Volume 70 — Pennsylvania Superior Court Reports

<p>Insurance — Life insurance — Ambiguous terms in policy — Death benefits.</p> <p>A policy of life insurance stated on its face that it entitled the insured, or the beneficiary to “one of the benefits or privileges mentioned hereon,” subject to the terms and conditions on the back, and that those benefits and privileges include maximum death' benefits of $100. The policy had in the upper right-hand corner of the front page within a scroll the words “Class IA5 Grade C,” and on the back page a list of “increasing benefits,” designated as Grade O, and a provision, numbered five and called “Maximum death,” which provided, among other things, that it was applicable if the policy was issued with medical examination, or if, after examination the assured had been classed as “Sub-standard,” in which case the benefits were to increase yearly, and one-fifth of the maximum amount allowed on the front page was payable for each year the policy was in force. The insured died within one year from the date of the policy. Held, that the beneficiary after the death of the insured was entitled to recover the sum of $100 as death benefits, unless no medical examination was made, or the insured was classed as sub-standard.</p> <p>If it had been the intention of the defendant company to covenant that the beneficiary should not become entitled to anything in case the assured died within one year and should not become entitled to the $100 death benefits until the policy had been in force and premiums paid for the full period of five years, it ought to have used language in its policy which -clearly indicated that intention.</p>

<p>Appeal, No. 253, Oct. T., 1917, by Panther Valley Water Co., from order of Public Service Commission Complaint Docket No. 466, of 1915, sustaining complaint in case of Panther Valley Water Co. v. Public Service Commission and the Borough of Coaldale.</p> <p>Complaint by the Borough of Coaldale against certain rules of the Panther Valley Water Company.</p> <p>From the record it appeared that the case in its final aspect turned upon the reasonableness of the following rules:</p> <p>“Bule III, paragraph 1. The owner, through a plumber, who shall have a permit issued by the,company, is to lay the service pipe from the corporation cock to the building line, and under the supervision of the company, at the owner’s expense, placing a ‘T’-handled stopcock with iron extension curb box and cover of approved pattern at the curb line.</p> <p>“Paragraph 2. This service pipe and box shall be kept in good condition by the owner and in case of failure, by the company, at the owner’s expense.</p> <p>“Paragraph 9. When two or more buildings1 are supplied through a single service, any violation of the rules of the company with reference to either or any of said buildings shall be deemed a violation as to all, and the company may take such action as could be taken as to a single building.”</p> <p>These rules were declared unreasonable by the commission, for the reason that they cast the burden of paying for the individual service pipes, stopcock and connections upon the consumer, whereas this expense should be borne by the company appellant, on the ground that these connections constitute a part of appellant’s facilities.</p> <p>The commission entered the following order:</p> <p>“Now, to wit: June 19, 1917, it is ordered, That the petition for a rehearing in this case be, and the same hereby is denied, and it is further ordered, That the effective date of the order of the commission of May 15, 1917, in the above entitled case be, and the same hereby is postponed until August 1, 1917, and it is further ordered, That the Panther Valley Water Company may file in lieu of Rule V, Paragraph 1, of its tariffs, found by the commission to be unreasonable, a supplement making effective August 1, 1917, the following rule regarding the domestic supply.</p> <p>“ ‘A meter shall be installed whenever a consumer petitions the company for its installation, excepting that the company reserves the right to install a meter in any case without the consent of the consumer where there is a wastage or other excessive use of water. The cost of the installation to be paid by the company.’ ”</p> <p>Error assigned was the order of the commission.</p>

<p>Street railways — Extension—Municipal consent — Public Service Commission.</p> <p>The Public Service Commission has no power to compel the Philadelphia Rapid Transit Company and two companies consolidated with it, to build extensions in certain territory, where there is nothing whatever in the charter of the transit company and one of the consolidated companies authorizing them to build extensions in the territory in question, and the charter of the other consolidated company only permits it to build extensions if it secures municipal consent and there is nothing to show that any steps had been taken to secure such consent. The fact that the charter of one of the consolidated companies was subject to the provision of Sec. 20, of the Railroad Act of February 19, 1849, P. L. 79, reserving to the Commonwealth the rights to alter or amend its charter, is immaterial inasmuch as the Public Service Commission is not invested with authority to enlarge the powers of the corporations, so as to give them the right to build extensions. ,</p> <p>Where a contract between the Philadelphia Rapid Transit Company and the City of Philadelphia provides conditions under which extensions are to be made with municipal consent, such contract cannot be construed as giving authority to the Public Service Commission to compel the transit company to build extensions irrespective of the city’s consent, or to compel the city to give its consent to such extensions.</p>

<p>Appeal, No. 106, Oct. T., 1917, by plaintiff, from order of Public Service Commission Complaint, No. 475,1915, dismissing complaint in case of New Castle Electric Company v. Public Service Commission.</p> <p>Complaint by the New Castle Electric Company against the Harmony Electric Company to prevent the latter from supplying electric light in Shenango Township.</p> <p>From the record it appeared that the Harmony Electric Light Company was incorporated on December 30, 1913, under the Merger Act of May 3,1909, P. L. 408, by the merger of several electric light companies. One of these companies was the Shenango Electric Company, incorporated on May 6, 1913, to supply light, heat and power by means of electricity in Shenango Township. This company did not record its charter until July 28, 1913, two days after the passage of the Public Service Act. The commission found as a fact that on December 31, 1913, the Harmony company was supplying light in Shenango Township to the Pittsburgh, Harmony, Butler and New Castle Railway Company in Shenango Township from a plant in Harmony which it had leased from the street railway company. At this time the street railway company was the only customer of the Harmony company. Some time after January 1, 1914, the Harmony company proceeded_ to extend its poles and wires into Shenango Township for the purpose of supplying electric light generally in the township. It did this without having obtained a certificate of public convenience.</p> <p>The Public Service Commission dismissed the complaint.</p> <p>Error assigned was the order of the commission.</p>

Appeal, No. 21, March T., 1918, by plaintiff, from decree of C. P. Columbia Co., Sept. T., 1914, No. 1, dismissing bill in equity in case of William B. Rhoads v. Henry W. Walter and C. A. Kleim, executor of Henry Kleim, deceased. Bill in equity for an injunction. Error assigned was decree dismissing the bill.

<p>Appeal, No. 92, Oct. T., 1917, by defendant, from judgment of Municipal Court, Philadelphia Co., June T., 1916, No. 283, for plaintiff in case tided by the court without a jury in suit of James E. F. Coulbourne v. W. Rogers Edelman.</p> <p>Assumpsit on a promissory note. Before Wheeler, J.</p> <p>The court entered judgment for plaintiff for $382.44, the full amount of the claim.</p> <p>Error assigned was the judgment of the court.</p>

<p>Negligence — Master and servant — Dangerous place of employment — Vice-principal—Contributory negligence.</p> <p>In an action by an employee against his employer to recover damages for personal injuries, a verdict and judgment for plaintiff will be sustained where the evidence tended to show that at the time of the accident, plaintiff was required by the foreman to work directly under a platform upon which riveters were working; that it was possible for heavy tools to fall through the floor of or over the edge of, the platform; that plaintiff was injured by a heavy monkey wrench falling upon him from above; that the foreman had entire charge of the branch of the business in which plaintiff wás employed; that plaintiff had called the foreman’s attention to the danger of working under the platform; that the foreman had directed him to continue his work; and that in accordance with this order plaintiff continued his work and was injured.</p>

<p>Banks and banking — Principal and agent — Check—Forgery of endorsement.</p> <p>Where an insurance company draws a check in payment of a policy and sends it to its agent in another city to be delivered to the payee, and the agent fraudulently procures a woman to impersonate the payee to a bank at which the check is presented, identifies such woman as the payee, and the woman endorses the cheek in the name of the payee, .and the agent also endorses it with his own name after the woman’s endorsement, the bank upon which the check is drawn will be liable for the loss to the insurance company, if it appears that the agent had no other authority from his company than to deliver the check to the payee named therein.</p> <p>It is not within the apparent scope of the authority of an agent to whom a check is sent for delivery to a payee, to procure a fraudulent endorsement of the payee, add his own signature as evidence, and thus render the payment of the check a valid charge upon the account of his principal.</p>

<p>Appeal, No. 121, April T., 1918, by defendant, from order of C. P. Lawrence Co., Dec. T., 1914, No. 61, making absolute rule for judgment for want of a sufficient affidavit of defense in case of V. J. Schmitt, Receiver of the Interstate Lumber Company, v. Andrew Dietterle and J. C. Liebendorfer, trading as Castle Lumber and Construction Company.</p> <p>Assumpsit by a receiver of a corporation for moneys alleged to be due the company.</p> <p>The averments of the statement of claim and affidavit of defense 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 affidavit of defense.</p>

<p>Divorce — Alimony pendente lite — Continuance of payments pending appeal.</p> <p>Where in a divorce proceeding the court has entered a decree directing the husband to pay alimony pendente lite, and upon a decree in favor of the husband the wife takes an appeal, the payment of the alimony will continue until the case has been finally disposed of on the appeal.</p>

<p>Contract — Bale—Failure to deliver — Damages.</p> <p>Where a purchaser of lumber resells it to a contractor for a bridge, and is himself under bond to deliver the lumber within a certain time, and this is known to the seller who delays deliveries to the injury of the contractor, the purchaser cannot in an action against him by the seller for the balance of the purchase-money, set off a sum of money which he had voluntarily paid the contractor in settlement of his differences with him caused by the delay.</p> <p>In such a case where the purchaser makes constant demands upon the seller to complete delivery, but continues to accept the delayed deliveries without cancelling the contract, he cannot set off expenses incurred, before the actual cancellation of the contract, in' traveling to lumber centers, in the attempt to find out where he could get lumber to take the place of that which the seller had failed to furnish. The course for the purchaser to pursue was either to cancel the contract and buy in the open market, or to continue to recognize the contract and recover the loss occasioned by the delay.</p>

<p>Negligence — Railroads—‘Stop, loolc and listen” — Husband and wife.</p> <p>Where a husband and wife riding in a bobsled drawn by a horse approach a grade-crossing of a railroad.known to both of them to be dangerous, and the husband who was driving does not stop, look or listen before entering upon tbe crossing, and tbe horse is struck by a passing train, the sled upset and his wife injured, without negligence by the railroad company, the wife cannot recover damages from the railroad company, if it appears that she and her husband at the time of the accident were engaged in a mission of mutual interest, that the wife knowing the dangerous character of the crossing, made no remonstrance to the action of her husband nor asked him to stop in a safe place, and that when the horse was on the track her husband got out leaving the reins in her hands.</p>

<p>Appeal, No. 10, March T., 1918, by Herbert W. Ethel et al., from decree of O. C. Luzerne Co., No. 202, of 1880, dismissing exceptions to adjudication in Estate of Thomas Benedict, deceased.</p> <p>Exceptions to adjudication. Freas, J., filed the following opinion:</p> <p>The testator died July 11,1880, leaving to survive him eleven children. One of these was Elizabeth Benedict, for whose benefit a trust was created by the will to last during her natural life. She died January 22, 1915, and the trust so created then terminated. The corpus of the trust estate is now before us for distribution to the remaindermen in accordance with the terms of testator’s will. One of the children of testator, Thomas Benedict, Jr., preceded the life tenant in death, leaving to survive him three children, who are now living, and who claim that they are entitled to share in the distribution of the corpus of the trust fund.</p> <p>The fourth paragraph of the will creates the trust and ends as follows: “and after her (the life tenant’s) death to transfer the property so held in trust as aforesaid to such of the residuary legatees hereinafter named as may then be living share and share alike their heirs and assigns forever.”</p> <p>The residuary legatees “hereinafter named” are mentioned in the sixth paragraph, which reads as follows:</p> <p>“Sixth. I give, devise and bequeath to my sons and daughters, to wit: Anna Kyte, Elizabeth Benedict, George W. Benedict, Thomas Benedict, Jane Benedict Euth, Christina Benedict, Ella Benedict, Charlotte Benedict, Sarah Benedict, Rosa Benedict and Grace Benedict, or to such of them as may be living at the time of my death, all the rest and residue of my estate whatsoever and wheresoever, share and share alike, their heirs and assigns forever.”</p> <p>The intention of the testator is unmistakable. In the fourth paragraph he provides in language which cannot be misunderstood that after the death of the life tenant the corpus of the trust fund is to be transferred to such of the residuary legatees named in the sixth paragraph as may be living at the death of the life tenant.</p> <p>The paragraph creating the trust disposes not only of the life estate in the trust property but also of the remainder in the property. The language of the sixth paragraph in no way relates to or controls the disposition of the trust property, except that the names of all the possible remaindermen are mentioned therein. But of these possible remaindermen only such are to take who fulfill the condition of this gift contained in the fourth paragraph, viz: that they survive the life tenant. The testator must have realized that one or more of his children, who are designated as residuary legatees, might not be living at the time of the life tenant’s death, for the direction is to transfer the trust property “to such of the residuary legatees hereinafter named as may then be living.”</p> <p>Under the sixth paragraph all his children are named as residuary legatees, or such of them as may be living at the time of testator’s death. As all were living at the time of testator’s death, all his living children and the issue of deceased children would share in the distribution of testator’s residuary estate. But there is no residuary estate to distribute, and we are distributing the remainder or corpus of the trust property to the remainder or corpus of the trust property to the remainder-men as provided by the fourth paragraph. It follows that the children of Thomas Benedict, Jr., deceased, do not share in the trust estate.</p> <p>Error assigned was in dismissing exceptions to adjudication.</p>

Appeal, No. 15, March T., 1918, by defendant, from order of C. P. Luzerne Co., March T., 1912, No. 156, making absolute rule for judgment for want of a sufficient affidavit of defense in case of S. C. Creasy, W. Wells and M. E. Stackhouse v. Robert E. Kittle or Kyttle. Scire facias to revive judgment. The opinion of the Superior Court states the case. Error assigned was the order of the court.

<p>Appeal, No. 5, March T., 1918, by defendant, from judgment of C. P. Lackawanna Co., June T., 1914, No. 352, on verdict for plaintiff in case of Fox River Butter Co. v. Dickson Mill & Grain Company.</p> <p>Assumpsit for rent. Before Maxwell, P. J., specially presiding.</p> <p>Verdict and judgment for plaintiff for $345. Defendant appealed.</p> <p>Errors assigned were various rulings on evidence and instructions sufficiently stated in the opinion of the Superior Court.</p>

Appeal, No. 48, March T., 1918, by defendants, from decree of C. P. Luzerne Co., June T., 1916, No. 5, on bill in equity in case of Luzerne County Gas & Electric Company y. Evan R. Morgan, Tax Collector of the Borough of Kingston. Bill in equity for an injunction tO' restrain the collection of the whole of a local tax assessed on a building owned by a gas and electric company. Before Woodward, J. The case was before the Superior Court before and is reported in 63 Pa.

Appeal, No. 19, March T., 1918, by plaintiff, from decree of C. P. Luzerne Co., May T., 1916, No. 669, refusing divorce in case of Margaret E. Burnard v. Norvin T. Burnard. Libel for divorce. The court entered a decree refusing the divorce. Error assigned was the decree of the court.

Appeal, No. 36, March T., 1918, by defendant, from judgment of C. P. Susquehanna Co., Aug. T., 1915, No. 81, on verdict for plaintiff in case of Louis R. Bolles, by his next friend and mother, Josephine Bolles, v. Erie R. R. Company. Trespass to recover damages for personal injuries. Before Denney, P. J. At the trial it appeared that the plaintiff was injured in the eye by a flying chip of steel when he was operating a pneumatic hammer in a boiler shop owned by the defendant.

Appeal, No. 39, March T., 1918, by defendant, from order of C. P. Susquehanna Co., Aug. T., 1917, No. 53, dismissing appeal from justice of the peace in case of Mary D. Holmes v. Ralph L. Lewis. Appeal from judgment of two justices of the peace in proceedings to recover possession under Section 12 of the Act of March 21,1772,1 Sm. L. 373. From the record it appeared that the tenant filed an affidavit the material portions of which were as follows: 2.

Appeal, No. 49, March T., 1918, by plaintiff, from judgment of C. P. Luzerne Co., Dec. T. 1917, No. 362, for defendant on case stated in suit, of Ellen Reilly v. John Kerestes. Case stated to determine marketable title to real estate. Before Strauss, J. The facts agreed upon in the case stated are summarized in the opinion of the Superior Court. Error assigned was in entering judgment for defendant on case stated.

Appeal, No. 34, March T,( 1918, by plaintiff from order of C. P. Luzerne Co., Jan. T., 1917, No. 304, discharging rule for judgment for want of a sufficient affidavit of defense in case of New Prague Flouring Mill Company v. John Kirschner. Assumpsit for breach of a contract to purchase flour. Rule for judgment for want of a sufficient affidavit of defense.

Appeal, No. 32, March T., 1918, by defendant, from judgment of C. P. Luzerne Co., March T., 1916, No. 624, on verdict for plaintiff in case of John A. Widdall v. Theodore A. Hogan and Mary Kate Hogan. Issue to determine what was due on a judgment. Before Garman, J. The jury returned a verdict for $946.36 upon which judgment was entered. Defendant appealed. Error assigned was in refusing defendant’s motion for judgment n. o. v.

Appeal, No. 33, March T., 1918, by plaintiff, from order of C. P. Luzerne Co., March T., 1917, No. 672, making absolute rule to strike off lien in case of Jacob Guttshall v. Daniel Horn and J. P. Costello. Rule to strike off mechanic’s lien. Before Garman, J, Error assigned was order making absolute rule to strike off lien.

Appeal, No. 4, March T., 1919, by Fred’k W. Stark, from decree of O. C. Lackawanna Co., No. 805, Series C., dismissing exceptions to account in Estate of George Farber, deceased. Exceptions to account. The opinion of theSuperior Court states the case. Errors assigned were in dismissing exceptions to account.

Appeal, No. 22, March T., 1918, by defendant, from order of C. P. Cumberland Co., Sept. T., 1914, No. 21, entering judgment for costs on verdict in case of J. S. Bitner v. John C. Strickner. Trespass to recover damages for the obstruction of a water course and for interference with plaintiff’s pavement. Before Gillan, P. J. At the trial the jury returned a verdict for plaintiff for $1.

Appeal, No. 67, Oct. T., 1918, by plaintiff, from decree of C. P. Lehigh Co., Sept. T., 1911, No. 1, dismissing bill in equity in case of Emaus National Bank v. Louisa A. David. Bill in equity to secure the cancellation and satisfaction of a mortgage, and a judgment entered upon a bond accompanying the mortgage. Before Groman, P. J. The pleadings and the findings of fact are summarized in the opinion of the Superior Court.

Appeal, No. 13, Oct. T., 1918, by plaintiff, from order of Q. S. Bedford Co., April Sessions, 1917, No. 24, sustaining motion in arrest of judgment in case of Commonwealth v. J. R. Fulton. Indictment for selling a canning compound in violation of the Act of May 13, 1909, P. L. 520. The facts are stated in the opinion of the Superior Court. Verdict of guilty. The court made an order sustaining defendant’s motion in arrest of judgment. Error assigned was the order of the court.

Appeals, Nos. 3 and 4, Oct. T., 1917, by defendants, from judgment of Q. S. Lancaster Co., April Sessions, No. 42, on verdict of guilty in case of Commonwealth v. Ephraim Kreider. Indictment for conspiracy to defraud creditors. The indictment charged as follows: That Eph.

<p>Appeal, No. 21, April T., 1918, by defendant, from judgment of C. P. Erie Co., Feb. T., 1917, No. 193, for plaintiff on case stated in suit of Natalie Downing Hart v. Frederick B. Downing, Executor of the Estate of Jerome Francis Downing, deceased.</p> <p>Case stated to determine whether certain payments should be made by the defendant, to the plaintiff, under the will of Jerome Francis Downing, deceased.</p> <p>The court entered judgment for plaintiff on the case stated.</p> <p>Error assigned was in entering judgment for plaintiff on case stated.</p>

<p>Appeal, No. 12, March T., 1918, by plaintiff, from decree of C. P. Lackawanna Co., Jan. T., 1915, No. 690, refusing divorce in case of Aaron S. Cantor v. Esther Cantor.</p> <p>Libel for divorce.</p> <p>Newcomb, J., filed the following opinion:</p> <p>This woman is probably an adulteress. She is suffering the consequences of a loathsome venereal disease for which she has confessedly been under protracted treatment by specialists in Philadelphia. There is neither allegation nor attempt to show that it was communicated to her by the husband. On the contrary, the uncontested proofs give him a clean bill of health at all times with which the case is concerned. She may have been an impure woman before marriage. There is evidence to warrant the finding of that fact. But taking her at her word, she was not then diseased and in that particular she is not without corroboration. The alternative conclusion is that of her infidelity.</p> <p>But that is not the cause assigned for divorce. Hpon the supposed authority of McMahan v. McMahan, 186 Pa. 185, relief is asked for on the ground of cruel and barbarous treatment. But the cases are not analagous. They are clearly distinguishable on the essential point that in this instance it does not appear that the husband either had been or is likely to be subjected to any course of treatment dangerous to life or health or calculated to render his condition intolerable. The wife hasn’t forced any attentions upon him. Since he learned of her ailment she has never sought cohabitation with him. He voluntarily cohabited with her at least on one occasion when he paid her a visit during her absence from home for treatment. His grievance is therefore radically different from that alleged by the wife who was the complainant in the case relied upon.</p> <p>It may be a gruesome mockery to maintain the marriage in face of the facts disclosed here. But divorce is a purely statutory right and relief can only be granted where an actual, not a merely constructive, statutory cause is made to appear, and it must be the cause laid in the complaint. Here the cause alleged is one thing and that proven is another.</p> <p>The rule to show cause is discharged and the divorce is refused.</p> <p>Error assigned was the decree of the court.</p>

Appeal, No. 3, March T., 1918, by defendant, from decree of C. P. Adams Co., April T., 1916, No. 1, on bill in equity in case of Helena K. Hafer v. W. Lavere Hafer et al. Bill in equity to determine amount for maintenance ¡of a wife and child. Errors assigned were in dismissing certain general exceptions filed by defendant to the action of the court.

Appeal, No. 15, March T., 1918, by defendant, from judgment of C. P. Dauphin Co., Sept. T., 1911, No. 400, on verdict for plaintiff in case of Harry J. McGill v. Middletown Car Company. Trespass to recover damages for personal injuries. At the tidal the jury returned a verdict for plaintiff for $1,500.

Appeal, No. 90, Oct. T., 1918, by defendant, from judgment of Municipal Court Philadelphia Co., Sessions 1918, No. 809, on verdict of guilty in case of Commonwealth v. Lillian Fox. Indictment' for keeping a bawdyhouse.

Appeal, No. 89, April T., 1918, by defendant, from judgment of C. P. Brie Co., Feb. T., 1916, No. 58, on verdict for plaintiff in case of George King v. Arthur F. Merry. Trespass to recover damages for injuries to an automobile. At the trial the jury returned a verdict for plaintiff for $518.51.

Appeal, No. 78, Jan. T., 1918, by Frank Roth, from decree of O. C. Schuylkill Co., Jan. T., 1917, No. 156, dismissing exceptions to adjudication in Estate of Gustavus Roth, deceased. Exceptions to adjudication. The opinion of the Superior Court states the facts. ■ Error assigned was in dismissing exceptions to adjudication.

Appeal, No. 109, April T., 1918, by plaintiff, from judgment of C. P. Somerset Co., Dec. T., 1915, No. 196, on certificate for defendant in case of G-. D. Whitcomb v. Quemahoning Creek Coal Company. Assumpsit for goods sold and delivered. Before Ruppel, P. J. The facts are stated in the opinion of the Superior Court. Plaintiff presented, inter alia, the following points: “2.

Appeal, No. 106, April T., 1918, by defendant, from order of Q. S. Clarion Co., Aug. Sessions, 1917, for support in case of Commonwealth v. John Kélly. Return of proceedings for nonsupport. Error assigned was the order for support.

Appeal, No. 119, April T., 1918, by defendant, from order of C. P. Clarion Co., Aug. T., 1917, No. 9, dismissing exceptions in proceedings before a justice of the peace under Special Act of May 1, 1861, P. L. 682, in case of Commonwealth v. John Kelly. Certiorari from a justice of the peace.

<p>Appeal, No. 133, April T., 1918, by plaintiff, from order of C. P. Fayette Co., June T., 1916, No. 532, refusing motion for judgment against garnishee in case of John M. Robinson et al. v. J.' V. E. Ellis, defendant with sci fa. to Lee Smith, Garnishee.</p> <p>Motion for judgment against garnishee.</p> <p>Reppert, J., filed the following opinion:</p> <p>The defendant, J. V. E. Ellis, was the owner of three parcels of real estate situate in the borough now the City of Uniontown, in this county. The properties were encumbered by mortgages owned by Mrs. Drusilla H. Lingo and by Mrs. Elizabeth Strickler; also by various judgments, one of which,, recovered January 25, 1915, was and still is owned by the plaintiffs. These obligations were overdue. In order to secure an extension the defendant executed and delivered to Lee Smith, Esq., the garnishee, a letter of attorney authorizing and empowering him to sell and convey the said properties within two years from June 1, 1915, and, pending sale, during said period to take charge of and lease the same and collect the rents. It further provided for the application of the rents so collected, first to the payment of taxes, insurance, water, gas and other charges when payable by. the owner, and of the residue after such payment to the indebtedness of said Ellis “to those who shall be my individual creditors at the date hereof,” in the manner thereinafter set forth. It also provided for the distribution of the proceeds in case of sale, after deducting necessary expenses of sale, to the payment in full of such of the said Ellis’s indebtedness as should have priority of lien on the property or properties so sold; and finally, in case any balance remained after the sale of all of said properties, said balance to be paid over to said Ellis, his legal representatives or assigns.</p> <p>The letter of attorney was made irrevocable on condition that the individual creditors should on or before June 10, 1915, sign a paper agreeing to an extension of the time of payment of the principal of their respective claims for said period of two years from June 1, 1915, accrued and accruing interest, however, to be paid. It was signed May 29, 1915; acknowledged June 29, 1915, and recorded July 2, 1915. The desired extensions were granted by the judgment creditors by agreement dated May 29, 1915; by Mrs. Strickler by agreement dated June 9th, and by Mrs. Lingo by agreement dated June 23, 1915. The agreement signed by the plaintiffs and the other judgment creditors recites the letter of attorney “bearing even date herewith and intended to be recorded and the contents of which power of attorney has been made fully known to the subscribers hereto,” and said creditors agreed to withhold execution for the period designated, provided the rentals of said property should be collected by said attorney and applied toward the payment of the interest, as set forth in the letter of attorney. The mortgage creditors agreed to extend the time of payment of their respective debts two years, provided interest, taxes and insurance were paid, and other creditors agreed to extend. Upon failure to pay interest, insurance or taxes, or in case of bankruptcy or the refusal of other creditors to extend, the agreement was to be void. Pursuant to the letter of attorney and the extension agreements the attorney in fact took charge of the properties, collected the rents so far as possible, and out of the proceeds paid certain taxes, insurance, water, light and other charges. No opportunity to make sale was found. Some of the rents could not be collected. After payment of the charges above noted there were not sufficient funds to pay interest and none was paid. Default being thus made on May 10, 1916, Mrs. Strickler, a mortgage creditor, and on May 13, 1916, tbe National Bank of Fayette County, a judgment creditor, issued executions and the properties were sold. A balance of $666.17 remained in tbe bands of tbe attorney in fact. May 27, 1916, tbe plaintiffs issued a writ of attachment in execution on tbeir judgment and summoned tbe attorney in fact as garnishee.</p> <p>Tbe manifest object of tbe agreements for extension and tbe letter of attorney was to prevent a sacrifice of values by a forced sale and to provide a method by which tbe fair market value of tbe properties might be realized, in tbe hope that thus there would be enough to pay all creditors in full. If tbe income from tbe properties bad been sufficient to enable tbe attorney in fact to comply with the conditions imposed, or if Mr. Ellis bad been able to supply tbe deficiency needed for that purpose, tbe desired result might have been attained. Tbe effort was worth while and it was to tbe advantage of these plaintiffs and other creditors so placed by reason of precedent liens as to be otherwise unable to protect themselves.</p> <p>Default having been made, those signing tbe extension agreements bad tbe right to rescind and to proceed with tbe collection of tbeir claims by due process. Until rescission, however, tbe agreements and tbe letter of attorney were in full force and effect and binding upon those who executed them. So far as tbe pleadings and testimony disclose, there were no other creditors than those executing tbe extension agreements and no other property available to these creditors than that described in tbe letter of attorney. No other creditors than tbe ones referred to are here making any claim and there is no question of preference. No rights are involved except tbe rights of those signing tbe extension agreements, and tbe question as to those rights is raised not by an outsider but by one of tbe signers.</p> <p>Tbe letter of attorney, in connection with tbe agreemente, is an assignment in trust for the benefit of creditors. As was said in Lucas v. The Sunbury & Erie R. R. Co., 32 Pa. 458, we have here property, a trustee, a trust, and creditors who are to take under it. What more is needed? The money in the hands of the attorney in fact having been collected pursuant to the powers vested in him by the trust, to that extent the trust was executed and irrevocable, and- binding on those who had created it: Watson v. Bagaley, 12 Pa. 164. And this irrevocable and binding effect included not only the powers under which the fund was accumulated, but also the powers that controlled its distribution. Otherwise the equitable rights of the creditors secured by the agreements and letter of attorney would be destroyed.</p> <p>But it is urged that the letter of attorney was not recorded within thirty days, as required by Section 5 of the Act of March 24, 1818, P. L. 132. The provisions of the letter of attorney were, as we have seen, fully known to the plaintiffs. To induce its execution by Ellis they signed the agreement to extend and thereby, in effect, became parties to it. They cannot now deny it, so far as it has been executed, for their own advantage and to the prejudice of other creditors. If they desired it to be recorded within the thirty days, or otherwise to be released from its operation, they could have so required by due notice. By taking part in the proceedings, with full knowledge, and making no objection until the fund had been raised, they waived their rights, and the agreements and letter of attorney are valid as to them, although the letter was not recorded until two or three days after the statutory period had expired: Burke’s Est., 1 Pars. 470; Dettra v. Bollman, 9 Lane. Rev. 1; Crossman v. Rowland, 2 W. N. C. 259.</p> <p>Our conclusion is that the fund should be distributed according to the provisions of the letter of attorney.</p> <p>Error assigned was in refusing motion for judgment against garnishee.</p>

Appeal, No. 93, April T., 1918, by defendant, from judgment of C. P. Beaver Co., March T., 1916, No. 192, on verdict for plaintiff in case of J. F. Clayton v. George S. Hunter, Surviving Partner of Paul Cumby, deceased. Assumpsit for goods sold and delivered. Before Baldwin, P. J. The opinion of the Superior Court states the facts. Verdict and judgment for plaintiff for |116.48. Defendant appealed.

<p>Negligence — Street railways — Automobiles — Collision at crossing — Contributory negligence.</p> <p>In an action to recover damages for injuries to an automobile sustained in a collision with an electric car at a crossing, plaintiff is not entitled to recover because of the contributory negligence of his driver, where the evidence shows that as the driver cleared the house line, going at the rate from six to eight miles an hour, he saw a car at a very high rate of speed between ninety and a hundred feet away; that he had his automobile under perfect control and could have stopped it within three féet; that the distance from the curb line to the first rail was twenty-two feet; that he stopped the automobile within a very short distance of the first rail, but so close to it that the rear end of the street car in passing, struck the front extension part of the automobile with either the overhanging step, or due to the swagging of the body of the car.</p>

Appeal, No. 69, April T., 1918, by George Harvey et al., from order of Q. S. Butler Co., June T., 1915, No. 19, discharging rule to show cause in case of George H. Harvey, a taxpayer of Clinton Township v. Clinton Township Supervisors. Rule to show cause on taxpayer’s petition under Act of May 31, 1911, P. L. 468.

<p>Foreign attachment — Sale—Voidable sale — Lien for repairs — Automobile.</p> <p>Where an automobile is attached in foreign attachment proceedings in the hands of a repairman and pending the proceedings, the ear is _sold with knowledge of the owner at public sale by the repairman for his charges, and thereafter, a nonsuit is entered in the foreign attachment, and the attachment is dissolved, the owner of the car has no right to recover damages from the plaintiff in the foreign attachment, inasmuch as he took no steps to stop the sale or have it set aside.</p>

<p>Criminal law — Street walkers — Disorderly conduct — Municipal Court of Philadelphia County — Jurisdiction—Appeals.</p> <p>The Municipal Court of Philadelphia County under the Act of June 17, 1915, P. L. 1017, has exclusive jurisdiction to try indictments against women as disorderly street walkers. In such eases appeals do not take up the evidence, and if the proceedings are regular convictions will be sustained.</p>

<p>Appeal, No. 96, Oct. T., 1918, by defendant, from judgment of O. & T. Northampton Co., Dec. T., 1917, No. 62, on verdict of guilty in case of Commonwealth v. Nick Vasilion.</p> <p>Indictment for sodomy. Before Stewart, P. J.</p> <p>At the trial the prisoner was convicted on the evidence of the admitted accomplice in the crime.</p> <p>Error assigned was the charge of the court.</p>

<p>Liquor law — Retail license — Refusal of license — Discretion of court.</p> <p>The determination of the fitness of an applicant for a retail liquor license, and what is a legal necessity for the granting of the license, depends upon facts which are to be determined primarily by the licensed court. It is not necessary that the fitness of the applicant be directly challenged, or that the necessity for the house be demonstrated by proof of a former occupancy of the premises by a licensee. The change in character and volume of population through the erection of new buildings, schools, churches, manufacturing plants, etc., may materially affect the necessity for such a license, or the propriety of continuing one in that location. The arguments presented in earlier applications, and the ground for the court’s action therein, are not controlling, as each case must be decided upon its own facts at the time the decree complained of is entered.</p>

<p>■ Bankruptcy — Claim for exemption — State laws — Belay in making claim — Warner.</p> <p>Claims for exemption under the Federal Statutes regulating bankruptcy are allowed in accordance with the law of the state in which the bankrupt resides.</p> <p>Where in bankruptcy proceedings instituted in Pennsylvania under the Federal Statute, the bankrupt’s property is all turned over to the trustee who sells it under an order of court, a claim for exemption after the sale is too late.</p> <p>The right of exemption may be waived at any time before there has been a final determination of the claim of the bankrupt.</p>

<p>School law — Directors—Powers—Employment of counsel — Act of May 18,1911, P. L. 809.</p> <p>Where school directors, after the passage of the School Code of May 18, 1911, P. L. 309, and before the termination of their office in November, 1911, enter into a contract for new property in express violation of the act, and a bill in equity is brought .against them to restrain them from spending money under the contract, they cannot employ counsel and bind the district for fees in defending against the bill on the ground of its unconstitutionality. In such a case the question of the right of the directors to contest the validity of the legislation which ousted them, was personal to themselves, and they must pay the costs of the litigation incident to such a contest.</p>

Appeal, No. 136, April T., 1918, by plaintiffs, from judgment of C. P. Armstrong Co., Dec. T., 1914, No. 202, on verdict for plaintiffs in case of G. Edith Ralston and John M. Ralston, her husband, v. Equitable Gas Company. Appeal from report of jury of view.

Appeal, No. 44, April T., 1918, by defendant, from decree of C. P. Armstrong Co., Sept. T., 19X6, No. 130, on bill in equity in case of J. B. Reynolds v. Anthony Smith. Bill in equity for an account.

Appeal, No. 65, April T., 1918, by plaintiff, from order of C. P. Columbia Co., Dec. T., 1916, No. 470, dismissing appeal from judgment of Workmen’s Compensation Board in Case of Jolande Karpati v. Cambria Steel Co. Appeal from judgment of Workmen’s Compensation Board. The question turned on whether the claimant, the widow of Jacob Karpati was living with her husband at the time of his death, or whether she was actually dependent on him at that time.

Appeal, No. 79, April T., 1918, by Thomas Kennedy, from order of Q. S. Lawrence Co., June T., 1915, No. 1, dismissing proceedings In re Petition for Vacation of Public Road in Hickory and Shenango Township. Petition for the vacation of a public road. The court in an opinion by Emery, P. J., dismissed the proceedings on the ground that the road in question was a State road, as to the vacation of which the court had no jurisdiction.

Appeal, No. 12, March T., 1918, by defendant, from judgment of Q. S. Luzerne Co., Feb. Sessions, 1918, No. 157, on verdict of guilty in case of Commonwealth v. Pancho Motsko. Indictment for félonious wounding. Before O’Boyle, J. The opinion of the Superior Court states the case.

<p>Appeal, No. 97, April T., 1918, by plaintiffs, from order of Public Service Commission, No. 567,1916, dismissing petition in case of Cochranton Telephone Co. and Merchants & Farmers Tel. Co. & Petroleum Telephone Company of Oil City et al. v. Public Service Commission.</p> <p>Petition for the approval of an agreement of consolidation of two telephone companies. The case turned on the question whether a telephone company was a telegraph company within the meaning of Sec. 12, Article NYII, of the Constitution of Pennsylvania.</p> <p>The Public Service Commission held that the consolidation was forbidden by the constitutional provision, and dismissed the petition.</p> <p>Error assigned was order dismissing the petition.</p>

<p>Divorce — Desertion—Consentable separation.</p> <p>Where a husband has consented to a separation, he cannot in subsequent proceedings for divorce against his wife, successfully allege wilful desertion, where the evidence shows that she offered to return to him and live with him in any house which he would provide for her as a bona fide home.</p>

Appeal, No. 88, April T., 1918, by plaintiff, from decree of C. P. Allegheny Co., Jan. T., 1916, No. 1511, Docket C., dismissing libel for divorce in case of William E. Lake v. Anna Gertrude Lake. Libel for divorce on the ground of desertion. The case turned on the two questions whether libellant’s residence for one year in Pennsylvania was established and whether the respondent’s wilful and malicious desertion was established.

Appeal, No. 64, April T., 1918, by defendant, from decree of C. P. Allegheny Co., April T., 1917, No. 233, on bill in equity in case of Pittsburgh Poster Advertising Company v. Swissvale Borough. Bill in equity for an injunction to restrain a borough from interfering with the construction of a billboard, and from enforcing an ordinance relating to the licensing of billboards.

<p>Negligence — Borough—Defective sidewalk — Contributory negligence — Case for jury.</p> <p>In an action by a woman fifty-six years old against a borough to recover damages for personal injuries suffered by a fall on a defective plank sidewalk, the question of defendant’s negligence and plaintiff’s contributory negligence is for the jury, where the evidence tends to show that at the time of the accident plaintiff was carrying a bucket filled with eggs; that she had not used the sidewalk for two or three years before the accident; that the sidewalk was apparently safe until stepped upon; that the break was an old one as indicated by a fracture; that many pedestrians had noticed the defect a number of times; that there had been no change in its condition for several months; and that the accident happened at about eleven o’clock in the forenoon on a day in June.</p>

<p>Appeal, No. 103, April T., 1918, by plaintiff, from order of C. P. Allegheny Co., April T., 1917, No. 725, making absolute rule to open judgment in case of Keystone State Building & Loan Association v. Edwin Campbell Anderson and Theresa Cecilia Anderson, his wife.</p> <p>Rule to open judgment.</p> <p>Davis, J., filed the following opinion:</p> <p>The defendants November 21, 1901, executed a bond and mortgage to the plaintiff to secure a loan of $3,200. The judgment which the plaintiff asks to have opened is a confessed judgment on the bond accompanying the mortgage. The loan was made to the defendants on a written application to the plaintiff, which contained the following agreement to pay monthly not less than $32, to be applied as follows: “Second. To payment of interest on said loan at the rate of six per cent, per annum. Third. To the payment of a premium of ten cents per share per month on thirty-two shares of stock, which premium I authorize the secretary of said association to bid in my name for priority of loan.”</p> <p>The application for the loan was acted on at a meeting of the plaintiff held November 5, 1901.- The following is an extract from the minutes of the meeting:</p> <p>“The Board of Directors of the Keystone State B. & L. Assn, met this day at 4 o’clock p. m. in the office of the Assn. Present: Messrs. Brown, Howe, Fairman and Wilcox. The minutes of the meeting of October 29.1901, were read and approved. The Sec’y. presented statement of the condition of the Assn, to date showing cash balance of $3,083.32. Bids for priority were then taken the highest bidders being the following members whose loan applications were granted. The premium bid in each case being a monthly premium per share.</p> <p>B-970 Mrs. Ella M. Harrison, $1,500 Prem. bid 10 cents Granted for $1,300.</p> <p>B-971 Mary Lissey, $1,100 Prem. bid 10 cents Granted.</p> <p>B-972 Jos. A. Carr, $800 Prem. bid 10 cents Granted.</p> <p>B-973 Harry L. Brewster, $1,100 Prem. bid 10 cents Granted.</p> <p>B-974 Theresa C. Anderson, $3,200 Prem. bid 10 cents Granted.</p> <p>B-975 Alex Lesniak, $1,500 Prem. bid 10 cents Granted for $1,300.</p> <p>B-976 F. & J. Speckhals, $1,700 Prem. bid 10 cents Granted.</p> <p>B-977 Jacob J. Shtucka, $1,600 Prem. bid 10 cents Granted.</p> <p>B-978 Tonyo & Erzya Koeelya, $1,000 Prem. bid 10 cents Granted.</p> <p>B-979 Mrs. Minnie Guenther, $1,500 Prem. bid 10 cents Granted.”</p> <p>The evidence taken on this rule shows that the ten bids that appear in the above extract of the minutes were written applications, and that the secretary acted for all the applicants. The defendants were not present at the meeting, and evidently no other applicants for loans. .The secretary merely presented the applications and the Board passed on them as presented.</p> <p>Has the plaintiff complied with the requirements of the Act of 1874, P. L. 96, which provides that the money of the association “shall be offered for loan in open meeting, and the stockholders who shall bid the highest premium for the preference of priority shall be entitled to receive a loan?”</p> <p>The Act of June 4, 1901, P. L. 403, that authorizes building and loan associations to receive bids in writing does not do away with the competitive bidding required by the Act of 1874. It might be that when all the bids were opened and submitted the applicants would have bid the same premium and the association might grant all to the extent of the available funds.</p> <p>In the case at bar the bids are sent in in writing by the applicants and the secretary of the plaintiff is authorized to make a single bid at a fixed premium and the ten bids are the same as shown by the minutes. It is apparent if all applications for loans were taken in the manner indicated by the minutes that there could be no competitive bidding, and the evidence of the plaintiff is not clear that any other way was customary in making loans to members.</p> <p>If fixed bids were the rule, then this case comes within the ruling of Klein v. Penna. Savings Fund & Loan Association, 216 Pa. 516, in which the court in its opinion said:</p> <p>“‘Was the lav/ complied with in bidding for preference? At the time plaintiff received his loan there were fifteen applications for loans. It does not appear that a single applicant was present in person at the meeting. Each had appointed an officer of the association his representative to bid for him a definitely fixed premium of six per cent, per annum. These applications were virtually an agreement upon the part of the borrower to pay a premium of six per cent, in addition to legal interest, and the power of attorney attached merely authorized the applicant’s representative to convey that offer to the association. It does not appear to have been the intention of the parties that there should be competition between the borrowers. On the contrary, the conclusion is irresistible that just the opposite was intended. Instead of bidding, i. e., competing at auction for priority, these offers were handed to the directors of the association by the representative of the applicant, and were thereafter acted upon according to priority of date.’ ”</p> <p>• Taking also into consideration the question of the fines, as shown by the statement given on request of the defendants three months before confession of judgment on the bond showing the sum of $180.41, and the large increase in amount to $514.49 included in the confessed judgment, we are of the opinion that the judgment should be opened and that the defendants be permitted to defend.</p> <p>And now, November 1, 1917, upon due consideration, the rule in this case to open the judgment is made absolute.</p> <p>Error assigned was the order of the court.</p>

<p>Appeal, No. 184, April T., 1918, by plaintiffs, from judgment of C. P. Allegheny Co., Jan. T., 1917, No. 2194, for defendant n. o. v. in case of Nicholas Hoff and Anna Hoff, his wife, v. Ward Baking Company.</p> <p>Trespass to recover damages for death of plaintiff’s son.</p> <p>At the trial the jury returned a verdict for plaintiffs for $590. On a rule for judgment for defendant n. o. v. Shafer, J., stated the facts to be as follows:</p> <p>The action is by the parents of a boy'about seven years old, who was killed while coasting across a street in the City of Pittsburgh by coming in contact with a wagon of the defendant. It appears from the evidence that Broad street in the City of Pittsburgh is a much traveled street and that it is intersected at right angles by Millvale avenue which descends towards Broad street for two or more squares at a grade of about fifteen per cent., and that when there was snow on the ground, Millvale avenue and an open lot alongside of it were used by boys of the neighborhood to coast upon, some of the coasters going down into Broad street and others not going so far, and that this place has been used in this way for a considerable time. It further appears that shortly after noon on March 18,1916, the employees of the defendant returning home with an empty bread wagon after having made their deliveries, drove along Broad street past the intersection of Millvale avenue, and that while they were doing so two boys, one of them being the plaintiffs’ son and the other an older boy, came down Millvale avenue very rapidly on a sled guided by the older boy, and came in contact with the rear wheel of the wagon, and that in that way the plaintiffs’ boy was killed. The negligence laid in the affidavit of claim is that the wagon was driven along Broad street at a dangerous and unsafe speed and on the wrong side of the street, and that the driver did not hesitate or check the speed of his wagon when he came to Millvale avenue, though he knew it was used, as a sled track. The evidence on the part of the plaintiff was that the wagon was driven at a gallop, or at least at a very fast pace, past the mouth of Millvale avenue, and that the lines were not in the driver’s hands but hung up on a hook, and that the driver and somebody with him were looking at a book and paying no attention to where they were going. The older boy who was guiding the sled, having the other boy behind him, testified that he saw the wagon when the sled was at the alley parallel to Broad street, and that he tried to turn into the curb but could not turn his sled, and that he could have gone behind the rear wheel if he had been able to turn the sled, which he was guiding with his hands, but that it was too heavy with two on it and he could not guide it.</p> <p>The court entered judgment for defendant n. o. v.</p> <p>Error assigned was in entering judgment for defendant n.' o. v.</p>

Appeal, No. 96, April T., 1918, by defendant, from judgment of Q. S. Jefferson Co., Nov. Sessions, 1917, No. 11, on verdict of guilty in case of Commonwealth v. Agnes Vardelle. Indictment for felonious shooting and for aggravated assault and battery. Before Corbet, P. J. The facts are stated in the opinion of the Superior Court. Verdict of guilty on the second count on which judgment of sentence was passed. Érrors assigned were rulings on evidence as above.

Appeals, Nos. 26 and 27, April T., 1918, by defendant, from judgment of C. P. Allegheny Co., April T., 1916, No. 2182, on verdict for plaintiffs in case of Thomas L. Archibald, in his own right, and as father and next friend of Clair T. Archibald, v. Thomas Jewell. Trespass to recover damages for personal injuries. Before Macfarlane, J. The circumstances of the accident are stated in the opinion of the Superior Court.

Appeal, No. 59, April T., 1918, by defendant, from judgment of C. P. Allegheny Co., July T., 1915, No. 2383, on verdict for plaintiff in case of Catherine Strauch v. City of Pittsburgh. Trespass to recover damages for injuries to buildings by reason of the diversion of waters in the construction of a road. Before Macfarlane, J. The facts are stated in the opinion of the Superior Court.

Appeal, No. 67, April T., 1918, by plaintiff, from order of C. P. Allegheny Co., July T., 1916, No. 532, entering judgment for defendant n. o. v., in case of Charles S. Richards v. Pennsylvania Railroad Company. Trespass to recover damages for wrongful ejection from train, and for malicious prosecution and false arrest. Before Shafer, J. At the trial the jury returned a verdict for plaintiff for $300.

Appeal, No. 5, April T., 1918, by defendant, from judgment of C. P. Allegheny Co., Jan. T., 1914, No. 41, on verdict for plaintiff in case of Stella E. Gross v. Westinghouse Airbrake Company. Trespass to recover damages for personal injuries. Before Evans, J. The circumstancés of the accident are set forth in the opinion of the Superior Court. Verdict and judgment for plaintiff for $1,200. Defendant appealed.

Appeal, No. 22, Oct. T., 1917, by Bruce Henderson et al., from order of O. P. Franklin Co., Oct. T., 1916, No. 244, overruling exceptions to sheriff’s schedule of distribution in case of Franklin Guards Association to use v. Charles W. Boyer. Exceptions to sheriff’s schedule of distribution. Before Gillan, P. J. The case turned on the construction and constitutionality of the Act of June 4, 1901, P. L. 364, so far as the act related to liens for municipal lighting.

Appeal, No. 123, Oct. T., 1917, by defendant, from judgment of C. P. No. 1, Philadelphia Co., Dec. T., 1913, No. 4832, on verdict for plaintiff in case of Charles M. Sheldrake v. Arthur Hob-son et al., Individually and now or late trading as Standard Combustion Company. Assumpsit for work done and goods furnished. Before Bregy, P. J. Verdict and judgment for plaintiff for $878.56. Defendant appealed.

Appeal, No. 141, April T., 1918, by defendant, from judgment of C. P. Allegheny Co., Jan. T., 1917, No. 782, on verdict for plaintiff in case of John A. McCoy v. John W. Klein, with notice to W. J. Bible. Issue to determine ownership of an automobile. At the trial the jury returned a verdict for plaintiff.

Appeal, No. 46, April T., 1918, by plaintiff, from order of C. P. Allegheny Co., Jan. T., 1917, No. 1232, refusing appeal from County Court in case of Peter Agostinis v. Frank A. Piekarski. Petition for an appeal from a judgment of the County Court of Allegheny County on a verdict for defendant in an action of assumpsit to recover for extra work under a building contract. Tbe court refused to grant tbe appeal. Error assigned was order refusing tbe appeal.

Appeal, No. 80, April T., 1918, by defendant, from order of C. P. Allegheny Co., April T., 1917, No. 245, discharging rule to open judgment in case of A. & J. Wesoky v. Henry Jackson. Buie to open judgment. Error assigned was order discharging rule to open judgment.

Appeal, No. 47, April T., 1918, by defendant, from order of C. P. Allegheny Co., April T., 1917, No. 142, .refusing appeal from judgment of County Court in case of George T. McDonald, doing business as George T. McDonald Company, v. Edward G. Kimmell. Petition for appeal from the County Court of Allegheny County. The facts are stated in the opinion of the Superior Court. Error assigned was order refusing to allow the appeal.

Appeal, No. 63, Oct. T., 1917, by defendant, from judgment of Municipal Court, Oct. T., 1915, No. 361, on verdict for plaintiff in case of Edmund J. Reily v. Martha L. Shafer. Trespass to recover damages for injuries to an automobile. Before Knowles, J. The opinion of the Superior Court states the case. Verdict and judgment for plaintiff for $450. Defendant appealed.

Appeal, No. 71, Oct. T., 1917, by plaintiff, from judgment of C. P. Philadelphia Co., Sept. T., 1915, No. 3913, for defendant non obstante veredicto in case of Kernchen Company v. William English and… Held: “When a foreign corporation seeks to enforce a contract made in this State, the burden of proof is upon it to show compliance with our laws in order to recover.

Appeal, No. 299, Oct. T., 1917, by defendant, from judgment of C. P. Northumberland Co., May T., 1916, No. 183, on verdict for plaintiff in case of Paul Gerli & Company, Inc., v. Perfect Silk Throwing Company. Replevin for three bails of silk. Before Moser, J. Tbe opinion of tbe Superior Court states the case. Verdict and judgment for plaintiff for $401.24. Defendant appealed. Error assigned was the charge of the court quoting it.

Appeal, No. 216, Oct. T., 1916, by plaintiff, from judgment of O. P. No. 2, Philadelphia Co., Dec. T., 1914, No! 2382, on verdict for defendant in case of Maryland Casualty Company v. C. P. Bower.' Assumpsit to- recover premiums on a surety bond. Before Rogers, J. The opinion of the Superior Court states the facts. Verdict and judgment for defendant. Plaintiff appealed. Error 'assigned was in refusing binding instructions for plaintiff.

Appeal, No. 310, Oct. T., 1917, by plaintiff, from order of Public Service Commission, Application Docket, No. A 1259,1917, In re Application of Mountain Gas Company for Approval of Sale and Transfer of Property and Rights to the Potter Gas Company. Appeal for approval of sale of the property and franchises of one natural gas company to another natural gas company. The opinion of the Superior Court states the case.

Appeal, No. 2, Oct. T., 1917, by Ezra K. DeTurck, from decree of O. C. Berks Co., April T., 1916, No. 17, dismissing exceptions to adjudication in Estate of Deborah DeTurck, deceased. Exceptions to adjudication. Before Schaeffer, P. J. The opinion of the Superior Court states the facts. Error assigned was in dismissing exceptions to adjudication.

Appeal, No, 184, Oct. T., 1917, by plaintiff, from order of Q. S. Philadelphia Co,, Dec. T., 1916, No, 242, quashing indictment in case of Commonwealth y. George McElroy. Motion to quash indictment. Before McMichael, J. The opinion of the Superior Court states the case. Error assigned was order quashing the indictment.

Appeal, No. 90, Oct. T., 1917, by defendant, from judgment of Municipal Court of Philadelphia Co., Oct. T., 1916, No. 63, for plaintiff on case tried by the court without a jury in case of Sallie C. Mabrey v. Metropolitan Life Insurance Company. Assumpsit on a policy of life insurance. Before Knowles, J. The case was tried without a jury, and judgment was entered for the plaintiff for $295. The evidence is summarized in the opinion of the Superior Court.

Appeal, No. 228, Oct. T., 1917, by plaintiff, from judgment of C. P. No. 2, Philadelphia Co., Sept. T., 1915, No. 3770, on verdict for plaintiff in case of United Shoe Machinery Company v. Anthony A. Hirst. Assumpsit on a surety bond. Before Rogers, J. The facts are stated in the opinion of the Superior Court. Verdict and judgment for plaintiff for $37. Plaintiff appealed. Error assigned, among others, was in overruling motion for judgment non obstante veredicto.

Appeal, No. 22, April T., 1918, by plaintiff, from judgment of C. P. Crawford Co., May T., 1917, No. 29, for defendant on case stated in suit of George Drayer, surviving husband of Minnie Roudebush Drayer, v. William Roudebush. Case stated to determine the right to a legacy. The court in an opinion by Prather, P. J., entered judgment for defendant. Error assigned was in entering judgment for defendant.

Appeal, No. 135, April T., 1918, by plaintiff, from decree of C. P. Indiana Co., March T., 1916, No. 110, awarding divorce in case of D. M. Caldwell v. Ella E. Caldwell. Libel for divorce. The case was referred to D. R. Tomb, Esq., as master, who after taking testimony reported in favor of awarding a decree for libellant.

Appeal, No. 73, April T., 1918, by plaintiff, from judgment of O. P. Cambria Co., June T., 1916, No. 550, for defendant n. o. v. in case of Ford Motor Company v. J. J. Quinn. Replevin for an automobile. Before Stephens, P. J. At the trial tbe jury returned a verdict for plaintiff for $404.68. Tbe court subsequently entered judgment for defendant non obstante veredicto'. Error assigned was in entering judgment for defendant non obstante veredicto.

Appeal, No. 52, April T., 1918, by James L. Hogan, Executor of Sarah Carey, from decree of O. C. Beaver Co., dismissing excéptions to report of auditor in Estate of Christina Gcehring, deceased. Exceptions to auditor’s report. Before Baldwin, P. J. Error assigned was in dismissing exceptions to auditor’s report.

Appeal, No. 29, April T., 1918, by defendant, from order of C. P. Westmoreland CO'., Nov. T., 1915, No. 236, discharging rule to open judgment in case of A. L. Leonard, Cashier, v. Samuel Warheld and J. P. Baughman. Rule to open judgment. Before Copeland, P. J., specially presiding. Error assigned was order discharging rule to open judgment.

Appeal, No. 137, April T., 1918, by defendant, from judgment of C. P. Westmoreland Co., Nov. T., 1916, No. 561, on verdict for plaintiff in case of J. T. Girts and L. O. Girts, trading as J. T. & L. C. Girts, v. H. S. Shaw. Assumpsit to recover commissions for the sale of real estate. Before Copeland, P. J., specially presiding.

Appeal, No. 42, April T., 1918, by Frederick Berg, from order of C. P. Allegheny Co., Oct. T., 1916, Docket C., No. 1591, dismissing exceptions to report of viewers In re Petition of the City of Pittsburgh, for the appointment of viewers to assess benefits for the improvement of West Liberty avenue. Exceptions to report of viewers.

<p>Appeal, No. 16, March T., 1918, by plaintiff, from judgment of C. P. Lackawanna Co., June T., 1914, No. 285, for defendant n. o. v. in case of Jan Ciszkowicz v. Scranton Railway Company.</p> <p>Trespass to recover damages for personal injuries and injuries to a horse and wagon. Before Newcomb, J.</p> <p>At the trial the jury returned a verdict for plaintiff for |350.</p> <p>On a rule for a new trial and judgment n. o. v. New-comb, J., filed the following opinion :</p> <p>The rule for new trial was abandoned at the argument. The only thing to be reviewed is the merits of defendant’s request for binding instruction. It was declined at bar and the case submitted subject to the general question of liability reserved. It was for the jury unless the unavoidable inference of contributory negligence arises out of plaintiff’s version of the circumstances ; and that is the point now at issue.</p> <p>The suit ivas for accidental’' injuries. Defendant stoutly contended that the accident was due to the fact that plaintiff had fallen asleep on his wagon. While that disputed allegation is not open to review, it is not at all inconsistent with what happened on plaintiff’s own showing.</p> <p>Defendant is a street passenger railway company. The place of the accident was on Main street in the village of Taylor, a suburb -of this city, at a point opposite the Weisenfluh’s hotel just north of the Grove street intersection. Plaintiff, huckster, was driving southerly at eleven o’clock at night on his way home from Scranton. There was no other traffic on the street. His eyesight is good; at least no claim is made or even suggested that it was in any way defective. The railway is a single track in the'middle of a street thirty-eight feet wide betAveen curbs and improved with sheet asphalt paving. Driving astride the westerly rail plaintiff suffered a head-on collision with a fully lighted car almost in an instant after he became aware of its approach and before he could turn aside. He had then been driving on the track in that way some two hundred and fifty feet, starting at a point affording a clear view of the track not less than 1,150 feet to the south, and nothing had happened either to obstruct the view or to interfere with his attention.</p> <p>Granting that no car was in sight when he drove on the track, there is no escape from the conclusion that it traveled at least nine hundred feet after it did come into-view before he saw it so nearly upon him that there was no time to avoid the collision.</p> <p>That could not be so, had he been looking as in duty bound to do. His description of the thing only serves to present two horns of a dilemma, upon either one of which his case must stand impaled. He was either unconscious of his surroundings, or else he drove along in stupid or reckless indifference to a visible-peril.</p> <p>He was not a trespasser merely because he was on the track; he only became so when he negligently remained there after notice of the approaching car, whereupon he was required to yield his place promptly: Dyer v. Philadelphia Rapid Transit Co., 58 Pa. Superior Ct. 634. But being deemed to have notice at any moment when in the ordinary use of his eyesight he must inevitably have seen this car, plaintiff cannot avoid its consequences. If he didn’t have timely notice it was his own fault. He cannot evade notice of that which in the nature of the case was in plain sight. He must be regarded as a trespasser, and nothing short of either a wilful or wanton act of defendant’s servants would make the company liable for his injury; and there was neither pleading nor proof to sustain a verdict for him on that ground.</p> <p>Binding instruction should have been given as requested. The rule for new trial is accordingly discharged, and the rule for judgment for defendant on the reserved point is made absolute.</p> <p>Error assigned was in entering judgment for defendant n. o. v.</p>

<p>Contract — Undertaker—Burial expenses — Order by daughter for burial of mother.</p> <p>In an action by an undertaker to recover the expenses of the burial of the defendant’s mother, where the statement avers that the expenses were incurred “at the special instance and request of the defendant,” an affidavit of defense is sufficient which sets up that the defendant did not, “and plaintiff well knew that she did not request him” to incur the expenses on her own behalf; that she did not intend to assume a personal responsibility, but was acting as the agent for the representatives of the estate of the deceased, and this the plaintiff well knew when he received the order from her.</p> <p>In such a case the act of the defendant in performing this necessary duty will be treated as having been made for and in behalf of the estate, although letters had not yet been issued. Letters of administration, when granted relate back so as to cover and validate acts previously performed in relation to the estate which are so imperatively necessary as funeral expenses.</p>

<p>Equity — Wrongful possession of land — Blight damages — Injunction.</p> <p>One who admittedly, without a claim or right in law or equity, holds possession of another’s land, cannot successfully defend against a bill for a mandatory injunction because the injury was not serious or oppressive and was readily compensated in damages. The amount of land involved, or the small amount of damages, does not change the rule, where there is a wrongful invasion of a positive right to real property.</p>

<p>Appeal, No. 330, Oct. T., 1917, by defendant, from judgment of C. P. Delaware Co., June T., 1916, No. 124, on verdict for plaintiff in case of John M. Schwatka v. H. J. Davidson.</p> <p>Trespass for malicious prosecution. Before Broom-all, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Error assigned was in giving binding instructions for defendant,</p>

<p>Appeal, No. 83, Oct. T., 1917, by defendant, from judgment of O. & T. Chester Co., August Sessions, 1916, No. 16, on verdict of guilty in case of Commonwealth v. Edward D. Stoner.</p> <p>Indictment for statutory rape. Before Butler, P. J.</p> <p>The opinion of the Superior Court states the case.</p> <p>Verdict of guilty upon which judgment of sentence was passed.</p> <p>Errors assigned were various instructions and rulings sufficiently set forth in the opinion of the Superior Court.</p>

<p>Deeds — Covenants—Encumbrances—Mortgage—"Under and subject.r</p> <p>Where an owner of real estate executes a bond and mortgage and then conveys the property to another, and thereafter the original owner is obliged to pay a part of the mortgaged debt because the proceeds of a Sale in foreclosure proceedings were not sufficient to pay the whole debt, such owner may recover the amount of the payment from his grantee, inasmuch as the words “under and subject” in the deed imported that the grantee took the land subject to an encumbrance, and the covenant to be inferred from them is that of indemnity for the protection of the grantor. There is nothing in the Act of June 12, 1878, P. L. 205, that will relieve the grantee from liability. The act applies to the relations between the grantee and the holder of the encumbrance.</p> <p>In such a ease'the grantor cannot he charged with negligence because he failed to defend the foreclosure proceedings, and did not bid on the property at the sheriff’s sale.</p>

<p>Appeal, No. 304, Oct. T., 1917, by plaintiff, from order of C. P. Schuylkill Co., Sept. T., 1916, No. 219, refusing to take off nonsuit in case of Charles S. Neuin v. City of Pottsville.</p> <p>Trespass to recover damages for injuries to a mule. Before Bechtel, P. J.</p> <p>At the trial the court entered a compulsory nonsuit which it subsequently refused to take off.</p> <p>Error assigned was refusal to take off nonsuit.</p>

Appeal, No. 16, March T., 1918, by plaintiff, from judgment of C. P. Cumberland Co., May T., 1916, No. 49, on verdict for plaintiff in case of Samuel E. Hauck, trading as Hauck Bros., v. David N. Mumma. Assumpsit to recover the price of a heating plant. Before Gillan, P. J., specially presiding. Verdict and judgment for plaintiff for $19.41. Plaintiff appealed. Error assigned, amongst others, was in overruling plaintiff’s motion for judgment n. o. v.

Appeal, No. 2, March T., 1918, by defendant, from judgment .of C. P. Luzerne Co., ■ March T., 1914, No. 261, on verdict for plaintiff in case of Samuel Oppenheimer v. Maryland Casualty Company. Assumpsit upon a policy of accident insurance. Before O’Boyle, J. The opinion of the Superior Court states the case. Verdict and judgment for plaintiff for $1,024.59. Defendant appealed. Errors assigned, among others, were in refusing defendant’s motion for judgment n. o. v.

Appeal, No. 95, April T., 1918, by plaintiff, from judgment of C. P. Greene Co., Sept. Sessions, 1918, No. 58, on verdict for defendants in case of O. M. Taylor v. Isaac Orndoff et al. Replevin for a horse. Before Ray, P. J. The opinion of the Superior Court states the case.

Appeal, No. 138, April T., 1918, by defendant, from judgment of C. P. Somerset Co., Feb. T., 1917, No. 241, in proceedings under the Act of March 28, 1820, 7 Sm. L. 310, to compel payment of money in case of Thomas C. Jenkins v. George Statler. Petition under the Act of March 28,1820, 7 Sm. L. 310, to compel a justice of the peace to pay over money collected by him.

<p>Appeal, No. 72, Oct. T., 1917,' by Pbcenixville, Yalley Forge and Strafford Electric Bailway Company, from order of Q. S. Chester Co., dismissing exceptions to report of jury of view.</p> <p>Exceptions to report of jury of view. Before Hause, J.</p> <p>Errors assigned were in dismissing exceptions to report of jury of view.</p>

<p>Appeal, No. 291, Oct. T., 1917, by defendant, from decree of G. P. No. 1, Philadelphia Co., June T., 1917, No. 151, awarding divorce in case of Emma G. Betz v. John F. Betz.</p> <p>Libel for divorce a mensa et thoro.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was the decree of the court.</p>

<p>Appeal, No. 34, April T., 1918, by Allegheny Trust Company, from judgment of C. P. Beaver Co., for M. J. Park on case</p> <p>stated.</p> <p>Case stated to determine priority of lien of two writs of attachment execution.</p> <p>The case stated set forth that the execution of M. J. Park and the Allegheny Trust Company were issued and placed in the hands of the sheriff the same day, April 13, 1914, respectively. The exact difference in point of time between the issuance of said writs was not stated.</p> <p>The writ of M. J. Park was served by the sheriff on the garnishee, the Pennsylvania Company, on April 13, 1914, and on the following day, April 14th, the sheriff served the same on the defendant in the attachment, to the North Shore Railroad Company. On April 14,1914, the sheriff served the writ of the Allegheny Trust Company on both garnishee and defendant.</p> <p>The court in an opinion by Baldwin, P. J., entered judgment for M. J. Park.</p> <p>Error assigned was the judgment of the court.</p>

<p>Appeal, No. 35, April T., 1918,</p> <p>by defendant, from judgment of C. P. Allegheny Co., Jan. T., 1916, No. 1790, on verdict for plaintiff in case of Zelda Simon v. New York Life Insurance Company.</p> <p>Assumpsit upon a policy of life insurance. Before Evans, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for fl,427.89. Defendant appealed.</p> <p>Error assigned was the ruling on evidence sufficiently referred to in the opinion of the Superior Court.</p>

<p>Mechcmic’s lien — Notice of filing — Service on attorney in fact — ■ Act of June It-, 1901, Sec. £1, P. L. hSl.</p> <p>Under Section 21 of the Act of June 4,1901, P. L. 431, an owner of real estate may appoint by parol an attorney in fact to accept notice of the filing of a mechanic’s lien upon his property.</p>

<p>Appeal, No. 117, April T., 1918, by defendant, from order of C. P. Allegheny Co., Jan. T., 1918, No. 1602, refusal on appeal from judgment of the County Court in case of Jacob Yeager v. Jeannette Land Company.</p> <p>Petition for appeal from judgment of the County Court.</p> <p>Error assigned was order refusing the appeal.</p>

<p>Contract — Sale of automobiles — Principal and agent — Bonus on sales.</p> <p>Where a contract between a manufacturer of automobiles and a seller of automobiles provided that the seller should give a written order for automobiles which he would require upon a form provided by the manufacturer between the date of the agreement and a subsequent date mentioned, and annually thereafter, at least thirty days before tbe date mentioned in eacb year during tbe continuance of the agreement, and the contract further provided that the manufacturer in addition to the commissions should pay a bonus of ten dollars per car for each car taken payable within sixty days after the date mentioned, with privilege to each party to cancel the agreement at any time upon notice, and the manufacturer cancels the agreement before the expiration of a year, the seller has a right to recover the bonus upon the cars which he had sold, and receive payment of such bonus within sixty days after the date of the cancellation of the contract.</p>

<p>Appeal, No. 77, April T., 1918, by plaintiff, from order of C. P. Allegheny Co., April T., 1917, No. 594, affirming judgment of the County Court in case of Judd H. Bruff, Sheriff, for use of Laura A. Stilley et al., y. C. N. Stoops et al.</p> <p>Appeal from judgment of County Court of Allegheny County.</p> <p>Error assigned was in affirming judgment of the County Court.</p>

<p>Negligence — Master and-servant — Incompetent workmen — Death.</p> <p>In an action against a steel company to recover damages for death of plaintiff’s husband, the case is for the jury, and a judgment on a verdict for plaintiff will be sustained where the evidence tends to show that the deceased while working at a crane in the' defendant’s plant was struck by a circular plate weighing two tons which was lifted in the air, and so negligently handled as to swing against him and fatally injure him, and that the negligent handling of the crane was by an incompetent workman.</p>

<p>Execution — Abuse of civil process — Malice—Probable cause.</p> <p>In an action of trespass to recover damages for the abuse of civil process in making an illegal levy, malice and probable eauJe need not be shown.</p> <p>Execution — Sheriffs interpleader — Illegal levy — Act of May 26, 1897, P. L. 95.</p> <p>The Sheriff’s Interpleader Act of May 26, 1897, P. L. 95, does not furnish an exclusive remedy to an owner, of goods illegally' levied upon under an execution against another person. The act was established for the protection of the sheriff, and not on behalf of contending claimants for property. Even if a claimant loses his right of action against the sheriff by reason of noncompliance with the interpleader act, he still has his remedy over against the person who is responsible for the wrongful taking and sale of his property.</p>

<p>Appeal, No. 25, March T., 1918, by defendant, from judgment of C. P. Columbia Co., Sept. T., 1915, No. 355, on verdict for plaintiff in case of William A. Fritz v. Isaiah Hartman.</p> <p>Assumpsit for board and services rendered a decedent. Before Evans, P. J.</p> <p>At the trial it appeared that plaintiff claimed for board and nursing of Samuel Hartman, his father-in-law, for the last three years of his life. There was evidence which tended to show that Samuel Hartman under an arrangement with his children and the plaintiff went and stayed with each alternately under a stipulation that he should pay no board. There was no evidence that the decedent had agreed that this arrangement should cease. The court under objection and exception admitted in evidence letters written by the plaintiff to some of the children of decedent urging them to fix a price for the latter’s board. (2, 3) The court refused binding instructions for defendant. (10)</p> <p>Verdict and judgment for plaintiff for $584. Defendant appealed.</p> <p>Errors assigned were (2, 3) admission of letters quoting the bill of exceptions; (10) refusing binding instructions for defendant.</p>

<p>Appeal, No. 257, Oct. T., 1917, by defendants, from judgment of Q. S. Philadelphia Co., Jan. Sessions, 1917, No. 719, on verdict of guilty in case of Commonwealth v. Edward Keegan et al.</p> <p>Indictment for assault and battery and aggravated assault and battery. Before Carr, J.</p> <p>Verdict of guilty upon which judgment of sentence was passed.</p> <p>Errors assigned were (1-36) various rulings and instructions sufficiently appearing in the opinion of the Superior Court.</p>

Appeal, No. 70, Oct. T., 1918, by defendant, from judgment of Municipal Court, Philadelphia Co., Oct. T., 1917, No. 95, for plaintiff, on case tried by the court without a jury in suit of Robert M. Horter v. M. J. Walsh. Assumpsit to recover commission for effecting a loan. The case was tried by MacNeille, J., without a jury, who entered judgment for plaintiff for $355.75. Defendant appealed. Error assigned was in entering judgment for plaintiff:

Appeal, No. 267, Oct. T., 1918, by defendant, from order of O. P. No. 4, Philadelphia Co., June T., 1918, No. 3535, discharging rule to open judgment in case of Samuel Braman, Assignee of Charles Kaplan, Lessor, v. S. Bassman and M. Glatstein, Lessees. Rule to open judgment in ejectment entered on a lease. Error assigned was order discharging rule to open judgment.

Appeal, No. Ill, April T.^ 1918, by Peoples Natural Gas Company, from order of Public Service Commission, Complaint Docket, Nos. 1083, 1916, directing the posting of the tariff and schedule of rates in case of Louis Franke v. Johnstown Fuel Supply Company and Peoples Natural Gas Company. Protest against a tariff and schedule of rates published by a natural gas company.

<p>Public Service Commission — Appeals—Time within which appeal must be ialcen — Act of July 26, 1913, Art. VI, Sec. 14, P. L. 1424-</p> <p>Where a light company applies to the Public Service Commission for a certificate of public convenience approving a contract between the company and the city, and another company files a protest, but does not intervene and become a party to the proceedings in the manner provided by Section 14 of Art. VI of the Public Service Company Law of July 26, 1913, P. L. 1424, the protesting company is not entitled to notice of the “determination” of the commission; and if it is entitled to appeal at all it must do so “within thirty days after the filing” of the determination by the commission.</p> <p>Public Service Commission — Light companies — Contract with city — Jurisdiction of commission.</p> <p>Where a light company petitions the Public Service Commission for a certificate of public convenience evidencing the approval of an ordinance contract ordained by a city prescribing the conditions upon which the city would consent to the entry upon its streets by the company, the existence of a contract, absolutely binding upon the city and the company is not necessary to the exercise of jurisdiction by the commission, if it appears that the ordinance was not enacted until after the passage of the Public Service Company Act, that it did not require the company to enter into any contract until after the approval by the commission, but did provide in effect that the company might enter upon the streets if it accepted the provisions of the ordinance by a corporate action within ninety days, or all its property and equipment to be forfeited to the city, with a further provision that if the company were prevented by litigation from taking such action the time for so doing should not begin to run until from the date of the final disposition of such litigation.</p> <p>It is not the function of the Superior Court to act as a second administrative commission. The finding of the commission that the approval of an application is necessary and proper for the service accommodation, convenience, or safety of the public, is prima facie evidence of the reasonableness thereof, and the burden of proving the contrary rests upon the person denying it.</p>

Appeal, No. 107, April T., 1918, by plaintiff, from order of Public Service Commission, Complaint Docket No. 1415 and Complaint Docket No. 1433, overruling, demurrer to complaint in case of Payette County Gas Company v. Public Service Commission. Complaint against increase of rates. Error assigned was order overruling demurrer to complaint.

<p>Appeal, No. 206, Oct. T., 1917, by plaintiff, from judgment of O. P. Centre Co., Sept. T., 1916, No. 92, for defendants in case of John Wanamaker, a Corporation, v. Augusta C. Shoemaker, Executrix, et al.</p> <p>Assumpsit on a contract of suretyship. Before Quigley, P. J.</p> <p>The opinion of the Superior Court states the facts.</p> <p>Error assigned was in entering judgment for defendants.</p>

Appeal, No. 12, April T., 1918, by defendant, from judgment of C. P. Allegheny Co., July T., 1915, No. 1514, on verdict for plaintiff in case of Howard C. Frank et al., doing business as Frank, Lloyd & Stoplet, v. American Bond & Mortgage Company. Assumpsit on an oral contract for the preparation of plans for a building. Before Cohen, J. The opinion of the Superior Court states the case. Verdict and judgment for plaintiff for $1,228.50. Defendant appealed.

Appeal, No. 53, April T., 1918, by plaintiff, from order of C. P. Cambria Co., June T., 1916, No. 11, distributing proceeds of sheriff’s sale of real estate in case of Dowling & Company v. Jennie B. Vallett. Exceptions to auditor’s report distributing proceeds of sheriff’s sale of real estate. Before Stephens, P. J. The opinion of the Superior Court states the facts. '' Error assigned was order of distribution.

Appeal, No. 104, April T., 1918, by Commonwealth, from decree of O. C. Westmoreland Co., May T., 1917, No. 230, dismissing appeal from collateral tax appraisement in Estate of Abraham L. Keister. Error assigned was the decree of the court. -

<p>Appeal, No. 404, Oct. T., 1918, by defendant, from judgment of Municipal Court, Philadelphia Co., Aug. T., 1917, No. 404, on verdict of guilty in case of Commonwealth v. Samuel B. Ostrum.</p> <p>Indictment for seduction under promise of marriage. Before Gorman, J. See Commonwealth v. Bemey, (2) 262 Pa. 176.</p> <p>Verdict of guilty upon which judgment of sentence was passed. Plaintiff appealed.</p> <p>Error assigned, amongst others, was in failing to properly instruct the jury with reference to the law upon the question of reasonable doubt.</p>

Appeal, No. 63, April T., 1918, by defendant, from judgment of C. P. Allegheny Co., July T., 1914, No. 1349, on verdict for plaintiffs in case of William H. Seif et al. v. George Muse. Ejectment for land in Versailles Township. Before Evans, J. From the record it appeared that by deed dated November 28, 1894, and properly recorded, John Muse, Jr., and his wife conveyed the land in dispute to the defendant, George Muse.

Appeal, No. 18, April T., 1918, by defendant, from judgment óf C. P. Crawford Co., Sept. T., 1915, No. 77, on verdict for plaintiff in case of Hettie Schultz v. C. J. Grove. Ejectment for a strip of land twenty-five feet wide, in Troy Township. Before Prather, P. J. At the trial it appeared that plaintiff and defendant claimed under a common ancestor, A. G. Proper.

<p>Appeal, No. 20, March T., 1918, by plaintiff, from order of Public Service Commission, Application Docket, No. 1236, 1917, approving certificate of public convenience in case of Bethlehem City Water Company v. Public Service Commission of the Commonwealth of Pennsylvania, appellee, and Northampton County Water Company, Intervening appellee.</p> <p>Petition for certificate of public convenience, approving the extension of water pipes into a borough.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was order of the Public Service Commission approving the application.</p>

Appeal, No. 72, Oct. T., 1918, by plaintiff, from order of Municipal Court, Philadelphia Co., Sept. T., 1917, No. 227, refusing to take off non-suit in case of Alma C. Bechtel, by her next friend and father, John C. Bechtel, v. Gilbert Raynolds Combs. Trespass to recover damages for an alleged assault. Before Gilpin, J. The opinion of the Superior Court states the case. At the trial the court entered a compulsory nonsuit which it subsequently refused to take off.

Appeal, No. 14, March T., 1919, by defendant, from decree of O. P. Perry Co., Aug. T., 1918, No. 10, awarding and continuing preliminary injunction in case of Gabriel Salant et al., trading as Salant & Salant, v. J. K. Sauserman and Philips-Jones Company, Inc. Bill in equity for an injunction. Before Keller, P. J. The facts are stated in the opinion of the Superior Court. Error assigned was order continuing the preliminary injunction.

Appeal, No. 73, Oct. T., 1918, by defendant, from judgment of Municipal Court, Philadelphia Co., Dec. T., 1916, No. 398, on verdict for plaintiff in case of Fredericka A. Yocum v. Philadelphia & West Chester Traction Company. Trespass to recover damages for personal injuries. Before Crane, J. Verdict and judgment for plaintiff for $1,200. Defendant appealed. Error assigned Was in refusing binding instructions for defendant.

<p>Appeal, No. 94, Oct. T., 1918, by defendant, from judgment of C. P. No. 3, Pfiila. Co., March T., 1917, No. 4808, on verdict for plaintiff in case of Emily Corcoran v. Philadelphia.</p> <p>Trespass to recover damages for personal injuries. Before Ferguson, J.</p> <p>Verdict and judgment for plaintiff for $395. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for defendant.</p>

<p>Appeal, No. 259, Oct. T., 1918, by defendant, from judgment of O. P. No. 3, Philadelphia Co., March T., 1917, No. 7084, M. L. D., on verdict for plaintiff in case of N. Connolly v. The Pennsylvania Company for Insurances on Lives and Granting Annuities, Executor of the Estate of William B. Grubb, deceased, owner or reputed owner, and Christian Sanitarium for Incurables, C. H. Smith, Treasurer, Contractor.</p> <p>Scire facias sur mechanic’s lien. Before Davis, J.</p> <p>Verdict and judgment for plaintiff for $232.06. The Pennsylvania Company for Insurances on Lives, Etc., Executor, appealed.</p> <p>Error assigned was in refusing defendant’s motion for judgment n. o. v.</p>

Appeal, No. 115, Oct. T., 1918, by defendant, from judgment of O. P. No. 2, Philadelphia Co., Dec. T., 1916, No. 2739, on verdict for plaintiff in case of George Cooper v. Electro-Tint Engraving Company. Trespass to recover damages for malicious prosecution. Before Rogees, J. The facts are stated in the opinion of the Superior Court. When George Cooper was on the stand he was asked the question: Q. Where were you at 6:57 a. m. that day? Mr. Buckley: Objected to.

<p>Appeal, No. 30, Oct. T., 1918, by defendant, from judgment of C. P. No. 3, Philadelphia Co., March T., 1917, No. 3323, on verdict for plaintiff in case of Clara Friars v. Mary and Carlton L. Wilson.</p> <p>Trespass to recover damages for malicious prosecution. Before Ferguson, J.</p> <p>The opinion of the Superior Court states the case.</p> <p>Defendants’ offered, inter alia, the following point:</p> <p>“3. If you believe that defendants really thought that plaintiff had committed certain acts which constituted the crime of larceny, and that defendant had good reason for so thinking, your verdict must be for the defendants.” Answer. Refused. (4)</p> <p>Verdict and judgment for plaintiff for $750. Defendants appealed.</p> <p>Errors assigned, inter alia, were (2) refusal of binding instructions for defendants and (4) answer to point as above, quoting it.</p>

<p>Appeal, No. 277, Oct. T., 1918, by defendant, from judgment of Municipal Court, Philadelphia Co., March T., 1918, No. 403, on verdict for plaintiff in case of Louis Rossman, by his brother and next friend, Samuel Rossman, v. American Express Company.</p> <p>Trespass to recover damages for false arrest.</p> <p>At the trial the jury returned a verdict for $500 on which judgment was entered.</p> <p>Error assigned was refusal of defendant’s motion to enter judgment for defendant non obstante veredicto.</p>

<p>Criminal law — Common scold — Contempt of court — Jurisdiction.</p> <p>The court has no jurisdiction to commit to prison for contempt a person indicted as a common scold because she did not obey an order “to remove from the premises wherein she then resided, within thirty days.” Such an order the court has no authority to make and is powerless to enforce.</p> <p>Nor in such a case can she be committed for contempt because she brought about “eight successive postponements of the cause.” Such postponements must necessarily have been with the approval of the court for causes then deemed adequate. The penalty imposed in such a ease “committed until purged thereof” is without authority of law.</p>

<p>Negligence — Evidence — Hospital record■ — ■Omission to• read whole record.</p> <p>The omission to read the whole of the hospital record of the plaintiff in an accident case is not ground for a new trial, where it appears that the defendant’s counsel had access to the record, and could have known of the omission, and there is nothing to show that plaintiff’s counsel countenanced any concealment. The part omitted is not such after-discovered evidence as would justify a reversal because a new trial was not granted on account of it.</p>

<p>Appeals, Nos. 228 and 238, by defendant, from judgment of C. P. No. 3, Philadelphia Co., Sept. T., 1917, No. 1291, on verdict for plaintiffs in case of Robert C. House and Jean M. House, his wife, v. E. Roberts Cox.</p> <p>Trespass to recover damages for personal injuries. Before Davis, J.</p> <p>Verdict and judgment for plaintiffs, for Robert C. House for $500, and for Jean M. House for $500. Defendant appealed.</p> <p>Errors assigned were in form of reasons for a new trial.</p>

Appeal, No. 273, Oct. T., 1918, by defendant, from judgment of Q. S. Lancaster Co., April Sessions, 1918, No. 47, on verdict of guilty in case of Commonwealth v. John Evans (real name John W. Evans). Indictment for receiving stolen goods. The jury returned a verdict of guilty.

<p>Appeal, No. 258, Oct. T., 1918, by defendant, from order of Municipal Court, Philadelphia Co., (Misdemeanors’ Division) as of No. 01249, May Sessions, 1918, committing defendant to House of Correction in case of Commonwealth v. Maud Roller.</p> <p>Charge of street walking. Before Gorman, J., without a jury.</p> <p>Error assigned was order committing defendant.</p>

<p>Brokers — Beal estate iroker — Commissions.</p> <p>A real estate broker is not entitled to commissions on a sale of real estate, where it appears that the sale was made six months after he had ceased to be an agent for the sale, and he fails to show that his efforts were the immediate, efficient and procuring cause of the sale.</p>

<p>Appeals — New trial■ — Discretion of court.</p> <p>An order granting a new trial will not be reversed unless error in fact or law clearly appears to the appellate court.</p>

<p>Appeal, No. 92, April T., 1918, by defendant, from judgment of Q. S. Indiana Co., March Sessions, 1917, No. 2, on verdict of guilty in case of Commonwealth v. Sam Gallo.</p> <p>Indictment for selling liquor without a license. Before Langham, J.</p> <p>At the trial the jury returned a verdict of guilty.</p> <p>On a motion for arrest of judgment Langham, J., filed the following opinion:</p> <p>Reasons 1 to 6, inclusive, are to the effect that the preliminary hearing before the justice of the peace, the taking of defendant’s recognizance and the return of the recognizance to the Quarter Sessions Court, the consideration of the charges and the finding of the bill of indictment by the grand jury all took place upon one and the same day, to wit, March 7, 1917, the said grand jury having been summoned, impanelled, sworn and having commenced its duties prior to said date, March 7,1917.</p> <p>We recognize that every defendant has the right to challenge the array of grand jurors for the purpose of correcting irregularities in the summoning thereof, and the right to challenge the personnel of the grand jury for cause. These are common law rights, and are guaranteed by the Constitution.</p> <p>In the case at bar how was the defendant deprived of any common law or guaranteed right of challenge An information was made against him by the sheriff of Indiana County on February 17, 1917. He was arrested on February 28, 1917, and gave bail for his appearance at a hearing to be held March 7,1917. He was represented by counsel at the preliminary hearing before the justice of the peace when and where he was held for answer to the Court of Quarter Sessions giving his recognizance for his appearance at the March sessions of said court. No protest or objection was made to the recognizance. In keeping with the transcript of the justice and recognizance the district attorney prepared a bill of indictment, and same day, March 7,1917, presented the case to the grand jury then in session, upon which-a true bill was found. On March 16,1917, the date set for trial, defendant’s attorneys moved to quash the indictment, setting forth substantially the same reasons embraced from 1 to 6, inclusive, in this motion for arrest of judgment, but did not allege any cause for challenge to the array or cause for challenge to any individual member of the grand jury. The case was called for trial on March 16th, and the defendant failed to appear, whereupon his recognizance was forfeited. Subsequently, on March 20th, the defendant appeared and renewed his recognizance for appearance at the June sessions, at which time the case was continued, and the recognizance renewed for September sessions, at which time the case was .tried. Prom the time of the hearing before the magistrate to the present hour the defendant has been ably represented by counsel, and at no time, before trial or since, has there even been an intimation that any cause existed for challenge to the grand jury as a whole or in part upon any grounds whatever. Just because the grand jury had been sworn on Monday, March 5th, prior to the hearing before the justice, and presentation to the grand jury on Wednesday, March 7th, did not preclude the defendant from his right of challenge if any cause existed. It is true if cause for challenge to the array, or of one or more individual members of the grand jury, is known before the grand jury is sworn, the right of challenge ought to be exercised before the jury is sworn. It would be the more orderly practice to do so. But if cause develops after the grand jury is sworn the defendant should not be deprived of his constitutional rights simply because the grand jury was sworn before the defendant learned of any cause for challenge. In this case no application was made to the court to challenge the array of grand jurors or any member thereof during the sessions of the grand jury, and no allegations of cause for challenge has been made at any stage of the proceedings. We say that defendant’s right of challenge was not abridged or denied.</p> <p>Counsel for defendant argues and urges that the indictment is illegal because the Act of May 22, 1722 (3, Statutes at Large, 298), requires every recognizance to be certified into the court where the offense is triable at the court to be holden “Next after the taking thereof.”</p> <p>In this case the recognizance certified by the magistrate to the Court of Quarter Sessions required the appearance of the defendant at the “March Term of Court.” The grand jury for the March sessions was in session at the time the recognizance was signed by the defendant and his bondsman. It seems to us that the district attorney could not do otherwise than present the bill to the grand jury then in session, and if objection was wont to. be made it should have been made at the time of the execution of the recognizance. The defendant was represented by counsel at the time the recognizance was taken and certified. Was this defect, if it is a defect at all, not cured by the failure of the defendant to protest at that time? The only injury' or prejudice that could result to the defendant on account of the recognizance being taken and certified as it was taken and certified would be to deprive him of his right of challenge for cause to the array of grand jurors or to some member thereof, and we think he was not thereby deprived. Can it be said that where a crime is charged, and preliminary hearing had thereon during the period that the grand jury is in session that the defendant must wait until the meeting of a subsequent grand jury before his case -can be investigated by a grand jury? The statute referred to must certainly be construed in tbe light of an expeditious administration of justice. We fail to see where the rights of the defendant in this ease have been prejudiced as contended.</p> <p>Reasons 7 to 16, inclusive, can hardly be said to bo legal reasons in arrest of judgment. At all events we have considered said reasons in our opinion refusing the motion for a new trial in this case.</p> <p>And now, November 5, 1917, this case came on to be heard, and after argument of counsel, upon due consideration motion in arrest of judgment is refused.</p> <p>The facts of the case appear by the opinion of the Superior Court.</p> <p>Errors assigned were (1-36) refusal to arrest judgment and various instructions.</p>

<p>Custom — Posting of letters — Receipt of letter — Presumption.</p> <p>Proof of a custom in a sender’s office whereby letters deposited in a particular place are taken by an employee and mailed by him, in connection with proof that a particular letter was so deposited and properly taken and mailed as usual, may support a presumption of due receipt; but this rule does not apply where there is no proof that the stenographer whose duty it was to mail the letter performed her duty.</p>

<p>Appeal, No. 207, Oct. T., 1918, by defendant, from judgment of Municipal Court, Philadelphia Co., Feb. T., 1918, No. 148, on verdict for plaintiff in case of Charles Schock v. Ernest Berry.</p> <p>Assumpsit for breach of contract.</p> <p>At the trial the jury returned a verdict for plaintiff for |242.40 on which judgment was entered. Defendant appealed.</p> <p>Error assigned was refusal of new trial.</p>

<p>Appeal, No. 155, Oct. T., 1918, by plaintiff, from order of O. P. No. 2, Philadelphia Co., Dec. T., 1917, No. 2854, dismissing appeal from finding of Workmen’s Compensation Board in case of Linwood L. Hallman, Substituted Guardian of. the Estate of Laura J. Bennett Cauffman also known as Laura B. Cauffman, a lunatic, v. Starr- Printing Company.</p> <p>Appeal from finding of Workmen’s Compensation Board.</p> <p>Error assigned was order dismissing appeal.</p>

<p>Appeal, No. 133, Oct. T., 1918, by defendants, from judgment of Municipal Court, Philadelphia Co., Dec. T., 1917, No. 165, for defendant on case tried by the court without a jury in suit of Morris Kardon, trading as M. Kardon Paper Company, v. Harry S. Forst and Hugo Barol, copartners, trading as H. S. Forst Company.</p> <p>Assumpsit for goods sold and delivered. Before Crane, J.</p> <p>The case was tried by the court without a jury.</p> <p>The court found as follows:</p> <p>“The court finds in favor of the defendant upon the weight of the credible evidence in the case and directs that the defendant returned to the plaintiff the boxes covered in the book account, within five days from the date of this finding.”</p> <p>The boxes were not returned, and the court made an order granting a new trial.</p> <p>Error assigned was the order of the court.</p>

Appeal, No. 37, Oct. T., 1918, by defendant, from judgment of O. P. No. 4, Philadelphi a Co., Sept. T., 1916, No. 771, on verdict for plaintiff in case of Isaac Katzenberg et al., trading as Jacob Stern & Son, v. Herman Oberndorf et al., trading as Oberndorf & Sons. Assumpsit for breach of contract in failing to deliver hides. Before Finletter, J. Verdict and judgment for plaintiff for $1,222.96. Defendant appealed.

<p>Building and loan association — Assignment of stock — Collateral to mortgage — Appropriation of dues.</p> <p>The assignment of stock in a building and loan association to the association as collateral security for a mortgage indebtedness, does not have the effect of appropriating the monthly dues subsequently paid, to a pro tanto liquidation of the indebtedness, until the association elects to do so. If. the association elects to satisfy the debt from the mortgaged premises, it loses its right to appropriate pro tanto, the dues paid upon the stock.</p>

<p>Appeal, No. 86, Oct. T., 1918, by plaintiff, from judgment of C. P. Lancaster Co., Aug. T., 1916, No. 42, on verdict for defendant in case of L. E. Ryder v. D. J. Jenkins.</p> <p>Issue framed on sheriff’s interpleader. Before Hassler, J.</p> <p>In the course of the trial Mr. Davis asked Kelchner’s chauffeur the following question in cross-examination: “Are you under indictment for the larceny of one of these machines?” The court refused to allow the witness to answer.</p> <p>Verdict and judgment for defendant for $525. Plaintiff appealed.</p> <p>Errors assigned were (1) the refusal to enter judgment for plaintiff n. o. v., (2) the submission of the case to the jury, and (3) refusal of cross-examination.</p>

<p>Equity — Equity practice — Dismissal of hill — Notice of — Nature of nonsuit — Bes adjudicata.</p> <p>Where in an equity case no evidence is taken on behalf of the defendant, and the trial judge enters a decree that “in accordance with Eule 68 of the Equity Eules I find that the plaintiff’s case has not been sustained, and that the bill should be dismissed” and the court in banc enters a.decree dismissing the bill, such decree has the effect of a nonsuit at law, and does not bar the plaintiff from filing a second bill.</p>

<p>Appeal, No. 120, Oct. T., 1918, by defendant, from judgment of Municipal Ct., Philadelphia Co., Dec. T., 1917, No. 522, on verdict for plaintiff in case of Thomas Slattery,- trading as Slattery Brothers, v. Jane Carroll.</p> <p>Assumpsit for a car of coal sold and delivered. Before Knowles, J.</p> <p>At the trial the court gave binding instructions for plaintiff.</p> <p>Verdict and judgment for plaintiff for $133.71. Defendant appealed.</p> <p>Error assigned was in giving binding instructions for plaintiff.</p>

<p>Negligence — Physicians—Dentists — Pulling sound tooth — Evidence — Gdse for jury.</p> <p>In an action against a dentist tbe plaintiff is entitled to have hia case submitted to the jury, where, although to some extent contradicted, his evidence tended to show that the defendant negligently extracted a tooth that could have been saved and filled and, without the consent of the plaintiff, extracted another perfectly sound tooth.</p> <p>A physician is liable to his patient for the failure to exercise that reasonable degree of learning, skill and experience which ordinarily is possessed by others of his profession. He is bound to bestow such reasonable and ordinary care, gkill and diligence as physicians and surgeons in the sáme neighborhood, and in the same general line of practice, ordinarily have and exercise in like eases.</p>

Appeal, No. 319, Oct. T., 1917, by defendant, from decree of O. P. No. 5, Philadelphia Co., June T., 1915, No. 1659, awarding divorce in case of Frederick J. Hirsch v. Georgianna Hirsch. Libel for divorce for desertion. The court entered a decree awarding divorce. Error assigned was decree without quoting it.

<p>Negligence — Master cmd servant — “Fellow servant” — Words and phrases.</p> <p>Generally speaking, a fellow servant is one who is under the direction and control of the same master, and servants of different masters are not deemed fellow servants within this rule, although they are working together for the same ultimate purpose on the same premises. Where a servant works side by side with one employed by his master as an independent contractor, or with a servant of such contractor, or the latter servant works with the servant of -a subcontractor, they are not fellow servants even though they help to do the same work for the benefit of the same ultimate employer.</p> <p>It is the duty of independent or different masters engaged about the same general employment to use such ordinary care and diligence in the conduct and prosecution of their several contracts or employments so as not to expose the servants of the master working with them to danger, and if injury results to the servants of either, through failure to exercise such care and diligence, the master whose servants caused the injury will be liable in damages.</p>

<p>Judgment — Opening judgment — Municipal Court of Philadelphia — Practice, C. P.</p> <p>A judgment entered in the Municipal Court' of Philadelphia County on the twelfth day after service of statement, for want of an answer within ten days as required hy rule of court, cannot bo opened on mere petition, without any evidence to support the petition, and without opportunity to file an answer to petition to open the judgment.</p> <p>It is not a ground for opening such a judgment that the papers in the case had been mixed up with other papers in the office of the attorney for the defendant, and that the notice to answer had been overlooked.</p>

<p>Appeal, No. 113, Oct. T., 1918, by defendant, from judgment of Municipal Court, Philadelphia Co., April T., 1917, No. 631, on verdict for plain- ' tiff in case of Milton Stern & Louis I. Bellow, trading as Auto Transit Company, v. Lee S. Bowers & Charles S. Bowers, copartners, trading as L. S. Bowers Company.</p> <p>Assumpsit for the value of an automobile. Before Knowles, J.</p> <p>. Yerdict and judgment for plaintiff for $350, on trial by the court without a jury. Defendant appealed.</p> <p>Error assigned was in entering judgment on the verdict.</p>

<p>Appeal, No. 127, Oct. T., 1918, by plaintiff, from order of C. P. Centre Co., May T., 1916, No. 158, dissolving attachment in case of Peter W. Rouss, trading and doing business as Charles Broadway Rouss, v. J. S. Gilliam et al.</p> <p>Rule to dissolve attachment under Act of March 17, 1869, P. L. 9.</p> <p>Quigley, P. J., filed the following opinion:</p> <p>On the 13th of April, 1916, the plaintiff filed his praecipe for an attachment under the Fraudulent Debtor’s Act of March 17, 1869, and in pursuance thereof the sheriff of Centre County attached certain personal property ofgthe defendant, consisting of a stock of merchandise. Answer was filed to the same by the defendant, as well as by F.' W. Crider, landlord of the premises occupied by the defendant, who, upon petition, had been allowed to intervene, and a motion was pending to dissolve the attachment and quash the proceedings when the defendant died on or’1 about the 16th of July, 1916. His counsel, who is also executor of the estate, has filed a petition to dissolve said attachment because of the death of said defendant.</p> <p>Counsel for said defendant contends that the death of the defendant before judgment works a dissolution of the attachment, on the theory that in this respect there is no distinction between an attachment under this act and an attachment under the Foreign Attachment Act.</p> <p>That death before judgment works a dissolution in a proceeding in foreign attachment there can be no question. In Reynolds v. Nesbitt, 196 Pa. 638, Mr. Chief Justice Green says: “An examination of the authorities shows that this court has, in repeated instances, decided that the death of a defendant in a writ of foreign attachment, before final judgment against him was obtained, works a dissolution of the attachment.”</p> <p>As far as we can ascertain, the appellate courts have not passed directly on the point in question. The act, however, was construed by Briggs, J., in Frailey v. Insurance Company, 9 Philadelphia 219, as follows:</p> <p>“Before the plaintiff obtained his judgment the defendant corporation had been dissolved according to law, and hence had no legal existence at the time of judgment. Such a judgment is as ineffectual as would be a judgment given against a dead person, though such deceased person were alive at the institution of the suit. The issuance of the atthchment under the Act of April 17, 1869, is an assertion by the plaintiff of his right of action against the defendant, but it is not an adjudication of such right, nor has it such effect.</p> <p>“In this case the defendants being functus officio at the time of the judgment, the judgment does not estop the receiver. This was expressly ruled in Farmers’ and Mechanics’ Bank v. Little, 8 W. & S. 207.” ‘</p> <p>The court cited with approval the case of Farmers’ and Mechanics’ Bank v. Little, 8 W. & S. 207, holding in effect that the rule applies as well to an attachment under the Act of 1869 as under the Foreign Attachment Act.</p> <p>This we believe to be the proper construction, and therefore grant the prayer of the petitioner.</p> <p>And now, March 20, 1918, the attachment is hereby dissolved at the cost of the plaintiff.</p> <p>■Error assigned was order dissolving the attachment.</p>

Appeal, No. 222, Oct. T., 1918, by defendant, from judgment of C. P. No. 2, Philadelphia Co., March T., 1916, No. 4832, for the Commonwealth on appeal from assessment for mercantile tax in case of Commonwealth v. Thorne, Neal & Company, Incorporated. Appeal from assessment of mercantile tax. Before Wessel, J. The facts are stated in the opinion of the Superior Court. Error assigned was in entering judgment for the Commonwealth for $1,253.50.

Appeal, No. 233, Oct. T., 1918, by defendant, from decree of O. P. No. 1, Philadelpia Co., March T., 1918, No. 785, dismissing bill in equity in case of Adolph. Plauschinat v. Philip Shapiro, individually and trading as Empire Cleaning & Dyeing Co. Bill in equity for specific performance. Before Shoemaker, J. From the record it appeared that the court sustained a demurrer to the bill, and transferred the case to the law side of the court.

Appeal, No. 116, April T., 1918, by defendant, from order of Public Service Commission Complaint Docket, No. 1356, regulating a railroad crossing in the case of City of Johnstown v. Johns-town & Stony Creek Railroad Company. Petition by the City of Johnstown for an order regulating a grade crossing.

<p>Negligence — Parties—Mistahe of - law — Infant—Death.</p> <p>Where an action is brought for the negligent death of a man over twenty-one years of age, who had up to the time of his death lived with his mother, but who at his death had also a minor daughter living, and the mother retains a lawyer and brings suit in her own right, and as grandmother and next friend of her minor daughter, and afterwards the suit is compromised and separate verdicts are taken, one for the grandmother .and the other for the minor, and it appears that there was no fraud committed either by the lawyer or the defendant in the negligence suit, and that no steps were taken to set the verdict aside, the lawyer cannot be compelled to pay to the minor the amount of money which he had collected and held for the grandmother.</p>

Appeal, No. 150, April T., 1918, by plaintiff, from order of C. P. Allegheny Co., July T., 1917, No. 1728, refusing to allow appeal from the County Court in case of Agatha Spo-rrer v. German Roman Catholic Knights of St. George. Petition for appeal from judgment of the County Court.. The opinion of the Superior Court states the case. Error assigned was order refusing appeal.

Appeal, No. 4, March T., 1918, by plaintiff, from judgment of C. P. Columbia Co., Feb. T., 1915, No. 24, on verdict for defendant in case of James R. Ritter, assignee of L. C. Menscb, who was assignee of C. B. Noetling, v. Mary Ann Thomasky, Executrix of John Thomasky, deceased. Scire facias sur mortgage.

<p>Public Service Commission — Water companies — Regulations— Requirement as to payment of arrearages of rent by former owner.</p> <p>The Public Service Commissipn has authority to determine whether the rules and regulations of utilities companies are reasonable. ’</p> <p>The rule of a water company requiring arrearages of water rents for service to a former owner to be paid by a successor in title as a condition precedent to service, is an unreasonable rule and will not be enforced by the Public Service Commission; and especially is this the case where another rule of the company provides that service may be cut off when a customer is in arrears for ten days, and still another rule provides that the company may demand from all such persons, and all persons whose ability to pay may be doubted, deposits or security in advance.</p>