Volume 71 — Pennsylvania Superior Court Reports

Trespass to recover damages for personal injuries. Before Ford, J. Verdict and judgment for plaintiff for $500. Defendant appealed. Error assigned was in refusing judgment for defendant n. o. v.

Appeal, No. 92, Oct. T., 1918, by defendant, from judgment of O. P. No. 4, Philadelphia Co., Sept. T., 1916, No. 322, on verdict for plaintiff in case of Harry A. Solomon, trading as Harry A. Solomon & Company, v. Ralph T. Moyer. Assumpsit to recover damages for breach of a contract to purchase 1,000 gallons of toluol. Before FinletTER, J. At the trial defendant presented the following points both of which were refused: 1.

Appeal, No. 72, April T., 1918, by plaintiff, from order of C. P. Beaver Co., March T., 1916, No. 336, dismissing exceptions to auditor’s report in case of Henry Finn v. W. J. Mellon et al. Exceptions to report of F. G. Moorehead, Esq., auditor appointed to distribute the proceeds of sheriff’s sale of real estate.

<p>Railroads — Overhead crossings — Apportionment of cost — Public Service Commission.</p> <p>The Public Service Commission in apportioning the cost of a share of an overhead bridge between two railroad companies, cannot be limited to any fixed rule; .all the factors which enter into a division of the cost is to be taken into consideration, and carefully examined. If it appears from the evidence, and from the maps, plans and photographs submitted, that the commission arrived at what they believed to be a fair ratio, and after reargument wherein various positions of the railroads are fully discussed, the commission makes a final order, such order will not be reversed on appeal by the Superior Court. Any other division that the court might suggest would be merely an expression of their opinion as to what would be proper, and would be entitled to no greater weight than that of the commission appointed to hear and determine such matters.</p> <p>In a proceedings to apportion such costs, the commission may consider, but not as determining factors, the number of trains operated by each road, the width of right of way, the fact that one railroad had a single track, and the other a double track, and that one company in order to elevate its tracks and reduce its grade had the bridge raised several feet, necessitating an additional expense.</p>

Appeal, No. 206, Oct. T., 1918, by defendant, from judgment of Q. S. Philadelphia Co., Dec. T., 1917, No. 492, on verdict of guilty in case of Commonwealth v. Charles Hodges. Indictment for larceny and for receiving stolen goods. Before Carr, J. The facts are stated in the opinion of the Superior Court. Errors assigned were (1,. 2) in refusing binding instructions for defendant. Other assignments were in the following form: 3.

Appeals, Nos. 171 and 175, by defendant, from judgment of Q. S. Philadelphia Co., Dec. Sessions, 1917, No. 487, 488,489,490 and 491, on verdict of guilty in case of Commonwealth v. Louis Wesler. Indictment for larceny and for receiving stolen goods. Verdict of guilty upon which judgment of sentence was passed. Errors assigned were various rulings on evidence, and in refusing binding instructions for defendant.

Appeal, No. 215, Oct. T., 1918, by plaintiff, from judgment of O. P. No. 1, Philadelphia Co., Sept. T., 1915, No. 2315, on verdict for defendant in case of David W. Hoffman, Receiver of Lorenzo Bozzelli, v. Pasquale Maraño. Assumpsit for the difference between a price bid for real estate and the amount realized on a resale. Before Patterson, J. The opinion of the Superior Court states the case. Verdict and judgment for defendant. Plaintiff appealed.

Appeal, No. 136, October Term, 1918, by defendant, from judgment of Municipal Court, Philadelphia County, July Term, 1916, No. 60, on verdict for plaintiff in case of James H. Giles v. Louis J. Kolb. Trespass to recover damages for alleged unlawful distraint for rent. Before MacNeille, J. The opinion of the Superior Court states the case. Verdict and judgment for plaintiff for $350. Defendant appealed.

Appeal, No. 130, Oct. T., 1918, by defendant, from judgment of Municipal Court, Philadelphia Co., Jan. T., 1918, No. 278, for plaintiff on case tried by the court without a jury in suit of Sam Seiler v. New York Ice Cream & Creameries, Inc. Assumpsit for salary. The case was tried by MacNeille, J., without a jury. At the trial the plaintiff claimed that he was wrongfully discharged, and that there was due to him $400.

Appeal, No. 260, October Term, 1918, by Hon. Clarence J. Buckman, Escheator for the Commonwealth of Pennsylvania, appointed by the auditor general November 9, 1917, from decree of Orphans’ Court of Philadelphia County dismissing exceptions to adjudication in the estate of Sarah Sharp, deceased. Exceptions to adjudication before Gest, J. The facts are stated in the opinion of the Superior Court. Errors assigned were dismissing exceptions to adjudication.

Appeal, No. 60, October Term, 1918, by defendant, from judgment of C. P. Schuylkill County, November Term, 1915, No. 208, and verdict for plaintiff in case of First National Bank of Tamaqua v. Tamaqua Manufacturing Company. Assumpsit against endorser of promissory note. Before Koch, J. The opinion of the Superior Court states the case. Verdict and judgment for plaintiff for $342.58. Defendant appealed.

Appeal, No. 195, Oct. T., 1918, by defendant, from judgment of Municipal Court, Philadelphia Co., May T., 1917, No. 620, on verdict for plaintiff in case of Hutchinson, Rivinus & Co. v. G. Washington Dugan. Assumpsit for premiums. Before Knowles, J. Verdict and judgment for plaintiff for $222.17. Defendant appealed.

<p>Appeal, No. 88, April T., 1917, by tbe Beaver Valley Water Company, from order of the Public Service Commission of Pennsylvania, Complaints Nos. 187-188, in case of Solon G-. Tbayer et al. v. Beaver Valley Water Company.</p> <p>Complaints against Beaver Valley Water Company on account of schedule of increased rates effective April 1, 1914.</p> <p>The charges in said schedule were alleged to be unjust and unreasonable. After hearing, Ainey, Chairman, filed the report of the commission, fixing a valuation and determining the rate thereon.</p> <p>Errors assigned were various findings of fact by the commission and (79) in making the following order:</p> <p>“This matter being before the Public Service Commission of the Commonwealth of Pennsylvania upon complaints and answers on file, and having been duly heard and submitted by the parties and full investigation of the matters and things involved having been had, and the commission having on the date hereof made and filed of record a report containing its findings of fact and conclusions thereon, wherein it is determined that a fair value for rate-making purposes of the property of the respondent as of February 1,1915, was nine hundred eighty-five thousand dollars ($985,000), and the respondent is entitled to an annual return thereon of one hundred thirty-five thousand nine hundred and fifty dollars ($135,950), which said report is hereby approved and made a part hereof:</p> <p>“Now, to wit, July 15, 1916, the Beaver Valley Water Company is ordered to design a schedule of charges covering all the service rendered by it that will return an annual gross revenue of one hundred thirty-five thousand nine hundred and fifty dollars ($135,950); the said schedule to be in substantial accord with the divisions thereof suggested in the above-mentioned report, and the classification of service and rates contained therein to be such as to carry out the principles laid down in said report.</p> <p>“And it is further ordered, that the said respondent shall submit the said schedule together with the necessary substantiating data to this commission for its approval within sixty days of the date of the service of this order.”</p>

Appeal, No. 242, Oct. T., 1918, by defendant, from the judgment of the Municipal Court of Philadelphia, June Sess., 1918, No. 26, on verdict of guilty in case of Commonwealth v. Emanuel Auerbach. Indictment for assault and battery. The facts are stated in the opinion of the Superior Court. Verdict of guilty upon which judgment of sentence was passed.

<p>Appeal, No. 166, October T., 1918, by Commonwealth, from the order of Q. S. Philadelphia Co., Dec. Sessions, 1917, No. 594, quashing indictment in case of Commonwealth v. George A. Persch.</p> <p>Indictment for embezzlement.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was order quashing indictment.</p>

<p>Beneficial associations — Set-off of assessments against disability allowance.</p> <p>Where there is due to a member of a beneficial association a disability allowance in an amount greater than assessments due, the society cannot set up a forfeiture declared in the member's lifetime, for nonpayment of assessments, in a suit brought by a beneficiary against the society after the member’s death, to recover the benefit due under the old age insurance at the date of the member’s death. In such a ease it is immaterial that the society consisted of local circles and a supremp circle, if it appears that members of the local circle were equally members of the supreme circle, and that the supreme circle dealt with its members through the intervention of the local circles in collecting assessments and dues; and it is also immaterial that certain of the dues were, under the rules of the society, retained by the local circle.</p>

<p>Appeal, No. 19, April T., 1919,' by defendant, from judgment of Q. S. Allegheny Co., Oct. T., 1917, No. 198, on verdict of guilty in case of Commonwealth v. Max Roth.</p> <p>Indictment against Max Roth for false pretense. Before Reid, J.</p> <p>From the record it appeared that the defendant was indicted and tried on a charge of making a false written financial statement for the purpose of obtaining a credit under Section 1 of the Act of May 8, 1913, P. L. 161. He conducted stores at Windber, Pa., and at Leecbburg, Pa., and had dealt with the Selz, Schwab & Co., for several years prior to April 4, 1916. On that date he came to the place of business of Selz, Schwab & Co., and gave a financial statement upon which the prosecution was based. In it he stated his total liabilities were $4,075, that he owed to Banks $75 on one note. Credit was ex-tfended and goods shipped by Selz, Schwab & Co., upon the strength of this statement.</p> <p>On May 31, 1917, proceedings in bankruptcy were instituted against defendant and schedules filed. These schedules showed that at the time of making the above financial statement the defendant was indebted on' notes to M. E. Kohn for the sum of $1,100 and to Harry Schwartz upon notes to the sum of $350, a total of $1,450. These items of indebtedness were not included in the financial statement and prosecution was brought. The making of the statement and its contents were established as well as the fact that credit had been extended and goods shipped on the strength thereof. It was also shown by the bankrupt schedules that the items of indebtedness to the amount of $1,450 were not included in the financial statement.</p> <p>. Verdict of guilty, upon which judgment of sentence was passed. Defendant appealed.</p> <p>Errors assigned were various rulings on evidence and (5) in refusing binding instructions for the defendant.</p>

<p>Judgment — Satisfaction of Judgment — Act of March H, 1876, P. L. 7.</p> <p>1. An assignment of a judgment on record is not constructive notice thereof to the debtor and payment by him to the obligee before notice of the assignment is good.</p> <p>2. Where debtors have no notice of an assignment of a judgment and make payment to the original creditor the court does not err in directing satisfaction under the authority of the Act of March 11, 1876, P. L. 7, in spite of the existence of an alleged assignment of judgment.</p>

<p>Appeal, No. 17, March T., 1918, by defendant, from judgment of C. P. Wayne County, March T., 1915, No. 198, on verdict for plaintiff in case of Charles Martin and Ida Martin v. Borough of Starrucco.</p> <p>Trespass for personal injuries. Before Searle, P. J.</p> <p>The facts appear in the opinion of the Superior Court.</p> <p>Verdict for plaintiffs for Charles Martin for $96 and for Ida'Martin for $879, and judgment thereon. Defendant appealed.</p> <p>Errors assigned were various answers to points and rulings on evidence and for refusing defendant’s motion to enter judgment n. o. v.</p>

<p>Appeal, No. 1, Oct. T., 1918, by defendant, from judgment of C. P. Delaware Co., September T., 1917, No. 153, affirming judgment of a justice of the peace in case of William C. and Lena J. Maxwell v. W. Scott Hausman.</p> <p>Certiorari to the judgment of a justice of the peace. Before Johnson^ P. J.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was the judgment of the court.</p>

<p>Road law — State highways — Change of grade without change of lines — Act of May 81, 1911, P. L. 468.</p> <p>The Commonwealth of Pennsylvania is not liable for damages to the owners of property abutting upon a State highway so established by virtue of the Act of May 31,1911, P. L. 468, by reason of damage or injury caused to said property in the process of the improvement or reconstruction of such highway involving only a change or alteration of the former grade without having taken or appropriated any land, and without having changed the horizontal position of the centre or side lines of the highway.</p>

<p>Liquor law — Retail license — Newspaper notice — Act of May IS, 1887, P. L. 108.</p> <p>1. Application for retail liquor license must be published three times in two newspapers in accordance with the provisions of the Act of May 13, 1887, P. L. 108.</p> <p>2. The Act of July 30, 1897, P. L. 464, does not authorize the issuing of a license to a retail dealer and the procedure therein provided does not refer to the granting of retail licenses.</p>

Appeal, No. 46, March T., 1918, by R. F. Lesh et al., Remonstrants from order of Q. S. Susquehanna Co., Jan. T., 1918, No. 20, granting a liquor license in the matter of petition of P. N. McNeal. Petition for a retail liquor license. Before New-comb, J. The facts are stated in the opinion of the Superior Court.

Appeal, No. 41, March T., 1918, by defendant, from judgment of C. P. Luzerne County, on verdict for plaintiff in case of Jacob Baron and Lillie Baron v. Wilkes-Barre Railway Company. Trespass for personal injuries. Before Carman, J. The facts are stated in the opinion of the Superior Court. The jury found a verdict of $811.75 in favor of the plaintiff, Jacob Baron, and of $905.90 in favor of the plaintiff, Lillie Baron, upon which judgments were entered. Defendant appealed.

Appeal, No. 28, March T., 1918, by defendant, from judgment of Q. S. Lackawanna Co., Jan. Sess., 1917, No. 208, on a verdict of guilty in case of Commonwealth v. Omerigo Rogo. Indictment for perjury. Before Barber, P. J., specially presiding. The facts are stated in the opinion of the Superior Court. Verdict of guilty on which judgment of sentence was passed. Defendant appealed. The appellant’s statement of questions involved was as follows: “1.

Appeal, No. 20, March T., 1918, by plaintiff, from judgment of C. P. Luzerne County, Oct. T., 1912, No. 1373, for defendant non obstante veredicto, in issue framed- with George W. Sands, as plaintiff, and Borough of Dorranceton, defendant. Appeal from award of jury of view. . Before O’Boyle, J. The facts are stated in the opinion of the Superior Court. At the trial the jury returned a verdict for the plaintiff.

<p>Negligence — Master and servant^ — Coal’ mines — Hauling cars— Accident to driver — Assumption of rish.</p> <p>Where a minor, plaintiff, was employed as a helper to a mule-driver and assisted in driving three mules, which hauled empty cars up a grade, and, while engaged in unhooking the mules from one of the cars as it reached the top of the incline, the mule team started up and jerked the car in such a manner that the plaintiff was overbalanced and fell between the bumpers of the cars and was seriously injured, the questions of the defendant’s negligence and the plaintiff’s contributory negligence are for the jury.</p> <p>Where the plaintiff was younj and unfamiliar with the precautions taken in other mines to safeguard employees engaged in such service, the conditions under which he worked may have been dangerous, although they did not appear to be so much so as to threaten immediate injury, and the court would not have been warranted in determining as a matter of law that he voluntarily assumed the risk of the injury which he suffered.</p>

<p>Appeal, No. 6, March T., 1918, by defendant, from judgment of C. P. Cumberland County, February Term, 1915, No. 82, on verdict for plaintiff in case of Newville Borough v. Rebecca Leckey.</p> <p>Assumpsit to recover the cost of building a sidewalk. Before Staples, P. J., specially presiding.</p> <p>From the record it appeared that the plaintiff enacted an ordinance November 10, 1913, extending and opening High street in the said Borough of Newville, northwardly to the borough limits to a width of fifty feet and fixing the centre of said street extended. It also enacted a general paving ordinance on the 6th day of February, 1914. On the 18th day of May, 1914, in accordance with the provisions of the general ordinance the plaintiff caused a notice, partly written and partly printed, to be served upon the defendant requiring her to lay a concrete pavement on her lot on High street in the said Borough of Newville, within thirty days from the receipt of said notice. The defendant did not build the walk and it was subsequently constructed by the borough and suit brought to recover the cost thereof. The suit was tried at November term of the Common Pleas of Cumberland County and a verdict rendered by the jury in favor of the plaintiff and against the defendant for $93.74. The court in submitting the casé to the jury directed the jury to find for the plaintiff in the sum of $82.43, together with interest and at the same time submitted to the jury the following questions:</p> <p>“Did Jacob Koch serve a written and printed notice on Rebecca Leckey by copy. Answer, yes.</p> <p>“Was the adjourned meeting actually held on November 10,1913? Answer, yes. Yol. Y, page 191.”</p> <p>Yerdict judgment for plaintiff for $93.74. Defendant appealed.</p> <p>The appellant’s statement of questions involved was as follows:</p> <p>“1. Must an alleged chief burgess show filing of an affidavit and bond before acting or testifying as such?</p> <p>“2. Are the acts of an alleged high constable valid where he has not filed the required oath and bond?</p> <p>“3. Is the return made by an alleged high cofistable, who is deceased evidence where no affidavit or bond have been filed by him?</p> <p>“4. Is defendant liable for cost of paving sidewalk where council never directed her to lay it, and where it never officially and actually established a grade therefor?</p> <p>“5. Was a sufficient notice served on the defendant?”</p> <p>Error assigned, among others, was the refusal of the court to grant a new trial and to enter judgment n. q. v.</p>

<p>Appeal, No. 18, March T., 1918, by defendant, from judgment of C. P. York County, April Term, 1916, No. 90, on verdict for plaintiff in case of William J. Graybill v. Pullman Motor Car Company.</p> <p>Trespass to recover damages for personal injuries. Before Wanner, P. J.</p> <p>Verdict for plaintiff for $810.75 and judgment thereon. Defendant appealed.</p> <p>Prom the record it appeared that the plaintiff was employed in appellant’s automobile factory in the capacity of repairman and toolmaker. While repairing a machine in the sheet-metal department on the second floor of the building he had occasion to require some extra materials which he sought from his superior in another part of the factory. While in search of the superintendent in order to obtain an order from the head of the department he entered the air compressor room of the factory and, when about to approach the superintendent and ask for an attachment plug, an explosion occurred in the pipe of the air compressor system and the plaintiff was struck by flying pieces and severely injured.</p> <p>Errors assigned, among others, were the refusal of the following offers of the defendant: (3-5).</p> <p>Mr. Hoober: We desire to show, preliminary to other questions and other evidence to follow, that there was a latent defect in this “L” which exploded, to be determined by the fact that the weaker parts of this system than the “L” did not explode; that had it been an “L” without latent defects other parts of the system would have exploded and not that, we having already shown that the pressure was about 115 pounds and that the carrying capacity of the “L” was 175 to 200 pounds; this for the purpose of showing that there were other causes, or other reasons for this explosion than what the plaintiff alleges, to wit: an alleged defect in this auxiliary valve.</p> <p>By the Court: Does that refer to this particular machine, or some other?</p> <p>Mr. Hoober: This particular system, this gauge and this tank and this “L” which exploded, as well as the high pressure unloader and discharge main and all.</p> <p>By the Court: Is uot this asking for an opinion without laying a foundation for it?</p> <p>Mr. Hoober: I assumed that he was competent to express an opinion because he was in charge of this air compressor since it was installed.</p> <p>Argument by counsel..</p> <p>By the Court: We reject the question as it stands now.</p> <p>Mr. Hoober: The defendant offers to prove by the witness on the stand, in contradiction of the testimony of the plaintiff and his witnesses, that no (explosion could have taken place as plaintiff’s case attempts to prove, namely: by a combination of air and oil; that an explosion could only take place through ignition, or by a spark within the pipes; that that spark or ignition would have to travel at least at a point between the auxiliary control valve at one end, and the point of explosion on the other. We offer to show the distance it would travel, and the method it would take in traveling; to the difficulties it would encounter in passing through the valves, for the purpose of showing that such a position is not only not proven, but it is improbable .and unlikely, and for the purpose of sustaining the issue on the part of the defendant.</p> <p>Mr. Glessner: Objected to as not proper, legal evidence in this case, no testimony having been given by the plaintiff of the matter alleged in this offer, and not being contradictory of anything that the plaintiff has offered.</p> <p>By the Court: The objection is sustained. There is no evidence in the case of an explosion caused by ignition by a spark anywhere in the plaintiff’s case, or by any witness on the stand. The theoretical question attempted to be put is not based on any of the evidence on either side. It is therefore rejected. Exception for the defendant.</p>

<p>Appeal, No. 115, October Term, 1917, by plaintiff, from order of C. P. No. 1, Philadelphia Co., June Term, 1915, No. 114, refusing to take off nonsuit in case of Rudd T. Neel v. Heralds of Liberty.</p> <p>Assumpsit on beneficial certificate. Before Bregy, P. J.</p> <p>The material provisions of the certificate and the facts are sufficiently set forth in the opinion of the Superior Court.</p> <p>Error assigned was refusal to take off nonsuit.</p>

<p>Appeal, No. 131, April T., 1918, by defendant, from judgment of C. P'. Clarion Co., February T., 1917, No. 13, on verdict for plaintiff in case of Q-. W. Smyers v. J. E. McMahon.</p> <p>Trespass to recover damages for deceit. Before Sloan, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The defendant submitted the following point:</p> <p>“There being no dispute in the evidence in the case, but that the alleged misrepresentations were made in reference to a contract consummated on Sunday, there can be no recovery in the case.”</p> <p>Answer: “That point we refuse as it stands. That is a matter that you have nothing to do with. We have reserved the point and that can be determined later notwithstanding your verdict in the case.”</p> <p>Verdict and judgment for plaintiff for $500. Defendant appealed.</p> <p>Errors assigned■, among others, were refusal of defendant’s point, reciting point and answer, and for refusal to enter judgment for defendant n. o.' v.</p>

<p>Appeal, No. 83, April T., 1918, by M. M. Fisher, from decree of O. C. Jefferson County, December T., 1887, No. 15, setting aside the widow’s appraisement in the estate of Jacob Reinstein, deceased.</p> <p>Petition for rule to show cause why appraisement and decree of court allotting a tract of land to Hannah Rein-stein, widow of Jacob Reinstein, should not be opened, vacated and set aside. The court, after hearing, made the rule absolute and entered a decree setting aside the appraisement and decree of May 9,1892, which had allotted the tract of land in question to the said Hannah Rein-stein.</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. 123, April Term, 1918, by plaintiff, from order of C. P. Westmoreland County, Nov. T., 1915, No. 59, discharging a rule for judgment for want of a sufficient affidavit of defense in case of Borough of Youngwood v. Morrison A. Gay.</p> <p>Assumpsit for municipal improvements. Before McConnell, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Buie for judgment for want of a sufficient affidavit of defense.</p> <p>The court discharged the rule.</p> <p>Error assigned was order of the court.</p>

<p>Appeal, No. 171, April T., 1917, by defendants, from decree of C. P. Butler Co., June Term, 1916, No. 9, dismissing exceptions in case of Sam Rigas v. William Keller and Christ. Keller.</p> <p>Bill in equity for an injunction. Before Reiber, P. J.</p> <p>The facts appear in the opinion of the Superior Court.</p> <p>Error assigned was decree dismissing exceptions.</p>

<p>Railroads — Carriers—Suit for freight charges — Interstate commerce — Affidavit of defense.</p> <p>In an action by a railroad company to recover freight charges on an interstate commerce shipment where a statement sets forth a uniform bill of lading issued by all railroad carriers under the mandate of the federal law and containing notice of the various stipulations which, after approval in the manner provided by law, become binding upon every party concerned in the shipments, it is no defense that the defendant never received a copy of the bill of lading nor affirmative notice of its. contents. The rates established by the schedule are matters of positive law and shippers and consignees alike are charged with knowledge of them.</p> <p>A consignee is under no obligation to receive or accept a shipment consigned to it, where such a consignment was in no way sought or ordered by it or when it is not. in accordance with its contract, but when it has exercised an act of dominion over it, consistent only with the ideas of its acceptance, it will be liable for' the freight charges thereon.</p> <p>Carriers — Storage charges — Affidavit of defense.</p> <p>An affidavit of defense is sufficient to a demand for storage charges when it avers that such charge was uncalled for and unreasonable. Whether it was or was not, under all the circumstances of the case, is not a pure question of law which the court can dispose of, but is a mixed question of law and of fact to be submitted to a jury on proper instructions from the trial judge.</p>

<p>Appeal, No. 121, October Term, 1918, by defendant, from judgment of Q. S. Schuylkill Co., March T., 1916, No. 285, on verdict of not guilty in case of Commonwealth v. Frank Garvey.</p> <p>Indictment for perjury. Before Koch, J.</p> <p>Frpm the record it appeared that the defendant was indicted for perjury. A trial was had before a jury which resulted in a verdict of guilty, upon which sentence was passed. An appeal was taken by the defendant from the judgment of the court below and a new venire awarded. At the second trial the jury rendered a verdict of not guilty and directed the defendant to pay the costs.</p> <p>Motion in arrest of judgment filed.- The court overruled the motion in arrest of judgment and sentenced the defendant to pay the costs in both cases.</p> <p>Error assigned was the overruling of the motion in arrest of judgment.</p>

<p>Appeal, No. 104, Oct. T., 1918, by defendant, from order of the Municipal Court of Philadelphia Co., Nov. T., 1917, No. 79, discharging rule to strike off judgment in case of Auto Transit Company v. Carl C. Koch.</p> <p>Rule to strike off judgment. Before Crane, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was order discharging the rule to strike off judgment.</p>

<p>Bailment — Lease—Contradiction of written instrument.</p> <p>Where, in. ,an action on a lease, a defendant denied none of the facts set forth in the lease, but offered to prove an oral agreement with a third person, not a party to the lease, the court does not err in directing a verdict for the plaintiff.</p> <p>Whatever fraud some third party might have perpetrated upon the defendant cannot be binding upon the plaintiff.</p>

Appeal, No. 98, April T., 1919, by defendant, from judgment of Q. S. Allegheny Co., May Sess., 1917, No. 327, on verdict of guilty in case of Commonwealth v. S. M. Palmer. Indictment for practicing medicine without a license in violation of the Act of May 5,1915, P. L. 248.

Appeal, No. 241, Oct. T., 1918, by defendant, from judgment of Municipal Court of Philadelphia Co., March T., 1918, No. 83, on verdict for plaintiff in case of Joseph Albert. Wolf v. Milton Stern, trading as Auto Transit Co. Trespass to recover damages for malicious prosecution. Before Crane, J. The facts are stated in the opinion of the Superior Court. Verdict and judgment for plaintiff for $557. Defendant appealed.

Appeal, No. 144, Oct. T., 1918, by plaintiff, from judgment of Municipal Court of Philadelphia Co., Oct. T., 1917, No. 688, for defendant non obstante veredicto, in case of Nice Wind v. Alois Steiert and Herman A. Steiert, trading as Steiert. & Son. Trespass to recover damages for death, of plaintiffs minor son.

Appeal, No. 158, Oct. T., 1918, by defendant, from judgment of C. P. No. 2, Philadelphia Co., September T., 1916, No. 2880, on verdict for plaintiff in case of Lillian M. Kilbride and Thomas C. Kilbride v. City of Philadelphia. Trespass for personal injuries. Before Eogers, J. The facts are stated in the opinion of the Superior Court. Verdict and judgment for plaintiffs for Thomas C. Kilbride $100 and for Lillian M. Kilbride $500 and judgment thereon. Defendant appealed.

Appeal, No. 147, Oct. T., 1918, by defendant, from judgment of Municipal Court of Philadelphia, Jan. T., 1918, No. 573, on verdict for plaintiff in case of Joseph A. Wolf v. La Roche Brothers, Inc. Assumpsit. Before Gorman, J. From the record it appeared that the plaintiff had leased from the defendant on an installment, prior to the transaction in question, an automobile on which there was a balance due of unpaid rent.

Appeal, No. 236, Oct. T., 1918, by plaintiff, from order of the Public Service Oommission of the Commonwealth of Pennsylvania, Application Docket No. 1732,1918, in the matter of the application of the Schuylkill Railway Co. From the record it appeared that the Schuylkill Railway Co. filed an application, on January 7, 1918, praying for a certificate of public convenience authorizing the renewal of a crossing by the tracks of the Schuylkill Railway Co. over the tracks of the…

Appeal, No. 6, Oct. T., 1918, by defendant, from judgment of Municipal Court of Philadelphia, February Term, 1917, No. 402, on verdict for plaintiff in case of James M. Naye v. Philadelphia Rapid Transit Company. Trespass to recover damages for injury to motor truck. Before MacNeille, J. The facts appear in the opinion of the Superior Court. Verdict for plaintiff for $94 and judgment thereon. Defendant appealed.

Appeal, No. 135, Oct. T., 1918, by defendant, from judgment of Municipal Court of Philadelphia, Nov. T., 1917, No. 246, for plaintiff non obstante veredicto, in the case of C. William Spiess v. Prank J. Ford. Assumpsit to recover commissions for the sale of real estate. Before Cassidy, J., without a jury. From the record it appeared that the plaintiff, a real estate broker, at the request of the defendant, negotiated a sale of property.

Appeal, No. 21, Oct. T., 1918, by defendant, from judgment of C. P. No'. 4, Philadelphia Co., March T., 1916, No. 3404, in favor of plaintiff for want of a sufficient affidavit of defense, in case of Gimbel Brothers, Incorporated, v. Ida E. Weaver. Assumpsit on book account. Before Finletter, J. The opinion of the Superior Court states the case. Buie for judgment for want of a sufficient affidavit of defense.

Appeal, No. 108, October T., 1918, by defendant, from decree of C. P. Clinton Co., April T., 1918, No. 66, refusing to open judgment in the case of W. F. & C. B. Schrceder v. Isaac Hallem. Rule to open judgment. Before McCormick, P. J. From the record it appeared that the defendant leased certain property from the plaintiff on three different leases.

Appeal, No. 225, Oct. T., 1918, by defendants, from decree of O. P. Franklin Co., Equity Docket, Yol. IY, page 78, in case of Rebecca Kriechbaum v. Frank Hafer and Quigley Hafer. Bill in equity for discovery and accounting. Tbe opinion of tbe Superior Court states tbe case; G-illan, J., filed tbe following opinion, dismissing exceptions : This brings us to tbe consideration of tbe exceptions filed by tbe defendant.

Appeal, No. 276, Oct. Term, 1918, by defendant, from judgment of municipal court of Philadelphia, February Term, 1918, No. 263, on verdict for plaintiff in case of Mayer Czudick v. Morris Sacks. • Assumpsit for services rendered under building contract. Before Knowles, J. From the record it appeared that the plaintiff undertook and agreed to make certain repairs and alterations to premises owned by defendant at a contract price of $170, payable on the completion of the work.

Appeal, No. 208, Oct. T., 1918, by plaintiff, from judgment of C. P. Montgomery Co., in favor of plaintiff in case of Wilson K. Anson v. The County of Montgomery. Assumpsit for compensation as assessor of Worcester Township, Montgomery County. Before Miller, J. The facts are stated in the opinion of the Superior Court. Verdict in favor of the plaintiff for the sum of $199.85.

Appeal, No. 246, Oct. T., 1918, by defendant, from judgment of O. P. Schuylkill Co., May T., 1917, No. 435, on appeal, setting aside the order of the Workmen’s Compensation Board of the Department of Labor and Industry in the case of Andrew Fekete v. Lehigh & Wilkes-Barre Coal Co. Appeal from judgment of C. P. Schuylkill Co. setting aside order of Workmen’s Compensation Board.

Appeal, No. 270, Oct. T., 1918, by plaintiff, from judgment of C. P. Schuylkill Co., March T., 1917, No. 210, for defendant non obstante veredicto in case of Rebecca Powell, in the right of herself and minor daughter, Margaret Powell, v. East Union Township, Schuylkill County. Trespass to recover damages for personal injuries.

Appeal, No. 54, April T., 1918, by defendant, from judgment of C. P. Allegheny. Co., January T., 1914, No. 1982, on verdict for plaintiff in the case of Pittsburgh Rivet Co. v. Western Tool & Forge Co. Assumpsit before Macfarlane, J. From the record it appeared that the Western Tool & Forge Co. entered into a contract with the Pittsburgh Rivet Co. for the construction of certain crank shafts.

<p>Appeals — Moot questions — Preliminary injunctions — Dismissal of appeal.</p> <p>1. It is not the province of courts to .give opinions on moot questions or abstract propositions and to enter judgments or decrees to which effect cannot be given.</p> <p>2. An appeal from an order granting a preliminary injunction, which has expired by limitation, will be dismissed.</p>

<p>Judgment — Opening of judgment — Judicial discretion.</p> <p>It is error to open a judgment upon petition of the judgment defendant, where a responsive answer is filed, and no depositions are taken, and no admissions made of record.</p>

<p>Divorce — Desertion—^Evidence.</p> <p>The guilty intent to desert is rebutted in a divorce case where the separation is encouraged by the other party or agreed to by mutual consent. Although the respondent may have had full intention to -leave; if the libellant speeded the parting and by his acts indicated that he wished her to go, there was a common object in both of their minds, and until one or the other destroys the prior status and revokes the consent by making a bona fide offer to resume marital relations, which is refused, the separation must be regarded as consentable.</p> <p>Divorce — Charge of court — Instructions as to desertion.</p> <p>A failure to affirm a point submitted by the respondent to the effect that “If the jury find that the libellant had ordered respondent to withdraw from their home, she is not guilty of wilful and malicious desertion,” is reversible error.</p>

<p>Master and servant — Compensation of servant — Bonus — Contract of employment.</p> <p>Where a corporation for some years had paid to certain of its employees a share of its profits in the form of a bonus, and in an action for such bonus, evidence is offered that the plaintiff entered upon his employment upon the verbal assurance of the superintendent that he would receive a bonus of twenty per cent upon every dollar he earned, the question of the terms of the contract of employment and the superintendent’s authority to bind the company, are for the jury and a verdict for the plaintiff will bo sustained.</p> <p>Master and servant — Bonus—Evidence.</p> <p>Where a letter is prepared by a corporation setting forth a promise of a bonus, and although addressed to individuals, its language is general, such letter is admissible in evidence to support the plaintiff’s contention that he entered into his employment with its promises in view, when he testified that he saw the letter and was familiar with its contents.</p> <p>Master and servant — Bonus—Term of employment.</p> <p>Where the employee fulfills all the conditions that would entitle him to a bonus, except that he ceased work shortly before the end of the year, through no fault of his own, he was eligible for his share of the profits.</p>

<p>Appeal, No. 106, Oct. Term, 1918, by defendant, from judgment of C. P. No. 5, Philadelphia Co., Sept. T., 1915, No. 3268, on verdict for plaintiff in issue framed with Michael Hanratty as plaintiff and Cornelius Dougherty as defendant.</p> <p>Interpleader awarded on petition and answer to determine ownership of fund paid into court. Before Monaghan, J.</p> <p>From the record it appeared that Cornelius Dougherty, defendant in the issue framed, brought suit in C. P. Philadelphia County, June Term, 1913, No. 410, under the caption “Cornelius Dougherty to the use of Michael Hanratty v. John Gardiner, Edward C. Schmidt et al., etc.” Demurrer to the statement having been sustained another suit was likewise instituted in C. P. Philadelphia County, No. 5, as of June T., 1913, No. 3899. The cases were finally amicably settled, the defendants agreeing to pay $1,250 and a verdict thereon was entered for the defendants.</p> <p>A dispute then arose between Dougherty, the defendant in the issue framed, and Hanratty, the plaintiff, as to who was entitled to receive the money. On Nov. 4,1915, Hanratty the plaintiff brought suit against the original defendants for the amount agreed to be paid in settlement of the suit upon the notes. The defendants, after filing an affidavit of defense, filed a petition in which they prayed for leave to pay the money into the court and for an interpleader to be framed between the plaintiff Michael Hanratty and Cornelius Dougherty, to determine the ownership of the fund. The prayer was granted, and the present issue framed, with Michael Hanratty as plaintiff and Cornelius Dougherty as defendant.</p> <p>At the trial the jury rendered a verdict for plaintiff in the sum of $1,449.26. Plaintiff having remitted amount in excess of $1,402.29 judgment was entered for plaintiff. Defendant appealed.</p> <p>The defendant presented the following points which were refused and not read:</p> <p>“1. Under all the evidence in this case, your verdict must be in favor of the defendant, Dougherty.</p> <p>“2. Under the law, a suit, when brought by an assignee of a negotiable instrument, could and ought to be brought in the name of the assignee himself and not in the name of the original payee to the use of the assignee, as was done in this case.</p> <p>“3. Even when the assignment of the notes takes place after their maturity, that is, after the notes have become due, under the law, the suit thereon by the assignee may and ought to be brought in the name of the assignee himself and not in the name of the original payee to the use of the ássignee, as was done in this case.</p> <p>“4. If you find that the seven (7) promissory notes in this suit were not actually assigned by Dougherty to Hanratty, then your verdict must be in favor of Dougherty, even if Dougherty did promise Hanratty that he would pay him over the money when collected on those notes and even if he had actually instructed his lawyers to that effect.</p> <p>“5. I instruct you that, under the law, anything short of an actual assignment of those notes to Hanratty would not entitle Hanratty to a verdict from you and your verdict would have to be for Dougherty.”</p> <p>The appellant’s statement of questions involved was as follows:</p> <p>1. Where notes are turned over to an attorney with instructions to bring suit thereon and to pay the money collected to a creditor, may this be revoked prior to the actual collection of the money?</p> <p>2. Where the question involved is where negotiable promissory notes had been assigned and transferred by the payee to the use-plaintiff, may the trial judge, when requested to do so, refuse to state to the jury that, under the law, a suit by an assignee or transferee of a negotiable instrument may be, and generally is, brought in the name of the latter and not in the name of the payee to the latter’s use?</p> <p>3. Where the judge’s charge tends to withdraw the attention of the jury from the question of the assignment of the notes and to lead them to believe that the question involved is whether defendant was indebted to plaintiff and the extent of his indebtedness, will be a verdict for the plaintiff be sustained?</p> <p>4. Can a man be held liable for luxuries and extravagances supplied to his wife, on the theory that they were necessaries, in the absence of proof of his high financial and social status?</p> <p>Errors assigned were the charge of the court (1-4), answers to points (7-11), and for refusal of defendant’s motion n. o. v.</p>

<p>Appeal, No. 122, Oct. T., 1918, by defendant, from. judgment of Municipal Court of Philadelphia, Oct. T., 1917, No. 513, for plaintiff in case of Benjamin L. Silver, trading as Silver Costume Co. v. J. Edward Passant, trading as The Passant Company.</p> <p>Trespass to recover injury to stock. ■ Before Cassidy, J., without a jury.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The court found for the plaintiff and entered judgment in'favor of the plaintiff and against defendant for $425. Defendant appealed. ■</p> <p>Errors assigned were various rulings on evidence; for refusal to grant a new trial,- and for dismissing motion for judgment n. o. v.</p>

<p>Criminal law — Indictment—Statute of limitations.</p> <p>Where an indictment fails to aver 'that the offense was committed within the period of the statute of limitations, the prosecution may show that defendant was not a usual resident within the Commonwealth, and where such evidence is sufficient to toll the statute, the ease should he submitted to a jury.</p> <p>Municipal Court of Philadelphia — Committing magistrates.</p> <p>A judge of the Municipal Court of Philadelphia is, ex officio, a committing magistrate.</p>

Appeal, No. 27, Oct. T., 1918, by defendant, from judgment of O. P. No. 2, Philadelphia County, March T., 1915, No. 2760, on verdict for plaintiff in case of Richard Menhennet v. Alvah M. Davis. Assumpsit. Before Wessel, J. The facts are stated in the opinion of the Superior Court. Verdict for plaintiff for $800 and judgment thereon. Defendant appealed. Error assigned, among others, was the charge of the court and in refusing defendant’s motion for judgment n. o. v.

<p>Sales — Guaranty—Mailing■ notice of modification — Affidavit of defense.</p> <p>In an action on a guaranty for the payment of a running account, an affidavit of defense is insufficient, which, alleging a modification of the guaranty, in the form of a letter prescribing new conditions, fails to set forth specifically the place of mailing of the letter and the time required for its transmission to the addressee. Where the time of receipt is so important, it should he set forth in the affidavit of defense.</p>

<p>Bailments — Contemporaneous agreement — Replevin — Affidavit of defense.</p> <p>Where a balance of ten dollars remains unpaid on the purchase price of a piano, the vendor is not entitled to recover the piano in an action of replevin under the terms of the lease, where there was a contemporaneous agreement whereby such balance should not be paid until the plaintiff should be given a piano stool, which she did not receive.</p> <p>An affidavit of defense is sufficient which does not attempt to vary the terms of a lease, but alleges a new arrangement evidenced -in writing, upon a lawful consideration, .as to the payment of the last installment.</p>

<p>Contracts — Construction of contracts — Excavation of stone.</p> <p>A contract for the excavation of a site for a high school which provided that the excavating contractor “shall also cart away all stone that are not fit to be used in the future operations by the general contractor,” and that the excavating contractor should “remove unfit stone from or deposit it on the site directed if fit to be used,” applies to the particular building contemplated in the contract; and entitles the excavating contractor to all stone not to be used in the construction of the building.</p> <p>Building contracts — Interpretation of — Decision of a/rchitect.</p> <p>Where the architect, in his capacity as superintendent, has simply restated the terms of the contract, he cannot be said to h^ve interpreted it, and his judgment is not conclusive.</p>

<p>Appeal, No. 295, Oct. T., 1918, by plaintiff, from order of the Municipal Court of Philadelphia, March T., 1918, No. 338, making absolute the. rule to strike off judgment in case of Feldman, Armón & Co. v. David Lodge, trading as D. Lodge.</p> <p>Assumpsit. Before MacNeille, J.</p> <p>Rule to strike off judgment.</p> <p>The opinion of the Superior Court states the case.</p> <p>The court made absolute the rule to strike off judgment.</p> <p>Error assigned was the order of the court.</p>

Appeal, No. 199, Oct. T., 1918, by defendant, from judgment of O. P. No. 3, Philadelphia Co., June T., 1917, No. 2313, on verdict for plaintiff in case of Fanny Diskan v. Nathan Diskan. Assumpsit on promissory note. Before Ferguson, J. From the record it appeared that the plaintiff brought suit to recover the sum of $300 due on a promissory note dated July 13, 1916, signed by Harry Diskan, her husband, and Nathan Diskan, her brother-in-law, payable on demand after date.

<p>Banks and banking — Dishonor of check — Excessive verdict — Appeals.</p> <p>Where a plaintiff has recovered a verdict in the sum of five hundred ($500) dollars, as damages for imputation on his financial credit, because of the failure of a hank to honor his check, the appellate court will not review the discretion of the trial court in refusing a new trial, although the amount of the verdict may appear large in comparison to the injury sustained.</p>

<p>Party walls — Expert witnesses — Conflicting testimony — Case for jury.</p> <p>Where expert witnesses differ as to the proper method of locating a line, separating two parcels of real estate, the ease is for the jury and a verdict for the plaintiff will be sustained.</p> <p>Evidence — Admissibility—General objection.</p> <p>If the facts assumed in a question to an expert are incorrect, it is the duty of counsel objecting, to indicate that that was the basis of his objection. In such' case the court is entitled to a distinct statement of the ground on which the objection rests, and in default of such objection the ruling of the court will be sustained on appeal.</p> <p>Appeals — Question not raised in court below.</p> <p>Where no exception was taken to the charge of the court the objection will not be considered, de novo, on appeal.</p>

Appeal, No. 197, Oct. T., 1918, by defendant, from judgment of Q. S. Philadelphia Co., March Sess., 1918, No. 123, on verdict of guilty in case of Commonwealth v. Stanley Stankus. Indictment for keeping a disorderly house.

<p>Appeals, Nos. 117 and 118, Oct. T., 1918, by defendant, from judgment of C. P. No. 2, Philadelphia County, Sept. T., 1916, No. 4294, on verdict for plaintiffs in case of Joseph Ferrara and May Ferrara v. West Jersey & Seashore R. R. Co.</p> <p>Trespass to recover damages for personal injuries. Before Wes&el, J.</p> <p>At the trial it appeared that the plaintiff was injured while riding as a passenger on one of defendant’s trains. The circumstances of the accident are set forth in the opinion of the Superior Court.</p> <p>Verdict for plaintiffs, for Joseph Ferrara $175 and May Ferrara $300 and judgment thereon. Defendant appealed.</p> <p>The appellant’s statement of question involved was as follows:</p> <p>“1. Whether the testimony merely of a ‘sudden’ or ‘awful funny’ jerk at train starting is sufficient eyidence of negligence against the carrier to support a verdict?</p> <p>“2. Where plaintiffs claim to be married and the suit is for injuries to the woman, the defense being in part a fraudulent effort to collect damages, supported by strong documentary and oral testimony that there was no marriage, whether a charge is not inadequate which does not specifically instruct the jury upon the character and weight of the testimony in the case?</p> <p>“3. Whether under such facts the court so abused its discretion in refusing a hew trial that a reversal could be had on that account.”</p> <p>The court charged in part as follows:</p> <p>A question has been raised by the defendant which you would have to consider if you reach that point in your deliberations. The defendant contends that Joseph Ferrara was, at the time of the happening of this accident, not the husband of the woman who was injured. That is a question of fact for you to decide. The two plaintiffs have testified that they are husband and wife, and they told you when they were married and the circumstances under which they were married. They tell you they are living together and they have a child. The defendant produces certain records here before you and has also brought a witness, one of its. investigators, who testified to certain conversations. Of course, there may be people of the same or similar names.- You may have cases of that kind under your observation or within your knowledge. I certainly have within my knowledge persons who have names that are similar if not identical, and you have the right to consider that. The defendant claims that the persons who are plaintiffs in this case are not legally married. If they are not legally married Joseph has no right to recover because he would then be what is known under the law as a volunteer. If he volunteered to expend money for the benefit of some third person it would be very laudable but it would not entitle him to bring an action against a third person for the recovery of the money which he had expended. So that if you conclude that Joseph Ferrara was not the husband of the woman who was injured, then you should return a verdict for defendant as to him, even if the defendant company was negligent and the two plaintiffs were entirely free from negligence.</p> <p>Errors assigned were charge of the court, answers to points and refusal of defendant’s motion for judgment n. o. v.</p>

<p>Wills — Delegation of authority to appoint executor — Appointment of administrators c. t. a.</p> <p>Where a testator has made a codicil to his will providing “I hereby add this codicil, instead of having my daughters Hattie and Ruth appointed executors, I ask the Court to appoint the executors” and the register of wills, under such authority, appoints a trust company as administrator c. t. a., his action will not be reversed, on appeal, where the only parties to the controversy are two life tenants, with power to consume the residue, and the trust company must be regarded as the nominee of one.</p> <p>Wills — Right to letters of administration — Residuary legatee— Appointment of stranger.</p> <p>While one who is entitled to one-half of the residue of the estate for life, with power of consumption, is a residuary legatee, and as such, entitled to the right to administer the estate, where the intent to be gathered from the terms of the will is against the appointment of such person, the appointment of a stranger is not erroneous.</p>

<p>Appeal, No. 23, Oct. Term, 1918, by defendant, from judgment of Municipal Court of Philadelphia, Feb. Term, 1917, No. 352, on verdict for plaintiff in case of Antonio Tommasulo v. Philadelphia Rapid Transit Co.</p> <p>Trespass to recover damages for injuries to automobile. Before Knowles, J.</p> <p>The facts appear in the opinion of the Superior Court.</p> <p>Verdict for plaintiff for $725 and judgment thereon. Defendant appealed.</p> <p>Error assigned was in refusing defendant’s motion for judgment n. o. v.</p>

<p>Decedents’ estates — Compensation to executor — Auditors’ reports — Appeals.</p> <p>The action of an auditor, in restating an account and reducing the executor’s commission and counsel fees, will not be disturbed on appeal where the auditor has submitted a careful and elaborate report, which is confirmed hy the Orphans’ Court, and which shows no reason for reversal.</p>

<p>Appeal, No. 279, Oct. T., 1918, by plaintiff, from judgment of C. P. Bucks Co., December T., 1917, No. 33, sur demurrer to amended declaration in the case of William Asure, Mary F. Muir, Wilmer E. Scarborough, Fred Humphrey and Alfred H. Muir v. Allen J. Hankele, Landlord, and Albert R. Atkinson, Constable.</p> <p>Replevin to recover personal property levied on under landlord’s warrant. Before Ryan, P. J.</p> <p>The plaintiffs’ declaration set forth that they were the owners of certain personal property levied on in landlord’s warrant against Alfred H. Muir, and that the tenant was not indebted to the landlord and that the landlord’s warrant had been unlawfully issued.</p> <p>The defendants demurred to the statement for the reasons that the declaration failed to set forth the facts upon which title was based and that it failed to show the interest of the respective plaintiffs, as to whether or not they were the joint owners of all the goods named, or whether the respective plaintiffs were the absolute owners of the different articles replevied. The court sustained the demurrer with leave to plaintiffs to amend.</p> <p>An amended statement was filed stating that the plaintiffs were individually the absolute owners of the goods and chattels levied upon and giving the respective claims to the various articles.</p> <p>The defendants again demurred on the ground that the statement failed to show whether the title in the goods was absolute or joint or several.</p> <p>The opinion of the court sustaining the demurrer was as follows:</p> <p>The declaration has been amended under leave granted by this court on February 21, 1918, a demurrer to the original declaration having been sustained. The amendment while informal, will be considered upon its merits. It states that each of the plaintiffs is the owner of the same property claimed and enumerates it with a statement of facts upon which the several titles are based. It appears that the ownership is several and not joint, and that in this suit there are combined separate claims having no relation to each other beyond the fact that all the property was distrained upon under one warrant of distress. It is true the amended declaration contains the following paragraph: “While the plaintiffs above named are individually the absolute owners of the goods and chattels specifically claimed by them under paragraphs 1,2, 3, i and 5, yet they are jointly interested in all the goods and chattels, under and by virtue of mutual agreement, for the purpose of operating and working the farm, and were so jointly interested immediately after the letting of the premises, and are jointly interested in combating the landlord’s levy which is illegal and malicious, and which affects them jointly and severally.” This averment reiterates the statement that the plaintiffs “are individually the absolute owners of the goods and chattels specifically claimed by them.” The “joint interest” referred to evidently is not a joint ownership or a joint right of possession of the property distrained. In the absence of a declaration of such ownership or such right of possession, the case presented is that of different persons joining in one action of replevin for several goods where the property is several. Such an action cannot be maintained. .Wilkinson on Replevin 4; Coke on Littleton 145; Hart v. Fitzgerald, 2 Mass. 509; Morris on Replevin, 2d ed., 112; Chambers v. Hunt, 18 N. J. L. 339. The demurrer must, therefore, be sustained.</p> <p>And now, to wit, August 15, 1918, the demurrer to the statement as amended is sustained and judgment is entered for the defendants with costs.</p> <p>Error assigned was the order of the court.</p>

<p>Divorce — Modification of decree — Discretion of court.</p> <p>In determining the amount of alimony to be paid by a husband to his wife, from whom he was divorced the husband’s ability to pay, the separate estate of the wife, the character, situation and surroundings of all parties are to be considered in determining a fair and just amount which the husband should pay to maintain the wife. Any change in the conditions, such as the inability of the husband to pay or the lack of necessity for the wife are proper matters for consideration by the court having jurisdiction of the petition and the decree may be modified in accordance with the facts.</p>

<p>Appeal, No. 37, April T., 1918, by defendant, from judgment of Q. S. Clarion Co., Aug. Sess., 1915, No. 11, in favor of Commonwealth and against the defendant in issue raised by demurrer and joinder in the case of Commonwealth v. A. W. Williams.</p> <p>Indictment for obtaining goods under false pretense, before Sloan, P. J.</p> <p>From the record it appeared that the defendant was the president of the Hillville Coal & Mining Co., operating a coal leasehold in Clarion County, Pa. The indictment charged him with knowingly and intending to defraud one R. C. Patterson by representing to him that the said coal and mining company was a mine in good condition, was being operated on a paying basis, etc., and that by reason of said false pretense, said Patterson purchased sixty shares of valueless stock in said coal and mining company and gave his check for $3,000, payable to said Hillville Coal & Mining Co. That the check was subsequently paid by the bank out of the proceeds of said Patterson on the endorsement by the defendant. That he never issued any stock in said corporation to the prosecutor.</p> <p>At the close of the testimony, on the part of the Com monwealth, the defendant entered a demurrer to the evidence offered in the case, upon which issue was joined by the Commonwealth and the jury discharged.</p> <p>The court on the issue raised by the demurrer decided the case in favor of the Commonwealth and against the 'defendant and found him guilty. Judgment of sentence was passed. Defendant appealed.</p> <p>Errors assigned were various rulings on evidence and the sentence of the court.</p>

<p>Appeal, No. 156, Oct. T., 1918, by defendant, from order of C. P. No. 1, Philadelphia Co., Dec. T., 1917, No. 1113, making absolute a rule for judgment for want of a sufficient affidavit of defense in the case of Philip Marvel v. R. J. Mullen.</p> <p>Assumpsit for rent.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>The material averments of the affidavit of defense are set forth in the opinion of the Superior Court.</p> <p>The court made absolute the rule for judgment for want of a sufficient affidavit of defense.</p> <p>Error assigned was the order of the court.</p>

<p>Practice, C. P. — Affidavit of defense — Sufficiency of affidavit— Allegations of set-off,</p> <p>In an action for damages for the' nonfulfillment of an agreement to return a motor car, in accordance with the conditions of the lease, an affidavit of defense is sufficient, which avers as a set-off, an unsatisfied judgment obtained in another court for arrears in rent, under the terms of the same lease.</p>

<p>Appeal, No. 217, Oct. T., 1918, by defendant, from order of C. P. No. 3, Philadelphia Co., March Term, 1918, No. 1361, making absolute rule for judgment for want of a sufficient affidavit of defense in the case of B. L. P. Motor Co., Inc., v. Joseph A. Walsh.</p> <p>Replevin for automobile.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The court made absolute rule for judgment for'want of a sufficient affidavit of defense.</p> <p>Error assigned was the order of the court.</p>

<p>Appeal, No. 8, April T., 1918, by defendant, from judgment of C. P. Allegheny Co., July T., 1916, No. 1882, dismissing appeal from order of Workmen’s Compensation Board allowing claim in case of James Smith v. Pittsburgh Coal Co.</p> <p>Appeal from order of Workmen’s Compensation Board affirming award of referee. Before Shafer, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The court below, in dismissing appeal from orden of Workmen’s Compensation Board, filed tbe followi'..g opinion:</p> <p>In this case tbe employer, tbe Pittsburgh Coal Company, has appealed from tbe award of tbe Workmen’s Compensation Board allowing compensation to James Smith, tbe claimant, under Article III of tbe act known as tbe Workmen’s Compensation Act of 1915. Tbe claimant was admitted in tbe employ of tbe coal company, and in tbe mine belonging to tbe company be suffered a rupture or umbilical hernia while attempting to lift a car back upon tbe track. Tbe referee and tbe board find as a fact that in almost all cases of hernia, except those caused by a direct blow upon a previously perfect abdominal wall, there was some previous imperfection of tbe abdominal wall, either congenital or tbe result of disease or a previous bernia. Tbe board bolds as a matter of law, following tbe decisions of tbe English Courts of Appeal and tbe Boards of Illinois, Wisconsin and Michigan, that where a strain causes a protrusion of tbe bowels it is a compensable injury, even though tbe injury is at a point weakened as above stated.</p> <p>Tbe employer in this case contends that tbe preexisting condition of tbe claimant’s body was tbe cause of tbe injury and not bis effort to lift tbe car. It would be unprofitable to undertake to discuss tbe metaphysics of cause and effect, or to undertake to lay down any rule by which events which precede other events may be determined to be or not to be causes of them.- We have to deal with a matter which is not metaphysical but practical. Tbe real question is, of what nature and extent a bodily defect or a bodily condition different from that of tbe average man must be to require us to determine that an accident which would not have harmed a normal person was not tbe cause of tbe injury, or what is more to tbe purpose in tbe present case, is not compensable under tbe act. It is perfectly plain that an accident which would do no barm to one person may do great harm to another. The bones of some men are much more brittle than those of others, and a fall occasioned by accident may break an arm or leg although many persons, or almost every person, might get the same fall without receiving such injury. In such a case as that no one would contend that the injury was not caused by the accident. On the other hand, there may be cases, which we need not attempt to illustrate, where the bodily defect is of such a nature that an accident which caused injury by reason of the abnormality could not be properly said to have caused the injury in the meaning of the act. It is impossible to draw any definite line between these two classes of cases. We do not deem it necessary to enter into a discussion of the numerous cases which have been cited. We are not convinced that the view taken by the board is incorrect. The danger of fraud upon employers in such cases, which is no doubt a real danger, may be a matter for regulation by law. The appeal is therefore dismissed, and the award affirmed.</p> <p>Error assigned was the affirmance of the award of the referee.</p>

<p>Insurance — Life insurance — Death through immoral act — Abortion.</p> <p>Where a policy of insurance contains the provision that “If the member shall die at any time in consequence, directly or indirectly, of his or her immoral, intemperate or criminal action, this certificate shall be void,” and a further stipulation that “This certificate shall be incontestable after two years from its date if all due premiums shall be paid, except in case of fraud, and provided the member still has the qualification necessary to membership of the American Catholic Union,” the death of the insured, over six years subsequent to the issuance of the last policy, caused by a self-inflicted abortion, will avoid the policy.</p>

<p>Appeal, No. 140, April Term, 1918, by defendant, from judgment of C. P. Allegheny Co., April T., 1915, No. 1057,.on verdict for plaintiff in case of D. H. Gilbert v. H. K. Ayoob.</p> <p>Assumpsit on contract for the sale of watermelons. Before Shafer, P. J.</p> <p>Verdict for plaintiff for $651.65 and judgment thereon. Defendant appealed.</p> <p>The facts appear in the following opinion of the court below refusing new trial.</p> <p>The plaintiff is a grower, or shipper, of melons in Florida, and the defendant a dealer in melons and other fruits in Pittsburgh. Thornley Brothers were commission dealers doing business in Pittsburgh. The contract upon which the suit was brought was formed by a number of telegrams between Thornley Brothers and the plaintiff, the first telegram being sent by Gilbert, asking if they wanted more melons for Ayoob and stating he had ten cars of certain sizes, to which Thornley Brothers replied that Ayoob would take five cars at a less price than that offered, to which Gilbert replied agreeing to sell five cars to Ayoob, of certain sizes, for a total sum of $1,065; and Thornley Brothers wired him confirming Ayoob’s offer; and these telegrams sent by Thornley Brothers were authorized by Ayoob. When the melons arrived Ayoob refused to receive them and they were sold in the market for a price considerably less than that which Ayoob had agreed to pay, and this suit is to recover that difference as damages for the breach of the contract. The verdict was for the plaintiff for the full amount of his claim. The defendant would have had a much stronger case if he had not set up so many inconsistent defenses. One of these was that he never made any contract at all with Gilbert but that his contract was with Thornley Brothers; another was that hearing that the cars had not been shipped by a certain time he had revoked the order by a telegram sent to the plaintiff; another reason, which he mentioned in his testimony and which was the only reason he set up in a letter to Gilbert shortly after the arrival and sale of the melons, was that Thornley Brothers had agreed not to sell melons to any other dealer here, and that they had broken that agreement. And a further defense, and the principal defense, was that the melons were not of the size ordered, and not in good condition when they arrived. It further appeared by the uncontradicted evidence of the plaintiff that the price had declined from fifty to a hundred dollars a car between the time the order was given and the arrival of the melons. There was no question that the melons had come within the ordinary time of such shipments. All these matters were submitted to the jury and in view of these facts and the inconsistencies of the defendant’s case the verdict was one to be expected. There was some question as to the size of the melons in one car and some variation in the testimony of witnesses on both sides as to what constitutes a 24- or 25-inch melon in the custom of the market, and what latitude is allowed in measuring them. There was evidence, however, from which the jury might well find that the melons were fairly within the sizes ordered. The motion for judgment n. o. v. and the motion for a new trial are both refused.</p> <p>Errors assigned were the charge of the court, various rulings on evidence and refusal of motion for new trial and for judgment non obstante veredicto.</p>

Appeal, No. 30, April T., 1918, by defendant, from judgment of C. P. Westmoreland Co., August T., 1916, No. 562, discharging rule to open judgment in the case of George W. Dawson v. Frank Vrostyak. Rule to open judgment. Before Copeland, P. J. of Q. C., specially presiding. The facts are stated in the opinion of the Superior Court. The court discharged the rule to open judgment. Error assigned was the order of the court.

<p>Appeal, No. 126, April T., 1918, by defendant, from order of C. P. Beaver Co., December Term, 1917, No. 83, dismissing appeal from decision of Workmen’s Compensation Board allowing claim in case of Mike Cbovic v. Pittsburgh Crucible Steel Co.</p> <p>Appeal from Workmen’s Compensation Board. Before Baldwin, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was, among others, order of the court dismissing the appeal.</p>

Appeal, No. 127, April T., 1918, by defendant, from order of C. P. Beaver Co., December T., 1917, No. 62, dismissing appeal from decision of Workmen’s Compensation Board allowing claim in the case of Mike Turkovic v. Pittsburgh Crucible Steel Company. Appeal from Workmen’s Compensation Board. Error assigned was, among others, order of the court dismissing the appeal.

Appeal, No. 33, April T., 1918, by Harmony Electric Co., from order of the Public Service Commission, M. C. Docket No. 60-1914, dismissing a petition for approval of a contract between Harmony Electric Co. and the Borough of Ellwood City. Appeal from order of the Public Service Commission. The facts are stated in the opinion of the Superior Court. Error assigned was order of the. commission, dismissing the petition for approval.

Appeal, No. 33, Oct. T., 1918, by plaintiff, from order of O. P. No. 1, Philadelphia Co., Dec. T., 1916, No. 2441, refusing to take off nonsuit in case of Postal Telegraph Cable Co. v. Philadelphia & Western Railway Co. Trespass to recover damages for injuries to telegraph line. Before Shoemaker, J. The facts are set forth in the opinion of the Superior Court. Error assigned was refusal to take off nonsuit.

Appeal, No. 151, April T., 1918, by petitioners, from judgment of O. P. Allegheny Co., Oct. T., 1917, No. 1245, sur demurrer to petition for alternative writ of mandamus, in favor of respondent, in the case of Commonwealth of Pennsylvania ex rel., L, R. Goshorn, David L. Lawrence, J. Scott Morgan and W. L. McCullaugh, Registration Commissioners for the City of Pittsburgh, v. John P. Moore, Controller of Allegheny County. Petition for alternative writ of mandamus.

Appeal, No. 132, April T., 1918, by Mary Rafferty, from decree of O. C. Allegheny County, April Term, 1917, No. 286, dismissing appeal from decision of the Register of Wilis and denying an issue devisavit vel non in the estate of Frank Rafferty, deceased. Appeal from register of wills. Prom the record it appeared that Frank Rafferty, the decedent, became a patient in the West Penn hospital in Pittsburgh on February 10, 1917.

<p>Appeal, No. 139, April T., 1918, by defendant, from judgment of C. P. Westmoreland Co., May T., 1915, No. 839, on verdict for plaintiff in case of General Roofing Manufacturing' Co. v. The Greensburg Title & Trust Co.</p> <p>Assumpsit. Before Copeland, P. J., of O. C., specially presiding.</p> <p>From the record it appeared that the General Roofing Manufacturing Co., the plaintiff, consigned a carload of roofing, valued at $772.05 to itself at Pittsburgh, and on February 18,1915, forwarded by mail to the Greensburg Title & Trust Co., of Greensburg, Pa., a sight draft for the sum of $772.05 on the Pittsburgh Roofers’ Supply Co., of Pittsburgh, with a bill of lading attached for the said carload of roofing, with instructions to deliver the bill of lading to the Pittsburgh Roofers’ Supply Co. upon receiving one-half of the draft in cash and one-half in a 60-day note of the Pittsburgh Roofers’ Supply Co., endorsed by Charles Scheider, the treasurer of the defendant company. The defendant delivered the draft with the bill of lading attached to the Pittsburgh Roofers’ Supply Co., who received the roofing. The defendant, having failed to send the cash or the 60-day note, in accordance with the instructions, the plaintiff brought suit to recover damages sustained.</p> <p>At the trial the defendant produced testimony to show that the treasurer of the Greensburg Title & Trust Company, Charles Schneider, had been acting in his individual capacity; that the Pittsburgh Roofers’ Supply Company had returned certain of the goods delivered under the bill of lading; that the note in question had been tendered to the plaintiff, and that it had not disobeyed instructions. The court submitted the case to a jury.</p> <p>Verdict for plaintiff for $900.60 and judgment thereon. Defendant appealed.</p> <p>Errors, assigned were the charge of the court and answers to points (2-4) and (1) refusal to enter judgment for defendant n. o. y.</p>

Appeal, No. 15, Oct. T., 1918, by defendant, from judgment of C. P. No. 1, Philadelphia Co., June T., 1913, No. 517, on .verdict for plaintiff in case of O. W. Ketcham v. Central Trust & Savings Co. Assumpsit. Before Shoemaker, J. The opinion of the Superior Court states the case. Verdict and judgment for plaintiff for $580. Defendant appealed.

Appeal, No. 49, Oct. T., 1918, by defendant, from judgment of O. P. No. 3, Philadelphia Co., September T., 1916, No. 4525, on verdict for plaintiff in case of Bessie Ford v. Cunningham Piano Co. Trespass for personal injuries. Before Davis, J. The facts are stated in the opinion of the Superior Court. Verdict for plaintiff for $1,000 and judgment thereon. Defendant appealed. Error assigned was refusal to enter judgment for defendant n. o. v.

Appeal, No. 278, Oct. T., 1918, by libellant, from decree of C. P. No. 3, Philadelphia Co., Dec. T., 1916, No. 522, dismissing libel in divorce in case of Helen B. Frazer v. Allen Frazer- Libel in divorce before Ferguson, J. The facts are stated in the opinión of the Superior Court. Error assigned was decree dismissing the libel.

Appeal, No. 48, Oct. T., 1918, by defendant, from judgment of C. P. Lancaster Co., January T., 1917, No. 30, discharging rule for judgment n. o. v., and entering judgment on tbe verdict in case of Harry J. Kiehl v. Red Rose Beneficial Association of Lancaster. Assumpsit on beneficial certificate.

Appeal, No. 210, Oct. T., 1918, by plaintiff, from judgment of C. P. Delaware Co., Dec. T., 1916, No. 194, M. L. D., for defendant n. o. v., in case of Ezekiel Kirkpatrick, trading as Collingdale Millwork Co., v. Elizabeth M. Zintl, owner or reputed owner, and Harry Davis, Contractor. Scire facias sur mechanic’s lien. Before Broomall, J. The facts are stated in the opinion of the Superior Court. At the trial the jury returned a verdict for plaintiff for $787.88.

Appeal, No. 65, Oct. T., 1918, by defendant, from judgment of C. P. Delaware Co., on verdict for plaintiff in case of Cantrell Construction Co. v. Borougb of Marcus Hook. Assumpsit on contract for municipal improvements. Before Broomall, J. • Verdict for plaintiff for $1,438.72 and judgment thereon. Defendant appealed.

Appeal, No. 176, Oct. T., 1918, by respondent, from decree of C. P. No. 4, Philadelphia Co., September T., 1916, No. 226, granting divorce a. v. m. in case of George G. Blind v. May Blind. Libel in divorce. Before Audenried, J. The opinion of the Superior Court states the case. Error assigned was decree granting the divorce.

Appeal, No. 245, Oct. T., 1918, by defendants, from judgment of Municipal Court of Philadelphia, No. 492, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Commonwealth of Pennsylvania to the use of Louis I. Bellow v. Francis J. Lintott, Anton Smoluk and Michael Kaleda. Assumpsit on counterbond in replevin. Buie for judgment for want of a sufficient affidavit of defense. Opinion of the Superior Court states the case.

Appeal, No. 304, Oct. T., 1918, by plaintiff, from judgment of C. P. No. 2, Philadelphia Co., June T., 1918, No. 5020, discharging rule for judgment for want of a sufficient affidavit of defense in case of The White Co. v. Edward C. Quin. Assumpsit for labor and materials. Eule for judgment for want of a sufficient affidavit of defense. The opinion of the Superior Court states the case. The court discharged the rule for judgment for want of a sufficient affidavit of defense.

Appeal, No. 121, Oct. T., 1918, by defendant, from judgment of Municipal Court of Philadelphia, April T., 1917, No. 623, on verdict for plaintiff in case of Isaac Fineberg v. J. C. Taylor, as President of American Express Co., a Joint Stock Association. Trespass to recover damages fqr delay in delivering an express package. Before Crane, J. The facts are stated in the opinion of the Superior Court. Verdict for plaintiff for $262.90 and judgment thereon. Defendant appealed.

Appeal, No. 31, Oct. T., 1918, by plaintiff, from judgment of C. P. No. 3, Philadelphia Co., June Term, 1917, No. 2613, discharging rule for want of a sufficient affidavit of defense in the case of Joseph M. Carr v. Owen Hughes. Replevin on a bailment lease. Before McMichael, J. The opinion of the Superior Court states the case. The court discharged the rule for judgment for want of a sufficient affidavit of defense. Error assigned was the order of the court.

<p>Sales — Personal property — Passing of title — Replevin.</p> <p>Where a plaintiff made a contract for tbe purchase of an automobile, and gave part of the price, agreeing that the title was to remain in the vendor until the whole consideration was paid, he can not recover the machine in replevin proceedings, where the evidence shows that he never acquired actual title to the car, and that Ms agent, to -whom, he had intrusted the money for the balance due, had failed to carry out his instructions, and that a third party had acquired a good title to the property in question.</p>

Appeal, No. 77, Oct. T., 1918, by defendant, from judgment of G. P. Bucks Co., Sept. T., 1916, No. 22, on verdict for plaintiff in case of Sara W. Logan v. Charles H. Smith. Trespass for damages for cutting down hedge along lane leading to property of plaintiff in Bensalem Township, Bucks County. Before Ryan, P. J. The facts are stated in the opinion of the Superior Court. Verdict for plaintiff for $30 and judgment thereon. Defendant appealed.

Appeal, No. 107, Oct. T., 1918, by defendant, from judgment of tbe Municipal Court of Philadelphia, Sept. T., 1917, No. 213, for plaintiff, in a case tried by the court without a jury, in suit of Atwood C. Heffelfinger y. Constantine Haas. Assumpsit to recover commissions for the sale of real estate. Before Bonniwell, J., without a jury. The opinion of the Superior Court states the case. The court entered judgment for plaintiff for $555.15. Defendant appealed.

Appeal, No. 141, Oct. T., 1918, by defendant, from judgment of Municipal Court of Philadelphia, September T., 1917, No. 226, for plaintiff in case tried by the court without a jury in suit of John L. Bechtel v. Combs Broad Street Conservatory of Music. Assumpsit on contract of employment. Before Gil-pin, J., without a jury. The facts are stated in the opinion.of the Superior Court. The court found in favor of the plaintiff in the sum of $210 and judgment was entered thereon.

Appeal, No. 269, Oct. T., 1918, by plaintiff, from judgment of C. P. No. 1, Philadelphia Co., March T., 1915, No. 3950, directing a verdict in favor of the plaintiff against the defendants, Solomon Faggen, Harry Faggen, and in favor of the defendant, Rosalind R. Greenwald, Executrix of the Estate of Joseph L. Greenwald, deceased, in the case of The Larkin Co. of Penna. v. Solomon Faggen, Harry Faggen and Rosalind R. Greenwald, Executrix of the Estate of Joseph L. Greenwald,…

<p>Decedent’s estate — Disposal of assets — Method of sale — Liquor license — Bent as a preferred claim.</p> <p>1. The privilege to apply for a license to sell liquor, or for the transfer of such license, is not property of the decedent, which could be distrained by a landlord or reached by execution process. Such privilege might affect the value of the furniture, good will and fixtures of the hotel, but cannot be regarded as a tangible asset of the estate.</p> <p>2. Where an execution has been levied on personal estate of a decedent, prior to his death, and the administratrix has entered into an agreement with the execution creditor, to sell all of the property levied on, together with all other assets of the estate, in which is included the privilege of applying for license, the fund realized is not liable for a preferred claim of a landlord for rent.</p>

<p>Appeal, No. 203, Oct. T., 1918, by defendant, from judgment of O. P. No. 4, Philadelphia Co., Sept. T., 1917, No. 5382, on verdict for plaintiff in case of James R. Forsyth v. Samuel Goldes.</p> <p>Trespass to recover damages for personal injuries. Before Finletter, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict for plaintiff for $500 and judgment thereon. Defendant appealed.</p> <p>Error assigned was refusal to enter judgment in favor of defendant n. o. v.</p>

Appeal, No. 153, October T.j 1918, by plaintiff, from decree of O. P. Huntingdon Co., Feb. T., 1918, No. 28, striking off judgment in case of Nancy Dick v. James L. Forsbey. Rule to strike off judgment. Before Bailey, P. J. The opinion of the Superior Court states the case. The court made absolute the rule to strike off judgment. Error assigned was the order of the court.

Appeal, No. 235, Oct. T., 1918, by defendant, from judgment ,of Municipal Court of Philadelphia, December T., 1917, No. 661, for plaintiff, in. case tried by tbe court without a jury in suit of Regina Samek v. Lester Piano Co. Assumpsit on beneficial certificate. Before Gorman, J., without a jury. The facts and material provisions of the certificate are sufficiently set forth in the opinion of the Superior Court.

<p>Decedents’ estates — Trusts and trustees — Bight to consume — Discretion of trustee.</p> <p>Where a testamentary trust is created, directing that “the interest thereof, together with part of the principal if required” shall be paid for the care and maintenance of the cestui que trust, the use of the fund is largely a matter of the sound discretion of the trustee, and no presumption of fraud arises from the mere fact that there has been .a diminution of the principal.</p>

Appeal, No. 110, Oct. T., 1918, by defendant, from judgment of Municipal Court of Philadelphia, September Term, 1917, No. 12, on verdict for plaintiff in case of Philadelphia Motor Speedway Association v. Frank D. Murphy. Assumpsit on a contract of subscription.

<p>Promissory note — Alteration—Subscribing witness — Attestation after signature of one of the makers.</p> <p>Where two or more parties have affixed tbeir names to a writing, and the name of a witness is affixed in the place set apart for that purpose on the paper, without the knowledge or consent of the plaintiff party, it does not necessarily follow that the alteration avoids the instrument.</p> <p>Where the evidence shows that the subscribing witness intended to certify only to the one of the signatures, that there is no dispute in regard to the signature of the maker, it is competent to inquire into the circumstances of the signing, and where it appears to have been done without fraud or unlawful purpose, the signature of the attesting witness will be regarded as relating to the act which he intended to attest.</p>

Appeal, No. 297, Oct. T., 1918, by defendant,'from judgment of C. P. No. 3, Philadelphia Co., September T., 1917, No. 1920, on verdict for plaintiff in case of Samuel A. Greenlee v. Howard West. Assumpsit on option to repurchase negotiable paper. Before Davis, J. The facts are stated in the opinion of the Superior Court. Verdict for plaintiff for $500 and judgment thereon.

<p>Appeal, No. 285, Oct. T., 1918, by Louisa L. Rowland, from decree of O. O. Philadelphia .County, January T., 1891, No. 142, dismissing exceptions to- adjudication in estate of Charles Lennig, deceased.</p> <p>Exceptions to adjudication.</p> <p>Anderson, J., filed the adjudication which was as follows :</p> <p>This trust arose under the will of testator, who died January 22, 1891, and the codicils thereto annexed.</p> <p>By his will, he directed his executors to turn over his residuary personal estate and proceeds of sales of real estate when made to the accountant as trustee to pay out of the net income to be derived therefrom to his wife, Williamina, $8,000 per year in monthly payments, $2,500 per year in monthly payments to his daughter, Williamina Thudichum, during life, and of the balance of income directed one-third of two-thirds paid to his said wife during life, two-thirds of two-thirds to be divided into three equal parts, one part to his daughter, Williamina Thudichum, and the other two divided and paid to his two sons, Nicholas Lennig and John B. Lennig, and at the decease of any one of these three, the share that would have fallen to her or him to be equally divided amongst the survivor or survivors of them, and one-third of the undivided net income to be invested as residuary estate.</p> <p>And upon the death of his wife, sons and daughter, and the payment of certain legacies (which have all been paid out of prior accounts) he directed the payment to the Academy of Natural Science of the City of Philadelphia semiannually the net income of his then residuary estate until such payments shall have amounted to a total sum of $150,000, by codicil reduced to $20,000 —to be held as the Charles Lennig fund, and upon the completion of this bequest directed his trustee to pay to the trustees or faculty of the University of Pennsylvania of the City. of Philadelphia $500,000, the net income thereof to be used in connection with the John H. Town bequest and the fund to be called the Charles Lennig fund in aid of instruction in theoretical and practical mechanics, and the further sum of $200,000 to apply the net income therefrom to the institution of as many free scholarships (excluding scholarships in theology) as such income will maintain, the fund to be called the Charles Lennig beneficiary fund, any balance remaining upon the completion of the aforenamed devices to be paid over share and share alike amongst and to any of his legal descendants then living, the sons and daughters of his daughter, Williamina' Thudichum and Joyeuse Arnoys, his sons, Nicholas and John Boulinger Lennig, and none others, and in default of such claiming and proving their interest in manner specified then the balance to be divided and paid one-half to the trustees of the University of Pennsylvania, for the use of the free scholarship fund aforenamed and the other half, one-half to the German Hospital and the balance to the Pennsylvania Hospital of Philadelphia.</p> <p>Testator’s widow elected to take, as against his will, the shares of his estate to which she was entitled under the intestate law, which was accordingly paid to her out of the executors’ account, and died September 15, 1893.</p> <p>Besides his widow, testator left him surviving his two sons, Nicholas and John B. Lennig; his daughter, Williamina Thudichum; his granddaughters, Joyeuse L. and Williamina Fullerton, children of a deceased daughter; and grandson, Alexander Arnoys, son of his deceased daughter, Joyeuse.</p> <p>Nicholas Lennig died January 24, 1906, without issue, and William O. Houston is the surviving executor of his will.</p> <p>John B. Lennig died November 5, 1913, leaving surviving three children, Maude A. Hawkes, Louise O. Rowland and Elsie McCaulay, and Francis F. Eastlack, Jr., and the Frankford Trust Company are executors of his will.</p> <p>Williamina Thudichum is still living.</p> <p>The widow having elected to take against the will, the one-third of two-thirds of income remained undisposed of, and passed under the intestate laws to his sons, daughter and grandchildren.</p> <p>The present accounting is of testator’s original residuary personal estate, increased by the addition thereto of proceeds of sale of real estate, and from time to time of one-third of the income of his so-called “residuary estate” and the fund now amounts to $783,558. The legacies to be paid out of the fund at the time of distribution amount to $720,000. In his adjudication upon a prior account, Judge Penrose, whose adjudication was affirmed by the Supreme Court in Lennig’s Est., 154 Pa. 209, said:</p> <p>“So long as the accumulation does not swell the residue to an amount larger than the sum required for the charity, it is not forbidden; the act will apply only to a continuance of the accumulation after this purpose has been accomplished; and such excess will then go ‘to and be received by such person or persons as would be entitled thereto if such accumulations had not been directed.’ It is not alleged that the limit has yet been reached.”</p> <p>That limit has now been exceeded, although, as the duration of the trust is indefinite, it is impossible to foretell whether the securities at present composing the fund will, at the time of distribution, produce the amount necessary to pay the legacies. Temporary withholdings of illegal accumulations in the interest of judicious management have been sustained in Eberly’s App., 110 Pa. 95; Hibb’s Est., 143 Pa. 217; McIntosh’s Est., 158 Pa. 528; and in King’s Est., 210 Pa. 435, the excess beyond a proper contingent fund was distributed. Under these authorities and the circumstances in the present case, the auditing judge is of the opinion that temporarily and until events showed danger of depreciation below the amount necessary to pay the legacies, further additions of income may safely be discontinued.</p> <p>The question then arises as to who is entitled to this one-third of income. It does not fall into residue (as did the accumulations in Weinmann’s Est., 223 Pa. 508, and Wright’s Est., 227 Pa. 69) and pass to the other persons entitled to income for life as that gift is of but two-thirds thereof (Wain’s Est., 156 Pa. 194). Nor can it pass to the persons who will be entitled to the principal of residuary estate at the termination of the trust as the gift of principal is contingent, depending upon there being legal descendants then living (Roney’s Est., 227 Pa. 127; Sternbergh’s Est., 250 Pa. 167); who the parties entitled will be cannot now be determined.</p> <p>This one-third of income is therefore undisposed of and passes to the persons entitled under the intestatelaws, and thus, the widow'having already received her full share of the estate, to his sons and daughter and his grandchildren living at the time of his death (Bell’s Est., 147 Pa. 389; McFillin’s Est., 235 Pa. 175; Tatham’s Est., 250 Pa. 269).</p> <p>The account and supplemental account filed at the audit show a balance of principal of $783,558, which composed as indicated in the account is awarded to the Pennsylvania Company for Insurances on Lives and Granting Annuities upon the uses and trusts declared by the will of testator.</p> <p>The supplemental account also shows a balance of income, after payment of her annuity to Williamina Thudichum to June 22, 1917, and their shares of income to the parties in interest including the transfer of one-third of income to principal, to July 2,1917, of $8,369.02 of which less allowance to Samuel K.</p> <p>Phillips, agreed to 50.00</p> <p>Balance, $8,319.02</p> <p>$3.50, the cost of a certified c'opy. of this adjudication, is awarded to be paid to the clerk, her yearly sum of $2,500 to date of payment is awarded to Williamina Thudichum, and of the balance then remaining, five-ninths is awarded to Williamina Thudichum, one-ninth each to Nicholas Lennig, John S. Lennig and Alexander Arnoys, and one-eighteenth to Joyeuse L. Sweet and Williamina Fullerton.</p> <p>The awards to Nicholas Lennig and John B. Lennig, to be paid to the executors of their wills, unless their estates have been settled and debts paid, in which event it may be paid directly to the legatees named therein.</p> <p>The certificate of the official examiner as to his examination of the securities composing the fund awarded to the accountant as trustee will be submitted to the auditing judge and subsequently hereto attached.</p> <p>The court dismissed the exceptions to the adjudication.</p> <p>Error assigned was decree dismissing exceptions.</p>

<p>Appeal, No. 284, Oct. T., 1918, by plaintiffs, from decree of C. P. Schuylkill Co., sitting in equity, March T., 1918, No. 2, dissolving preliminary injunction in the case of James McGonigle, for himself and in behalf of Bridget McKernan, Edward Mc-Gonigle, Sophia McNulty, Mary Donnelly and William McGonigle v. The Saint Clair Coal Company.</p> <p>Bill in equity to enjoin the diversion of waters of a stream. Before Berger, J.</p> <p>The opinion of the Superior Court states the case.</p> <p>The court dissolved the preliminary injunction and certified the case to the court of common pleas, under the provisions of the Act of June 7, 1907, P. L. 440. Plaintiffs appealed.</p> <p>Error assigned, among others, was the decree of the court.</p>

<p>Appeal, No. 7, March T., 1919, by plaintiff, from judgment of C. P. Luzerne Co., January T., 1917, No. 471, on verdict for defendant in issue framed with Joseph Szajnecki, as Plaintiff, and Maryanna Szajnecki, as Defendant.</p> <p>Interpleader awarded on petition and answer to determine ownership of money, due on beneficial certificate, paid into court. Before G-arm:an, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The court submitted the following question to the jury:</p> <p>“Did John and Joseph Szajnecki agree with Maryanna Pagiego, now Maryanna Szajnecki, that if she would marry John Szajnecki, the certificate issued by the' Polish Union of America, upon the life of Jan Szajnecki, wherein Joseph Szajnecki was named as the beneficiary, should be changed so as to name the said Maryanna as the beneficiary?”</p> <p>The jury returned a verdict answering the question in the affirmative. Judgment entered on the whole record in favor of defendant Maryanna Szajnecki and against the plaintiff Joseph Szajnecki in the sum of $750 in accordance with the verdict. Plaintiff appealed.</p> <p>The appellant’s statement of question involved was as follows:</p> <p>“First. Right of Court to direct plaintiff to interplead with third party, on application of defendant where defendant’s liability to plaintiff is established and third party shows no legal right to fund sued for.</p> <p>“Second. Exclusion of plaintiff’s offer to show agreement with insured that there should be no change in beneficiary, on the strength of which agreement plaintiff paid premiums and assessments.</p> <p>“Third. Right of widow of insured to recover fund against beneficiary named, upon allegation of unexecuted agreement made on Sunday to name her beneficiary.”</p> <p>Errors assigned, among others, were in directing the plaintiff to interplead and in entering judgment in favor of defendant, it.</p>

<p>Appeal, No. 15, March T., 1919, by plaintiff, from decree of C. P. Cumberland Co., May T., 1917, No. 69, refusing to take off nonsuit in case of Carlisle Gas & Water Co. v. The Interwoven Mills, Inc.</p> <p>Assumpsit. Before Gillan, P. J., specially presiding.</p> <p>The facts appear from the following opinion of the court refusing to take off nonsuit:</p> <p>This is an action of assumpsit. The plaintiff’s statement alleges that in October, 1913, an oral contract was entered into between the plaintiff and the defendant by which the plaintiff agreed to convey to the defendant a certain tract of land in the Borough of Carlisle, in consideration of which the defendant was to pay to the plaintiff the sum of $5,500; that on said tract of land the plaintiff maintained lines of wire, poles, etc., which were used to conduct electric current for light and power; that by this agreement the plaintiff was to remove said poles, wires, etc.; that in pursuance of the said contract and at the request of the defendant the plaintiff removed from said tract of land wires and poles at an expense of $1,420.83; that in pursuance of the said contract the plaintiff held a special meeting of the board of directors at an expense of $70; that the plaintiff caused to be prepared deeds, and tendered them to the defendant; that by reason of the said facts and by reason of the defendant’s breach of contract and refusal to accept said deeds, the plaintiff suffered loss and damage to the extent of $1,492.83, for which the action is brought. By an amended statement filed by leave of court it is set forth that the contract between the plaintiff and defendant was made with one C. W. Kilborne, the president of the defendant corporation, and that he was authorized to make said contract.</p> <p>We entered this nonsuit because we considered at the close of the plaintiff’s testimony that the allegation that the plaintiff and the defendant had, by an oral agreement entered into between them, contracted for the sale and purchase of this land was not established. [There is no testimony in this record from which a jury could or should be permitted to find that such a contract has been made.] (1) A very careful study of the testimony in the case and a consideration of the plaintiff’s statement convinces us that we were right. We have listened to the very able argument of the plaintiff’s counsel, but we are not convinced that in making the order we did, we committed any error. We have looked in vain through the testimony to find any proofs of this contract of sale. The evidence is, ■ and we must take all the evidence of the plaintiff as being true, that the plaintiff corporation authorized the president of the corporation, Mr. John Hays, to conduct the negotiations for the sale of his property. The plaintiff corporation at a meeting of its board of managers held on the 21st day of July, 1913, passed a resolution that the sale of this lot be left in the hands of the president to receive bids from the other people and submit those to the board for action.</p> <p>Mr. Hays himself testifies that he made a contract with the defendant company, and when asked with whom he made that contract, that .is who the individual was, he said that he thought that he made it with the president of the company, but was not sure. He gives not a word of the details of the bargain. It is testified that the plaintiff corporation agreed to sell this property to the Carlisle Industrial League. It is in evidence that the Carlisle Industrial League agreed with the defendant corporation to convey to them this very property, but that it was never done, and not done because, when the Carlisle Industrial League came to examine the title to the property of the plaintiff, they found it charged with certain dower liens, etc., which they did not seem to be able to remove. It is further testified on the part of the plaintiff’s witnesses that part of the purchase-price of this property was to be contributed by the Carlisle Industrial League, the object being to secure a new industry for Carlisle.</p> <p>There is no paper, no letter, nothing which would indicate that the plaintiff corporation ever made any contract with the defendant corporation for the sale of this property. While it is alleged that the contract with the defendant for the sale and purchase of this property was made in October, 1913, yet bn the 7th day of February, 1914, George M. Hays, vice president of the plaintiff corporation, wrote to the defendant corporation with reference to the property to be purchased by said defendant in Carlisle. If the defendant had already bought the property, would he not, in writing of the removal of the poles, etc., in speaking of the property, instead of saying “the property to be purchased by you in Carlisle,” have said the property which you have purchased from the Carlisle Gas & Water Company?</p> <p>It is alleged that the property was purchased by the Carlisle Industrial League and the defendant afterwards substituted. A novation is not alleged, and, even if it were, there is not shown any consideration, and therefore it is not binding. [The plaintiff sued on an express contract and therefore can not recover on an implied contract.] (2)</p> <p>The trial judge entered a compulsory nonsuit, which the court subsequently refused to take off. Plaintiff appealed.</p> <p>Error assigned was in refusing to take off the nonsuit.</p>

<p>Practice, G. P. — Trials — Instructions to jury — Question not raised in pleadings.</p> <p>Where, in an action for the balance alleged to be due on the purchase-price of a patent, the issue 'between the parties is whether or not the patented article was manufactured and ready for sale, and the last payment was, therefore, due under the terms of the contract, it is error for the trial judge to submit to the jury the question as to whether or not the defendants had exercised due diligence in manufacturing the article, when such question was not raised in the pleadings.</p> <p>Practice, G. P. — Trials—Expression of opinion by trial judge.</p> <p>If is more than a mere expression of the opinion as to the weight and value of the evidence, and constitutes reversible error, for the trial judge to charge a jury that “in our opinion under the law and under the facts the plaintiff is entitled to a judgment, but I leave that matter entirely for your consideration. We are leaving the matter in your hands without express or binding instructions, because if we err we can control the matter afterwards.”</p>

<p>Contracts — Breach of contract — Assessment of damages — Matter for jury — Instructions.</p> <p>"Where damages are unliquidated, and cannot he liquidated with absolute certainty, it is a matter for the jury, and not for the court, to determine such damages, in the light of all of the evidence before them, nor are they bound to accept the testimony of the plaintiff as to his probable damage, even though it is uncontradicted, hut they can regard it as an approximation, and are not precluded from returning a verdict for a less amount, if in their judgment, the evidence warrants it. And it is error for the court in such a case, to give instructions to the jury, that if they believe the testimony of the plaintiff as to the breach of the contract, they must find a verdict in his favor for the amount claimed.</p> <p>Contracts — Breach of contract — Assessment of damages — Reduction by court.</p> <p>Where, in an action for' breach of a contract for the cutting of timber, the trial judge erroneously instructs the jury as to the measure of damages, the court cannot afterwards reduce the verdict to what it regards as the proper amount, but should award a new trial.</p> <p>The original verdict having been rendered under erroneous instructions, any reduction of it is based on false premises and the defendant is entitled to have the case resubmitted to a jury.</p>

<p>Boroughs — Roads and streets — Borough council — Jurisdiction.</p> <p>1. A borough council has authority to change, by ordinance, the location of a main highway, which is also a street of the borough, and to vacate that portion of the same, which is rendered useless by such change where the whole of the vacated Street is within the limits of the municipality.</p> <p>2. While a borough council has no authority to obstruct a main highway running through the borough, there is nothing to prevent its changing the location of a part of such highway which is entirely within its limits, where such change does not interrupt or destroy the continuity of the highway, but merely for safety or convenience substitutes a better or safer road for a dangerous and unsafe one.</p> <p>3. Tbe borough council has concurrent jurisdiction with the court of quarter sessions as to the improvement of so much of such a highway as lies within the borough.</p>

Appeal, No. 4, March T., 1919, by plaintiffs, from judgment of C. P. Cumberland Co., Oct. T., 1917, No. 104, for defendant non obstante veredicto, in case of Herman P. Miller and William P. Miller, trading as Miller Bros. & Co., v. E. B. Hays and W. H. McCrea, Executors of John Graham, deceased. Assumpsit for commissions on the sale of real estate. Before Sadler, P. J. The facts are stated in the opinion of the Superior Court. Verdict for plaintiffs for $500.

<p>Appeal, No. 24, March T., 1919, by defendant, from order of C. P. Lackawanna Co., June T., 1918, No. 181, confirming judgment of justice of the peace in case of Mrs. S. M. Holly, otherwise known as Lottie Holly, v. Wallie Travis.</p> <p>Certiorari to justice of the peace.</p> <p>Newcomb, J., in affirming the judgment of the justice of the peace, filed the following opinion:</p> <p>The case is a proceeding by a landlord to dispossess her tenant upon the expiration of his term. She recovered judgment against the defendant in default of appearance on his part. The validity of the judgment is attacked for two reasons: (1) because of an adjournment without notice; and (2) for false return of service.</p> <p>The writ was returnable in this city between the hours of nine and ten o’clock a. m. At the expiration of the hour and in defendant’s absence, the hearing was postponed for thirty minutes at plaintiff’s request to accommodate her counsel who had an engagement in the orphans’ court at that hour.</p> <p>It is objected that this was improperly allowed without notice to defendant.</p> <p>How the objection will lie in favor of one who had wholly ignored the summons, is not apparent; especially as it appears of record that his place of residence was upwards of fifteen miles distant. The objection is believed to be without merit and to call for no discussion.</p> <p>For the rest, the attempt is to impeach the constable’s return of service by proof aliunde that the writ was served outside the county.</p> <p>That raises the disputed question as to the competency of such proof.</p> <p>At least there is a semblance of conflict on the subject as between the decisions of the common pleas courts. Assuming the existence of real conflict, it could be said that the great weight of authority is against the proposition that a constable’s return, regular on its face, can be contradicted in that way, — as examples of which the following may be referred to: Link & Co. v. Repple, 7 C. C. R. 138; Fidelity, etc., Co. v. Ketrick, 3 Kulp225; R. R. Co. v. Brittain, 1 Pitts. 271; Cox v. McGill, 15 Pa. D. R. 571; Keech v. Price, 16 lb. 766; Kelly v. Eckenstein, 12 Luz. 452; Young v. Trunkley, 22 C. C. R. 127.</p> <p>Our own court has never varied from that position: Foy v. Rice, 3 Lacka. Jur. 17 (1893); Hummell v. Hoffecker, 5 Lacka. N. 162 (1898); Cooper v. Manning, 8 Lacka. Jur. 370 (1907).</p> <p>In the last cited case attention was called to the fact that any possible ground for distinction, as between the conclusiveness of a sheriff’s return and that of a constable, had been swept away by the Service of Process Act hereinafter cited.</p> <p>In case of a sheriff’s return, not only regular but complete on its face, no one would have the temerity to contend that it is not conclusive, upon the parties to that proceeding, of every fact averred: Park Bros. Co. v. Boiler Works, 204 Pa. 453; Coal Co. v. Water Co., 25 Pa. Superior Ct. 628; Telephone Co. v. Diggs, 69 lb. 299.</p> <p>It is a lack of a full and explicit return in certain instances that accounts for the supposed lack of harmony between the decisions, which thus turns out to be more apparent than real, as convincingly shown by Judge Butler of Chester County in a painstaking review of the cases in Keech v. Price, supra.</p> <p>Turning then to the function of the constable as defined by law, it is this: “Writs issued by a magistrate, justice of the peace, or alderman, shall be served in the county wherein they are issued, by the constable or other officer to whom given for service, in the same manner and with like effect as similar writs are served by the sheriff when directed to him by the proper court,” etc., Act 9th July, 1901, P. L. 614, Sec. 16. By the following section of the statute all and singular any acts of assembly or parts thereof in relation to the service of such writs inconsistent therewith, were expressly repealed, thus making its provision for service the exclusive source of the officer’s authority in the premises. It is only necessary to refer to the return here to see that the requirements of the act were literally complied with. It is as follows: “Commonwealth of Pennsylvania, County of Lycoming s. s. April 29,1918, summons together with certified copy of information served on the within named defendant, Wallie Travis, by handing to him personally true and attested copies thereof in the Township of Benton, County of Lackawanna and State of Pennsylvania, and by informing him the said defendant of the contents therein. So answers,” etc.</p> <p>The return was signed and sworn to before the aider-man, as appears by further endorsement on the writ, in due form.</p> <p>That it is full, explicit and complete on its face is neither questioned nor open to question. It is merely challenged as false in point of fact; and the attempt is to sustain the challenged by extraneous proof that the place where service was so made is beyo.nd the pounty line and within the border of the adjoining county.</p> <p>This is nothing more or less than an attempt to contradict a valid return in a material particular; and that cannot be done, if, as the statute plainly says, the return is to be of the like effect as that of the sheriff in like case.</p> <p>Supplementary proof to invalidate a meagre return is one thing; contradiction of a complete return, is another and very different thing; and for that purpose the extrinsic proof offered here cannot be entertained.</p> <p>The exceptions are dismissed and the proceedings affirmed.</p> <p>Errors assigned were in the following form:</p> <p>1. The alderman was without jurisdiction to hear and determine this case.</p> <p>2. There was no legal service of process by the constable.</p> <p>3. The defendant was without day in >he alderman’s court,</p> <p>4. The court below erred in holding that a sworn return appearing in an alderman’s record, cannot be contradicted or impeached by oral evidence.</p> <p>5. The court below erred in holding that a record of an alderman cannot be contradicted or impeached on jurisdictional questions by oral evidence.</p> <p>6. The court below erred .in affirming the judgment of the alderman in this proceeding.</p>

<p>Beal property — Trusts—Constructive trusts — Cotenants—Purchase at sheriff’s sale!</p> <p>A son of a cotenant and mortgagee, who purchases under foreclosure proceedings the property owned by his father in cotenancy, does not thereby become a constructive trustee for the other co-tenants, hut takes the property free and clear of their interests therein.</p> <p>Where there is no proof that the purchaser at the judicial sale acted as the agent of any of the cotenants or that the purchase money was furnished by any of them, he must he presumed to have acted in good faith, and on his own behalf, and the mere fact of his relationship to one of the cotenants, will not impeach the sale or create a constructive trust.</p>

<p>Workmen’s Compensation Law — Medical treatment of employees —Liability of employers.</p> <p>An employer is liable for tbe charges incident to the care of injured persons who have been sent to a hospital with its consent in accordance with the provisions of section 306, paragraph (e) of the Workmen’s Compensation Act of June 2,1915, P. L. 742.</p> <p>State hospital — Act of incorporation — Interpretation—Free treatment of injured persons.</p> <p>The Act of June 14, 1887, P. L. 399, incorporating the State Hospital for the Middle Coal Field of Pennsylvania and, providing for free treatment for persons injured about the mines, workshops, etc., did not contemplate the exemption of employers from lawful charges incident to the care of injured employees, sent to the hospital in accordance with the provisions of the Workmen’s Compensation Act.</p>

<p>Criminal law — Forcible entry and detainer — Insufficient evidence.</p> <p>A prosecution for forcible entry and detainer is not the proper method to try title to real estate. Where the entry on the premises is peaceable and without violence; in default of any evidence that, following such entry, the defendant with force and threats turned the prosecutor out of possession, an indictment for forcible entry and detainer will not lie.</p> <p>Leaseholds — Title to real estate — Ejectment.</p> <p>An action in ejectment is the proper method to assert the rights to property founded on an oil lease, instead of criminal proceedings for forcible entry and detainer, where the evidence established the fact that the lessor had notified the lessee that the lease was terminated for want of operation and after such notice had resumed peaceable possession of the premises.</p>

<p>Negligence — Death of minor child — Damages—Measure of damages — New trial.</p> <p>More than nominal damages are recoverable for the death of a child, where the verdict of a jury establishes the culpable negligence of the defendant, and that such negligence was the proximate cause of the child’s death. The law regards human life as having pecuniary value to those injured by its untimely ending, through the negligence of others, and is not too exacting in measuring the standard of such value. Where there is evidence of the child’s age, good health, bright mental condition, etc., before the jury a verdict awarding nominal damages only to its parents should not be sustained.</p> <p>Negligence — Damages—Inadequate verdict — New trial.</p> <p>Where the evidence establishes the negligence of the defendant, and that such negligence was the proximate cause of a child’s death, and there is ample evidence before the jury of her good health, bright mental condition, etc., a verdict fixing the pecuniary value of the child’s life at the amount expended for its burial, is so unreasonable and disproportionate to the value of human life, that it raises an inference that it must have been influenced by partiality, or prejudice, or some misconception of the law or the evidence. In such case it is the duty of the trial judge, in the exercise of his judicial discretion, to award a new trial, and failure to do so constitutes reversible error.</p>

<p>Appeal, No. 29, April T., 1919, by defendant, from judgment of Q. S. Fayette Co., March Sess., 1918, No. 228, on verdict of guilty in case of Commonwealth v. Mont McCormick.</p> <p>Indictment for assault and battery, aggravated assault and battery and assault and battery with intent to kill. Before Reppert, J.</p> <p>Motion to quasb array of petit jurors and to quash indictment. The court dismissed both motions.</p> <p>The opinion of the Superior Court states the case.</p> <p>On trial defendant was convicted of the first and second counts charged in the indictment and judgment of sentence was passed. Defendant appealed.</p> <p>Errors assigned were refusal to quash the array and refusal to quash indictment.</p>

<p>Appeal, No. 22, March T., 1919, by defendant, from judgment of C. P. Lackawanna Co., January T., 1918, No. 443, affirming judgment of Justice of the Peace in the case of GL F. Schwenker & Company y. Norton Wagner, Trading as New Penn Waste Paper Company.</p> <p>Certiorari to Justice of the Peace.</p> <p>Newcomb, J., in affirming the judgment of the justice of the peace filed the following opinion:</p> <p>The judgment is attacked only for the alleged disqualification of the magistrate by reason of his family relation with the personnel of the plaintiff company. To this it is answered that plaintiff is a corporation in which the personal identity of the corporators is lost, and therefore the objection does not lie.</p> <p>The argument is believed to be without merit. The stockholders are three in . number, namely, C. F. Schwenker, his son, J. Henry Schwenker, and Mrs. Schwenker, his wife.</p> <p>The alderman is a brother of the elder Schwenker, and if timely objection had been made, one can think of no good reason why it would not be quite as effective as in case of a suit to which the several stockholders were parties in person. For present purposes the attempt to distinguish as between such action and a suit by the company of whose franchises and assets they are the sole owners, would seem to be purely fanciful.</p> <p>But the trouble is that the fact of relationship is made to appear only by agreement of counsel submitted in writing at the argument.</p> <p>The case had gone to trial and judgment in default of appearance by defendant either in person or otherwise, and therefore without objection or protest. Hence, the objection must now be deemed to have been waived. It has no statutory basis serving to avoid the judgment per se.</p> <p>It can claim no support except on grounds of challenge for cause as in case of juror; and that is not self-executing, but merely open to the party at his pleasure. Failing to exercise his privilege, his right is lost and he cannot thereafter revive it by complaining of the verdict. It is too late to first raise the objection on certiorari. The exception is therefore dismissed and the judgment affirmed.</p> <p>Error assigned was in affirming the judgment of the justice of the peace.</p>

<p>Criminal law — Larceny—Possession of stolen property — Burden of proof.</p> <p>It is well settled that where a person is found in possession of recently stolen property the burden- of accounting for such possession rests upon him, and there is a presumption of guilt which will justify conviction if he does not meet it by a reasonable explanation, and it is a question for the jury to decide whether or not the defendant meets such burden.</p> <p>Criminal law — Procedure—Venue of offense committed during journey — Act of March 81, 1860, P. L. ¡$8.</p> <p>The proper venue of offenses committed during journeys is in any county through which the carrier travels during the time the felony or misdemeanor was committed.</p>

<p>Constitutional law — Constitution of Pennsylvania — Title of act ' — Sufficiency—Act of March 11,1909, P. L. 19.</p> <p>Tbe Act of March 11, 1909, P. L. 19, entitled “An act relating to warehouse receipts” is constitutional. The penal provisions of the act are germane to the subject-matter, and the title of the act is sufficient notice of the provisions of the statute, and meet§ the constitutional requirements.</p> <p>Criminal law — Evidence as to similar offenses — Admissibility.</p> <p>While the doing of another criminal act, not part of the issue is, in general, not admissible as evidence of the commission of'the criminal act charged, yet proof of it may be offered to show guilty knowledge and purpose and to rebut the inference of mistake, and to connect other offenses with the one charged in the indictment, as part of the same transaction.</p>

Appeal, No. 35, March Term, 1919, from judgment of Q. S. Luzerne County, Sept. Sess., 1918, No. 441, on verdict of guilty in case of Commonwealth v. E. C. Rink. Indictment for violating Section 54 of Act of March 11, 1909, P. L. 19. Before Woodward, J. At the trial the defendant was convicted of the offense charged in the indictment. He subsequently moved in arrest of judgment on the ground that the act under which he was convicted was unconstitutional.

Appeal, No. 105, Oct. T., 1918, by plaintiff, from judgment of O. P. Huntingdon Co., May T-, 1917, No. 33, for defendant non obstante veredicto in case of Bessie M. Williams v. J. S. Sbapiro. Trespass to recover damages for forcible removal from a theatre. Before Bailey, P. J. The facts are stated in the opinion of the Superior Court. Verdict for plaintiff for $53.34. Subsequently the court on motion, entered judgment for defendant «non obstante veredicto. Plaintiff appealed.

Appeal, No. 19, Oct. T., 1918, by plaintiff, from judgment of C. P. No. 4, Philadelphia County, June T., 1916, No. 1144, for defendants, in case tried by the court without a jury in suit of Agnes L. Taylor v. Wilson Woelpper & Alexander L. Crawford, formerly partners, trading under the firm name of Woelpper, Crawford & Co. Assumpsit on contract to deliver stock certificates. Before Carr, J., without a jury. The facts are stated in the opinion of the Superior Court.

Appeal, No. 299, Oct. T., 1918, by libelant from decree of C. P. No. 5, Philadelphia Co., June T., 1917, No. 563, dismissing libel in divorce in case of George L. Magee v. Josephine Magee. Libel in divorce. The facts are stated in the opinion of the Superior Court. Error assigned was decree dismissing the libel.

Appeal, No. 300, Oct. T., 1918, by Benjamin G. Shellenberger, from the final decree of the Orphans’ Court of Philadelphia Co., July T., 1917, No. 343, dismissing exceptions to adjudication and readjudication in the Estate of John F. Shellenberger, deceased. Exceptions to adjudication 'and readjudication.

<p>Replevin — Automobiles—Bailment lease — Sufficient affidavit of defense.</p> <p>In an action of replevin for the recovery of an automobile leased on a bailment lease, an affidavit of defense is sufficient which denies that the plaintiff ever owned the automobile, or that the defendant acquired title through the lease, as set forth in the plaintiff’s statement.</p> <p>Bailments — Bailors and bailees — Averment of title — Estoppel to dispute title.</p> <p>Where one gains possession only by means of, and claims title solely under an instrument he will, as a general rule, he estopped from disputing title with the other party to the contract, during its continuance, but where he has otherwise gained possession, and asserts ownership in himself and neither claims nor defends under, or by virtue of, the instrument, there is no such estoppel.</p>