — Supervisors — Bes adjudicada.</p> <p>In an action to recover damages for injuries to land from the diversion of water alleged to have been caused by the improper construction of the pipes along a highway, a verdict and judgment for the defendant will be sustained- where it appears that the defendant laii^ the pipe in question under an order of court; that after the pipe had been laid damages did not occur until three months thereafter; that during this time, the supervisors were in control of the highway; that they ratified and approved the acts of the defendant; and that the plaintiff had previously brought an action against the township for the same injuries, and that this action had resulted in a verdict and judgment against the plaintiff.</p> <p>In such a case the plaintiff’s right of action was against either the township or the wrongdoer. The acts of the township authorities included their own omission as well as defendant’s acts. The parties were not liable as joint and several tort feasors. The judgment in the action against the township was therefore conclusive on the facts in the action against the defendant.</p>

<p>Equity — Specific performance — Sale of real estate — -Proceeding in Orphans’ Court — Sale to tenant — Evidence.</p> <p>Where a purchaser of real estate by parol is in possession as a tenant; and there is a cotenant in possession with the purchaser, and the landlord directs the eotenant to pay the rent to the purchasing tenant as owner, and the tenant so pays the rent, this will effect such a change of possession that with the payment in part of, the purchase-price, will enable the vendee to enforce specific performance of the contract of sale in the Orphans’ Court after the death of the vendor.</p> <p>Specific performance of an oral contract to sell real-estate will be enforced in a proceeding in the Orphans’ Court against a decedent’s estate, where the evidence shows that the decedent made several declarations that he had sold the property in question to the petitioner; that the property was a double house, one-half occupied by the petitioner as a tenant and the other half by another tenant; that the decedent had directed the other tenant to pay the rent to petitioner which he did; that the decedent had given the petitioner a receipt for $100 “in full for house and lot”; and that decedent had taken petitioner’s son on the premises and pointed out to him the boundary lines.</p> <p>In such a ease the fact that the purchase-price was $100 while the real value of the property was over $500 is immaterial, if it is shown that the decedent was a friend of the petitioner, that the latter was a cripple; that decedent had stated that he had made the sale so that his friend would “not need to move around,” and that decedent by his will,attempted to give all his property to charity.</p>

<p>Negligence — Boroughs—Sidewalks—Tile name plate in sidewalk —Slippery pavement — Snow.</p> <p>A municipality peed not adopt the very best street paving construction. It is required to use or cause to be used materials that will make it reasonably safe for persons to walk upon.</p> <p>A municipality cannot be charged with negligence in the geleetion of material for street paving construction where the ordinary pedestrian in walking over the pavement secures the adhesion necessary to prevent him from slipping. It is not required to use material that will secure immunity from injury. The selection of materials ordinarily safe for the traveling public is a matter within the discretion of the municipal officers, and the jury should not be permitted to pass upon the suitability of such materials for sidewalk construction.</p>

<p>Wills — Construction—Life estate- — -Buie in Shelley’s Case not applicable.</p> <p>Where a testatrix gives her estate to her executrix in trust for her son “at age of twenty-one years” and if the son “should get married and have children at his death divided between his children” .and if the son “has no children living” then over to a sister and nephew of testatrix, and the son reaches the age of twenty-one years and marries and has a child and secures a full release from the remaindermen, he cannot make a fee simple title in real estate of the decedent, inasmuch as he takes a life estate only with a vested remainder in his child and other children that may be born to him thereafter.</p>

<p>Appeal, No. 3, Oct. T., 1916, by plaintiff, from decree of O. P. No. 5, Philadelphia Co'., June T., 1914, No. 673, dismissing bill in equity in case of William A. Dunlap, Supreme Grand Master of the Supreme Grand Lodge of the Loyal Orange Institution of the United States of America; The State Grand Lodge of Pennsylvania of the Loyal Orange Institution of the United States of America et al. v. Charles Harbinson et al.</p> <p>Bill in equity for an injunction to restore officers of a beneficial association to their prerogative. Before Ralston, J.</p> <p>The facts are stated in the opinion of the Superior Court,</p>

<p>Appeal, No. 25, March T., 1917, by plaintiff, from order of O. P. Lackawanna Co., Nov. T., 1915, No. 38, discharging rule for judgment for want of a sufficient affidavit of defense in case of Francis Yeier v. The Camden Fire Insurance Association of Camden, N. J.</p> <p>Assumpsit on a policy of fire insurance.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was order discharging rule for judgment for want of a sufficient affidavit of defense.</p>

<p>Appeal, No. 61, March T., 1917, by defendant, from judgment of C. P. Luzerne Co., on verdict for plaintiff in case of Michael Giordano and Anna Rosa Giordano v. St. Paul Fire and Marine Insurance Company.</p> <p>Assumpsit on a policy of fire insurance.</p> <p>The case turned on whether proofs of loss had been rendered in time,</p> <p>Verdict and judgment for plaintiff for $1,250. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for defendant.</p>

<p>Appeal, No. 38, March T., 1917, by plaintiff, from judgment of C. P. Lackawanna Co., Jan. T., 1911, No. 351, on verdict for defendant in case of R. H. Holgate v. Jennie E. Brink.</p> <p>Scire facias sur judgment entered on judgment notes. Before Edwards, P. J.</p> <p>Verdict, and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned were various rulings and instructions and refusal of new trial.</p>

Appeal, No. 3, Feb. T., 1917, by defendant, from judgment of C. P. Clinton Co., Oct. T., 1914, No. 147, on verdict for plaintiff in case of Duffy’s Garage v. C. E. Sweeley. Assumpsit to recover for labor spent in repairing an automobile. Before Hall, P. J. At the trial the defendant claimed that the machine had been injured by plaintiff, while it was in his charge as bailee. Other facts appear by the opinion of the Superior Court.

<p>Landlord and tenant — Lease—Warrant of attorney to enter judgment — Municipal Court of Philadelphia County — Cleric—Prothonotary.</p> <p>Where a lease executed by the lessee in New Jersey authorizes and empowers “any attorney of any court of record of Pennsylvania or elsewhere to appear for me and to enter judgment against me,” a judgment entered in the Municipal Court of Philadelphia County will be stricken off, where it appears that the plaintiff’s statement was addressed to the clerk of the Municipal Court, and the judgment was entered by the clerk’s deputy in accordance with a direction of the attorney for the plaintiff, and that there was no appearance in behalf of the defendant, nor was the declaration signed by any attorney for the defendant.</p> <p>In such a case the Act of Feb. 24, 1806, Sec. 28, 4 Sm. L. 278, does not' apply inasmuch as the Municipal Court does not have a prothonotary. It is immaterial that the prothonotary o" the Court of Common Pleas is by virtue of his office also clerk of the Municipal Court. It is also immaterial that the prothonotary of the Court of Common Pleas of Philadelphia County may have been at the time an attorney at law. His commission as prothonotary gives him no right to act as an attorney in fact or in law for suitors or others.</p> <p>The clerk of the Municipal Court does not have authority to confess or enter a judgment under the Act of February 24, 1806.</p>

<p>Road law — Original paving of street — Municipal intention— Adoption of pavement — Macadamized pavement.</p> <p>The first paving, which exempts abutting property owners from any liability for any subsequent improvement is one that is put down originally, or adopted or acquiesced in subsequently by the municipal authority for the purpose and with the. intent of changing an ordinary road into a street. Two elements are necessary to evidence this fact; the character of the construction and the intenti'on of the municipality to convert, a common road-into a permanently improved street. 'The controlling consideration, however, is affirmative municipal intention. ,</p> <p>While due effect must be given to the character of the work done in determining municipal intention, when that work is macadamizing, without other ample evidence, it will not be sufficient to show municipal intention. There must be additional evidence of this fact.</p> <p>Where a municipal ordinance provided for an appropriation for ordinary repairs to streets, and a portion of a street particularly mentioned in the ordinance was macadamized, and about a year afterwards an ordinance was passed appropriating money to be used for permanent improvements including the macadamizing of the street in question, the latter ordinance together with evidence as to the work done on the street, is sufficient to sustain a finding of an adoption of the macadamizing done under the first ordinance as a permanent improvement.</p> <p>Where such evidence is excluded on the objection of the city, and the court erroneously charges that the jury may find for the defendant on certain other evidence, and it appears that other cases depend on the result of the appeal, the appellate court will reverse the judgment but at the cost of the city appellant.</p>

<p>Appeal, No. 54, March T., 1917, by defendant, from judgment of O. P. Lackawanna Co., March T., 1914, No. 354, on verdict for plaintiff in case of Michael Cupryk v. Ruthenian National Union of America.</p> <p>Assumpsit to recover benefits alleged to be due from the defendant to the plaintiff on the death of the plain-. tiff’s wife. Before O’Neill, J.</p> <p>At the trial it appeared that the by-laws of the association provided that a .member should be entitled to receive on the death of his wife a benefit of from, two to four hundred dollars according to the amount of insurance carried, provided that the wife was under forty years of age at the time of the husband’s admission into membership. The court charged in part as follows:</p> <p>It appears that the usual proofs of death were furnished the defendant, but the association refused to pay the four hundred dollars, alleging that at the time the insurahce was effected the wife was over forty years of age, and that is the crux of this case. If she was, of course there can be no recovery here. If she was under forty years of age, then the plaintiff should be entitled to recover the sum of four hundred dollars with interest from the 30th day of May, 1913, or sixty days thereafter. The insurance company is not obliged to pay the sum of the insurance until sixty days after the death of the insured; and the interest would not be computed until the expiration of the sixty days. [The plaintiff produces positive testimony showing the age of his wife; the best testimony that he could offer under the-circumstances,] (12) and if you believe his testimony and the testimony introduced generally for the plaintiff, you should find in favor of the plaintiff for the full amount of his claim.</p> <p>[On the part of the defendant it is alleged that his wife was more thTan forty years of age. The testimony upon that offered by the defendant is very meagre; they do not offer any birth records; any person who could testify from actual knowledge, from acquaintance from childhood or birth up tO' the time of her death; but, as you have heard, it was attempted to show here upon the declaration of the husband — that at this time he said thus; or that at another time he said something else. Now, that might have been permitted simply for the purpose of going to his credibility in some way.] (13) At one part of the trial you heard him say that he did not sign a certain paper because he could not write; and the defendant produced the records of the United States Court to show that upon application he was refused naturalization because he could not write, and that six months later he appeared before the United States Court and at that time secured his naturalization papers, and it is claimed that he signed the paper required to be signed. And that paper was produced to you to say whether or not his signature, and it would be only material in this case as going to the credibility of the witness. [The mere fact that this witness made a misstatement, either erroneously or wrongfully or wilfully, — differing at various times about similar subjects, is not in itself conclusive that the testimony offered by him in this case is not proper and correct. It is a circumstance, perhaps, that you might take into consideration as to whether or not he was entitled to be believed; but upon the general points there is no conflict of testimony at all.] (14)</p> <p>Verdict and judgment for plaintiff for $466. Defendant appealed.</p> <p>Errors assigned were in rejecting the plaintiff’s application for admission into the association, in rejecting Mrs. Cupryk’s application for admission, in rejecting oral admissions made by the plaintiff as to his wife’s age at the time he became a member, and portions of charge quoted above.</p>

<p>Bailment — Conditional sale — Giving notes — Notes hearing interest.</p> <p>An agreement in -writing which has all the elements of a.lease, is not converted into a conditional sale by the fact that the lessee instead of giving notes for $100 each, due at intervals of sixty days as provided by the agreement, gave one note for the entire sum due in sixty days* and at the end of sixty days paid $100 and gave a new note for the balance. The character of the transaction is not affected by the fact that the new note was for three months with another person joined as a maker.</p> <p>Provisions for interest and promissory notes are recognized as being legitimate parts of a bailment contract in Pennsylvania.</p> <p>Where a bailor elects not to proceed upon notes given for rental, but retains them and proceeds upon the lease by claiming the goods levied upon as the property of the bailee, the bailment continues in force, and the bailor has a right to claim the goods as his property.</p>

<p>Bailment — Conditional sale — Public sale to fix value.</p> <p>An agreement of bailment for two horses is not converted into a conditional sale'by the facts that the bailor and bailee agreed that the value of the horses should be fixed by exposing them at a public sale, and that the horses were knocked down to the lessee at the sale, but that they did not leave the possession of the lessor after the sale until the contract of bailment was executed.</p> <p>In such a case it is immaterial that a portion of the rental was paid by the transfer to the lessor of a team of horses, instead of a cash equivalent; nor is it material that the person who bought the horses from the bailee as his property at a date subsequent to the execution of the bailment, had paid a price for them less than the amount named in the agreement of bailment. - In a suit by the bailor against such purchaser, the question is the valué of the horses to the bailor as it measured the purchaser’s liability for the conversion.</p>

<p>Waters■ — Diversion of waters — Lease—Relative rights of upper and lower riparian owners — Ownership of water.</p> <p>The use of the waters of a stream by a riparian owner does not include the right to sell the water for general use, nor to divert it, and when used either for ordinary, or extraordinary purposes, the use must be made on the riparian land.</p> <p>An absolute ownership of all the waters of a stream may be acquired by prescription, and when one who owns the fee grants to & nonriparian owner the entire flow of the stream as it passes over the land, an upper riparian owner, who is in no way affected by the use under the grant, may not complain, but when an actipn is insti- ■ tuted by such lessee to recover from an upper riparian owner for his diversion of the water, such lower owner sustains the cause of action under the grant only so far .as the rights of his grantor will permit. Under the grant, the lower owner cannot maintain a right to all the water, assuming that it was the intention to thus convey, unless the upper owner, as a successor in title from a common grantor, is precluded from asserting any right under his deed, nor can the lower owner assert a title by prescription to the waters of the stream, assuming that his right thereunder is complete as it will not prevail as against the upper owner unless the use was exercised over the latter’s grant.</p> <p>A mere nonuser of water rights by the upper owner will not inure to the benefit of the lower riparian owner’s prescriptive title, or riparian right. There must be some notorious act, injuriously affecting the upper riparian owner’s on his land, hostile, adverse and continuous, before the lower riparian owner can acquire a title by a prescription to the upper riparian rights.</p> <p>To sustain a claim for the use of water against the upper property owner, who has full riparian rights, or against one who owns such rights, it must appear that the lower owner has suffered some injury, in that the stream has been sensibly or materially diminished in its flow.</p> <p>When a conveyance is made of the right to take and make use of the water of a stream which flows through a tract of land, and the stream flows through other tracts of land owned by the same grantor, such grant cannot be made to include the riparian right on such other tracts of land, though they are contiguous, unless the intention be clearly expressed in the instrument conveying the right; or if, in the exercise of the rights granted, an interference with such riparian rights must follow; or if there be such use of all the owner’s holdings as one piece or tract of land that it could be' said from the grant that it was the intention to affect all the land.</p> <p>Where a railroad company owning several tracts of land through which a stream runs, and on which are three reservoirs, leases the two lower reservoirs to a water company with “the right to take and make use of the water” of the stream for ninety-nine years, and subsequently conveys the tract on which the upper reservoir is situated to an individual reserving the right to maintain the reservoir to any height and to overflow the land without restriction, and thereafter the railroad company after having conveyed two tracts of land to the Commonwealth as a site for a hospital for the insane; releases to the Commonwealth its right to maintain and use the upper reservoir, excepting such rights as may have thérétofore'been leased by the railroad company to the water company, the. water company cannot maintain, an action in trespass against the insane hospital for drawing water from the upper reservoir, and pumping it for a considerable distance to its buildings, if it appears that the water company had not obtained a prescriptive title to the water claimed by the hospital, and that the stream had not been materially diminished by the diversion of the water.</p>