Volume 69 — Pennsylvania Superior Court Reports

<p>Appeal, No. 96, Oct. T., 1917, by defendant, from order of O. P. No. 3, Philadelphia Co., Sept. T., 1914, No. 3157, making absolute rule for judgment for want of a sufficient affidavit of defense in case of George Leuders & Company v. Munyon Homoeopathic Home Remedy Company.</p> <p>Assumpsit on book account for goods sold and delivered.</p> <p>The affidavit of defense admitted the correctness of the book account in the statement, but averred that “Defendant. has a set-off in damages for breach of the contract for which goods charged in plaintiff’s statement is a part shipment, and a counterclaim against plaintiff, to recover for loss sustained by defendant for breach of the identical contract for which suit is brought of the fol-.1 owing nature and character:</p> <p>“set-off and counterclaim.</p> <p>“1. Defendant avers that on September 3, 1913, plaintiff and defendant entered into a written contract as follows:</p> <p>“ ‘Contract #21</p> <p>“ ‘No. 2332 New York, September 3rd, 1913.</p> <p>“ ‘George Leuders & Co.</p> <p>“ ‘P. O. Box 1498</p> <p>“ ‘New York</p> <p>“ 'CONTRACT.</p> <p>" 'Sold to Munyon’s Homoeopathic Home Remedy Co.,</p> <p>" 'Philadelphia, Pa.</p> <p>" 'The following goods subject to terms and conditions as stated below:</p> <p>ARTICLE QUANTITY PRICE</p> <p>Soap Perfume 5,000 lbs. $1.67% lb. flat</p> <p>'' 'Remarks. It is guaranteed that the quality of this perfume will be according to the deliveries made between April 28th and September 1st, and any difference in quality shall not be more than is customarily found between fresh compounded oils and the same compound when aged.</p> <p>" ‘Terms: as usual</p> <p>" 'Delivery: During 1913 and 1914</p> <p>'' 'Shipments to be in about equal proportions over the life of this contract. Sellers not to be held liable for larger deliveries than would be proportionate if the quantity were entered for equal monthly or quarterly shipments.</p> <p>'' 'Sellers not liable for contingencies beyond their control, or unavoidable accidents.</p> <p>" 'Accepted: George Lenders & Co.</p> <p>“ 'Munyon Homoeopathic Home Remedy Co.</p> <p>“ 'James M. Munyon.’</p> <p>"2. During the time of the performance of plaintiff’s contract with defendant, defendant was ready and willing at all times to perform its part of said contract but on August 11, 1914, plaintiff notified defendant by letter that it considered the contract cancelled, and would not ship the remaining amount of perfume contracted for because the conditions in Europe made it impossible to get the ingredients.</p> <p>''3. On August 15, 1914, plaintiff wrote defendant, among other things, as follows:</p> <p>'' 'There is no contract between us any more. You can buy goods if you will send us remittance in advance. The mixture which we supplied you under the former contract would cost for the present $2.50 for a limited quantity. We say limited quantity, because quite a number of the ingredients are at present unobtainable from Europe, and a number of them coming from Germany will not be obtainable for a great length of time. We, therefore, could not fill your contract even if we wanted to.’</p> <p>“That plaintiff has since August 15, 1914, failed and refused to deliver any part of the goods remaining due defendants under their contract of September 3,1913.</p> <p>“4. That by reason of plaintiff’s breach of its contract of September 3,1913, defendant has been compelled to go out into the open market and buy its perfumes at an increased price over its contract with plaintiff as set forth above.</p> <p>“5. That on April 27, 1914, plaintiff wrote defendant as- follows:</p> <p>“ ‘New York, April 27,1914.</p> <p>“ ‘Munyon’s Homoeopathic Home Remedy Co.,</p> <p>“ ‘53rd & Jefferson Streets,</p> <p>“ ‘Philadelphia, Pennsylvania.</p> <p>“ ‘Gentlemen:</p> <p>“ ‘We have your letter of the 25th inst.</p> <p>“ ‘You did not read our letter carefully. We stated that if we were mixing the old perfume with the new and balancing thereby shipment on account of the new contract, it would mean that only 109 lbs. had been shipped, Avhich results as follows:</p> <p>“ ‘We shipped on the new contract 471 lbs., and the balance of the old contract is 362 lbs. Therefore?, adding the old mixture to the new, it would mean that 109 lbs. have been delivered.</p> <p>“ ‘The old contract was made for 3000 lbs., the deliveries amount to 2638 lbs., leaving the balance of 362 lbs. of the old mixture, Avhich has been reported to you on many occasions in our previous letters.</p> <p>“ ‘We hope now you will be able to arrange matters in accordance with our letter of the 24th.</p> <p>“ ‘Yours very truly,</p> <p>GL/ME “ ‘George Leuders & Co.’</p> <p>“That by the plaintiff’s own statement there is due under their contract 4891 pounds of perfume which defendant has been compelled to buy and did buy in the open market at an increased price of $1.00 a pound; wherefore, there is justly due the defendant from the plaintiff the sum of $4,891 with legal interest from August 15,1914, for which sum together with the cost of this action defendant will demand a certificate in its favor upon the trial of this cause.</p> <p>“Wherefore, defendant claims of plaintiff the sum of $4,891.”</p> <p>Error assigned was order making absolute rule for judgment for want of a sufficient affidavit of defense.</p> <p>Samuel v. Sota, 41 Pa. Superior Ct. 630.</p> <p>cited: Reyvold v. Voorhees, 30 Pa. 116; Rugg v. Moore, 110 Pa. 236; Easton v. Jones, 193 Pa. 147; Forsyth v. Oil Co., 53 Pa. 168; Erie City v. Butler, 120 Pa. 374; Reilly v. White, 234 Pa. 115; Young v. Lloyd, 65 Pa. 199; Kittanning Plate Glass Co. v. Krakovitz, 56 Pa. Superior Ct. 623.</p>

Appeal, No. 43, Oct. T., 1917, by defendant, from judgment of Municipal Court, Philadelphia Co., Sept. T., 1916, No. 145, on verdict for plaintiff in case of Harry B. DeHoff v. Amos M. Scott. Assumpsit by an architect to recover compensation for services in preparing plans and specifications for a building. Before Bonniwell, J. The facts are stated in the opinion of the Superior Court.

Appeal, No. 7, April T., 1918, by plaintiff, from order of Q. S. Greene Co., March T., 1917, No. 10, by plaintiff, arresting judgment in case of Commonwealth v. Charles Stetska et al. Motion in arrest of judgment. Before Ray, P. J. The opinion of the Superior Court states the case. Errors assigned were (1) in arresting the judgment (2) in refusing to require defendants to give bail pending appeal.

Appeal, No. 194, Oct. T., 1917, by defendant, from judgment of Municipal Court, Philadelphia Co., July T., 1914, No. 368, for plaintiff on case tried by the court without a jury, in suit of Garford Philadelphia Company v. Mary T. Walsh, William Gorman and B. Frank Townsend, Jr., Trustees of the Estate of Philip J. Walsh, deceased, trading as Phil. J. Walsh Estate. Assumpsit for goods sold and delivered.

Appeal, No. 180, Oct. T., 1917, by Horace F. McCann, from order of C. P. No. 5, Pbiladelphia Co., Sept. T., 1914, No. 4822, making absolute rule to disallow claim for storage in case of James Crawford v. John F. McMahon and Marie McMahon. Rule to show cause why storage claim should not be disallowed. From the record it appeared that plaintiff issued execution against personal property of the defendants.

Appeal, No. 78, Oct. T., 1915, by defendant, from judgment of C. P. No. 4, Philadelphia Co., March T., 1914, No. 3204, on verdict for plaintiff in case of Porter Screen Mfg. Co. v. W. K. Hunter and Thomas Gamón, Jr., owner or reputed owner. Scire facias sur mechanic’s lien for work done and materials furnished in installing wire window and door-screens in an apartment house.

Appeal, No. 212, Oct. T., 1917, by defendant, from judgment of Municipal Court, Philadelphia Co., Feb. T., 1917, No. 66, on verdict for plaintiff in case of Emanuel Cohen v. Tradesmen’s National Bank. Trespass to recover damages for dishonoring a check. Before Knowles, J. The facts are stated in the opinion of the Superior Court. Verdict and judgment for plaintiff for $250. Defendant appealed. Error assigned, amongst others, was in refusing binding instructions for defendant.

Appeal, No. 224, Oct. T., 1917, by plaintiff, from judgment of C. P. No. 3, Philadelphia Co., June T., 1916, No. 743, for defendant on appeal from mercantile appraisers in case of CommonAvealth v. At-' lantic Refining Co. Appeal from mercantile appraisers. Before McMichael, P. J. The opinion of the Superior Court states the case. Error assigned was the judgment of the court.

Appeal, No. 211, Oct. T., 1917, by defendant, from judgment of C. P. No. 3, Philadelphia Co., June T., 1916, No. 615, on verdict for plaintiff in case of Elizabeth J. McGlumphy v. Charles Lentz, Jr. Trespass to recover damages for injuries to real estate. Before MoMichael, P. J. The opinion of the Superior Court states the facts. Verdict and judgment for plaintiff for $800. Defendant appealed.

Appeal, No. 244, Oct. T., 1917, by defendant, from judgment of Municipal Ct., March T., 1917, No. 486, on verdict for plaintiff in case of B. Cohen v. State Bank of Philadelphia. Trespass for damages for refusing payment of a bank check. Before MacNeille, J. The facts are stated in the opinion of the Superior Court. Verdict and judgment for plaintiff for $53. Defendant appealed. Error assigned was in refusing binding instructions for defendant.

Appeal, No. 198, Oct. T., 1917, by plaintiffs, from order of O. P. No. 5, Philadelphia Co., March T., 1916, No. 8724, discharging rule for judgment for want of a sufficient affidavit of defense in case of Albert S. Marks and Alfred Kohn, Executors of the Estate of Arnold Kohn, deceased, v. Fidelity Mut. Life Ins. Co. of Philadelphia. Assumpsit to recover the amount of a premium on a policy of life insurance alleged to have been wrongfully retained.

Appeal, No. 169, Oct. T., 1917, by defendant, from judgment of C. P. No. 2, Philadelphia Co., Sept. T., 1916, No. 2751, on verdict for plaintiff in case of David J. Matlack v. Robert L. Chalfant. Trespass to recover damages for personal injuries. Before Wessel, J. The circumstances of the accident are stated in the opinion of the Superior Court. Verdict and judgment for plaintiff for $500. Defendant appealed.

<p>Negligence — Automobiles—Master and servant — Bailment—Master’s employment.</p> <p>Where the owner of an auto truck hires it out to another person at a per diem compensation, furnishing a driver, gasoline and accessories, the owner will be liable for injuries caused by the negligent act of the driver, after the bailee’s work is completed, and the truck is being driven back to the owner’s garage.</p>

Appeal, No. 77, Oct. T., 1917, by Lina Ives Brinton, from decree of O. O. Philadelphia Co., Jan. T., 1901, No. 176, dismissing exceptions, to adjudication in Estate of Alfred Stille, deceased. Exceptions to adjudication. From the record it appeared that Alfred Stille died, leaving to survive him a widow, Katharine, a son Henry M. S tille, and two grandchildren Alfred Stille Ives and Lena Ives Brinton, children of a deceased daughter.

<p>Negligence — Pedestrian at street crossing — Horse and wagon — ■ Case for jury.</p> <p>In an action against an owner of a horse and wagon to recover damages for personal injuries sustained at a street crossing, a verdict and judgment for plaintiff will be sustained, where the plaintiff’s testimony, although contradicted by several witnesses, tended to show that the plaintiff was walking on the south side of Market street in the City of Philadelphia, and when he came to the western curb at Fifteenth street, the traffic was stopped on that street, and was moving east and west on Market street; that he entered upon the regular crossing at that point, and when five or six feet from the eastern curb at Fifteenth street he was run down by the horse and wagon, and that before entering upon the crossing he noticed the wagon on the opposite side of Market street, and did not notice it again until he was knocked down by it.</p>

Appeal, No. 189, Oct. T., 1917, by defendant, from judgment of O. P. No. 2, Philadelphia Co., June T., 1916, No. 4204, on verdict for plaintiff in case of Cedar Avenue B. & L. Assn. v. George E. McLaughlin. Trespass against a plumber for removal of certain articles alleged to be fixtures on premises upon which the plaintiff held a second mortgage. Before Staples, J., specially presiding.

<p>Mechanic’s lien — Material—Dates of delivery — Amendment—Act of June J¡, 1901, Sec. 51, P. L. Jj5S.</p> <p>Where the owner and contractor in a mechanic’s lien for material are one and the same person, a statement in the lien of the dates in the first and last deliveries is sufficient; but if the claimant wishes to state the dates of the intervening deliveries he may do so by amendment under the Act of June 4,1901, Sec. 51, P. L. 453.</p> <p>On the trial of a scire facias sur mechanic’s lien for materials the court may under the Act of June 4,1901, Sec. 5, P. L. 431, submit to the jury the question whether or not a contract made between an owner and reputed contractor, was in fact entered into with one not intended in good faith to be the contractor.</p>

<p>Pleadings — Amendments—Amount in controversy — Jurisdiction • — Courts—Municipal Court of Philadelphia.</p> <p>Where an action of trespass for personal injuries is instituted in the Municipal Court of Philadelphia County by filing, under the rules, an affidavit to hold to bail, in which the damages are fixed at $1,500, and a summons capias is especially allowed by a judge of the court, and subsequently a statement is filed in which the damages are set out at $10,000, the court may, at the opening of the trial, permit the statement to be amended by reducing the amount to $1,500 to conform to the jurisdiction of the court.</p>

<p>Banks and banking — Forging check — Duty of depositor — Notice —Appeals—Party aggrieved.</p> <p>The duty of a depositor of a bank upon discovering that it has paid and charged to his account either a check bearing his forged signature as a drawer, or his check on the forged endorsement of the payee, is to promptly notify it of the forgery, and if he delays to do so for five weeks and the bank has no information from other sources of the forgery, the depositor cannot hold the bank for the loss.</p> <p>Where in an action by a depositor against a bank, to recover damages for payment of a cheek, the endorsement of which had been forged, the trial court erroneously enters judgment for the plaintiff, a collecting bank, which had guaranteed the endorsement, has a standing, although not a party to the suit, -to appeal the case as a party aggrieved within the meaning of the Act of May 22, 1722, Sec. 9,1 Sm. L. 138.</p>

<p>Appeal, No. 165, Oct. T., 1917, by defendant, from judgment of O. P. No. 2, Philadelphia Co., June T., 1916, No. 3874, on verdict for plaintiff in case of Frank P. O’Rourke v. Samuel R. Blocksom, trading as S. R. Blocksom Motor Company.</p> <p>Trespass for deceit in the sale of a second-hand automobile. Before Barratt, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The court below charged in part as follows:</p> <p>[“It has been attempted to get into your heads by the .defendant that this transaction was not a sale to this plaintiff of the Lozier automobile, but that really the defendant had sold it to this other company that advanced four hundred and fifty dollars to the plaintiff. I instruct you that there is absolutely nothing in this for you to consider. It is simply a subterfuge, and a mighty thin one, and has no more to do with the plaintiff’s status in this case than has the fact that the two-hundred-dollar check of the firm employing the plaintiff was given by the plaintiff to the defendant and accepted by the defendant as part of the purchase-price.”] (1-)</p> <p>[“Well, if you believe that it was misrepresented to him, and that the plaintiff’s agent knew that the misrepresentation was a misrepresentation — and he says here that it was, and that it was a mistake; and if you further believe that he was not told otherwise before he purchased the automobile; and if you further believe that he relied upon the statements of the agent in buying it, and would not have bought it except for what the agent told him, then you may find a verdict for the plaintiff, and the measure of damage would be what he paid to the defendant for this automobile, one thousand dollars, together with the thirteen dollars that he paid as interest to that company from whom he borrowed some of the money to pay for the automobile, less what you believe from the evidence the automobile was worth when the plaintiff learned as a fact that it was not as it had been represented to him. To this amount you may add interest from August 4, 1916, the date of bringing of the suit.”] (2)</p> <p>John F. Cassidy testified as follows as to the value of the automobile:</p> <p>“Q. Did you examine Mr. O’Rourke’s automobile — his Lozier car?</p> <p>“A. Yes, sir. I looked at the cylinders and the engine.</p> <p>“Q. You saw the car itself?</p> <p>“A. Yes, sir.</p> <p>“Q. When?</p> <p>“A. Yesterday was the last time I saw it.</p> <p>“Q. And you made an examination of the motor?</p> <p>“A. Yes, sir.</p> <p>“Q. Now, as a result of your examination, will you tell his honor and the jury what the value of that motor car was in the month of March, 1916?</p> <p>“(Objected to by counsel for defendant.)</p> <p>“By the Court:</p> <p>“Q. Did you ever see it before yesterday?</p> <p>“A. No, sir.</p> <p>“Mr. Smith: We have proved by the plaintiff that this automobile is in the same condition now as it was in March, 1916.</p> <p>“The Court: Then, assuming that it is in that same condition now as it was then, the witness may tell us what its market value is to-day, for what this evidence may be worth. I will overrule the objection and give the exception to the defendant. (3)</p> <p>“By Mr. Smith: Q. What was the value of that motor car in your opinion?</p> <p>“A. Well, I would judge that the value of it is about $150 as she stands.”</p> <p>Verdict and judgment for plaintiff for $850. Defendant appealed.</p> <p>Errors assigned were (1,2) portions of charge as above and (3) rulings on evidence quoting the bill of exceptions.</p> <p>The language of the trial judge was improper: Young v. Merkel, 163 Pa. 513; Heydrick v. Hutchinson, 165 Pa. 208; Com. v. Meads, 29 Pa. Superior Ct. 321; Burns v. Penna. R. R. Co., 213 Pa. 280.</p> <p>There was error in the charge of the question of damages: High v. Berret, 148 Pa. 261; Curtis v. Buzard, 254 Pa. 61; Fischer v. Taylor, 257 Pa. 132.</p> <p>There was error in admission of testimony as to the value of the automobile: Pennock v. Crescent Pipe Line Co., 170 Pa. 372; Shimer v. Eastern Ry. Co., 205 Pa. 648.</p> <p>The charge was not prejudicial to the rights of the defendant: Bernstein v. Walsh, 32 Pa. Superior Ct. 392; Com. v. Johnson, 133 Pa. 293; Com. v. Warner, 13 Pa. Superior Ct. 461; Herbert v. Rainey, 162 Pa. 530; Com. v. Van Horn, 188 Pa. 143.</p> <p>There was no error in the charge of the question of damages: High v. Berret, 148 Pa. 261; Stetson v. Croskey, 52 Pa. 230.</p> <p>There was no error in the admission of testimony on the value of the automobile.</p>

<p>Appeal, No. 45, Oct. T., 1917, by defendant, from judgment of Municipal Court, Philadelphia Co., June T., 1916, No. 151, on verdict for plaintiff in case of Francis Schmidt v. Philadelphia Rapid Transit Company.</p> <p>Trespass to recover damages for personal injuries. Before Crane, J.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was the final order dismissing motion for new trial.</p> <p>One judge of the appellate division of the Municipal Court had no authority to reverse the findings of the appellate division of the Municipal Court: Com. v. Grow, 48 Pa. Superior Ct. 873; Butts v. Armor, 164 Pa. 73.</p> <p>The order was proper: Cronrath v. Border, 27 Pa. Superior Ct. 15; Fisher v. Hestonville, Etc., Pass. Ry. Co., 185 Pa. 602; King v. Brooks, 72 Pa. 363; Lingenfelter v. Riddlesburg C. & T. Co., 84 Pa. 328; Stauffer v. Reading, 206 Pa. 479.</p>

<p>Townships — Boundaries—Change of boundary line — Report of commissioners.</p> <p>A report of commissioners appointed in proceedings to change the boundary line between two townships contains a sufficiently explicit opinion as to the propriety of making the change, if the commissioners say, “that having been duly sworn we went over the proposed line, and the line, as it now is, viewed them, measured them, and took their courses, heard the statements of the persons present, favoring and opposed to the change, and made careful and diligent inquiry as to the propriety of making the change as prayed for. After careful consideration as aforesaid we find that the convenience of the inhabitants of said townships would be promoted by the alteration, of the line as prayed for, and therefore report to the court that in our opinion the line should be altered and we recommend the alteration as prayed as follows”: giving description, course and distance, accompanied by map.</p> <p>Such a report will not be set aside upon the dissenting view of one taxpayer.</p>

<p>WorTcmen’s compensation — Master and servant — Stenographer— Negligence — Act of June 1916, P. L. 7S6.</p> <p>Where a stenographer whose scope of employment includes the going on miscellaneous errands, is directed by one of her employers to purchase his lunch during her lunch hour, which she does, and while returning to her employer’s place of business, receives injuries by being struck in the eye by a stone thrown by a boy, the injury which she receives is one sustained while she “is actually in the furtherance of the business or affairs” of her employer, within the meaning of Article I, Section 104, and Article III, Sec. 301, of the Workmen’s Compensation Act of June 2,1915, P. L. 736.</p>

<p>Appeal, No. 296, Oct. T., 1917, by defendant, from judgment of Municipal Court, Philadelphia Co., March T., 1915, No; 676, on verdict for plaintiff in case of David A. Kerr et al. v. Philadelphia Rapid Transit Company.</p> <p>Trespass to recover damages for injuries to horses. Before Crane, J.</p> <p>The circumstances relating to the accident are set forth in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $200. Defendant appealed.</p> <p>Error assigned was in overruling defendant’s motion for judgment n. O', v.</p>

<p>Negligence — Automobiles—Employment of chauffeur — Case for jury.</p> <p>In an action against an owner of an automobile to recover damages for personal injuries sustained through negligence of the driver of a car, tbe case is for the jury where it appears that at a hearing of the driver in a police court the defendant testified that the car belonged to himself, and that the driver was in his employ at the time of the accident, but at the trial he denies that he was the owner of the ear, .and employer of the driver, and alleges that his son was the owner and employer, but does not produce the license, or any books or papers bearing upon the question of ownership, although the license and books or papers were referred to in the testimony.</p>

<p>Appeal, No. 146, Oct. T., 1917, by defendant, from order of C. P. No. 1, Philadelphia Co1., March T., 1908, No. 962,- M. L. D. discharging rule to open judgment in case of Oity of Philadelphia v. Prank O. Snedaker, Charles Muehlman and Paul Mtiehlman, trading as Frank C. Snedaker & Company.</p> <p>Rule to open judgment.</p> <p>From the record it appeared that a judgment was obtained by default after posting and advertising on a municipal claim for water pipe laid in front of the vacant lot of the defendants. A petition was filed to open this judgment setting forth that at the time the pipe was laid the street in front of the property lienedwas not actually open or in use by the public and served no useful purpose ; that there was never any necessity or occasion to place water pipe in the bed of the street in front of the property and that the street was subsequently vacated; also that the defendants had never had notice of the proceeding.</p> <p>The plaintiff’s answer to the rule alleged that there was a necéssity for laying the water pipe at the time in question. It also alleged that defendants had knowledge of the work being done, and that the street had been vacated at the instance of defendant.</p> <p>The court discharged the rule.</p> <p>Error assigned was order discharging the rule.</p> <p>Judgment was obtained without proper service. Act of May 6, 1909, P. L. 452.</p> <p>In order to sustain the lien, it must be shown that some special benefit accrues to the property by reason of the work: Act of 1901, Sec. 4, P. L. 366.</p> <p>In the following cases, where there was no special benefit to the property, no lien was allowed: Park Avenue Sewers, 169 Pa. 433; City of Philadelphia v. Wethrill, 13 W. N. C. 10; Crawford’s Est., 14 Philadelphia 323; Scranton v. Pa. Coal Co., 105 Pa. 445; Philadelphia v. Bilyeu, 36 Pa. Superior Ct. 562; Fifty-fourth Street, 165 Pa. 8; Liberty Ave., 54 Pa. Superior Ct. 242; Harrisburg v. Fuller, 23 D. R. 851; Philadelphia v. Meighan, 27 Pa. Superior Ct. 160; Steelton Borough v. Booser, 162 Pa. 630; Hammett v. Philadelphia, 65 Pa. 146.</p> <p>By vacating the street the city waived its claim for water pipe: Coxe v. Philadelphia, 47 Pa. 9; City v. Cuthbert, 4 W. N. C. 263; Philadelphia v. Baird, 1 W. N. C. 126.</p> <p>A property owner is not relieved from liability for a municipal assessment on the ground that his property was not benefited by the improvement: Murdock v. Pittsburgh, 223 Pa. 280; Philadelphia v. Odd Fellows Hall Association, 168 Pa. 105; Philadelphia v. Nock, 12 Pa. Superior Ct. 44.</p> <p>The assessability of property for municipal improvements must be determined as of time when the work was done: Allegheny City v. King, 18 Pa. Superior Ct. 182.</p>

Appeal, No. 229, Oct. T., 1917, by plaintiff, from judgment of C. P. No. 2, Philadelphia Co., June T., 1915, No. 3580, on verdict for defendant in case of Little Schuylkill Navigation Railroad & Coal Co. v. Philadelphia & Reading Railway Co. Assumpsit to recover the amount of income tax paid by plaintiff to the United States government.

<p>Appeal, No. 202, Oct. T., 1917, by plaintiff, from judgment of C. P. No. 3, Philadelphia Co., June T., 1915, No. 316, for defendant non obstante veredicto in case of Mai E. Sutton v. City of Philadelphia.</p> <p>Trespass to recover damages for personal injuries. Before Davis, J.</p> <p>At the trial it appeared that plaintiff was injured on February 13, 1915, by falling into a hole in the cartway of Sansom street at its intersection of Eighteenth street in the City of Philadelphia. The circumstances of the accident are stated in the opinion of the Superior Court. The jury returned a verdict for plaintiff for $1,500. Subsequently the court in an opinion by Davis, J., entered judgment for defendant n. o. v.</p> <p>Error assigned was in entering judgment for defendant n. o. v.</p>

<p>Negligence — Release of damages — Fraud in procuring release— Evidence■ — Case for jury.</p> <p>In an action to recover damages for death of plaintiff’s husband where the ease turns upon the validity of a release of damages, the case is for the jury where there is precise, clear and indubitable evidence that the plaintiff was induced to sign the release by representations which were not true, which were material, and which brought about a settlement prejudicial to the plaintiff by express denial, and by suppression of the truth.</p> <p>On the question of fraud in obtaining such a release, the testimony of one witness is sufficient to carry the case to the jury, if that evidence is clear, precise and indubitable.</p>

Appeal, No. 91, Oct. T., 1917, by plaintiff from order of O. P. No. 4, Philadelphia Co., Dec. T., 1915, No. 4443, discharging rule for judgment for want of a sufficient affidavit of defense in case of Norfolk & Western Railway Co. v. Swift & Co. Assumpsit to recover demurrage. Rule for judgment for want of a sufficient affidavit of defense.

Appeal, No. 108, Oct. T., 1917, by defendant, from judgment of O. P. Northumberland Co., Sept. T., 1915, No. 647, on verdict for plaintiff in case, of A. P. Grimm v. The Mt. Carmel Iron Works. Action of assumpsit. Before Cummings, P. J. The facts are stated in the opinion of the court. Errors assigned were (1 and 2) admission of evidence; (3) rejection of evidence; (4 and 5) charge of court; and (6) refusal of binding instructions.

<p>Appeal, No. 302, Oct. T., 1917, by defendant, from order of Municipal Court, Philadelphia Co., July T., 1917, No. 449, making absolute rule for judgment for want of a sufficient answer and counterclaim.</p> <p>Assumpsit to recover a bill of merchandise. Before Knowles, J.</p> <p>The pleadings are summarized in the opinion of the Superior Court.</p> <p>Error assigned was order making absolute rule for judgment for want of a sufficient answer and counterclaim.</p>

<p>Gamers — Express companies' — Receipt—Interstate commerce.</p> <p>A State court cannot pass upon the question of the unreasonableness of a uniform express receipt for interstate shipments filed with the Interstate Commerce Commission with the schedules of the company. Such a question arises under the Federal law, and the operation and effect of the contract as shown by the receipt must be determined in accordance with such law.</p> <p>Where an express company’s receipt for a package states that the property is accepted as merchandise only, and states that the company will not be liable for the loss of jewelry unless such articles are enumerated in the receipt, and the package in fact contains jewelry, although this is not mentioned in the receipt, the company cannot be held liable for the loss of the package either as “jewelry,” or as “merchandise.”</p> <p>The terms of such a receipt are not inconsistent with the rule that the carrier cannot exempt himself from liability for the negligence of himself or of his employee.</p>

Appeal, No. 131, Oct. T., 1917, by H. O. Wakefield, from decree of O. O. Huntingdon Co., overruling exceptions to auditor’s report in Estate of Prances Wakefield, deceased. Exceptions to report of James S. Woods, Esq., auditor. Prom the record it appeared that Prances Wakefield died on December 31, 1911. The facts of the case are stated in the opinion of the Superior Court. Error assigned was in dismissing exceptions to auditor’s report.

Appeal, No. 289, Oct. T., 1917, by defendant, from, judgment of O. P. Franklin Co., Sept. T., 1915, No. 276, on verdict for plaintiff in case of Lewis Bowders v. Hagerstown & Frederick Railway Company.. Trespass to recover damages for cattle killed at a private farm crossing. Before G-illan, J. The court charged in part as follows: Mr. Bowders is a farmer of Antrim Township.' A lane runs through his farm and -crosses this railway track.

Appeal, No. 294, Oct. T., 1917, by defendant, from judgment of O. P. Franklin Co., Oct. T., 1916, No. 296, on verdict for plaintiff in case of William M. McFerren v. C. J. Deardorff. Trespass quare clausum fregit. Before Gillan, P. J. At the trial the court gave binding instructions for plaintiff. Verdict and judgment for plaintiff for $174.76. Defendant appealed. Error assigned, amongst others, was in giving binding instructions for plaintiff.

Appeal, No. 323, Oct. T., 1917, by defendant, from judgment of Q. S. Clearfield Co., May T., 1917, No. 10, on verdict of guilty in case, of Commonwealth v. Ed. D. Schwem Company. Indictment for selling liquor without .a license. Before Whitehead, P. J. The opinion of the Superior Court states the case. Error assigned was in giving binding instructions for defendant.

Appeals, Nos. 123 and 124, Oct. T., 1915, by plaintiffs, from judgment of O. P. No. 2, Philadelphia Co., March T., 1913, No. 1785, for defendant n. o. v. in case of Henry P. Clifton and Ella V., his wife, v. R. A. & J. J. Williams Co. Trespass to recover damages for personal injuries. Before Dougherty, J. The circumstances of the accident are stated in the opinion of the Superior Court.

Appeal, No. 22, April T., 1917, by defendant, from judgment of C. P. Mercer Co., Oct. T., 1913, No. 104, on verdict for plaintiffs in case of Margaret J. Johnston and James W. Johnston, now C. N. Shilling, Executor, v. Wheatland Borough. Trespass to recover damages for personal injuries. Before Williams, J. The circumstances of the accident are stated in the opinion of the Superior Court.

Appeal, No. 306, Oct. T., 1917, by defendant, from judgment of Q. S. Lancaster Co., Sept. T., 1916, No. 54, on verdict of guilty in case of Commonwealth v. P. Curtis KoEune. Indictment for obtaining the prosecutor’s signature to a paper by false pretenses. At the trial the jury returned a verdict of guilty.

Appeal, No. 6, Oct. T., 1917, by defendant, from judgment of C. P. Berks Co., June T., 1915, No. 5, on verdict for plaintiff in case of Edith M. Bright and Charles W. Bright, her husband, v. Pennsylvania Railroad Company. Trespass to recover damages for personal injuries. Before Endlich, P. J. The facts are stated in the opinion of the Superior Court. Verdict and judgment for plaintiff for $936. Defendant appealed.

Appeal, No. 137, April T., 1917, by defendant, from judgment of Q. S. Armstrong Co., June Sessions, 1916, No. 1, on verdict of guilty in case of Commonwealth, v. Abe Dumber. Indictment for arson. Before Criswell, P. J. Prom the record it appeared that the prisoner was indicted for burning a store building in Oakland.

Appeal, No. 251, Oct. T., 1917, by defendant, from order of O. P. No. 3, Philadelphia Co., March T., 1917, No. 3372, making absolute rule for judgment for want of a sufficient.affidavit of defense in case of Alexander D. Irwin, Jr., and Archibald O. Leigh-ton, trading as Irwin & Leighton, v. James Porter. Assumpsit on a contract of indemnity.

Appeal, No. 191, Oct. T., Í917, by defendant, from judgment of Municipal Court, Philadelphia Co., Jan. T., 1917, No. 251, on verdict for plaintiff in case of Benjamin Rose v. Quaker City Cab Company. Trespass to recover damages for injuries to an automobile. Before MacNeille, J. The circumstances of the accident are stated in the opinion of the Superior Court.

Appeal, No. 298, Oct. T., 1917, by plaintiff, from judgment of C. P. No. 1, Philadelphia Co., June T., 1918, No. 4848, for defendant n. o. v. in case of Mary Y. Foley v. German Lehigh Building Association. Assumpsit to recover $946.39 with interest from May 1,1911, alleged to be due plaintiff as the balance of consideration of bond and mortgage given by plaintiff to defendant. Before Bregy, P. J. The facts are stated in the opinion of the Superior Court.

Appeal, No. 186, Oct. T., 1917, by plaintiff, from order of Municipal Court, Philadelphia Co., Dec. T., 1915, No. 402, refusing to take off nonsuit in case of Albert E. Cray and Sarah M. Gray, by her father and next friend, Albert E. Gray, v. L. Webster Fox, Jr. Trespass to recover damages for personal injuries. Before Bonniwell, J. At the trial the court entered a compulsory nonsuit which it subsequently refused to take off. Error assigned was refusal to take off nonsuit.

<p>Contract — Breach—Sale for cash — Tender of bad check.</p> <p>Where in a cash sale the purchaser tenders a check which is not good the seller may, upon ascertaining the badness of the check, refuse to make the sale.</p> <p>In the absence of any special agreement to the contrary, the mere acceptance by a creditor from . debtor of a check is not an absolute, but a conditional payment defeasible on the nonpayment of the check. To nuke the check an .absolute payment there must be an express agreement to receive it as such, and the burden of proof is on him who asserts such contract.</p>

Appeal, No. 275, Oct. T., 1917, by defendant, from judgment of Q. S. Lancaster Co., Jan. Sessions, 1916, No. 29, on verdict of guilty in case of Commonwealth v. Eber E. Hilton. Indictment for perjury.

<p>Criminal law — Keeping bawdyhouse — Cross-examination—Previous offense — Act of March 15,1911, P. L. 20.</p> <p>Where on the trial of an indictment for keeping a bawdyhouse, the defendant in testifying on her own behalf, denies that she ever kept a bawdyhouse she may be asked on cross-examination whether she had not pleaded guilty to conducting the same place as a bawdy-house. Such a question is not a violation of the Act of March 15, 1911, P. L. 20.</p> <p>In such a case it is not error for the court, after warning the jury to consider and weigh all the testimony, and to consider whether or not the witnesses knew what they were talking about, to further charge as follows: “This particularly applies to the witnesses who testified as to the character of the house (naming defendants witnesses). Consider whether they visited this house at such times when they had the opportunity of knowing just what kind of a house was being conducted.”</p> <p>Appeals — Assignment of error — Charge.</p> <p>An assignment of error as to the charge of the court will not be considered, where the very words of the part of the charge complained of are not set out.</p>

Appeal, No. 85, April T., 1918, by defendant, from judgment of Q. S. Yenango Co., Aug. T., 1917, No. 20; on verdict of guilty in case of Commonwealth v. Myke Opolka. Indictment for selling liquor without a license. Before Criswell, P. J. The facts are stated in the opinion of the Superior Court. Verdict of guilty upon which judgment of sentence was passed. Defendant appealed.

<p>Appeal, No. 303, Oct. T., 1917, by plaintiff, from judgment of C. P. No. 1, Philadelphia Co., Sept. T., 1916, No. 1842, on verdict for plaintiff in case of Rose Cohen v. Generoso Rosa.</p> <p>Trespass to recover damages for malicious prosecution. Before Shoemaker, J.</p> <p>Verdict and judgment for plaintiff for $1. Plaintiff appealed.</p> <p>Error assigned was refusal of new trial.</p>

Appeal, No. 288, Oct. T., 1917, by defendant, from judgment of Municipal Court, Philadelphia Co., May T., 1917, No. 343, making absolute rule for judgment for want of a sufficient answer. Assumpsit on a promissory note. Error assigned was order making absolute rule for judgment for want of a sufficient answer. cited: Ellis v. Anderson, 49 Pa.

Appeal, No. 282, Oct. T., 1917, by defendant, from order of C. P. Bradford Co., May T., 1916, No. 5, discharging rule to open judgment in case of Gustayus Conklin y. Maggie Chaffee. Rule to open judgment. Maxwell, P. J., filed the following opinion: .

Appeal, No. 47, Oct. T., 1917, by defendant, from judgment of C. P. Del. Co., March T., 1913, No. 210, on verdict for plaintiff in case of Charles Rogers v. Philadelphia & West Chester Traction Company. Trespass to recover damages for personal injuries. Before Broomall, J. The facts are stated in the opinion of the Superior Court. Verdict and judgment for plaintiff for $110. Defendant appealed. Error assigned was in refusing defendant’s motion for judgment n. o. v.

Appeal, No. 51, Oct. T., 1917, by defendant, from order of C. P. Del. Co., March T., 1916, No. 176, making absolute rule for judgment for want of a sufficient affidavit of defense, in case of M. Zimmerman Company v. Samuel Goldberg. Assumpsit on a bond. Rule for judgment for want of a sufficient affidavit of defense. The facts are stated in the opinion of the Superior Court.

Appeal, No. 287, Oct. T., 1917, by defendant, from judgment of C. P. Delaware Co., March T., 1911, No. 107, on verdict for plaintiff in case of James E. Kelly v. Philadelphia Rapid Transit Company. Trespass to recover damages for injuries to two horses and a moving van in a collision with a car at the intersection of two streets. Verdict and judgment for plaintiff for $799.76. Defendant appealed. Error assigned was in overruling defendant’s motion for judgment n. o. v.

<p>Corporations — Foreign corporations — Doing business — Registration.</p> <p>A foreign financial corporation, without office or property in Pennsylvania, cannot be charged with doing business in Pennsylvania in violation of the registration acts, merely because it purchases in the state of its domicile from a citizen of Pennsylvania, certain notes, contracts and choses in action, some of which are obligations of citizens of Pennsylvania; and this is the case although there is a provision in the contract for collections to be made in Pennsylvania by agents of the corporation to be applied on the accounts assigned.</p>

<p>Appeal, No. 320, Oct. T., 1917, by defendant, from order of C. P. Montgomery Co., June T., 1917, No. 141, affirming judgment of justice of the peace in case of Burgess and Town Council of the Borough of Norristown v. Joseph Puleo.</p> <p>Certiorari to a judgment of a justice of the peace.</p> <p>Swartz, P. J., filed the following opinion:</p> <p>The Borough of Norristown enacted an ordinance requiring “Each person, partnership, association or corporation engaged in the buying and selling of junk, rubber, rags, rope, scrap iron, brass, lead, copper or other metal, commonly known as junk dealers, to pay an annual license fee of ten dollars.”</p> <p>The said ordinance also provided for the collection of a penalty before a justice of the peace, from any person who engaged in said business without first obtaining such license.</p> <p>The defendant was convicted, before the said justice, of engaging in the business of a junk dealer in the Borough of Norristown, without first obtaining a license permit. The justice imposed a penalty of ten dollars.</p> <p>The defendant sued out a writ of certiorari. In his application for the writ he alleges that the said ordinance is illegal and void and that the justice had no jurisdiction thereunder to impose the said fine or penalty.</p> <p>Numerous exceptions were filed to the proceedings, but all were withdrawn, save those which attacked the authority of the borough council to enact the ordinance in question.</p> <p>That the defendant engaged in the business of junk dealer, failed to first take out a license and incurred the penalty imposed cannot be gainsaid, if the borough had the power and authority to enact the said ordinance.</p> <p>A junk dealer is one who buys and sells old metals, ropes and rags.</p> <p>The defendant conducts his junk business at No. 603 Sandy street, in the Borough of Norristown.</p> <p>That the Commonwealth has the right under the exercise of her police powers to regulate the business of junk dealers is well established: Commonwealth v. Mintz, 19 Pa. Superior Ct. 283.</p> <p>In this case the constitutionality of the Act of April 11, 1899, P. L. 37, relating to keepers of jnnk shops was involved. The court said: “The regulation of this class of dealers is within the police power of the State, and the legislative judgment, in prescribing rules and imposing penalties, in conducting such a business, is to be made effectual by the courts, unless it is clearly in violation of the Constitution.”......“The business of keeping a junk shop or second-hand store is a proper subject for legislative control. Such a business appeals to the necessity and cupidity of the needy and criminal classes in furnishing a market for unsaleable articles.”</p> <p>The supervision over junk dealers falls within the police power of the State, because this power embraces all manner of wholesome and reasonable laws, statutes and ordinances, not repugnant to the Constitution which the legislature may judge to be for the good and welfare of the Commonwealth and of the subjects of the same. The State has the inherent right to protect health, life and limb, individual liberty of action, private property and the legitimate use thereof, and to provide generally for the safety and welfare of its people. The regulation of junk dealers and junk shops falls within the legitimate exercise of the police power of the State to secure the welfare, safety and protection of its people: 8 Cyc. 874; McQuillin on Municipal Ordinances, Sections 428, 429 and 430; Powell v. Pennsylvania, 127 U. S. 678. This police power is exercised in prescribing regulations for the good order, peace, health, protection, comfort, convenience and morals of the community.</p> <p>It is well known that keepers of junk shops require supervision inasmuch as thieves and receivers of stolen property often resort to such places to pledge or otherwise dispose of their ill-gotten gains: Marmet v. State, 12 North Eastern Rep. (Ohio) 471. Such regulations and supervisions are especially necessary in cities and populous communities. Norristown is a borough but has the population of a city.</p> <p>The power to enact a statute or ordinance under the exercise of the police power necessarily embraces the power to impose a license fee or penalty to enforce the regulation. Without such power the purposes of the ordinance would be defeated and its benefits would be lost to the community.</p> <p>The contention of the defendant, that a junk dealer follows a legitimate business and is, therefore, not subject to any police regulation or supervision, can not be sustained. His judgment may be sound, but it must yield to the legislative mind upon the question unless he can point to some provision of. the Constitution that is violated. To refuse recognition of this legislative power is to make the individual judgment superior to that of the legislature: Com. v. Kevin, 202 Pa. 23; Penna. R. R. Co. v. Ewing, 241 Pa. 581.</p> <p>If the State may enact such a police regulation, then the question arises, whether the borough is invested with the authority to pass a valid ordinance of like effect.</p> <p>The brief submitted by the borough solicitor fully and able supports the affirmative answer to this inquiry.</p> <p>That the State may delegate police powers to municipalities, cannot be fairly questioned. The doctrine is firmly established and now well recognized, that the legislature may expressly or by implication delegate to municipal corporations the lawful exercise of police power, within their boundaries. The measure of power is subject to the legislative discretion, 28 Cyc. 693.</p> <p>“The legislature may, in the exercise of its police power, empower the authorities of a municipality to make such rules and regulations, as they shall deem necessary for the good order of the municipality, to regulate its roads, streets and common sewers, to protect the citizens in their persons and property, and to promote the public health and to ordain penalties for the violation of such regulations and collect the same.”</p> <p>Commonwealth v. Shafer, 32 Pa. Superior Ct. 497, citing a long line of cases in support of the text.</p> <p>The Borough of Norristown was chartered and created by a special enactment of the legislature, passed March 31, 1812, P. L. 255. Section 6 declares: “That it may be lawful for the town council......to enact such by-laws and make such rules, regulations and ordinances as shall be determined by a majority of them, necessary to promote the peace, good order, benefit and advantage of the said borough.”</p> <p>This power so granted was repeated in the later act of April 2, 1831, P. L. 389, Section 5.</p> <p>The Act of April 7, 1845, P. L. 328, followed and declared, in section 9, that “all ordinances ordained and enacted by the town council of the Borough of Norris-town, for the good government and order of said borough,......, shall have the same force and effect as if enacted by the legislature of the Commonwealth.”</p> <p>Power to enact ordinances to promote the peace, good order, benefit and advantage of the borough, supplemented by the declaration that ordinances for the good government and order of the borough shall have the force of acts of the legislature, bring the authority conferred within the power known as “the general welfare clause.” This clause is frequently interpreted as granting the power to pass all ordinances which are necessary to the good order and well being of the municipality, 28 Cyc. 705. It was so interpreted .in Borough of Warren v. Geer, 117 Pa. 207. It was there said, that this clause “confers a power that is very broad indeed and practically includes whatever conduces to the benefit and advantage of the borough and would seem to restrict the limitations upon the exercise of those which require ordinances to be reasonable and not in conflict with the State or Federal Constitutions.”</p> <p>This case also intimates that, without the enactment of the general welfare clause, in favor of the borough, the municipality possesses the necessary authority to pass the ordinances under the common law power incident to all boroughs and public municipal corporations.</p> <p>The objection to the ordinance that it is unreasonable cannot be sustained. The presumption is in favor of its validity.</p> <p>Our attention was not directed to any matter that can be regarded as a substantial objection to its enforcement. It is not an attempt to collect a tax, under the guise of a/ police ordinance. The annual license fee of ten dollars is no more than a fair compensation for the services necessary to grant a permit under a proper investigation and for the reasonable supervision of the business by municipal officers. Unless the amount of the license is manifestly unreasonable, the court will not adjudge it a tax: McQuillin on Municipal Ordinances, Section 409.</p> <p>As already shown, it is both the right and duty of the municipal authorities to regulate the business of a junk dealer or junk shops, in the interests of the welfare of the citizens and because of the well-known fact that the place of business so often becomes a resort for the disposal of goods dishonestly obtained.</p> <p>The Commonwealth also recognized the temptation it offers to minors to engage in practices that develop criminals. It accordingly enacted a law intended to remove, or at least to lessen, the temptation. Judgment affirmed.</p> <p>Error assigned was the order of the court.</p>

<p>Criminal law — Practicing medicine without a license — Neuropathy — Physician.</p> <p>■ A person who is a graduate of the American College of Neuropathy and who describes himself as a doctor, may be.convicted of practicing medicine and surgery without a license, where he practices a system which is described as “A science of the healing art by which all diseased conditions of the body are restored to health by regulating the blood supply to the involved areas through the nerve mechanism, but exclusively by the physical manipulation around and above the affected parts of the human body.”</p>

<p>Insurance — Life insurance — Killing of insured by beneficiary.</p> <p>Where a husband takes out a policy of life insurance, and pays the premium, and the policy provides for the payment to him of an endowment after he reaches a specified age, and if he dies before such age is reached, for the payment of the fund to the beneficiary named, or to the executor or administrator, or to certain other persons described who might appear to the company to be equitably entitled to the fund, and the insured names his wife as beneficiary, and she feloniously kills him before he reaches the specified endowment age, she thereby disqualifies herself from taking the fund, but the insurance company will be liable to pay it to the administrator of the deceased.</p>

Appeal, No. 284, Oct. T., 1917, by plaintiff, from order of C. P. Bradford Co., Dec. T., 1915, No. 50, granting a new trial in case of C. P. Whipple v. C. J. Lewis. Assumpsit on a promissory note. Before Maxwell, P. J. At the trial the court directed a verdict for plaintiff. Subsequently it granted a new trial, on the ground that there was some evidence of fraud in the transaction by which the plaintiff secured the note in suit, and that he knew of the fraud.

<p>Appeal, No. 314, Oct. T., 1917, by Elizabeth Darlington, from order of C. P. Schuylkill Co., Jan. T., 1915, No. 314, refusing to revoke a decree of adoption In re Petition of William Faust and his wife, Louella Faust, for the adoption of Gustavius Darlington, a minor child of Dr. Gustav Darlington and his wife, Elizabeth Darlington.</p> <p>Petition to revoke the adoption of a child. Before Bechtel, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was the order of the court.</p> <p>The appellant contends that Keeler’s Adoption, 52 Pa. Superior Ct. 516, rules the case at bar.</p> <p>Adoption of minor child may be decreed without consent of parents who have neglected child for one year: Stamm’s Adoption, 27 Lanc. 17; Rhoades’ Case, 12 Pa. C. C. R. 239; Breakiron’s Adoption, 43 Pa. C. C. R. 419.</p>

<p>Adverse possession — Land covered with water — Evidence.</p> <p>The fact that land is covered with water does not render its acquisition by adverse possession impossible. Where such land is the subject of private ownership title by adverse possession may be acquired by any means which actually and notoriously excludes and disseizes the. true owner. Neither the physical exclusion of the owner, nor the actual residence of the adverse claimant is necessary. To establish adverse possession there must be evidence of the use of the land, and the water over it for the purposes such property is ordinarily used by the owner.</p> <p>In an action of trespass involving the question of the ownership of a strip of land along the banks of an artificial lake, partly submerged, and claimed by the plaintiff to have been acquired by adverse possession, a verdict for the plaintiff will be sustained, where the evidence shows that the strip adjoined land owned by the plaintiff, that he took possession of the strip with the idea of establishing title by adverse possession, that he maintained his line fences to low water mark to keep in his cattle which grazed on the strip and went into the lake for water, that he planted grass seed thereon, cut brush and wood for fuel, and permitted parties to use the lake shore as a camping place, and that such possession had continued for over twenty-one years.</p>

Appeal, No. 210, Oct. T., 1917, by plaintiff, from judgment of O. P. Lehigh Co., June T., 1916, No. 95, for defendant n. o. v. in case of George W. Eisenhard v. Morris W. Schmoyer. Trespass to recover damages for alienation of wife’s affections: Before Groman, P. J. The facts are stated in the opinion of the Superior Court.

<p>Appeal, No. 182, Oct. T., 1917, by plaintiff, from decree of C. P. Berks Co., Equity Docket, 1915, No. 1157, on bill in equity in case of Henry F. Hertzog v. South Reading Market House Co-.</p> <p>Bill in equity to restrain the erection of a fence.</p> <p>Wagner, J., filed the following opinion:</p> <p>FINDINGS OF FACT.</p> <p>1. The plaintiff is a resident of the City of Reading, engaged in the hardware business at the northwest corner of Sixth and Bingaman streets, said city.</p> <p>2. The plaintiff, on October 1, 1903, purchased all that certain two-story frame store stand, dwelling house and frame stable, and the lot of ground on which the same are erected, situate on the south side of Bingaman street, between Fifth and Sixth streets, in Reading aforesaid, bounded and described as follows, to wit: Beginning at a point on the southeast corner of Pearl and Bingaman streets, thence along the south side of Bingaman street 112 feet more or less to Market House alley, thence along the west side of said alley 92 feet more or less to a point; thence by line of property now or late of Francis McDonough 105 feet 3% inches, more or less, to said Pearl street; thence along the east side of said Pearl street 42 feet to the place of beginning, and having removed the buildings erected on said lot of ground, erected thereon two-story stone front mansard roofed dwelling houses fronting on Bingaman street, the easternmost house standing on the western line of said Market House alley; and in 1906 erected on the rear of said lots a warehouse fronting on said Market House alley, containing in front 24 feet and in depth 51 feet.</p> <p>3. The defendant is a corporation organized under the laws of the State of Pennsylvania, and doing business in said City of Reading.</p> <p>4. The defendant company on November 16,1870, purchased all those two lots or pieces of ground beginning at the southwest corner of said Sixth and Bingaman streets, thence along the southern line of said Bingaman street southwestwardly by the course thereof 122 feet to a ten-feet-wide alley; thence along the eastern line of said alley south on a line parallel with Sixth street 173 feet to property of Henry Drumm; thence at right-angles east along the same 110 feet to the western line of Sixth street; thence at right-angles along the same north 224 feet to the place of beginning.</p> <p>5. The defendant company erected on part of said plot of ground a market house, the western wall of which begins at a point being the intersection of the building line of said Bingaman street, and a line running 21 feet east of the western line of said Market House alley; thence running south 164 feet to a point; thence west 5 feet 4 inches to a point; thence south 9 feet 7 inches to a point, and constructed a curb on a line beginning at a point being the intersection of the building line of said Bingaman street, and a line running 15 feet from the western line of said Market House alley, and extending south a distance of 164 feet, between which said curb line and said first mentioned western wall the said defendant company laid a brick pavement.</p> <p>6. The properties of the plaintiff and the defendant company were both held by the same predecessor in title prior to 1870. The then owner laid out an alley of the width of ten feet, now known as Market House alley. Plaintiff’s property bounds this alley on the west, and defendant’s property bounds it on the east; that is, this alley lies between plaintiff’s and defendant’s properties. This alley opens out at its southern terminus on to a street of the City of Reading. It has been used by the public and the owners of the adjoining properties from said date of opening to the present time.</p> <p>7. Along the western wall of defendant’s market house building doors open out upon the said five-foot pavement and said alley. These doors are used by renters of spaces and the general public to enter the market house building on the side along said alley. These doors have existed there and have been thus used from the time of the erection of the market house building. On the western wall, at the time of the erection of the market house, were placed numbers to indicate the spaces reserved for stalls. These spaces were rented by the defendant company to renters who, on market days, placed temporary stalls on the pavement from which they sold to the public their various products. These temporary stalls were taken out of the market house on market days to the places indicated by the numbers on the wall, and on other days were kept within the market house.</p> <p>8. At least one of these spaces, No. 278, located on this pavement, was still in use by the renters of the defendant company at the time of the hearing of evidence in this case.</p> <p>9. A roof extended out from the western wall of the market house of the defendant company for a distance of six feet eleven inches, thus making a covering over the pavement along this western wall.</p> <p>10. The renters of the stalls of the defendant company, to unload and load the products that they sold, either at the temporary stalls on the five-foot pavement or at the stalls located on the inside of the building, drive their teams to the curb of this five-foot pavement either by backing them against or running them alongside the curb. Since 1870 they thus unloaded their goods and then again reloaded that which remained unsold. The additional space of five feet along the ten-feet-wide alley permitted the patrons to do this without interfering with the traffic through the ten-feet-wide alley.</p> <p>11. During the entire time, that is, from 1870 to the present time, this space of five feet in addition to being used by the defendant company as aforesaid, was also used by the public in connection with the ten-feet-wide alley, as occasion required, and also by the plaintiff, especially since 1906, from which time he has used at least part of this additional space of five feet in driving into his warehouse.</p> <p>12. This reserved space of five feet, now claimed by plaintiff as part of the alley, was necessary for the defendant company, for its own use, and was put there by defendant company for that reason and purpose.</p> <p>DISCUSSION.</p> <p>The properties now owned by the plaintiff and defendant company were originally owned by the same person. Whilst so owned the owner located a ten-feet-wide alley, now known as Market House alley, through his property and thus divide it. In 1870 and 1871, when the defendant company erected its market house building, the west-era wall thereof was built twenty-one feet east of the western line of the ten-foot alley, thus leaving a space of twenty-one feet between the western wall of the market house, and the western boundary of the ten-feet-wide alley, which is the eastern building line of plaintiff’s property. For the purposes of the market house, that is, the accommodation of renters of stalls, and the public desiring to do business with them, a number of doors were placed in the market building opening-through this western wall into the alley. Along the western wall spaces for stalls were located by numbers. A pavement, five or six feet wide, with a curbing, was placed along this entire' western side. The evident purpose of this pavement was to give extra and additional accommodations to the renters of the defendant company who desired outside stalls from which to sell their produce. The shedding or roof which extended out from the wall of the market house for six feet eleven inches, protected the patrons and customers from the inclemencies of the weather.</p> <p>The evidence in this case clearly shows the purpose for which the additional space of five feet now claimed as part of the alley was used. Had this space not been reserved, the renters of stalls, in driving their teams into this ten-feet-wide alley and letting them stand there to unload and reload, would have blocked and prevented free passage through this alley; that is, the evident purpose of the extra reserved space outside of the curb was for the proper carrying on of the business of defendant company so as not to interfere with the rights of those who had free passage through the ten-feet-wide alley.</p> <p>The plaintiff, however, contends that because these customers of the market house people, together with others who passed over the fifteen-foot space, used the entire fifteen feet, the plaintiff thus also using it, that this constituted a dedication of the five feet to the ten-feet-wide alley, thus making it fifteen wide, and asks for a permanent injunction to prevent the defendant from erecting a fence upon the eastern line of the ten-feet-wide alley.</p> <p>In support of this contention of dedication, plaintiff has cited Waters v. Philadelphia, 208 Pa. 189. The facts of that case, however, are altogether different from those in this case. The owner in that case made no use of the four feet space that would indicate that he regarded it as in any way ministering to his special benefit. There was no door upon the Walnut street end of the building and no steps leading to the street, as the entrance was from the Fifteenth street side. The court decided that even in such a case the dedication of the strip to the public use was a question for the jury. In this case, however, we find that clearly the purpose of this extra space in the alley was for the accommodation’ of the market house people in conducting their business, and was used in a manner so as to prevent blocking the original ten-feet-wide alley. In the case cited by plaintiff’s counsel, we have these principles: Any acts of ownership by the owners of the soil repels the presumption of dedication......Where it is obvious that a space has been left open for the accommodation of the owner and not for the public the presumption of dedication does not arise......Dedication is a matter of intention. ......A mere permissive use by the public of a piece of ground left open by the owner in front of his property, and used by him in his own business and for his own convenience, is not a dedication to the public use and confers no right upon the public as against the owner. See also Weiss v. So. Bethlehem Boro., 136 Pa. 294; Gowen v. The Philadelphia Exchange Co., 5 W. & S. 141; Ferdinando v. Scranton, 190 Pa. 321, 327; Kleinhaus v. Northampton Traction Co., 60 Pa. Superior Ct. 641, 647. From the evidence in this case it is evident to us that the defendant company never intended to dedicate the five feet claimed by plaintiff to the ten-feet-wide alley and thus make it fifteen feet. The five feet were left open by the defendant company for its own use in connection with its business, and has continued since to be so used by it with merely a permissive use to the public, including this plaintiff.</p> <p>FINDINGS OF LAW.</p> <p>1. The use to which the defendant company put the five feet left open along the ten-feet-wide alley, does not constitute a dedication of the five feet to public use and thus make it a part of the ten-feet-wide alley, thereby increasing it to fifteen feet.</p> <p>2. The construction by defendant of a fence at the place averred in plaintiff’s bill will not be a violation of any right in plaintiff.</p> <p>3. The plaintiff is not entitled to the injunction prayed for.</p> <p>4. The costs of this proceeding shall be paid by the plaintiff.</p> <p>And now, to wit, January 2, 1917, the prothonotary is directed to enter a decree nisi in accordance with the foregoing decision, and forthwith to give notice thereof to the parties or their counsel of record, sec. reg.</p> <p>Error assigned was final decree refusing the injunction and dismissing the bill.</p> <p>There was a dedication of the space of five feet: Schenley v. Com., 36 Pa. 29; Griffin’s App., 109 Pa. 150; Waters v. Philadelphia, 208 Pa. 189.</p> <p>There was no dedication of the space: Gowen v. Philadelphia Exchange Co., 5 W. & S. 141; Root v. Com., 98 Pa. 170; Griffin’s App., 109 Pa. 150; Com. v. Philadelphia & R. R. Co., 135 Pa. 256; Weiss v. So. Bethlehem Boro., 136 Pa. 294; Verona Boro. v. Allegheny Val. R. R. Co., 152 Pa. 368; Frankford & S. P. C. Pass. Ry. Co. v. Philadelphia, 175 Pa. 120.</p>

Appeal, No. 254, Oct. T., 1917, by defendant, from order of Municipal Court, Philadelphia Co., March T., 1917, No. 436, refusing to strike off return of service of writ in case of Keystone Telephone Co. v. Maggie F. Diggs. Petition to strike off service of summons. The return of the service showed a service on an adult member of defendant’s family.

Appeal, No. 182, April T!, 1917, by plaintiff, from judgment of C. P. Allegheny Co., April T., 1914, No. 674, on verdict for defendant in case of Sisters of the Third Order of Saint Francis v. Mill-vale Borough. Appeal from report of jury of view. Before Davis, J. The facts are stated in the opinion of the Superior Court. Yerdict for defendant with certificate as to special benefits in the sum of $587.16. Plaintiff appealed.

Appeal, No. 100, Oct. T., 1917, by defendant, from judgment of C. P. Schuylkill Co., May T., 1913, No. 373, on verdict for plaintiff in case of Mary Seltzer v. Philadelphia & Reading Railway Company. Trespass to recover damages for the death of plaintiff’s husband.

Appeal, No. 333, Oct. T., 1917, by Matthias Troutt et al., from decree of O. C. Philadelphia Co., Jan. T., 1900, No. 394, sustaining exceptions .to adjudication in Estate of William R. Myrtetus, deceased. Exceptions to adjudication. Prom the record it appeared that the testator died June 6, 1891. By his will he gave the net income of his estate to his wife during widowhood, and upon her death or remarriage to his executors as trustees for certain charities.

Appeal, No. 313, Oct. T., 1917, by plaintiff, from judgment of C. P. No. 2, Philadelphia Co., March T., 1916, No. 4388, on verdict for defendant in case of Archibald C. Stewart v. John A. Stewart. Assumpsit on a promissory note. Before Barratt, P. J. The opinion of the Superior Court states the case. At the trial the court instructed the jury to return a verdict for defendant. Verdict and judgment for defendant. Plaintiff appealed.

Appeal, No. 84, Oct. T., 1917, by plaintiff, from order of C. P. Indiana Co., March T., 1916, No. 84, dismissing exceptions to auditor’s report in case of George W. McCullough v. William H. Claw-son. Exceptions to report, of James L. Jack, Esq., auditor. Before Langham, P. J. The record showed that nine exceptions were filed to the auditor’s report. All of them were dismissed. Errors assigned were: (1) In confirming the auditor’s report.

Appeal, No. 311, Oct. T.,. 1917, by defendant; from judgment of C. P. Schuylkill Co., Nov. T., 1914, No. 89, on verdict for plaintiff in case of Josiah Fessler v. Schuylkill Haven Gas & Water Co. Trespass to recover damages for the diversion of a stream known as Hummel’s Run which flowed over plaintiff’s land.

Appeal, No. 321, Oct. T., 1917, by defendant, from order of Municipal Court, Philadelphia Co., Aug. T., 1917, No. 190, making absolute rule for judgment for want of a sufficient answer in case of Philadelphia Motor Speedway Association, a corporation, y. Fred Paulson. Assumpsit on a contract of subscription.

Appeal, No. 250, Oct. T., 1917, by plaintiff, from judgment of C. P. Northampton Co., Dec. T., 1913, No. 29, for defendant n. o. v. in case of David Kelly, now Mary U. Kelly, Administratrix, v. Werner Company. Trespass to recover damages for death. Before Stewart, P. J. At the trial the jury returned a verdict for plaintiff for $1,275.

Appeal, No. 80, Oct. T., 1917, by plaintiff, from judgment of C. P. Lancaster Co., Feb. T., 1914, No. 40, on verdict for defendant in case of William Roy Hilton v. Howard Overly. Trespass to recover damages for the death of a boar hog. Landis, P. J., charged as follows: Many of the facts which have been presented to you are not in dispute, and some do not appear to have been contradicted. The plaintiff had a boar hog.

Appeal, No. 354, Oct. T., 1916, by petitioner, from order of Public Service Commission, granting certificate of public convenience in case of Philadelphia Suburban Gas & Electric Company v. Public Service Commission of the Commonwealth of Pennsylvania. Petition for certificate of public convenience.

Appeal, No. 324, Oct. T., 1917, by John W. Speckman, from order of C. P. No. 4, Philadelphia Co., March T., 1917, No. 5308, discharging rule to pay money out of proceeds of sheriff’s sale, in case of Simon Weiss to use of Pincus Weiss v. David W. Levey. Rule to show cause why the sheriff should not pay $120 for rent out of the proceeds of a sheriff’s sale of tenant’s goods. The opinion of the Superior Court states the facts. Error assigned was order discharging the rule.

<p>Carriers — Common carriers — Railroads—Interstate commerce— Interstate shipments — Bill of lading — Stipulation as to notice— Waiver — Federal question.</p> <p>A railroad company cannot waive a stipulation in a bill of lading covering an interstate movement of goods, requiring that claims must be made to the carrier in writing within four months after a reasonable time for the delivery of the goods has elapsed. The construction of such a bill of lading involves a Federal questioil, and must be determined according to the requirements of Federal legislation and the decisions of the Supreme Court of the United States interpreting such legislation.</p> <p>Under the Federal decisions the carrier can no more release the shipper from such a stipulation as to notice, than it could excuse him from the payment of the established freight rate.</p>

Appeal, No. 164, Oct. T., 1917, by defendant, from judgment of C. P. No. 1, Philadelphia Co., June T., 1913, No. 4662, on verdict for plaintiff in case of Samuel F. Scattergood et al., trading as S. F. Scattergood & Company, v. Michigan Central Railroad Company. Assumpsit to recover damages for injuries to corn shipped from Chicago, Illinois, to Philadelphia, Pa. Before Shoemaker, J. The opinion of the Superior Court states the case.

<p>Appeal, No. 216, Oct. T., 1917, by plaintiff, from order of Municipal Court, Philadelphia Co., April T., 1917, No. 541, making absolute rule to open judgment in case of Virginia L. Emademe, trading as Madame, Lady In Mask, v. Guy Weadick.</p> <p>Rule to open judgment.</p> <p>Error assigned was order making absolute rule to open judgment.</p> <p>cited: Von Schirach v. Vance, 239 Pa. 300; Harris v. Mercur, 202 Pa. 313; Woods v. Irwin, 141 Pa. 278.</p> <p>cited: Wernert’s App., 91 Pa. 319; Jenkintown Nat. Bank’s App., 124 Pa. 337; Kelber v. Pittsburgh N. Plow Co., 146 Pa. 485; Freeman v. Sanner, 11 Pa. Superior Ct. 42; Spiess v. Mooney, 67 Pa. Superior Ct. 9.</p>

Appeal, No. 274, Oct. T., 1917, by John E. Hare, from judgment of Municipal Court, Philadelphia Co., Jan. T., 1917, No. 145, on verdict for plaintiff in case of Lit Brothers v. John E. Hare and Margaret Hare, his wife. Assumpsit for goods sold and delivered. Before Wheeler, J. At the trial Margaret Hare was called as for cross-examination.

<p>Corporations — Stock subscription — Breach of contract — Seduction of par value of stock.</p> <p>Where a corporation having an authorized capital stock of $4,-000,000 divided into shares of $100 each contracts to sell five shares of its stock at par to a purchaser payable in installments, and after the purchaser has paid $400 the company reduces the par value of the shares to $10 the purchaser may regard the change in the par value of the stock as a breach of contract, and recover the $400 which he had paid to the company.</p>

<p>Mines and mining — Sale of coal in place — Lease—Construction of written instrument.</p> <p>A written instrument will be construed as an absolute sale of coal in place wherein by its terms an owner of the coal grants to the grantee his heirs and assigns the right and privilege to mine and carry away all the coal in a vein particularly described, with minimum tonnage per year to be paid for if mined or not and without any time limit within which the coal must be removed, and with an obligation on the grantee to pay the taxes. Such a construction of the agreement will not be changed by a later agreement providing for the annullment of the agreement on failure to pay royalties within twenty days after they were due, and which also provided that the agreement should not be transferred without the written consent of the grantor.</p>

Appeal, No. 279, Oct. T:, 1917, by defendant, from judgment of C. P. Lehigh Co., Jan. T., 1917, No. 25, on verdict for plaintiff in case of Linford Gillespie v. David F. Shafer, Trespass to recover damages for personal injuries sustained by a collision between plaintiff’s motorcycle and .defendant’s automobile at the intersection of Seventh avenue and Broad street in West Bethlehem.

<p>Corporations — Light, heat and power companies — Public Service Commission — Jurisdiction—Approval of ordinance.</p> <p>Where a light, heat and power company has applied to the Public Service Commission for the approval of an ordinance granting it rights in a borough, and its application has been refused, it cannot thereafter on appeal be heard to object that the Public Service Commission had no jurisdiction to make the order from which the appeal was taken.</p> <p>The Public Service Commission has jurisdiction under Article III, Section 11, of the Act of July 26, 1913, to approve or disapprove a borough ordinance granting municipal consent to an electric light company to use the streets of the borough.</p> <p>An order of the Public Service Commission dismissing a petition of a light, heat and power company for the approval of a borough ordinance granting it the use of streets will be sustained, where the commission found from sufficient evidence that the plant of a protesting company operating in the borough was adequate, its prices reasonable, and service reasonably satisfactory; that it had operated for many years with municipal acquiescence and assent, although no ordinance had ever expressly granted the privilege; and that it would not be beneficial to the public to grant the petition.</p> <p>In such a ease it is immaterial that the petitioning company was operating in the borough before the passage of the Act of July 26, 1913, P. L. 1374, inasmuch as the order does not affect such operation of the petitioning company. It only refuses to sanction an extension thereof under a borough ordinance.</p>

<p>Railroads — Station facilities — Overhead and underground crossings — Public Service Commission.</p> <p>Where a railroad company abolishes grade crossings for passengers between the platforms of two stations, and it appears that both stations are located in cuts where public roads are carried over the tracks by bridges, and that staircases are maintained from all of the platforms up to the bridges, an order of the Public Service Commission will not be sustained by the appellate court, where it appears that the order involves a complete reconstruction, relocation and rebuilding of stairways and approaches which had been in use for many years, and the construction of a tunnel under the tracks of one of the stations, and it also appears that the petitioners against the company only asked for a resumption of the grade crossings, and did not deny an averment by the company that the business at the two stations was done at a distinct loss to the company.</p> <p>In such a case where it also appears that the order of the commission as to the construction of the tunnel was based upon an engineer’s report, that had not been submitted to the railroad company, and was not known to it until after the ease had been argued before the commission, the case will be remanded to the commission with directions to reconsider the matter and make such order as ghall be reasonable and in conformity with law.</p>

<p>Appeal, No. 31, March T., 1918, by plaintiff, from order of Public Service Commission, permitting a grade crossing in case of Kane & Elk Railroad Company v. The Public Service Commission of the Commonwealth of Pennsylvania and Gaffney & James City R. R. Co-.</p> <p>Petition to permit the Gaffney & James City Railroad Co-, leave to construct its tracks so as to- cross at grade three times the tracks of the Kane.& Elk Railroad Company.</p> <p>The material finds of the commission are stated in the opinion of the Superior Court.</p> <p>Error assigned was the order of the Public Service Commission.</p> <p>It is the settled policy of the State of Pennsylvania, as administered by the courts, to permit of no grade crossing of a railroad over another railroad, except in case of manifest and other unavoidable necessity: Balto. & Ohio R. R. v. Butler Pass. Ry. Co., 207 Pa. 406; Pittsburgh & Lake Erie R. R. Co. v. Lawrence County, 198 Pa. 1.</p> <p>The fact that the capital of a railroad is limited is not sufficient reason to justify a grade crossing, nor that the road is a local road through a sparsely settled country with a limited amount of business and but few trains: Perry County R. R. Extension Co. v. Newport & Sherman’s Valley R. R. Co., 150 Pa. 193; Scranton, Etc., Traction Co. v. Del. & H. Canal Co., 180 Pa. 636; Williams Valley R. R. v. Lykens, Etc., R. R. Co., 192 Pa. 552; Mifflinville Bridge, 206 Pa. 420; Sharon Ry. Co.’s App., 122 Pa. 533; Pittsburgh Junction R. R. Co.’s App., 122 Pa. 511; Smethport R. R. Co. v. Pittsburgh, Etc., R. R. Co., 203 Pa. 176.</p> <p>We contend that the Public Service Commission Act does not change the policy of the law as to grade crossings ; it changes the method of getting a grade crossing, but it does not entitle one railroad to cross another at grade, where such railroad Avould not have had a right by law to cross it prior to the creation of the commission, Avhile the act says “exclusive power” shall be vested in the commission, yet we contend this, that in the discretion of this commission they may fix these crossings, but Ave say that that discretion is a legal discretion and is not an unbridled discretion that can be used to confiscate the property of one public service company and turn it over to another. As a matter of fundamental law, the legislature could not give such authority to this Public Service Commission, or any other commission.</p> <p>Gaffney & James City R. R. Co., cited Western Allegheny’s Petition, 233 Pa. 438.</p>

Appeal, No. 67, Oct. T., 1917, by plaintiff, from order of Public Service Commission, revoking certificate of public convenience in case of William C. Diehl v. The Public Service Commission of the Commonwealth of Pennsylvania. Motion to revoke certificate of public convenience. Tbe opinion of tbe Superior Court states tbe case. Error assigned was order of Public Service Commission revoking tbe certificate.

Appeal, No. 137, Oct. T., 1916, by plaintiff, from order of Public Service Commission fixing rates in case of Baltimore & Ohio Railroad Company v. Public Service Commission and Somerset Dairy Co-Operation et al. Petition to the Public Service Commission to fix rates for the transportation of milk and cream.

Appeal, No. 298, Oct. T., 1917, by plaintiff, from order of Q. S. Philadelphia Co., quashing writ of habeas corpus in suit of Commonwealth ex rel. Franklin M. Thomas v. William H. M. Thomas. Motion to quash writ of habeas corpus. The facts are stated in the opinion of the Superior Court. Error assigned was tlie order quashing the writ.

<p>Appeal, No. 54, March T., 1917, by defendant, from judgment of C. P. Lackawanna Co., Oct. T., 1914, No. 1177, on verdict for plaintiffs in case of Mary Knox and Catharine Knox v. Catholic Women’s Benevolent Legion.</p> <p>Assumpsit for death benefits. Before Newcomb, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiffs for $570 each. Defendant appealed.</p> <p>Errors assigned were (1) portions of charge quoted in the opinion of the Superior Court; (2) in refusing binding instructions for defendant.</p> <p>cited: Timlin v. American Patriots, 249 Pa. 465; Hall v. Vanderpool, 156 Pa. 152; Alexander v. Wilkes-Barre, Etc., Coal Co., 254 Pa. 1.</p> <p>cited: Burns v. Hyatt, 1 Clark 323; Keating v. Metropolitan Life Ins. Co., 5 Kulp 357; Sitler v. Gehr, 105 Pa. 577.</p>

<p>Appeal, No. 237, Oct. T., 1917, by plaintiff, from decree of G. P. Del. Go., March T., 1917, No. 570, on bill in equity in case of William Provost v. Nathan Davidowitz et al.</p> <p>Bill in equity for an injunction.</p> <p>The opinion of the Superior Court states the case.</p> <p>The court entered the following decree:</p> <p>And now, July 5,1917, it is ordered, adjudged and decreed that the preliminary injunction heretofore issued in this case shall be continued with this modification, that the defendants be enjoined from obstructing the said passageway in any greater degree than the plaintiff has obstructed the said passageway on his land adjoining the defendants’ property on the west.</p> <p>Error assigned was the decree of the court quoting it.</p>

Appeal, No. 331, Oct. T., 1917, by Edward H. Hance, Jr., Executor and Trustee, from decree of O. C. Philadelphia Co./ Jan. T., 1917, No. 605, dismissing exceptions to adjudication in Estate of Edward H. Hance, deceased. Exceptions to adjudication.

Appeal, No. 69, Oct. T., 1918, by defendant, from order of Municipal Court, Philadelphia Co., Oct. T., 1917, No. 302, refusing to arrest judgment in case of Commonwealth v. James Bishop. Motion in arrest of judgment. Error assigned was order refusing to arrest the judgment.

Argued March 4, 1918. Appeal, No. 29, March T., 1918, by defendant, from order of C. P. Columbia Co., Sept. T., 1917, No. 110, making absolute rule for judgment for want of a sufficient affidavit of defense in case of William H. Monk, Junior, v. The Magee Carpet Company. Assumpsit for breach of contract. Before Evans, P. J. Rule for judgment for want of a sufficient affidavit of defense.

<p>Criminal law — Probation—Suspension of sentence — Act of June 19, 1911, P. L. 1055.</p> <p>Where a court, acting under the provisions of the Act of June 19,1911, P. L. 1055, suspends the imposing of a sentence in a criminal prosecution, and places the defendant on probation for a year, the probation is not a substitute for a sentence, and if the defendant violates the terms of the probation he may be arrested, and a prison sentence imposed upon him after the expiration of the year.</p> <p>In such a case it is not obligatory on the court in inquiring into the conduct of the defendant while on probation to proceed according to the forms of law observed at the trial, nor is the evidence to be received by the court limited to that which may ’come through the channel of a regular examination in court. It is the judgment of the court which is to be informed.</p>

<p>Insurance — Life insurance — Group policy — Beneficial associations — Presumption as to death.</p> <p>Where a beneficial association takes out a group policy, in a life insurance company on October 22, 1914, to reinsure its members, and on February 4, 1916, the wife of one of the members of the association brings suit against the association and recovers death benefits on proof that the last news of her husband was by a letter from him to his son dated August 18, 1906, raising a presumption of death after seven years, and thereafter the association sues the insurance company on the group policy to recover the death benefits it was compelled to pay the widow, the defendant is entitled to a judgment on the ground that the evidence offered in the case and the record of the previous suit showed that the member was dead on October 22,1914, when the group policy was taken out, and that consequently there could be no reinsurance of his-life.</p> <p>In such a case testimony offered by the widow at the trial of the suit against the insurance company to the effect that the last news heard from her husband was in December, 1907, is immaterial, inasmuch as proof of the husband being alive on October 22, 1914, established that he could not be presumptively dead until October • 22, 1921, and the suit was premature.</p>

<p>Appeal, No. 30, March T., 1918, by plaintiff, from order of C. P. Lackawanna county, March T., 1917, No. 139, discharging rule for judgment for want of a sufficient affidavit of defense in case of Matawan Tile Company v. Augustine N. Russo.</p> <p>Assumpsit on a promissory note. Before Newcomb, J.</p> <p>The facts are stated in the opinion of the Superior Court. Paragraphs 7 and 8 of the affidavit of defense referred to in the opinion of the court are as follows:</p> <p>“7. I aver and expect to be able to prove that the note declared upon by the plaintiff is a note of the Scranton Tile Company, a corporation duly organized and doing-business under the laws of the State of Pennsylvania, and that it was endorsed by this defendant, ‘B. F. Golden, Mgr.,’ as agents and representatives in their official capacity for the ‘Russo Bros. & Co.,’ and that the plaintiff through this agent and representative, B. K. Eskeson, accepted and received the said note with the full knowledge and understanding that the said ‘Russo Bros. & Co.,’ was a corporation or intended to be incorporated as a corporation under the laws of the State of Pennsylvania, and did in fact incorporate and do business under and by virtue of the laws of the State of Pennsylvania, and that said note being the note in this suit was the note of the ‘Scranton Tile Co.’ a corporation duly organized and ‘Russo Bros. & Co.,’ a .corporation organized or to be duly organized and which was duly organized.</p> <p>“8. As a result of the said endorsement of this defendant he did not become liable to pay said note as endorser thereof upon plea of the said ‘Scranton Tile Co.,’ to pay the said note nor for any other reason.”</p> <p>The court discharged the rule for judgment for want of a sufficient affidavit of defense.</p> <p>Error assigned was the order of the court.</p> <p>cited: Jamison’s Est., 163 Pa. 143; Natl. Exchange Bank v. Lubrano, 29 R. I. 65; Fourth Natl. Bank v. Mead, 216 Mass. 521; Pennebaker v. Parker, 33 Pa. Superior Ct. 458; Haws v. Tierman, 53 Pa. 192; Pittsburgh Construction Co. v. West Side, Etc., R. R. Co., 227 Pa. 90; Funk v. Young, 254 Pa. 548.</p>

<p>Appeal, No. 327, Oct. T., 1916, by plaintiff, from judgment of C. P. Bradford Co., Dec. T., 1915, No. 339, sustaining demurrer to scire facias sur municipal claim in case of Towanda Borough v. XJ. M. Fell.</p> <p>Scire facias sur municipal claim for curbing.</p> <p>From the record it appeared that plaintiff filed municipal lien against defendant’s property and issued a sci. fa. thereon. The defendant demurred thereto alleging that the claim was not filed until more than six months after the date of the completion of the work; that the claim did not show any authority in law for collecting from the defendant the cost of constructing the curbing claimed for and that it was invalid upon its face.</p> <p>The court sustained the demurrer and entered judgment in favor of the defendant.</p> <p>Error assigned was the judgment of the court.</p> <p>The Constitution contains a provision prohibiting the passage of ex post facto laws, but the courts have held that this has application to criminal or penal statutes and not to retroactive laws affecting civil matters: Grim v. Weissenberg School Dist., 57 Pa. 433; Fahnestock v. Wilson, 95 Pa. 301; Taylor v. Mitchell, 57 Pa. 209; Underwood v. Lilley, 10 S. & R. 97; Okeson v. Patterson, 29 Pa. 22; Ballard v. Ward, 89 Pa. 358; Swartz v. Carlisle Borough, 237 Pa. 473.</p> <p>cited: Waynesburg Boro. v. Ray, 59 Pa. Superior Ct. 640; Norman v. Heist, 5 W. & S. 171; Lewis v. Pennsylvania R. R. Co., 220 Pa. 317.</p>

<p>Appeal, No. 174, April T., 1917, by Alberta H. Lyun, from order of C. P. Fayette Co., Dec. T., 1915, No. 473, discharging rule to open judgment in case of James R. Cray to use of W. H. Wilkey v. J. H. Lynn, alias Jacob H. Lynn.</p> <p>Rule to open judgment.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was order discharging rule to open judgment.</p> <p>cited: Hummell’s Est., 161 Pa. 215.</p> <p>cited: Wells v. Bunnell, 160 Pa. 460.</p>

<p>Negligence — Electric light companies — Overcharged wire — Defect in an extension cord — Inspection of appliances not furnished by company.</p> <p>An electric light company is not bound to inspect and exercise continuous supervision over every appliance which a customer may see fit to use within a building to which the company furnishes light.</p> <p>In an action against an electric light company to recover damages for death of plaintiff’s husband, where it appears that deceased met his death by contact with an extension electric wire while working in the cellar of a building occupied by his employer, and the evidence shows that although the defendant, through a defect in a transformer, permitted its transmission wire to be overcharged, there would be no danger if the wires within the building were properly maintained, and there is also evidence that a defective extension wire which defendant had not installed, had been found grasped in the hand of the deceased, it is reversible error for the court to charge that the jury might entirely disregard the defect in the extension wire.</p> <p>In such a case it is not reversible error for the court to permit evidence to be admitted that by reason of the defective transformer, wires going into other buildings in the vicinity had been charged with an excessive current within a few days prior to the accident.</p>

Appeal, No. 79, Oct. T., 1917, by defendant, from judgment of Municipal Court, Philadelphia Co., Sept. T., 1916, No. 99, on case tried by the court without a jury in suit of Abe Amarnek, trading as Abe Amarnek & Company, y. William E. Rees. Assumpsit on a breach of contract for paper hanging. The case was tried by Knowles, J., without a jury. Judgment was entered for plaintiff for f326.25. Defendant appealed. Errors assigned were in the following form: 1.

Appeal, No. 130, Oct. T., 1917, by plaintiff, from decree of C. P. No. 1, Philadelphia Co., Dec. T., 1916, No. 1078, dismissing bill in equity in case of Cora E. Carson et al., Devisees and heirs-at-law of Diann C. Bates, deceased, and Cora E. Carson et al., Executors under will of Diann C. Bates, deceased, v. William H. Painter and Leona E. Painter, his wife. Bill’in equity for a conveyance of land. The facts appear by the opinion of the Superior Court.

Appeal, No. 109, Oct. T., 1917, by plaintiff, from order of O. P. Huntingdon Co., Sept. T., 1907, No. 34, dismissing exceptions to auditor’s report in case of P. B. Zentmyer y. John Zentmyer. Scire facias to revive a mortgage. By agreement of the parties the disputed questions were submitted to It. W. Williamson, Esq., as auditor. The facts are stated in the opinion of the Superior Court. Error assigned was in dismissing exceptions to auditor’s report.

<p>Appeal, No. 3, Oct. T., 1917, by defendants, from judgment of C. P. Bradford Co., Dec. T., 1915, for plaintiff on case stated in suit of Commonwealth ex rel. The Bradford County Agricultural Society v. George N. Bird and Jesse L. Ellsworth, Surviving County Commissioners of Bradford County.</p> <p>Case stated to determine whether the Act of March 29, 1851, P. L. 289, relating to county contributions to agricultural societies was repealed by the Act of June 13, 1907, P. L. 702, and its amendments.</p> <p>The court entered judgment for plaintiff.</p> <p>Error assigned was in the following form:</p> <p>The court erred in directing a judgment of $100 in favor of the relator, the use-plaintiff, and against the defendant, and the opinion and the decree directing the entry of said judgment, together with the exception thereon, are hereby adopted as part of this assignment as if herein again printed and at large. . (Pages 9-17.)</p> <p>The Act of 1857, was repealed by the Act of 1907: Nusser v. Com., 25 Pa. 126; Johnston’s Est., 33 Pa. 511; Com. v. Fayette County R. R. Co., 55 Pa. 452; Keller v. Com., 71 Pa. 413; Somerset v. Stoystown Road, 74 Pa. 61; Rhoades v. Hoernerstown B. & S. Assn., 82 Pa. 180; Bourguignon Building Assn. v. Com., 98 Pa. 54; Best v. Baumgardner, 122 Pa. 17; Com. ex rel. v. Macferron, 152 Pa. 244; Fort Pitt Building & Loan Assn. v. B. & L. Assn., 159 Pa. 308; Quinn v. Cumberland County, 162 Pa. 55; Com. ex rel. v. Weir, 165 Pa. 284; Gilchrist v. Strong, 167 Pa. 628; Fenner v. Luzerne County, 167 Pa. 632; Com. v. Mann, 168 Pa. 290; Bennett v. Norton, 171 Pa. 221; Frain v. Lancaster County, 171 Pa. 436; Chalfant v. Edwards, 176 Pa. 67; Felts v. Del., L. & W. R. R. Co., 195 Pa. 21; Jenkins v. Scranton, 202 Pa. 267; Penna. R. R. v. Bogert, 209 Pa. 589; Harrisburg v. Harrisburg Gas Co., 219 Pa, 76; Day v. Swanson, 236 Pa. 493; Long v. Phillips, 241 Pa. 246; York Water Co. v. York, 250 Pa. 115; Com. v. Moore, 255 Pa. 402; Com. v. Lloyd, 2 Pa. Superior Ct. 6; Emsworth Borough, 5 Pa. Superior Ct. 29; Hays v. Cumberland County, 5 Pa. Superior Ct. 159.</p>

<p>Appeals, Nos. 97, 98 and 99, Oct. T., 1917, by Commonwealth of Pennsylvania from order of C. P. No. 5, Philadelphia Co., June T., 1914, Nos. 553, 554 and 555, sustaining appeal from Board of Mercantile Appraisers In re Appeal of World’s Museum et al.</p> <p>Appeal from return of mercantile appraisers.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was order sustaining the appeal.</p> <p>The museum was a place of amusement: Com. v. Donnelly, 51 Pa. Superior Ct. 61; Bell v. Mahn, 121 Pa. 225; Oellers to use v. Horn, 3 Pa. Superior Ct. 537.</p> <p>The word “museum,” as used in the Act of 1913, is in connection with circusés, menageries, and wild west shows, and not such places as appellees conduct: Monongahela Nav. Co. v. Commonwealth, 66 Pa. 81; Commonwealth v. Donnelly, 5 Pa. Superior Ct. 61.</p> <p>If these appellees are museums, then they are exempt from taxation because they are public charities: Fire Ins. Patrol v. Boyd, 120 Pa. 624; Episcopal Academy v. Philadelphia, 150 Pa. 565; Centennial Mem. Assn. of Valley Forge, 235 Pa. 206.</p>

<p>Insurance — Live stock insurance — Premiums—Sale of live stock —Death of live stock — Failure to pay loss — Cancellation.</p> <p>In an action to recover premiums on policies of live stock insurance covering a number of horses for five years, where it appears that the policies provided the premiums should be paid quarterly and that the policies should be void if the horses were alienated or sold, an affidavit of defense is sufficient which avers that seven of the horses died during the first period in which the insurance was effective, that due notice of the loss was given, and a demand for payment was made for the insured value of the animals which was in excess of the amount of the premium for which suit was brought; that the company declined to pay; that the policies were then duly surrendered for cancellation; that eleven other horses had been sold while the insurance was in force, and that by reason of these sales the policies were void, and that no premium could be due after an animal had been sold.</p> <p>Under the provisions of such a policy the insurance company cannot recover premiums on account of insurance for either the animals sold or for the animals dead for the remainder of the five years after their sale or death.</p> <p>It was not incumbent on the insured to pay the premium due when the company already owed him more money than the premiums amounted to. When it continued its attitude of nonpayment of the insurance due on the death of the animals, the insured could very well consider the contract ended.</p>

Appeal, No. 14, March T., 1918, by defendant, from judgment of Q. S. Juniata Co., Sept. T., 1916, No. 6, on verdict of guilty in case of Commonwealth v. Reuben A. Gayton. Indictment for assault and battery. Before Seybert. P. J. The opinion of the Superior Court states the case. Verdict of guilty on which judgment of sentence was passed. Errors assigned were (1-6) various portions of the charge and the charge as a whole; (7) refusal of motion for a new trial.

<p>Negligence — Animals—Death resulting from run away horses — > Evidence.</p> <p>In an action to recover damages for the death of plaintiff’s husband resulting from the running away of two horses which he was driving, plaintiff is not entitled to recover where the evidence shows that the deceased was in the employ of the defendants, the owners of the horses; that he was an experienced horseman, having been employed for years in using and caring for horses; that the horses were placed in charge of the deceased a few days before the accident ; that there was nothing from their behavior to show that they were vicious; that spectators who saw the deceased driving them before the accident described the horses as acting like well behaved, broken horses; that after the accident they were described as being cool, and not excited or unmanageable when stopped a short distance away; that what started them to run did not appear from the evidence; and that the only evidence tending to charge the defendants with responsibility was an alleged statement by one of them, that he knew the horses were wild and unbroken, and forgot to notify the deceased.</p> <p>In such a case it is essential that the plaintiff should show with some degree of certainty that the condition complained of, was the probable producing cause of the accident. It need not be established by positive proof, but the evidence should be such as to exclude to a reasonable certainty every theory but that the accident occurred because the horses were wild, unbroken, and unroadworthy. The mere proof of the runaway does not of itself imply negligence.</p>

<p>Appeal, No. 131, April T., 1917, by defendant, from judgment of County Court, Allegheny Co., at No. 285, of 1916, on verdict of guilty in case of City of Pittsburgh v. William Pierce, otherwise William Pierce Peters.</p> <p>Appeal from summary conviction before a police magistrate for violation of a city ordinance.</p> <p>The record shows that the defendant was summarily convicted before the magistrate of being a suspicious person.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was order overruling exceptions as follows :</p> <p>“Now, August 15,1916, the foregoing exceptions being presented in open court, on consideration thereof, the court being of the opinion that the defendant should be convicted of the charge of being a ‘suspicious person who can give no reasonable account of himself because he failed to give a reasonable account of himself to the officer who arrested him under suspicious circumstances, although at the hearing before the court he gave a reasonable account of himself at the time of his arrest, and satisfied tfie court fie was not a suspicious person, tfie exceptions are overruled, and bills of exception are sealed for tfie defendant.”</p>

<p>Evidence — Presumption—Death—Illegitimates.</p> <p>When any given status be once established, its continued existence is presumed until there be some proof or contrary presumption that -would warrant the conclusion it has ceased or been changed.</p> <p>Where a man has unexpectedly and without apparent reason left his home, his family, and has not been heard of for a period of seven years, his death will be presumed. But it is equally clear that the presumption of life will continue in full force until the whole period of seven years has elapsed.</p> <p>Where an illegitimate son is shown to be alive in 1875, and his mother dies intestate as to real estate in 1880, and there is no evidence whatever to show when the son died, it will be presumed that he was alive in 1880, and he will take, as of that date, her real estate under the intestate laws.</p> <p>Adverse possession — Evidence—Real estate — Illegitimates.</p> <p>Where the widow of an illegitimate son lives with her mother-in-law, in a house owned by the latter, and after the mother-in-law’s death, shares it for several years with a child who was one of the heirs at law of the mother-in-law, the widow, in the absence of evidence of ouster of the mother-in-law, cannot claim title to the house by adverse possession.</p>

<p>Corporations — Telegraph and telephone companies — Certificate of public convenience — Public Service Commission — Constitutional law.</p> <p>Where a telegraph and telephone company petitions for the grant of a certificate of public convenience for a particular district, and the result of the hearing before the Public Service Commission is that in large part the certificate issued, but as to two on three restricted localities it was refused, the action of the commission will be sustained where it appears that the order depended on many matters affecting the judgment of the Public Service Commission acting for the entire body of the public, and that the opinion filed by the commission disclosed an appropriate reason for the action of the commission.</p> <p>In such a case the petitioner is not denied any constitutional right under Section 12, Article XVI, of the Constitution which provides that “any association or corporation organized for the purpose or any individual shall have the right to construct and maintain lines of telegraph within this State, and to connect the same with other lines; and the general assembly shall by a general law of uniform operation provide reasonable regulations to give full effect to this section.”</p>

<p>Evidence — Stubs of checks — Contract.</p> <p>In an action for goods sold, where the defendant claims that the goods were sold to a corporation and not.to himself, he cannot establish such claim as a fact by merely offering in evidence stubs of the check book of the corporation showing payments to the plaintiff.</p> <p>Even if the cheeks had been received by the plaintiff, such payment did not estop the plaintiff from showing that the contract was in fact made with the defendant, and not with the corporation.</p> <p>Appeals — Assignments of error.</p> <p>On appeal from a judgment on a case tried by the court without a jury, an assignment of error is not self-supporting which simply states: “the learned court below erred in entering final judgment against defendant on the verdict in favor of the plaintiff.”</p>

Appeal, No. 309, Oct. T., 1917, by defendant, from judgment of Q. S. Bucks Go., June T., 1917, No. 22, on verdict of guilty in case of Commonwealth v. Guiseppe Camaroto. Indictment for aggravated assault and battery with intent to kill by shooting. Before Ryan, P. J. Verdict of guilty upon which judgment of sentence was passed. Error assigned was in passing sentence upon the defendant and in not withdrawing the case from the jury. cited: Com. v. Byers, 45 Pa. Superior Ct. 37.

Appeal, No. 87, April T,, 1918, by plaintiff, from judgment of Q. S. Greene Co., Sept. T., 1917, No. 8, on verdict of not guilty in case of Commonwealth. v. Oscar Day et al. Indictment for refusing and neglecting to maintain a public road. Before Ray, P. J. The opinion of the Superior Court states the case.

Appeal, No. 54, Oct. T., 1917, by defendant, from judgment of O. P. Chester Co., Jan. T., 1913, No. 11, on verdict for plaintiff in case of Lewis B. TJllman v. J. P. Stoltzfus Company. Trespass to recover damages for personal injuries and for injuries to an automobile. Before Butler, P. J. Yerdict and judgment for plaintiff for $577.31. Be-, fendant appealed. 'Error assigned, among others, was in dismissing defendants rule for judgment n. o. v.

<p>Negligence — Automobiles—Collision between truck and automobile — Case for jury.</p> <p>In an action to recover damages for injuries to an automobile resulting from a collision -with the defendant’s truck, a verdict and judgment for plaintiff will be sustained where the evidence tends to show that the proximate cause of the accident was the varying and suddenly changing courses of the truck caused by the wavering or vacillating state of mind of the operator of the truck.</p> <p>In such a case the plaintiff cannot be convicted of contributory negligence per se because he testified that at the time of the accident he was running his automobile at the speed of between twenty to twenty-five miles an hour. It is for the jury and not the court to say that he was running in excess of twenty-four miles per hour, the limit fixed by Section 14 of the Act of July 7, 1913, P. L. 672.</p>

<p>Appeal, No. 5, Oct. T., 1917, by defendant, from judgment of C. P. Northampton Co., June T., 1916, No. 47, on verdict for plaintiff in case of C. K. Williams v. S. E. Miller.</p> <p>Appeal from judgment of alderman. Before Stewart, P. J.</p> <p>■At the trial it appeared that C. K. Williams bought at a constable’s sale certain goods of Dr. Tryxell. The goods were levied upon under a distress warrant for rent. Immediately after the sale Williams executed to Tryxell a bailment lease of the goods and permitted them to remain in th^ possession of Tryxell on the leased premises. About thirteen months after the sale to Williams and his lease toDr. Tryxell, these goods and the remainder of Dr. Tryxell’s household goods were levied on by the sheriff under an execution on a judgment of $33 and costs, a total of $52.90. Miller who kept a furniture storage house, loaned Tryxell this amount, $52.90, which was paid to the sheriff, who thereupon released his levy and Miller then took possession of all the goods which the sheriff had levied on, and removed them to his storage house. A few days later Williams demanded the articles from Miller. Miller refused to deliver up the goods, unless repaid the entire amount of his loan to Tryxell and the charges which he held against all the furniture received from Tryxell.</p> <p>Miller afterwards sold and disposed of all of Tryxell’s furniture, including the articles claimed by Williams in this suit; some he sold at private sale; some at public auction; at his public auction, he, himself, purchased some of the goods. In these sales he realized $75.90 from the articles claimed by Williams in this suit. On the trial, both plaintiff and defendant conceded this amount as the value of the goods claimed.</p> <p>Verdict and judgment for plaintiff for $75.90. Defendant appealed.</p> <p>Error assigned was in giving binding instructions for plaintiff.</p> <p>There was no legal charge of possession of the goods: Janney v. Howard, 150 Pa. 339; Goddard, Hill & Co. v. Weil, 165 Pa. 419; Clow v. Woods, 5 S. & R. 275; Barr v. Reitz, 53 Pa. 256; McKibbin v. Martin, 64 Pa. 352; Garman v. Cooper, 72 Pa. 32; Miller v. Browarsky, 130 Pa. 372; Stephens v. Gifford, 137 Pa. 219; Weller v. Meeder, 2 Pa. Superior Ct. 488; Hill v. Leibig Mfg. Co., 3 Pa. Superior Ct. 398.</p> <p>It is not fraudulent to leave property purchased at a sheriff’s sale in the possession of the former owner for his use: Walter v. Gernant, 13 Pa. 515; Maynes v. Atwater, 88 Pa. 496.</p>

<p>Municipalities — Police powers — Street railways r— Direction- of traffic — Public Service Commission Act — Interstate commerce.</p> <p>An ordinance of a city providing that “all vehicles including street passenger cars shall, upon entering the public square known as Centre Square turn to the right thereof, and pass around said square as herein directed,” is not an unreasonable exercise of the p*oliee power of the city where it appears that the square in question was practically the heart of the city’s commercial life, and that on one of the approaches to it there passed between the hours of six o’clock a. m. and six o’clock p. m. 6,372 vehicles of all descriptions, including four hundred street cars which received and discharged daily from 25,000 to 40,000 passengers.</p> <p>The right of a city to enact such an ordinance was not taken away by the act creating the Public Service Commission.</p> <p>Such an ordinance is not an arbitrary, unreasonable or oppressive exercise of the power, because it involves some readjustment of the company’s schedule and some relocation of the tracks on a few streets.</p> <p>Such an ordinance does not impose a burden on interstate commerce even if some of the street cars which entered the square were engaged in such commerce.</p> <p>Street railways — Municipal consent — Municipal regulations — Police power.</p> <p>A company accepting a franchise that involves the use of a public street of a city or other municipality must accept it subject to the continuous right of such municipality to perform its strictly legal functions and obligations even though such performance may entail some expense upon the holder of the franchise in readjusting pole lines, water and gas pipes, street car tracks and the like, to the new situation brought about by the lawful act of the city.</p> <p>Public Service Commission — Jurisdiction — Municipalities — Street railways.</p> <p>Under the Public Service Commission Act the Commission may decline to approve of a contract proposed to be entered into between a municipality and a public service company. This is so, not because the commission has any jurisdiction over the municipality, but because the public service company cannot enter into a contract without the approval of the commission. The contract fails because only one of the two parties, to wit, the city, is competent to contract. There is nothing in the act which takes away from the city the right to enact a proper ordinance regulating the direction of the movement of street cars.</p>

<p>Appeal, No. 111, Oct. T., 1917, by defendant, from order of C. P. Schuylkill Co., Sept. T., 1916, No. 191, dismissing an appeal from the Workmen’s Compensation Act in case of Anthony P. Neary v. Philadelphia & Reading Coal & Iron Company.</p> <p>Appeal from Workmen’s Compensation Board.</p> <p>Johnson, P. J., specially presiding, filed the following opinion:</p> <p>This is an appeal by the defendant from an award of damages made to the plaintiff by the Workmen’s Compensation Board. The facts of the case, as stated in the opinion of Mr. Mackey, chairman, are as follows:</p> <p>“The claimant, while discharging his duties as an employee of the defendant on March 9, 1916, sustained certain injuries which incapacitated him from the date of the said accident up until the time of the hearing before the referee, to wit, May 26, 1916, and will render him unfit for labor for some time thereafter. The claimant after having accepted proper and reasonable medical services from the defendant saw fit to abandon a competent, physician thus furnished and selected another. There is no allegation because of this change in physicians and the subsequent treatment furnished by the latter that there was thereby any incapacity suffered, nor were any separate nor distinct injuries sustained because of the said treatment; on the contrary, the referee has found and he is sustained by the evidence, that the treatment of Dr. Monaghan was perfectly proper and would have been accorded to the claimant by the defendant’s physician had he been left in charge of the case. The defendant in the argument before the board disavowed any suggestion that the treatment was not proper or that there was any increase in the injuries of the claimant because of the change of physicians. The defendant, however, has raised a question involving the interpretation of the last sentence of Section 306, paragraph “e,” which reads: “If the employee shall refuse reasonable, surgical, medical and hospital services, medicines and supplies tendered to him by his employer, he shall forfeit all right to compensation for any injury or any increase in his incapacity shown to have resulted from such refusal.”</p> <p>The defendant contends that by Section 306, paragraph “e,” of the Act of June 2,1915, P. L. 736, the claimant is deprived absolutely of all compensation if he abandons a competent physician furnished by the employer. The question to be determined here is whether for such refusal of services the claimant forfeits all his right to all compensation, or whether he simply forfeits his right to compensation for any injury shown to have resulted from such refusal, or to any increase in his incapacity shown to have resulted from such refusal. We are of the opinion that the clause “shown to have resulted from such Refusal” modifies the word “injury” as well as the word “increase,” and that the legislature did not mean to deprive the claimant of all compensation for his refusal to accept medical services from his employer, but only to compensation for injury or increase of incapacity caused by the refusal to accept medical assistance. We need not go beyond- the plain language of Section 306, paragraph “e” to arrive at this conclusion. Both the facts and the law are clearly set forth in the able opinion of Chairman Mackey. For the reasons above set forth the appeal must be dismissed and the award sustained.</p> <p>Error assigned was the judgment of the court.</p>

<p>Public officers — County treasurer — Compensation — Acts of March 16,1867, P. L. 486, and, June 17,1918, P. L. 507.</p> <p>The let of June 17, 1913, P. L. 507, which declares that certain personal property should thereafter be taxable for county purposes instead of for State purpose, does not increase the compensation of the county treasurer of IAhigh County fixed by the special Act of March 16, 1867, P. L. 485, which provides that: “The treasurer of the County of Lehigh shall be entitled to have and receive (in lieu of the compensation now allowed by law) a stated and fixed salary of $1,000 per annum in addition to the compensation now received by him for the collection of money due and for the use of the Commonwealth.”</p>

<p>Appeal, No. 70, Oct. T., 1917, by plaintiff, from decree of C. P. No. 5, Philadelphia Co., Dec. T., 1913, No. 2433, dismissing bill in equity in case of Charles H. Pile v. Richard Torpin et ah, Constituting the Board of Managers of the Logan Coal & Timber As-, sociation.</p> <p>Bill in equity to enforce the distribution of the funds of the Logan Coal & Trust Association.</p> <p>Error assigned was decree dismissing the bill.</p>

<p>Appeal, No. 28, March T., 1918, by Delaware, Lackawanna & Western Railroad Co., from order of Public Service Commission, Complaint Docket No. 247, 1914, sustaining complaint in case of Gorner Jones et al. v. Delaware, Lackawanna & Western Railroad Company.</p> <p>Complaint against establishing a ten-cent rate of fare between Taylor and Scranton.</p> <p>From the record it appeared that the appellant on October 8, 1913, raised its rate of fare between Taylor and Scranton from five cents to ten cents. The distance between the two stations was 3.07 miles. On July 4, 1914, Gomer Jones et al., filed a complaint before the Public Service Commission alleging that the new rate was unjust and discriminatory. After hearing, the Public Service Commission made the following order:</p> <p>This case being at issue, upon complaint and answer on file, and having been duly heard and submitted by the parties, and full investigation of the matters and things involved having been had, and the commission having, on the date hereof, made and filed of record a report containing its findings of fact and conclusions thereon, which said report is hereby referred to and made a part hereof:</p> <p>Now, to wit, February 4,1915, it is ordered: That the Delaware, Lackawanna and Western Railroad Company establish, according to law, a passenger fare of five cents each way between Taylor and Scranton, and provide adequate facilities for the accommodation of passengers desiring to travel from Taylor to Scranton.</p> <p>Error assigned was the order of the commission.</p>

<p>Appeal, No. 325, Oct. T., 1917, by defendant, from Judgment of C. P. Chester Co'., Jan. T., 1917, NO'. 100, on verdict for plaintiff in case of S. Austin Bicking Paper Manufacturing Company v. Harry Worrall.</p> <p>Trespass to recover damages for interference with the use of an easement of a mill race.</p> <p>The opinion of the Superior Court states the facts.</p> <p>Butler, P. J., charged in part as follows:</p> <p>A great many years ago a certain individual owned a tract of land that included the plaintiff’s mill property and the holding now possessed by the defendant, and from him through various conveyances both to the plaintiff and the defendant have come certain rights with certain limitations, according to the various deeds of transmission. There has come to the plaintiff in connection with this mill property the right to enjoy certain privileges with respect to the tailrace of this mill as it passes over the property now possessed by the defendant, and so far as the deeds are concerned, going no further than the deeds, the defendant has, holds, and enjoys his present property subject to the right granted by the various deeds terminating in the final deed to the plaintiff to certain privileges with respect to the raceway. [Now, we believe under the undisputed evidence in this case, in so far as the case rests on the documentary evidence, on the grants of privilege to the plaintff and of restriction, reservation against the defendant, — as the case stands simply on the record evidence, we think insomuch as it is admitted that the defendant is maintaining upon his property a permanent structure or two-story building that largely occupies the overhead site of the race, so far the record evidence goes there is an obstruction of and interference with the plaintiff’s right. We think it is very clear under the grant and under the original restrictions which have passed respectively in effect to the plaintiff and to the defendant, that when that grant was created, and it has been handed down in so far as the records are concerned just as it originated, so far as we understand the parties did not contemplate at all that the servient tracts, the owners of the servient tracts through which this race extended would construct over and above the water of the raceway and bearing on either bank of the raceway permanent buildings;] and [insomuch, as I have said, it is admitted here that the defendant is maintaining a permanent building which occupies the whole width of this raceway upon his, the defendant’s property, and all of the length of it excepting between three and four feet, I say it follows under the law as the law will interpret these deeds containing the grant and the restrictions, it must follow that the defendant is restricting and trespassing upon the plaintiff’s privilege and the plaintiff’s right; and as I view the matter your verdict must he for the plaintiff in this case, unless the evidence satisfies you fairly and reasonably that for twenty-one years prior to the bringing of this present suit, continuously, notoriously, adversely the defendant and his predecessors have maintained an obstruction or construction in all substantial particulars and degrees like that which is now complained of.] The burden is upon the defendant to satisfy you that this is the case. If he has so satisfied you, then he has satisfied you of what requires you, to find that notwithstanding the original rights of the respective parties to these properties, that to-day, at the time of the bringing of this suit, the defendant had acquired the right to thus encumber this raceway. Because, if a man continuously, for twenty-one years, under an apparent claim of right, invades, uses adversely, his neighbor’s property or his neighbor’s right, the law presumes that there has been a grant; the law concludes at the end of that twenty-one years that the defendant actually has the right to do that thing.</p> <p>Now, there is not any dispute in this case, as I understand it, that there has been some impinging for more than twenty-one years before this suit was brought upon the full, free rights given to the plaintiff, but the contention is earnestly made that that impinging, that that burden, that that interference has been very distinctly less than the interference that is now complained of, less than the interference, than the obstruction that was present when this suit was brought. [As I understand the evidence, there is no substantial dispute, but that for more than twenty-one years prior to the bringing of this suit, this raceway was covered by a construction over the entire extent of its passage through what is now the defendant’s property. It was covered according to Dr. Dowlin — I do not know how far back — but decidedly more than twenty-one years prior to the bringing of this suit, by a platform, what has been called a platform, and you will remember his description of that platform. According to him, however, instead of the superstructure placed on that platform, or placed over the raceway, instead of its being a very permanent building extending the full width of the raceway and most of its length,— according to Dr. Dowlin it was a one-story summer kitchen that extended only a part of the distance across the raceway and a substantially less distance along the raceway than does the present two-story structure.]</p> <p>You will remember his testimony in connection with all the testimony, and give to it just such weight as it ought to have. He tells you that the rear end of the brick building to which this summer kitchen, or this original kitchen was attached, to the north, that the rear end of that brick structure, the main part of the building — that the rear end of it was between three and four feet south of the south line of this raceway; and he tells you that this wooden addition, this one-story addition that he made extending further north, was fastened tO' the rear end of the brick structure; and he tells you that he thinks according to his best recollection that that wooden structure did not extend more than ten feet, that it did extend ten feet northward.</p> <p>[Now, if he is right, it apparently would not span more than seven and one-half feet of the raceway. If he is right there would be a very considerable portion of the width of the raceway north of the north line of that kitchen. He tells you that the kitchen in its east and west line, in its width in other words, commenced on the west with the western line of the property here involved, and that he thinks it was not more than eight feet wide. Now, if he is right, then there must have been ten feet of this raceway lying between the eastern side of this structure and the eastern line of this property, covered only by the platform. There may be some other evidence presented in behalf of the plaintiff with a view to satisfying you of the character of structure that was in place prior to the structure now complained of. If there is, to the full extent you will give it proper consideration.]</p> <p>On the other hand, in behalf of the defense the effort has been made to satisfy you that the structure originally there, there before the structure that is now complained of, was to all intents and purposes the present structure saving only that the original structure was one story high while the present structure is two stories high. A number of witnesses have been called who have given it as their recollection, one of them Ballantyne, who tells you his reason for thinking that he recalls the fact, and I believe another man who worked on the building, and certain other witnesses. And, generally speaking, they tell you that the original old kitchen building, while it was only one story high, did extend across the raceway and did extend eastward as near the adjoining alley as does the present structure; and that the balance of the distance eastward was spanned and covered just as, substantially, at present with a platform of something less than four feet, I think between three and four feet, having a trap in it.</p> <p>Thus the defense endeavors to satisfy you that for more than twenty-one years prior to the bringing of this suit with the property of the defendant in the hands of his predecessor in title and in his hands, a construction has been maintained like the construction now complained of to all intents and purposes, and the contention therefore is that under the law the right to maintain the structure now complained of has ripened into a title to do so.</p> <p>Verdict and judgment for plaintiff for $5. Defendant appealed.</p> <p>Errors assigned, among others, were (1-4) above instructions quoting them.</p> <p>The owner of the fee in way over which is a right of way may erect a building over said way, if in so doing he does not interfere with the right of way: Stevenson v. Stewart, 7 Philadelphia 293; Patterson v. Philadelphia & Reading R. R. Co., 8 C. C. 186; Mercantile Library Co. v. Fidelity Trust Co., 235 Pa. 5; Duross v. Singer, 224 Pa. 573.</p> <p>It seems to us. that the vice of the entire charge of the court was in differentiating'between the platform and the superstructure thereon, both of which covered the entire extent of the raceway through what is now the defendant’s property.</p> <p>The grant of a way “not to be encumbered in any way or by any person whatever,” precludes the owner of the servient tenement from even maintaining bars across the way: Mineral Springs v. McCarthy, 34 Atl. Rep. 1043; Ellis v. Academy of Music, 120 Pa. 608; Flaherty v. Fleming, 52 S. E. 857.</p> <p>That the defendant had been permitted to cover the race by a platform in whole, or in a large part even, removable by the mill owner when he should desire access to the race, or to remove obstructions therefrom, would certainly not warrant a permanent and immovable covering maintained for a period of less than twenty-one years: McCaullum v. Germantown Water Co., 54 Pa. 40; Jones v. Crow, 32 Pa. 398; Irving v. Media Boro., 10 Pa. Superior Ct. 132; Darlington v. Painter, 7 Pa. 473.</p>

<p>Appeal, No. 326, Oct. T., 1917, by defendant, from decree of C. P. No1. 5, Philadelphia Co., June T., 1916, No. 2409, awarding divorce in case of Charles W. Harrison v. Clara G. Harrison.</p> <p>Libel for divorce.</p> <p>The case turned upon the question of the libellant’s legal residence in Pennsylvania. The evidence is summarized in the opinion of the Superior Court.</p> <p>Error assigned was decree awarding divorce.</p> <p>cited: Hunnings v. Hunnings, 55 Pa. Superior Ct. 261; Hamilton v. Hamilton, 62 Pa. Superior Ct. 373; Lyon v. Lyon, 30 Pa. C. C. R. 342.</p>

<p>Appeal, No. 55, Oct. T., 1917, by defendant, from judgment of Municipal Court, Philadelphia Co., July T., 1916, No. 380, on verdict for plaintiff in case of Philadelphia Motor Speedway Association v. Charles S. Sale.</p> <p>Assumpsit on a stock subscription. Before Crane, J.</p> <p>From the record it appeared that the contract was in writing, and was as follows:</p> <p>“It is hereby understood and agreed that I will pay to Warren M. Cornell, Treasurer of the Philadelphia Motor Speedway Association of Philadelphia, as called for by him, the sum affixed to my signature, upon the following conditions, viz: that my name shall appear as one of the 500 (five hundred), other bona fide subscribers to a limited life membership; said membership if accepted by the organization to guarantee him a share of all the profits, free admission for life, parking privileges for car, right to use the track when not in service, club house privileges, and a return of the full amount at death to my heirs or assigns.</p> <p>“Membership to be non-transferable except by the consent of the association. I also agree if elected to conform to all the rules and regulations.</p> <p>“Signed, “Witnessed</p> <p>“Charles S. Sale. “$250., J. S. Mather,</p> <p>“10/27/13.”</p> <p>The evidence is summarized in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $250. Defendant appealed.</p> <p>Errors assigned were various instructions.</p> <p>The corporation, The Philadelphia Motor Speedway Association, was not the proper party plaintiff.'</p> <p>A corporation of the first class cannot enter into a valid agreement to share its profits of earnings with its members or subscribers.</p> <p>There is no valid consideration supporting defendant’s agreement.</p> <p>The 500 agreements upon which plaintiff founded his claim in this case are not mutual: Goodhart v. Pennsylvania R. R. Co., 177 Pa. 1; Prospect Hill Cemetery Co., 1 Del. Co. 430; First Church of Christ Scientist of Philadelphia, 27 Pa. C. C. R. 661.</p> <p>The corporation was the proper party plaintiff: Edinboro Academy v. Robinson, 37 Pa. 210; Shober v. Lancaster County Park Assn., 68 Pa. 429; Jeannette Bottle Works v. Schall, 13 Pa. Superior Ct. 96.</p> <p>The fact that the corporation was of the first class was immaterial: Players Nat. League Base Ball Club of Philadelphia, 25 W. N. C. 187; Arts and Crafts Guild of Philadelphia, 20 Dist. Rep. 584.</p> <p>The defendant claims that there was no consideration for his subscription. Of course, this being a mutual subscription paper, the subscriptions of the others were a consideration for the defendant’s promise: Edinboro Academy, 37 Pa. 210.</p>

<p>Brokers — Real estate brokers — Commissions — Sale to government or government agency — Illegality of contract.</p> <p>A real estate broker who sells real estate to the government or to a government agency, such as the Fairmount Park Commission of the City of Philadelphia is entitled to his commissions, if the sale has been effected in perfect good faith by the owner, the broker, and the government agent or agency.</p> <p>Where the Fairmount Park Commission of Philadelphia enters into an agreement with a real estate broker to purchase the land of the broker’s principal, the fact that the commission had the board of viewers approve the negotiation in describing the acreage and the amount of damages, and had this report confirmed by the court, does not affect the owner’s liability to pay commissions to his broker; and especially is this the case where the owner, the guardian of an insane person, secured the approval of the court to the price to be received, subject to a designated broker's commission, and actually received the purchase-money.</p>

<p>Criminal law — False pretenses — Securing signature to mortgages.</p> <p>A conviction for obtaining the signature of the prosecutor to two mortgages by false pretense will be sustained, where the evidence justified the jury in finding that the purpose of the defendant was to obtain money on the mortgages, that the representations which induced the prosecutor to execute them were untrue, and that the transactions between the prosecutor and the defendant showed that the purpose of the defendant was to obtain the prosecutor’s money by illegitimate means.</p>

<p>Appeal, No. 82, April T., 1918, by plaintiff, from decree of C. P. Westmoreland Co., No. 886, in Equity, dismissing bill in equity in case of Joseph A. Zumbro-, Administrator C. T. A. D. B. N. of the Estate of Joseph Zumbro-, deceased, v. Margaret M. Zumbro-, Executrix of Sophia Zumbro, deceased, Margaret M. Zumbro and John S. Zumbro.</p> <p>Bill in equity for discovery, accounting and payment of moneys alleged to have been fraudulently paid and received. Before Copeland, J.</p> <p>The facts- are stated in the opinion of the Superior Court.</p> <p>Error assigned, amongst others, was decree dismissing the bill.</p> <p>Such payments cannot be sustained as gifts because the donations were not completed by the testator in his lifetime: Clapper v. Frederick, 199 Pa. 609.</p> <p>In order to establish either a moral or a legal obligation to pay for services rendered to a parent during his last illness by a child living under his roof there must be proof of, (a) A contract so to pay; (b) The term of service, the kind of service and the value thereof, unless the price be fixed by the terms of the contract: Longstreth v. Philadelphia, 245 Pa. 233; Zimmerman v. Zimmerman, 129 Pa. 229.</p> <p>The payments were proper: Tyson’s Est., 191 Pa. 218; Allen v. Hirlinger, 219 Pa. 56; Richey’s Est., 251 Pa. 324.</p> <p>There was a moral obligation to- support the payments: Bailey v. Philadelphia, 167 Pa. 569; Kennedy v. Ware, 1 Pa. 445; Sutch’s Est., 201 Pa. 305; Rathfon v. Locher, 215 Pa. 571; Longstreth v. Philadelphia, 245 Pa. 233; Holden v. Banes, 140 Pa. 63; Stebbins v. Crawford County, 92 Pa. 289; Hemphill v. McClimans, 24 Pa. 367.</p> <p>One who voluntarily pays money, with knowledge, or means of knowledge of the facts, and without fraud on him, cannot recover it because he paid in ignorance of the law: Real Estate Savings Institution v. Linder, 74 Pa. 3711; Robin’s Est., 180 Pa. 630.</p>

<p>Appeal, No. 1, Oct. T., 1917, by defendant, from judgment of C. P. Delaware Co., Sept. T., 1915, No. 63, on verdict for plaintiff in case of Prank Samuel et al., trading as Prank Samuel, v. Delaware River Steel Company.</p> <p>Assumpsit for goods sold and delivered. Before Broomall, J.</p> <p>At the trial it appeared that the defendant purchased by description, roll scale, a by-product of a rolling mill, but that the plaintiff delivered mill cinder, which is a commodity different in substance and value from roll scale, and that this was received and used without complaint or offer to return. The court charged in part as follows:</p> <p>[If you should determine that it was not roll scale, that it was mill cinder, still the defendant is not entitled to your verdict yet. When the defendant discovered that this commodity was not roll scale, whereas they had bought roll scale and- that commodity was not delivered to them, and if they discovered it before they used it, then it was their duty to offer to return it; because they had no right to take and pay for it according to some other standard, according to what it was worth or some other standard or measure of price. In other words, where a person sells a thing to a buyer, seeing that this is a commodity of a certain quality, and he sends it, the. seller sends it as a commodity which he represents to be of a certain quality to the buyer, and he receives it, and he sees that it isn’t the quality which he bought, he has a right to say “I won’t take it.” That is all. If he takes it he must pay for it according to the bargain. But if he sees that it isn’t according to the quality he has a right to rescind the contract of sale, repudiate, in other words, the contract of sale and say “I won’t take it.” If he don’t take it then still the commodity belongs to the plaintiff so that he may have the reasonable right of selling it wherever he chooses. He may turn around and sell it at the same price that he sold it before, or more, or the price may have gone up or gone down. In other words, where the buyer finds that the thing is not according to the representations which the seller makes, then he has a right to say “I won’t take it,” repudiate the purchase and the commodity belongs then to the seller to do what he chooses with it.] (4) [So that I say, if you find that this was mill cinders, the defendant is not entitled to your verdict unless you are satisfied that it was not practicable, that in the purchase of this commodity it was not practicable, not practicable, as well as practical, not practicable for the defendant to return it. If the defendant used it he must pay for it, unless, not being according to representations he offered to return it, if it was practicable. ] (5) Of course, there are some sales where that is impracticable, where the buyer can only know whether the commodity is up to purchase — up to representations by using it, he only discovered it in the use. In such case he isn’t committed by using it, and then he must pay for it according to what it is reasonably worth. Some commodities are sold upon the representation that they produce a "certain or certain results in the use. In such a sale, of course, the buyer can only know whether the thing is up to representation by using it and seeing whether it produces the effects which it is represented to do. [So that if you determine this second question of fact, if you determine that it was practicable for the defendant, when he discovered this was mill cinders and not roll scale, if that be a fact, when he discovered that, if it was practicable to return it then he must pay the $68.47.] (6) If in your judgment it was not practicable to return it, then he must pay what it was reasonably worth.</p> <p>Verdict and judgment for plaintiffs for $64.78. Defendant appealed.</p> <p>Errors assigned, among others were (5, 6) portions of opinion as above quoting them.</p> <p>What the defendant in this case undertook to do was to stand upon the contract, assert the vem dor’s fault, and claim its damage for its breach as a set-off against the contract price. The court, by its charge, denied it this alternative, although it would seem, viewing the case in its simplicity as a contract action, that the second is the more clearly justified, just as it is the more simple course for the parties to pursue. Indeed, the Sales Act of 1915, declarative of existing laws, contains the proposition by expression:</p> <p>“Section 69, where there is a breach of warranty by the seller, the buyer may, at his election:</p> <p>“(a) Accept or keep the goods and set up against the seller the breach of warranty by way of recoupment in diminution or extinction of the price.” Act of 19 May, 1915, P. L. 543.</p> <p>The cases are with the appellant in the proposition: Whitehall Mfg. Co. v. Wise, 119 Pa. 484; Borrekins v. Bevan, 3 Rawle 23; Seigworth v. Leffel, 76 Pa. 476; Standard Automobile Co. v. Thurston, 54 Pa. Superior Ct. 160; Erringer v. Miller, 3 Philadelphia 344; Jones & Laughlin Steel Co. v. Wood, 249 Pa. 423.</p> <p>Acceptance after inspection concluded the defendant: Edward v. Hathway, 1 Philadelphia 547; Indiana Mfg. Co. v. Hayes, 155 Pa. 160; Burke Elec. Co. v. Penna. L. & P. Co., 61 Pa. Superior Ct. 374; Tete Bros. v. Eshler, 11 Pa. Superior Ct. 224; Shisler v. Baxter, 109 Pa. 443.</p>

<p>Public Service Commissions — Appeals—Parties—Electric light companies.</p> <p>Where an electric light company complains to the Public Service Commission against the attempt of another company to construct facilities in a township, and the commission receives the complaint, directs hearings, takes evidence and dismisses the complaint, the complaining company has a standing to appeal from the order of the commission to the Superior Court.</p> <p>Corporations — Merger—Electric light companies — Powers—Certificate of public convenience — Public Service Commission.</p> <p>Where an electric light company is created on January 6, 1913, under the Merger Act of May 3, 1909, P. L. 408, by the merger of several electric light companies, and one of these companies was chartered on April 4,1911, for the purpose of serving electric light to a particular township, and neither this company nor the merger company had done any physical work in the township prior to January 1, 1914, when the Public Service Act became effective but the new company had constructed works in other townships after the merger, the company created by the merger may in 1916, construct its facilities in the township in question without securing a certificate of public convenience as provided by Sec. 2, or Art. Ill, of the Public Service Act.</p> <p>Where several corporations are merged under the Act of May 3, 1909, P. L. 408, into a new company, and questions arise concerning an act done in the field of the new company, which act is associated with powers and faculties peculiar to a part of this field because- of the scope of powers as they existed in one of the units before the merger, the legality of such act is determined from a consideration of such specific powers as they are vested in the new company as the act of the new company, however, not of the old company. If one of the constituent companies before merger possessed powers and faculties greater than the other members of the proposed consolidation, the merger does not give such other members the benefits of the greater faculties.</p> <p>In acquiring all the rights and faculties of the constituent companies, they are taken with all their disabilities or limitations, such as may be distinct from the special powers and faculties of a member of the merger. The limitations or conditions common to all the companies are merged into general limitation or condition applicable to tbe new company.</p> <p>Where a merger company formed of several electric light companies proceeds within two years to construct works within various portions of its territory, it cannot be restrained from installing its facilities in a district covered by one of the merged companies, because such company had not done any physical work in such district within two years from the incorporation of that company.</p> <p>The Public Service Commission in passing upon the right of a public service company to exercise a particular power does not usurp any function of the attorney general. It does not declare a charter void, nor interfere with the right of the attorney general to institute the necessary proceedings to dissolve a corporation.</p>