Volume 72 — Pennsylvania Superior Court Reports

<p>Appeal, No. 45, March Term, 1919, by plaintiff, from judgment of C. P. Luzerne Co., Oct. T., 1916, No. 861, on verdict for plaintiff in case of Elizabeth C. Alexander v. John Conlon.</p> <p>Trespass for injuries caused to land by mining operations. Before J;</p> <p>From the record it appeared that the action was brought to recover damages for injuries sustained to the property of the appellant, through the negligence of the appellee, while mining coal underneath the surface of land adjacent to the land of appellant.</p> <p>To prove that the appellee in the course of his mining operations negligently invaded her right of lateral support, the appellant relied exclusively upon the opinion of a single expert witness, whose testimony, the trial judge held, failed to show any negligence on the part of the appellee in the conduct of his mining operations. In accordance with his view of the effect of the only testimony adduced by the appellant on this branch of the case, the trial judge ruled that she could not recover except for the damages shown by her to have been done to her land in its natural state.</p> <p>To prove damages to the surface appellant called one Eugene Rineman, who testified that he made no measurements of the depth of the crack in the surface occasioned by the cave-in, and that he had only made a rough estimate of the cost of restoring the land to its former condition. The trial judge held this evidence to be insufficient to support a verdict in favor of the appellant for more than nominal damages and, accordingly, directed the jury to find in favor of the plaintiff, against the defendant, for nominal damages to the land, to wit, one dollar. Plaintiff appealed.</p> <p>Woodward, J., in refusing the motion for a new trial filed the following opinion:</p> <p>The only reasons alleged for a new trial that need discussion are the second, third and fourth. The second is that the court erred in expressly holding that the plaintiff under her deed was not entitled to vertical support. This was error, but harmless because the question of vertical support did not enter into the case. The reservation in her deed is as follows: “Excepting and reserving all coal and other minerals in the same manner and to the same extent as they are reserved in any deed in the chain of title to the above described lot of land.” The other deeds in the chain of title were not in evidence when the case closed, so that as the record stands the plaintiff had not waived her right to vertical support, and the instruction was erroneous, but the error harmless.</p> <p>The third and fourth reasons are that the court erred in striking from the record the testimony of Eugene Rineman and refusing to reinstate it. Rineman was the only witness offered by the plaintiff on the cost of restoration, which was the measure of damage to her land; and when his testimony was stricken out her case fell flat, so that if the court erred in this ruling there should be a new trial.</p> <p>On an examination of the notes of the witness’s testimony the court is satisfied that there was no error, not because the witness failed to qualify generally as an expert, but because his opinion was too vague as to amount, founded on insufficient data and at a time too remote from the trial. To restore plaintiff’s lot to its condition before the subsidence required the filling of a crack in the surface and raising the lot by filling to its former level or its relative level with the surrounding lots. The burden was on the plaintiff to furnish evidence to enable the jury to estimate the cost of this work not with absolute accuracy, but with an approximation that would be more than a guess. If a contractor .had been asked by the plaintiff to give her an estimate on the work he would have measured the dimensions of the crack and the depression and thus got the cubical contents of the cavity from which he would have been able to calculate the number of cubic yards of material for the fill. He would then have located the available suitable material and the cost thereof; the cost of hauling, depending on the distance from the premises; and the cost of spreading the material when hauled. It was not unreasonable to require the plaintiff to furnish this data to the jury or to produce an expert witness whose opinion was based on such data. But the witness called had none of this information. He made no measurements to ascertain the depth of the crack or the extent of the subsidence. He says on cross-examination “I kind of leveled it off with the naked eye.” This was two years before the trial, and he made no memorandum of his examination. “Q. Did he (Alexander) ask you to estimate what it would cost to do the work? A. He asked me if I was busy and if I could do the work. I told him I was busy and I told him what it would be worth and that’s all he said. Q. A moment ago you told me that you were busy but you could look after it? A. I told him that. Q. But he never gave you the work to do? A. I never bothered with it any more I never gave it a thought, I was busy. Q. Now you give me the exact measurements. A. I didn’t measure it. You would have to have an engineer run that. Q. Give us the measurements on which you based your estimate? A. Why all I done was I stood and looked over it and gave a rough estimate on it. I didn’t go into measurements because the engineer would have to do that.”</p> <p>He didn’t know where the material was to come from and therefore he had no' knowledge of the cost of the haul. Direct examination: “Q. And how many loads of soil did you calculate it would require to fill that? A. That would depend on— Q. How many loads? A. It would probably take a couple of hundred loads, 150 or 200 loads. Q. What did you estimate would be the cost of hauling the material? A. That would all depend on where you could get it. Q. I mean as you fixed it there in your mind, assuming that you could get it at a convenient distance. A. About $300 or $400.”</p> <p>It will be noted that these figures are given in answer to the question as to the cost of hauling, but later on he adopts them as the cost of the whole work. We do not think this meets the burden that was on the plaintiff to give the jury some testimony from which they could make a reasonable approximation of the probable cost of res-toration when the burden could have been so easily met. The estimate of the witness was so speculative that it was nothing more than a guess.</p> <p>Now, November 6, 1918, the motion for a new trial is denied.</p> <p>Error assigned, among others, was the refusal to grant a new trial.</p>

<p>Appeals — Opening judgment — Discretion of court.</p> <p>The right to decide whether a judgment should be opened rests, in the first instance, with the common pleas, and the correctness of its decision is to be passed upon by the appellate courts. The refusal of the court to open the judgment will not be set aside where the findings of the court are sustained by the evidence, and the appellate courts will examine the record only to determine whether there has been any abuse of judicial discretion.</p>

<p>Appeal, No. 6, March T., 1919, by plaintiff, from decree of C. P. Lackawanna County, May T., 1915, No. 4, Equity, dismissing bill in equity for the cancelling of a deed in the case of Martin Lavelle v. Mary Grimes and Richard Grimes.</p> <p>Bill in equity to annul and set aside a deed. Before Edwards, P. J.</p> <p>The opinion of the Superior Court states the case.</p> <p>The court dismissed the bill. Plaintiff appealed.</p> <p>Error assigned was the decree of the court.</p>

<p>Negligence — Automobiles—Collision with trolley car — Contributory negligence — Case for jury.</p> <p>In an action to recover damages for injuries sustained in a collision between a trolley car and a motor truck, the case is for the jury, and a verdict for the plaintiff will be sustained, where it appears that the plaintiff was riding on the running board of the motor truck, which had stopped in obedience to traffic regulations, in close proximity to the tracks of a street railway company and was struck by the rear end of the trolley car as it rounded the curve.</p> <p>When one who is without fault is unexpectedly placed in a position of peril, he is to bo dealt with in the light of his surroundings at the time, and he is not necessarily negligent even though his judgment was wrongly exercised.</p>

<p>Appeal, No. 13, March T., 1919, by respondent, from decree of C. P. Snyder County, Oct. T., 1917, No. 4, granting divorce in the case of Arthur F. Noll v. Jennie May Noll.</p> <p>Libel in divorce. Before Johnson, P. J.</p> <p>The case was referred to E. E. Pauling, Esq., as master, who recommended a decree in favor of libelant.</p> <p>Exceptions were filed to the report of the master, which were dismissed by the court below without an opinion. The court entered a decree in divorce.</p> <p>Error assigned was the decree of the court.</p>

<p>Appeal, No. 95, October T., 1918, by defendant, from decree of O. P. Clearfield County, September T., 1911, No. 6, in equity in case of J. H. Heiges v. W. C. Baum.</p> <p>Bill in equity for an injunction to restrain the closing of an alley. Before Whitehead, P. J., specially presiding.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The court awarded an injunction.</p> <p>Error assigned, among others, was the decree of the court.</p>

<p>Contracts — Written contracts — Material alterations.</p> <p>It is a material alteration to a contract, -which will render it inadmissible as evidence, to erase therefrom a list of goods written in the order in lead pencil, and substitute, therefor, a list written in ink, after the contract has been signed by the parties.</p> <p>Where it clearly appears, upon the face of a writing that it has been altered in a material part, it is incumbent on the party producing it to account for the alteration, and until this is done, it is inadmissible in evidence.</p> <p>Where a contract was signed setting forth the terms and conditions under which the goods were received, and the list of materials was written in pencil which was afterwards erased and written in ink, the written agreement was inadmissible, and oral evidence as to the terms and conditions of the contract should be allowed.</p>

<p>Criminal law — Arson—Indictment.</p> <p>It is not necessary that an indictment under the 138th Section of the Penal Code (P. L. 1860, 415) should aver the intention with which the defendant committed the act; an averment that it was wilfully and maliciously done being sufficient. ■ The allegation in an indictment that the crime was committed with intent to defraud an insurance company was unnecessary and immaterial, and must be treated as surplusage. An indictment charging a defendant with maliciously setting fire with intent to burn two barns, which are the property of another, fulfills all the requirements in order to constitute an offense under the 138th Section of the Penal Code.</p> <p>Where a defendant was charged in an indictment under the provisions of 138th Section of the Penal Code with wilfully and maliciously setting fire with intent to burn, two barns on the property of his wife, and the averments in the indictment are duly proven, a judgment on a verdict-of guilty will not be set aside because of the mere fact that the owner of the buildings was the wife of the defendant.</p> <p>Criminal law — Charge of court — Circumstantial evidence.</p> <p>It is not error for a trial judge in his instructions to a jury as to the principles to be applied in considering circumstantial evidence to say:</p> <p>“The evidence of facts and circumstances must be such as to exclude to a moral certainty every hypothesis but that of the guilt of the offense imputed; or in other words, the facts and circumstances must not only all be consistent with, and point to the guilt of the accused, but they must be inconsistent with his innocence.”</p>

<p>Contracts — Sales—Delivery—Passing of title.</p> <p>Where a contract in writing for the purchase of iron scrap provides for a price f. o. b. yards, the defendant to commence removing the iron on or before a certain day, and for cash payment; and the defendant fails to perform his part of the contract, the plaintiff acts within his rights if he sells the scrap in the open market and seeks to recover from the defendant the difference between the price obtained, and the price quoted in the contract.</p> <p>Contracts — Sales—Rights of seller.</p> <p>Where the seller retains his lien of possession and the buyer fails to comply with the terms of the contract, the seller has the right to recover from the defendant the difference between the market value of the goods at the time of the breach and the price which the defendant had agreed to pay, or can give effect to his lien by selling the property, making a reasonable effort to secure the best price, and can proceed against the defendant to recover for any resulting deficiency. Nor is it material whether the contract be held to be executory or executed.</p>

<p>Broker — Beal estate broker — Commissions—Evidence—Case for jury.</p> <p>In an action by a real estate broker, to recover commissions for services rendered as a broker in connection with the sale of the real estate, the case is for the jury and judgment for the plaintiff will be sustained, where the evidence, although contradicted, tends to show that the efforts of the plaintiff were the direct, efficient, and procuring cause of the opening of negotiations, which resulted in the sale of property.</p> <p>Broher~0 ompensation — Interest.</p> <p>One who has performed services in the sale of real estate is entitled to interest on the amount, due and unpaid to him, at the time of the termination of his employment.</p>

<p>Appeal, No. 24, April T., 1919, by defendant, from judgment of Q. S. Mercer Co., April T., 1917, No. 62, on verdict of guilty in case of Commonwealth v. Louis Jacobson.</p> <p>Indictment for selling liquor without a license. Before MoLaughry, P. J.</p> <p>The facts are stated in the opinion of the Superior Court. Verdict of guilty upon which judgment of sentence was passed. Defendant appealed.</p> <p>Error assigned, was the judgment of the court.</p>

<p>Appeal, No. 22, April T., 1919, by defendant, from judgment of Q. S. Mercer Co., April T.; 1917, No. 61, and verdict of guilty in case of Commonwealth v. P. J. Scanlon.</p>

<p>Appeal, No. 21, April T., 1919, by defendant, from judgment of Q. S. Mercer Co., April T., 1917, No. 89, on verdict of guilty in case of Commonwealth v. Jake Bayne.</p>

<p>Liquor law — Selling liquor without a license — Delivery by common carrier.</p> <p>Under the law of Pennsylvania, it is not a criminal offense for a carrier to deliver liquor to a purchaser when the carrier does not know that the sale is unlawful.</p> <p>Where the owner of a transfer company received consignments of liquor from the trucks of a wholesale liquor dealer, properly directed to various individuals, and delivered them at the usual transfer rate, and also collected a fee of $.05 for each empty case or keg collected and redelivered to the ¿gents of the wholesale liquor dealer, he is not guilty of selling liquor without a license.</p>

<p>Appeal, No. 42, April T., 1919, by defendant, from judgment of C. P. Allegheny County, October T., 1912, No. 1368, on verdict for plaintiff in case of Charles F. Goldstrohm v. First National Bank of Duquesne.</p> <p>Trespass to recover damages for malicious prosecution. Before Swearingen, J.</p> <p>From the record it appeared that the First National Bank of Duquesne instituted a proceeding against Charles F. Goldstrohm, wherein it charged him with being indebted to it and having conveyed his property for the purpose of avoiding payment of that debt. Plaintiff was arrested on a bench warrant and after hearing discharged, whereupon he brought suit for malicious prosecution.</p> <p>The jury found a verdict for the plaintiff in the sum of fifteen hundred ($1,500) dollars. Subsequently the court reduced the.verdict to seven hundred ($700) dollars. Defendant appealed.</p> <p>Errors assigned were various rulings on evidence.</p>

Appeal, No. 54, April T., 1919, by defendant, from judgment of C. P. Allegheny Co., July T., 1917, No. 744, on verdict for plaintiff in case of Albert A. Wensel v. Standard Supply and Equipment Company. Trespass to recover damages for personal injuries. Before Shafer, P. J. . At the trial it appeared that plaintiff was struck by defendant’s automobile while attempting to cross Penn avenue in the City of Pittsburgh.

<p>Practice, Superior Court — Appeals—Assignments of error.</p> <p>Assignments of error which do not conform to the rules of the Superior Court cannot he considered on appeal. Where the appellant appears in propria persona, and presents his appeal in a manner contrary to the prescribed practice, the appellate court cannot review a number of assignments in the light of the record before it.</p> <p>Promissory notos — Collateral security — Sale of collateral — Case for fury.</p> <p>In an action on a promissory note secured by collateral, the ease is for the jury and a verdict for the plaintiff will be sustained, where the facts in dispute are whether or not certain payments had been made on account, and whether or not the matter had already been adjudicated in another suit, the record of which was not before the court.</p>

<p>Divorce — Adultery—Insufficient evidence.</p> <p>Where the only evidence in an action for divorce on the ground of adultery is the testimony of libelant, unsupported by corroborating circumstances, and specifically denied by respondent, the decree of the court, dismissing exceptions to the master’s report, and refusing a divorce, will not be reversed on appeal.</p>

<p>Appeal, No. 60, April T., 1919, by defendant, from judgment of Q. S. Allegheny Co., Nov. T., 1917, No. 44, from verdict of guilty in case of Commonwealth v. Wallace L. Wills.</p> <p>Indictment for involuntary manslaughter. Before Carpenter, J.</p> <p>At the trial the court charged in part as follows:</p> <p>[The question of the reputation of the defendant in any criminal case, of course, is to be considered. Where there is testimony of good reputation, it is a fact, a substantive fact which you are to take into consideration; but the only bearing that could have in this case would be as to the probabilities of how this accident happened, because it is not a question of careful driving in itself, or carelessness in the ordinary sense of those terms, provided there is that lack of proper care to protect parties who were on the street.]</p> <p>Before the jury retires, I want to say to you, gentlemen, what you have so often heard, that [the burden rests upon the Commonwealth in every case to satisfy you beyond any reasonable doubt, as to the guilt of the defendant.]</p> <p>Verdict of guilty upon which judgment of sentence was passed. Defendant appealed.</p> <p>Error assigned, among others, were the portions of the charge of the court as above, quoting them.</p>

<p>Appeal, No. 52, April T., 1919, by respondent, from decree of C. P. Fayette County, June T., 1916, No. 344, awarding divorce in case of Josiah V. Williams v. Martha I. Williams.</p> <p>Libel for divorce. Before Van Swearingen, P. J.</p> <p>From the record it appeared that the libelant and respondent were married on May 19, 1915, when the libel-ant was 67 years old and the respondent 42 years old. That shortly after their marriage the respondent began to act in a highly excitable and hysterical manner, frequently used abusive language, when addressing the libelant, and threatened to kill or poison him at various times.</p> <p>The testimony of the libelant was denied by the respondent.</p> <p>The case was referred to Richard W. Dawson, Esq., as master, who recommended that a decree in divorce be entered.</p> <p>Exceptions to the recommendation of the master were overruled, and a decree entered in accordance with the master’s report.</p> <p>Error assigned was the decree of the court.</p>

<p>Appeal, No. 107, April T., 1919, by defendant, from order of C. P. Lawrence Co., Dec. T., 1916, No. 47, discharging rule to open judgment in case of Clayton H. Dunbar v. J. W. Lutton.</p> <p>Rule to open judgment.</p> <p>The facts appear in the following opinion by Emery, P. J., discharging rule to open judgment:</p> <p>September 25, 1916, a judgment by confession was entered on a judgment note dated July 6, 1914, at two years, for five hundred and fifty dollars. This note on its face is payable to plaintiff and is signed by defendant. On same day execution was issued and levy made.</p> <p>October 13, 1916, defendant presented his petition to stay the writ and open the judgment. The defendant alleges in his petition that he did not owe the plaintiff any money and that he did not sign and deliver the said note, and that the signature to it was a forgery. The writ was stayed and rule granted to show cause why the judgment should not be opened. An answer was filed, replication^ thereto by defendant and testimony was taken. ■ From the evidence the court finds the following facts:</p> <p>First: The plaintiff and defendant are brothers-in-law; that is, the wives of plaintiff and of defendant are sisters. The defendant had been previously married and has a son, Harry Button, now a young man, by such former marriage. The name of defendant’s present wife is Caroline M. Button, and she had been married only three or four years at the time the note in question is dated.</p> <p>Second: In June, 1914, some trouble arose between the defendant and his wife. The plaintiff undertook to adjust it. He saw the defendant on June 5th and told him the wife demanded $550. The next day, June 6th, the plaintiff and Harvey Button, a son of defendant, went to the office of H. B. Wilson, a justice of the peace, and papers were drawn up for the parties to sign.</p> <p>Third: On the same evening the defendant and his son, Harvey, went to the office of the justice. The defendant signed and acknowledged a form of separation agreement, and also a mortgage on land he owns in this county. These two original papers are attached to the depositions.</p> <p>Fourth: Afterwards Caroline M. Button, the wife, signed the separation agreement. The agreement to live separate and the mortgage are both dated June 6, 1914, and the acknowledgment on each bears the same date. The note is dated July 6,1914. The justice drew all the papers. He is unable to explain the discrepancy in dates unless he made an error and wrote July instead of June when filling out the note.</p> <p>Fifth: The defendant admits signing the separation papers and the mortgage but denies signing the note. In this he is corroborated by his son Harvey. The justice says defendant was not in his office again to sign papers and insists that defendant signed the note at the same time he signed the other papers.</p> <p>Sixth: In the separation agreement the defendant is named as the first party and his wife, Caroline M. Button, as second party. The agreement recites as the consideration the sum of five hundred and fifty dollars “this day paid by the party of the first part to the party of the second part, the receipt whereof is hereby acknowledged,” whereupon the wife agrees to live apart from her husband and explicitly released his real and personal property from any and all claims which she might have as his wife.</p> <p>Seventh: The mortgage recites that it is given in consideration of $550 “received to my full satisfaction of Clayton H. Dunbar,” and its conditions reads: “The condition of this deed is such that whereas the said Jacob W. Lutton has executed and delivered to the said Clayton H. Dunbar a certain promissory note of even date herewith for the sum of $550, due two years after date, with interest at the rate of six per cent per annum payable semiannually.”</p> <p>Eighth: The plaintiff paid the $550 to defendant’s wife. The three papers, separation agreement, mortgage and note all came to plaintiff through the hands of his wife, who received them from the justice who prepared them. The last instalment of money was paid by plaintiff to defendant’s' wife and the receipt was given for the full amount at the time. On June 9, 1914, plaintiff’s wife took all the papers to the office of the recorder of deeds in Lawrence County. The recorder kept the mortgage for record and returned the note and the agreement to her.</p> <p>Ninth: The signatures to the note appear to be in the same handwriting as the signatures to the agreement and the mortgage.</p> <p>CONCLUSIONS OF LAW.</p> <p>1. In passing on an application to open a judgment confessed the judge sits as a chancellor. It is his duty to open the judgment and submit the defense to a jury if the evidence presented is sufficient to sustain a verdict against the judgment.</p> <p>2. The circumstances tend strongly to contradict the story of the defendant. The most emphatic portions of his testimony are his references to the effect that the money was paid to his wife instead of to him for her. He appears to have entertained some fear or purpose of being able to “fix” things with her after he would get the money. His serious disappointment in not actually receiving the money is quite apparent throughout his examination.</p> <p>3. The plan for the separation was very simple. The papers show that the justice knew how to carry such a plan into effect, except as to the discrepancy in the month of July for June. The note corresponds precisely with the plan with the recitals in the agreement and mortgage. The carelessness evidenced by writing July instead of June when the other two papers were before the parties, tends very strongly to rebut the theory of forgery. To hold that there was no note prepared and signed with the other papers is to find the justice and the other parties as well ignorant of the contents of the agreement and the mortgage; and, in fact, ignorant of the simple terms necessary to carry the plan into execution.</p> <p>4. Under the evidence presented the court could not sustain a verdict against the judgment entered on this note, and, consequently, the case should not be submitted to a jury.</p> <p>The court discharged the rule to open judgment.</p> <p>Error assigned was the order of the court.</p>

<p>Boroughs — Act of May 21, 1918, P. L. 284 — Tax collector — Compensation — Discretion of borough council — Equity.</p> <p>1. A borough council has full authority to fix the compensation of a tax collector under the provisions of the Act of May 21, 1913, P. L. 284.</p> <p>2. An ordinance duly passed by a borough council reducing the commissions of a tax collector is a proper exercise of its authority, and is not such abuse of discretion as would justify the interference of a court of equity.</p> <p>3. Section 13, Article III, of the Constitution of Pennsylvania, providing that no law shall increase or diminish the emoluments of any public officer after his election or appointment, refers to the acts of the legislature, and the action of a borough, in reducing the compensation of a tax collector by ordinance, is not in violation of the Constitution.</p>

<p>Judgments — Attachment execution — Service on garnishees — Sufficiency — Act of July 9, 1901, P. L. 61¡¡..</p> <p>The person issuing a writ of attachment may direct the sheriff to serve, both the defendant and the garnishee, but under the provisions of the Act of July 9, 1901, P. L. 614, he has his election to serve or the garnishee alone. It is not necessary for the attaching creditor to make service on the defendant, in order to secure his rights to the funds in the hands of the garnishee.</p>

Appeal, No. 286, October T., 1918, by respondent, from decree of C. P. No. 3, Philadelphia County, June T., 1916, No. 629, granting divorce in case of Alban J. Vernon v. Hannah M. Vernon. Libel for divorce. Before Ferguson, J. The facts are stated in the opinion of the Superior Court. Errors assigned were various rulings on evidence quoted in the opinion of the Superior Court, and the charge of the court.

<p>Divorce — Desertion—Justification—Gruel and barbarous treatment.</p> <p>Where the libelant by his continued abuse and ill treatment of the respondent compelled her to refrain from marital relations with him, and to eventually leave his house, he cannot afterwards secure a divorce on the ground that the respondent wilfully and maliciously deserted him.</p>

<p>Party walls — Construction—New use by second party — Liability for portion of cost.</p> <p>Where the first builder has erected a brick party -wall in place of an old frame one, and the owner of an adjoining lot subsequently alters her building and makes new use of the party wall, she is liable for a proportionate share of the new wall.</p> <p>Where the second builder erects a building, which would be unlawful but for the fact that the party wall of the first forms one part of the structure, she is making a new use of the wall and becomes liable for her proportionate share of the cost.</p> <p>Party walls — Cost of construction— Statute of limitations.</p> <p>The use of the party wall creates the liability of the second builder, and a claim for compensation may be presented any time within six years from the date of such use.</p>

Appeal, No. 117, April T., 1919, by plaintiff, from judgment of C. P. Cambria County, December T., 1915, No. 247, directing a verdict in favor of the defendant in the case of Home for Colored Children, a Corporation, v. the Directors of the Poor and the House of Employment of Cambria County. Assumpsit for maintenance of pauper children. Before O’Connor, J. The facts are stated in the opinion of the Superior Court.

Appeal, No. 74, April T., 1919, by defendant, from judgment of C. P. Armstrong County, March T., 1916, No. 188, on verdict for plaintiff in case of Mary E. Swartzlander v. Borough of Kittanning. Trespass to recover damages for personal injuries. Before King, P. J. At the trial it appeared that on the evening of October 28, 1914, plaintiff stumbled over a projecting gas box, located in the dirt sidewalk of the Borough of Kittanning, and was injured.

<p>Appeal, No. 160, April T., 1919, by defendant, from judgment of C. P. Butler County, December T., 1916, No. 13, discharging rule to open judgment in casé of Paul R. Kemper for the use of Anthony Thoma v. Sara Richardson.</p> <p>Rule to open judgment. Before Reiber, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The court discharged the rule to open the judgment. Plaintiff appealed.</p> <p>Error assigned was the order of the court.</p>

Appeal, No. 101, April T., 1919, by defendant, from order of C. P. Allegheny County, July T., 1918, No. 946, refusing appeal from judgment of County Court of Allegheny County in the case of Marcella Craig, by her father and next friend, H. O. Craig, v. Fred Atkinson. Rule to show cause why appeal should not be allowed from judgment of the County Court of Allegheny County.

Appeal, No. 118, April T., 1919, by defendant, from judgment of Q. S. Beaver Co., Dec. Bess., No. 14j on verdict of guilty in case of Commonwealth. v. Ed. Link. Indictment for pandering. Before Baldwin, P. J. The opinion of the Superior Court states the case. Verdict of guilty upon which judgment of sentence was passed. Errors assigned were various rulings on evidence and the charge of the court.

<p>Appeal, No. 20, March T., 1919, by defendant, from order of C. P. Lackawanna Co., Nov. T., 1917, No. 258, dismissing appeal from decision of Workmen’s Compensation Board, allowing claim in case of John J. Gallagher v. Delaware, Lackawanna & Western Railroad Company.</p> <p>Appeal from Workmen’s Compensation Board. Before O’Neill, J.</p> <p>Prom the record it appeared that the plaintiff filed a claim for compensation under the Workmen’s Compensation Law against his employer, Delaware, Lackawanna & Western Railroad Company. The referee failed to make specific findings of fact as to how the accident occurred, but found the legal conclusion that the injury was received in the course of employment and made an award. The award was affirmed, on appeal by the Workmen's Compensation Board, and a petition to the Common Pleas to allow the appeal was dismissed without an opinion. Defendant appealed.</p> <p>Error assigned was order of the court dismissing the appeal.</p>

<p>Appeal, No. 61, April T., 1919, by plaintiff, from judgment of C. P. Beaver Co., September T., 1914, No. 131, on verdict for defendants in case of J. A. Horrell v. H. W. Reeves and D. A. Nelson.</p> <p>Assumpsit on promissory note. Before Baldwin, R. J.</p> <p>Verdict and judgment for defendants. Plaintiff appealed.</p> <p>The facts appear in the following opinion of the court below, overruling motion for judgment for plaintiff n. o. v.:</p> <p>Plaintiff, the endorsee of a promissory note, brought this action against the makers. The note was for $1,250, dated January 6,1914, drawn at four months after date, to the order of J. M. Crosland and endorsed by said J. M. Crosland, J. A. Wagner and the plaintiff. The defense was that the note was made by the defendants for the accommodation of a coal company in which the defendants and J. M. Crosland were interested; that the note with another note of the same amount was turned over to Crosland, with the understanding that it was to be discounted at a certain bank and the proceeds to the note sent to D. A. Nelson, one of the defendants, to be used by him for the benefit of the coal concern, and if not so discounted the note was to be returned to the makers; and that Crosland, in violation of this agreement and in breach of faith with the makers, negotiated the instrument for a purpose other than the special one for which it was placed in his hands.</p> <p>At the trial the plaintiff produced the note, offered it in- evidence and rested.</p> <p>The defendants then offered testimony in support of their defense that the note had been negotiated by Crosland in breach of faith. The evidence was uncontradicted that the note was made by the defendants for the accommodation of a coal concern in which the defendants were interested and for which Crosland was acting as agent in the sale of some coal lands; that the note was delivered to Crosland under an arrangement by which the note was to be discounted at the First National Bank of Altoona, Pa., and, if not so discounted, to be returned to the makers; and that Crosland neither discounted the note nor returned it, but had, in fact, negotiated it to J. A. Wagner, who in turn negotiated it to the plaintiff.</p> <p>Under these circumstances the burden shifted to the plaintiff to prove that he was a holder in due course. Section 59 of Article IV of the Negotiable Instruments Act provides: “Every holder is deemed, prima facie, to be a holder in due course; but when it is shown that the title of any person who has negotiated the instrument was defective, the burden is on the holder to prove that he or such person under whom he claims acquired the title as holder in due course......”</p> <p>Section 55 of the same article provides: “The title of a person who negotiates an instrument is defective, within the meaning of this act, when he obtained the instrument or any signature thereto- by fraud, duress, or force, and fear, or other unlawful means, or for an illegal consideration, or when he negotiates it in breach of faith, or under such circumstances as amount to a fraud.”</p> <p>It is clear that by the defendants’ testimony the plaintiff was put upon proof that he was a holder in due course: Second National Bank v. Hoffman, 229 Pa. 429.</p> <p>Plaintiff then took the stand in rebuttal and testified that about April 18, 1914, he had received the note in suit from J. A. Wagner in payment of a portion of a debt of $2,000 which Wagner owed him.</p> <p>The case was submitted to the jury with instructions that if they found that the note was given by Wagner to the plaintiff in extinguishment of an antecedent debt then the plaintiff was entitled to recover; but that, if the note was originally delivered to Crosland for a special purpose, and by him negotiated for another purpose, in breach of faith with the makers, and if the note was thereafter taken by the plaintiff merely as collateral security for such preexisting debt, and without any new consideration, the verdict should be for the defendants.</p> <p>In giving these instructions we followed the reasoning of Moschzisker, J., in Raken v. Henry, 16 D. R. 20T.</p> <p>The jury returned a verdict for the defendant: whereupon the plaintiff filed this motion for judgment n. o. v., but filed no motion for a new trial. A disposition of this motion for judgment n. o. v., therefore, does not involve the question whether or not one who takes the note of a third party merely as collateral for an antecedent or preexisting debt, without any new consideration passing at the time, is deemed a holder for value. The discussion of the law in Raken v. Henry, supra, is by Mr. Justice Moschzisker, then one of the judges of the Court of Common Pleas, Number 3, of Philadelphia County, who reviews the authorities and points out that the Negotiable Instrument Law of 1901 does not change the law as it stood in Pennsylvania at the time of the passage of this act, with respect to the rights of one who takes the note of a third person as collateral merely for an antecedent debt. The correctness of this view of the effect of the Act of 1901 is recognized in Second National Bank v. Hoffman, supra.</p> <p>We are unable to see how the plaintiff’s motion for judgment can prevail, unless the introduction by the defendants of certain testimony of the plaintiff taken at a former trial was fatal to their case. If the introduction of that testimony did not bind the defendants, the case had to go to the jury, notwithstanding the testimony of the plaintiff that he had taken the note in good faith in payment, pro tanto, of a debt which his transferor owed him. Assuming that the testimony of the plaintiff was not open to any other construction than that he had taken the note in extinguishment of the debt in question, the case, nevertheless, had to go to the jury. The plaintiff could not recover, unless he was telling the truth; the jury was not bound to believe him, and were fully warranted in declining to believe him. He claimed to have a book account against J. A. Wagner, but he did not produce the book account; neither did he produce J. A. Wagner as his witness, nor account for his absence at the trial. Moreover, it was shown that both Wagner and Wagner’s attorneys had notice of the circumstances under which the note was issued. It also appeared that Wagner and the plaintiff were partners in the automobile business in New Florence, Pa., and that the same attorneys who represented Wagner at the time he was informed as to the nature of the note afterwards represented the plaintiff and were also associated with local counsel for the plaintiff in the institution and trial of the suit.</p> <p>The plaintiff was, therefore, not entitled to binding instructions, unless, as already observed, the defendants put themselves out of court by producing certain of the testimony of the plaintiff taken at a former trial. The purpose for which this testimony was introduced does not definitely appear on the record. The defendant, D. A. Nelson was on the witness stand and testified to the circumstances under which the note was placed in the hands of Crosland. Mr. Nelson further testified, that the plaintiff had stated in his presence, after the note had been placed in the hands of counsel for plaintiff, that the plaintiff and J. A. Wagner were partners in business and that the plaintiff had taken the note on the faith of Wagner’s endorsement and given him “credit on an old indebtedness.” This was not objected to by the plaintiff, and the witness was cross-examined as to this matter by plaintiff’s counsel. This cross-examination developed the fact that the declarations mentioned by Mr. Nelson as' having been made in his presence consisted of a portion of the testimony of the plaintiff at a former trial.</p> <p>Later in-Mr. Nelson’s cross-examination (page 22) he was interrogated as follows:</p> <p>“Q. Mr. Nelson, you stated on the stand that Mr. Wagner and Mr. Horrell were partners. Where did you acquire that information?</p> <p>“A. From this record here, and from his own statement here in court. He said they had been in partnership in the automobile business for some years.</p> <p>“Q. But did he not testify that they were not general partners, except in the automobile business?</p> <p>“A. I can read you his testimony.</p> <p>“Q. All right.</p> <p>“A. Very well, I will read this to you: ‘Q. At that time were you and Mr. Wagner in business together? A. Not in a general way. We are partners in the automobile business. I am in the lumber business, and Mr. Wagner in the livery business.’ That was his answer.”</p> <p>The record shows that Mr. Nelson then stated: “I have a certified record here of Mr. Horrell’s testimony in this court, and I wish to offer that in evidence.”</p> <p>Counsel for plaintiff stated that there was no objection and the certified record was then offered and admitted in evidence. It is plain that the purpose was to corroborate Mr. Nelson, who had just read from the transcript as above quoted. No part of the transcript was read to the jury. The record is as follows (page 22) :</p> <p>By the Court: The testimony just offered is that which was taken November 22, 1915, is it Mr. Nelson?</p> <p>By Mr. Nelson: Yes; and if you wish we will just read it into this record.</p> <p>By the Court: Do not take time to do that. But we direct the stenographer to copy it into the record.</p> <p>It therefore does not appear that the defendants made the plaintiff their witness to prove that the note had been taken in extinguishment of an antecedent debt. The manifest purpose was to prove a declaration against interest, to wit, that the plaintiff had admitted that he and Wagner were partners. This may not have been a declaration against interest; but the court was not called upon to rule thereon, there being no objection.</p> <p>We believe that to hold that the defendants were bound by the testimony of the plaintiff as contained in the transcript, under the circumstances mentioned, would be wholly unwarranted.. That the plaintiff did not regard all the testimony contained in the transcript in question as being in the case and having any probative value to show that the plaintiff had taken the note in payment of the alleged antecedent debt, is sufficiently shown by the fact that the plaintiff himself proceeded to take the stand in rebuttal and testified fully as to the circumstances under which he had taken the note from Wagner. The facts in Peoples National Bank v. Hazard, 231 Pa. 552, relied upon by learned counsel for plaintiff, were quite different from those in the case at bar, and the law there declared is not applicable.</p> <p>As the plaintiff was not entitled to binding instructions at the trial, his motion for judgment n. o. v. must be overruled.</p> <p>Error assigned was in overruling plaintiff’s motion for judgment n. o. v.</p>

<p>Appeal, No. 106, April T., 1919, by defendant, from judgment of C. P. Lawrence Co., March T., 1911, No. 40, for plaintiff, for want of a sufficient affidavit of defense in case of City of New Castle v. New Castle and Beaver Valley Railroad Company, and Pittsburgh, Youngstown and Ashtabula Railway Company.</p> <p>Rule for judgment for want of a sufficient affidavit of defense. Before Emery, P. J.</p> <p>The facts are stated 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 decree of the court.</p>

<p>Appeal, No. 114, April T., 1918, by W. J. Swartz, Administrator of the Estate of</p> <p>R. J. Swartz, deceased, from decree of O. C. Mercer Co., April T., 1918, No. 42, dismissing exceptions to Auditor’s report in Estate of Alice Swartz, deceased.</p> <p>Exceptions to auditor’s report. Before McLaughry, P. J.</p> <p>The facts are stated in the opinion of the Superior . Court.</p> <p>The court sustained the exceptions to the auditor’s report.</p> <p>Errors assigned were in sustaining exceptions.</p>

<p>Negligence — Railroads — Grade crossing — Contributory negligence — Case for fury.</p> <p>In an action against a railroad company to recover for the death of a minor son, the case is for the jury and a verdict for the plaintiffs will be sustained, where it appears that the accident took place at a crossing over the defendant’s tracks which were approached through a culvert under the tracks of another railroad company; that the only place to obtain a view of defendant’s tracks was at a point 60 feet distant before entering the culvert or at a place about ten feet from the defendant’s tracks after emerging from the tunnel, and where there was evidence to show that the automatic signal at the crossing did not work.</p> <p>Negligence — Railroad crossing accident — Stop, looh and listen.</p> <p>Where the location of a grade crossing and its unusual surroundings created peculiarly dangerous conditions, the court cannot say, as a matter of law, that travelers over the crossing must stop at any particular place to discharge the duty of stop, look and listen. Under such circumstances the case is for the jury, to determine whether or not the plaintiff has been negligent.</p>

<p>Negligence — Master and servant — Coal breakers — Safe place to work — Contributory negligence.</p> <p>A coal company will not be liable for the death of a workman who fell into an opening in the floor of a coal breaker, where it appears that deceased went to the place of the accident without being required to do so in the discharge of any duty, and in deliberate violation of instructions, and for the purpose of asking the time from a fellow employee.</p>

<p>Negligence — Defective highway — Latent defect — Townships — Notice.</p> <p>1. A township is not an insurer against all defects, latent as well as patent, in its structures on highways, but is liable for negligence. Where the defect in a lawful structure is latent, either express notice of it must be brought home to the municipality, or the defect must be of such a character that the municipality will be charged with constructive notice.</p> <p>2. In an action for damages for injuries to a horse occasioned by the eave-in of the surface of a country road, the plaintiff is not entitled to recover, where it appears that prior to the accident, there was no visible evidence of the latent defect in the roadway, and that it could not have been discovered without tearing up the roadbed.</p> <p>3. To charge the township with constructive notice of such defect, it must be apparent by reasonable inspection, and evidence that two days prior to the accident, another traveler had broken through the roadway, is not sufficient to establish the liability of the township.</p>

<p>Appeal, No. 138, Oct. T., 1918, by defendant, from judgment of C. P. Lancaster Co., February T., 1917, No. 36, on verdict for plaintiff in case of Isaac J. Armstrong v. Conestoga Traction Company.</p> <p>Trespass for injuries to horse and wagon. Before Landis, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $29.87. Defendant appealed.</p> <p>Errors assigned were refusal of the court to direct a verdict for defendant and to enter judgment for defendant n. o. v.</p>

Appeal, No. 301, Oct. T., 1918, by plaintiff, from order of C. P. No. 4, Philadelphia Co., June T., 1918, No. 3501, discharging rule for judgment for want of a sufficient affidavit of defense in the case of Milton Stern, trading as Auto Transit Company, v. William Haven. Replevin for automobile. Rule for judgment for want of a sufficient affidavit of defense. The facts are stated in the opinion of the Superior Court.

Appeal, No. 89, Oct. T., 1918, by plaintiff, from judgment of O. P. No. 4, Philadelphia Co., June T., 1917, No. 353, refusing to strike off nonsuit in case of William Healy v. Stuyvesant Insurance Company. Assumpsit for unearned insurance premiums. Before Audenried, P. J. The facts appear in the opinion of the Superior Court. The court entered a nonsuit which it subsequently refused to take off. Error assigned was the order of the court.

<p>Appeal, No. 172, Oet. T., 1918, by Jules E. Mastbaum, John A. McCarthy and John K. Wilson, Receivers of tbe Earle Company, from the final decree of C. P. No. 3, Philadelphia Co., Dec. T., 1917, No. 3329, in equity in the case of Joseph J. Lifter, trading as Lifter Ice Cream Company, y. The Earle Company.</p> <p>Petition of National Commodities Company for rule to show" cause why its claim against the Earle Company should not be allowed as a preferred claim. Before Ferguson, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The court made absolute the rule to pay the claim of the petitioner as a preferred claim.</p> <p>Error assigned was the order of the court.</p>

Appeal, No. 149, Oct. T., 1918, by defendant, from judgment of Municipal Court of Philadelphia Co., May T., 1917, No. 610, for plaintiff in case tried by the court without a jury in suit of Edmund F. Saxton v. Camille Gemehl, trading as American Garage •& Machine Shop. Replevin for automobile. Before Crane, J. The facts are stated in the opinion of the Superior Court. The court found in favor of the plaintiff. Defendant appealed.

Appeal, No. 41, April T., 1919, by defendant, from order of C. P. Westmoreland Co., November T., 1917, No. 144, making absolute rule for judgment for want of a sufficient affidavit of defense in the case of Commonwealth of Pennsylvania for use of Peter H. Naley, Guardian of Anna Petschat, a minor, v. Antonio Balsamo. Assumpsit for forfeited recognizance. Before Copeland, P. J. of O. C., specially presiding.

<p>Municipal liens — Assessments for paving — Front foot rule.</p> <p>A city may assess the cost of paving a street upon the abutting property owners according to the “front foot” rule, and without specifying the actual number of square yards of pavement in front of any particular property. The amount due from each owner is for the proportion of the cost of the whole improvement, which the frontage of each property bears to the entire frontage paved.</p> <p>Municipal liens — Averments in claim — Sufficiency.</p> <p>An averment, that the lien claimed against the premises described is for a certain number of square yards of pavement amounting to a certain sum of money, is not necessarily an allegation that that number of square yards of paving has been done directly in front of the property assessed, but is simply a statement that the property was liable for that number of square yards, in proportion to the total amount of paving done in the street. Where there is sufficient evidence to prove that the amount assessed was the proportionate share of the whole improvement, the lien is not defective.</p>

<p>Appeal, No. 163, Oct. T., 1918, by respondent, from decree of C. P. No. 5, Philadelphia Co., March T., 1915, No. 83, granting a divorce in the case of Lillian A. Shaw v. Arthur D. Shaw.</p> <p>Libel in divorce. Before Monaghan, J.</p> <p>Tbe case was referred to Edwin M. Abbott, Esq., as master who recommended a divorce. On exceptions to the master’s report tbe court dismissed tbe exceptions and granted a divorce.</p> <p>Error assigned was decree of the court.</p>

Appeal, No. 100, October T., 1918, by defendant, from judgment of G. P. No. 3, Philadelphia Co., June T., 1917, No. 2856, on verdict for plaintiff in case of Sheet Metal & Supply Company, a Corporation, v. Harry Weger, trading as The Metal Cornice and Roofing Company. Assumpsit for goods sold and delivered. Before Ferguson, J. The facts are stated in the opinion of the Superior Court. Verdict for plaintiff for $918.62 and judgment thereon. Defendant appealed.

<p>Attachment execution — Proof of debt of garnishee — Payment by promissory note — Evidence.</p> <p>On the trial of an issue raised in an attachment-execution, where the only evidence of the debt of the garnishee, is the testimony of the latter, to the effect that prior to the-attachment, he owed the debtor a certain sum, which he paid with a promissory note, which was afterwards discounted in due course, it is error, in the absence of any proof of fraud, to submit to a jury, the questions of whether or not the note was given in payment of the original debt upon the day it bore date, and whether the note was paid, when it became due, to a bona fide holder without notice before its maturity.</p> <p>Money owing upon a promissory note is liable to be attached in the hands of the maker before maturity at the suit of a creditor of the payee or holder, but such attachment is subject to the rights of a bona fide holder for value without notice.</p> <p>Promissory notes — Fraud—Presumption.</p> <p>Fraud is not to be presumed, in the absence of any evidence or circumstances tending to warrant a finding that it exists.</p>

<p>Appeal, No. 82, Oct. T., 1918, by plaintiff, from judgment of C. P. Delaware Co., March T., 1912, M. L. D. 575, on a verdict for defendant in case of City of Chester v. Charles E. Larkin.</p> <p>Scire facias sur municipal lien for paving. Before Johnson, J.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>The jury rendered a verdict in favor of the defendant. Plaintiff appealed.</p> <p>Error assigned, among others, was the refusal of plaintiff’s motion for judgment n. o. v.</p>

<p>Appeal, No. 218, Oct. T., 1918, by plaintiff, from judgment of C. P. Lancaster Co., August T., 1916, No. 57, refusing to take off compulsory nonsuit in case of Charles F. Zullinger v. Ferdinand Grebe.</p> <p>Rule to strike off judgment of nonsuit. Before Hasslee, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The court refused to strike off the nonsuit. Plaintiff appealed.</p> <p>Error assigned was the order of the court.</p>

Appeal, No. 47, Oct. T., 1918, . by defendant, from judgment of Municipal Court of Philadelphia, June T., 1916, No. 268, for plaintiff in case tried by court without a jury, in suit of W. A. Parke Thompson v. Prank W. Lippincott. Assumpsit for money due on purchase-price of real estate. Before Gorman, J., without a jury. The facts are stated in the opinion of the Superior Court. The court found in favor of the plaintiff for f520 and entered judgment thereon.

<p>Appeal, No. 196, Oct. T., 1918, by defendants, from judgment of Municipal Court of Philadelphia, March T., 1918, No. 139, discharging rule to open judgment and to strike off judgment in case of estate of F. Aubel, Deceased, and Emil F. Aubel, trading as F. & E. Aubel, v. William L. Noe, J. Harry Wadlow and Louis T. Laufenberg, Trading as Noe-Wadlow Company.</p> <p>Buie to open judgment and to strike off judgment.</p> <p>The opinion of the Superior Court states the case.</p> <p>The court discharged the rule to open the judgment and to strike off the judgment.</p> <p>Error assigned was the order of the court.</p>

<p>Boroughs — Nuisance—Garbage plant — Noisome odors — Action of trespass — Case for fury.</p> <p>In an action of trespass against a borough, owning and operating an incinerating plant for the purpose of disposing of the refuse, waste, etc., of the borough, the case is for the jury and a verdict and judgment for the plaintiff will be sustained, where the evidence, though contradicted, tends to show that noisome and noxious vapors and stenches resulted from the operation of the plant, and that the dwellings of the plaintiffs were rendered uninhabitable and dangerous to the health of the occupants.</p> <p>It is not necessary for the plaintiff, in such ’an action, to show that the business of the defendant was carried on recklessly or not properly managed. His case was made out if he showed that the defendant’s business, though lawful in itself, was carried on clearly to his injury, and whether or not it was a nuisance was a question to be submitted to a jury.</p>

<p>Appeal, No. 5, April T., 1919, by defendant, from judgment of C. P. Allegheny Co., April T., 1917, No. 920, on verdict for plaintiff in case of Samuel J. Wainwright, Jr., Surviving and Liquidating Partner of the Firm of Charles P. Walker and S. J. Wainwright, Jr., Partners, formerly doing business as Walker & Wainwright, v. The Marine National Bank, a Corporation.</p> <p>Assumpsit for interest due on bank deposit. Before Cohen, J.</p> <p>From the record it appeared that Samuel J. Wainwright, Jr., claiming to be the surviving and liquidating partner of the former firm of Walker & Wainwright, brought an action against the Marine National Bank of Pittsburgh upon a check for the full amount of the deposit which stood in that bank in the joint names of both partners. In his statement 'of claim the plaintiff alleged that he was the surviving partner of the firm named and as such was entitled to receive ail the assets of the former partnership. He further alleged that the moneys on deposit in the Marine National Bank were partnership funds and that he had drawn a check for the full amount of the deposit to his own order, presented the same for payment and payment had been refused. The Marine National Bank, defendant, filed an affidavit of defense in which it was alleged that the deposit had been made by Charles P. Walker and Samuel J. Wainwright, Jr., in their joint names and that when such deposit was made it was agreed that checks drawn against said fund should be signed by both Charles P. Walker and Samuel J. Wainwright, Jr., and that since the check which was presented was signed by only one of the parties it was the bank’s duty to refuse payment.</p> <p>At the trial of the case, counsel for the Colonial Trust Company, administrator of C. P. Walker, deceased, appeared on behalf of the said administrator, and formally withdrew all claim to said fund, and made a statement to the court that the administrator was convinced that the funds on deposit were in reality partnership funds. Whereupon counsel for defendant admitted that the actual amount on deposit was due and agreed that a verdict might be entered in this case for the same. The plaintiff having claimed interest on said deposit the case proceeded to trial to determine what amount of interest, if any, was due on said deposit.</p> <p>The court directed a verdict in favor of the plaintiff in the sum of $12,990.90 as principal and $747.50 as interest and judgment was entered thereon. Defendant appealed.</p> <p>Error assigned, among others, was the order of the court in directing a verdict for plaintiff, and refusal of defendant’s motion for a new trial and for judgment n. o. v.</p>

<p>Appeal, No. 139, April T., 1919, by defendant, from judgment of C. P. Allegheny Co., Oct. T., 1915, No. 1069, on verdict for the plaintiffs in case of Elizabeth Sceranko v. Borough of Rankin.</p>

<p>Appeal, No. 99, April T., 1919, by plaintiff, from judgment of C. P. Allegheny Co., April T., 1917, No. 920, on verdict for plaintiff in case of Samuel J. Wainwright, Jr., Surviving and Liquidating Partner of the Firm of Charles P. Walker and S. J. Wainwright, Jr., Partners, formerly doing business as Walker & Wainwright, v. The Marine National Bank, a Corporation.</p>

Appeals, Nos. 181 and 194, Oct. T., 1918, by defendant, from judgment of C. P. No. 3, of Philadelphia Co., June T., 1915, No. 747, on verdict for plaintiff in case of Edwin R. Sabin, trading as Edward R. Sabin & Co., v. F. C. Michaelsen, Owner and Builder, Samuel Stern, Owner. Sci. fa. sur mechanic’s lien.

Appeal, No. 214, October T., 1918, by Commonwealth of Pennsylvania, from decree of O. C. Montgomery County, sustaining tbe Appeal of Abraham D. Fetterolf, Executor of the last will and testament of Henry W. Kratz, deceased, Harry E. Kratz, Mary Bomberger and Kate Boyer, children and legatees of said testator from the appraisement of the Direct Inheritance Tax Appraiser filed with the Begister of Wills in the Estate of Henry W. Kratz, deceased.

<p>Appeal, No. 39, March T., 1919, by defendant, from judgment of C. P. Luzerne Co., May T., 1916, No. 576, on verdict for plaintiff in case of William W. Stewart, William H. Stewart, Horace E. Stewart, Charles E. Stewart, Allen R. Stewart, doing' business as W. W. Stewart & Sons, v. C. S. Turner and C. S. Turner, doing business as C. S. Turner Company.</p> <p>Assumpsit on written contract. Before Woodward, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict for plaintiff for $1,119.76 and judgment thereon. Defendant appealed.</p> <p>Errors assigned, among others, were various rulings on evidence, answers to points and in allowing amendment to plaintiffs’ statement,</p>

Appeal, No. 40, March T., 1919, by Fuller R. Hendershot, from judgment of C. P. Luzerne Co., July T., 1918, No. 110, awarding peremptory mandamus in the case of Frank P. Slattery v.- Fuller R. Hendershot, County Controller of Luzerne Co. Petition for mandamus to compel the payment of certain fees to district attorney of Luzerne Co. for representing the Commonwealth before the Supreme Court.

<p>School law — Mandamus—Distinction on -account of color — Act of May 18,1911, P. L. 881, Section Ufi5.</p> <p>On the trial of an issue of fact in mandamus proceedings under the Act of May 18, 1911, P. L. 881, Section 1405, making it unlawful “for any school director, superintendent, or teacher, to make any distinction whatever on account of, or by reason of, the race or color of any pupil or scholar who may be in attendance upon, or seeking admission to, any public school,” where the testimony is conflicting, as to whether such distinction was made, the case is for the jury.</p>

<p>Appeal, No. 17, April T., 1919, of Gr. W. McHenry, from the judgment of O. P. Cambria Co., June T., 1915, No. 283, on verdict for plaintiff in case of Ethel Kline, Executrix of Mary Gittings, deceased, v. R. L. Edwards and G. W. McHenry, copartners trading as R. L. Edwards.</p> <p>Assumpsit on judgment note. Before Stephens, P. J.</p> <p>At the trial the defendant made the following offer:</p> <p>By Mr. Shettig: We propose to prove by the witness on the stand that he is the R. L. Edwards named as one of the defendants in this action, that he personally and individually purchased from Mary Gittings, the timber which is in suit; that G. W. McHenry, as codefendant, was not a joint purchaser thereof with the witness, but that later the witness sold to the said G. W. McHenry, a one-half interest in said timber and entered into an arrangement with the said McHenry that they should jointly operate the timber in question; further, that the Avitness individually had negotiated with Mary Gittings, from time to time, for a period of about two years prior to the actual purchase of the timber, and that G. W. McHenry was not in anywise concerned with him in these negotiations nor in the purchase.</p> <p>Objected to for the reason that the witness is a party defendant in the action and incompetent to testify to anything that occurred before the death of Mary Git-tings, to wit, on the 17th day of February, 1915.</p> <p>By the Court: The objection is sustained, exception noted and bill sealed to the defendant.</p> <p>Verdict for plaintiff for $786.96 and judgment thereon. Defendant appealed.</p> <p>Errors assigned, among others, were (9) ruling on evidence quoting the bill of exceptions, and (12) refusal of defendant’s motion for judgment n. o. v.</p>

<p>Decedent’s estate — Wills—Construction of wills — Trusts.</p> <p>A bequest of the balance of a fund, derived from the sale of certain shares of stock, to be used in keeping in order lots in a cemetery, paying any debts and funeral expenses, and in caring for an old horse, creates a trust for the purposes before mentioned.</p> <p>Where the funds so entrusted are of an amount not incommensurate with the purposes of the trust, it cannot be said as á matter of law, that a lesser sum would be sufficient, and that the trust could thus be carried out, leaving a balance undisposed of.</p> <p>Where the bequest, read in connection with the whole will, clearly establishes the intention to create a trust, it will not be set aside.</p>

Appeal, No. 110, April T., 1918, by Lon R. Adams, from order of C. P. Jefferson Co., April T., 1918, No. 22, discharging rule to open judgment in case of A. N. Work, A. L. Lukehart, McKean Harl, surviving and liquidating partners of the firm of A. N. Work, trading and doing business as The Falls Creek Planing Mill Company, v. Lon R. Adams and J. J. Heiges, trading and doing business under the firm name and style of Adams and Heiges. Rule to. open judgment.

Appeal, No. 111, April T., 1919, by plaintiff;, from order and decree of C. P. Indiana Co., Dec. T., 1916, No. 121, opening judgment in case of A. W. Green, now for the use of The Kinsman Banking Co., v. Laura E. Dick and Clyde H. Shope. Rule to open judgment. Before Langham, P. J. The opinion of the Superior Court states the case. The court made absolute the rule to open judgment. Error assigned was the order of the court.

<p>Appeal, No. 63, April T., 1919, by defendant, from judgment of C. P. Allegheny Co., April T., 1914, No. 84, on verdict for plaintiff in case of F. J. Cleaver v. Pennsylvania Co.</p> <p>Trespass to recover damages for personal injuries. Before Evans, J.</p> <p>Plaintiff was injured while walking along the tracks of the defendant company. The circumstances preceding the accident appear in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $50. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for the defendant.</p>

<p>Appeal, No. 39, April T., 1919, by defendant, from judgment of C. P. Beaver Co., March T., 1916, No. 468, on verdict for plaintiff in case of Nikola Dalyanakis v. The Aliquippa and Southern Railroad Company.</p> <p>Trespass to recover damages for death of plaintiff’s minor son. Before Baldwin, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $650. Defendant appealed.</p> <p>Error assigned, among others, was the refusal of defendant’s motion for judgment n. o. v.</p>

<p>Appeal, No. 64, April T., 1919, by defendant, from judgment of C. P. Allegheny Co., April T., 1914, No. 82, on verdict for plaintiff in case of D. C. Fitzgerald v. Pennsylvania Company.</p>

<p>Criminal law — Larceny—Witnesses—Evidence of alleged common-law wife — Admissibility.</p> <p>Cohabitation and reputation are not marriage, but are merely circumstances from which marriage can be proved. The presumption being in favor of the competency of a witness, the burden is on the defendant to show otherwise, and evidence of cohabitation and reputation alone, Is not sufficient to establish a relation, which would render the woman’s testimony inadmissible, as the common-law wife of the defendant.</p> <p>Where there was no evidence of either marriage in fact, or a lawful relation between the parties at the beginning of their association together, there is no support for the theory of common law marriage, and the consequent incapacity of the witness to testify.</p> <p>Criminal law — Larceny—Instructions to jury — Harmless error.</p> <p>An erroneous instruction as to the right of the jury to convict a defendant as an accessory after the fact, is not reversible error, where the defendant was indicted for larceny, and tried as a principal, and all the evidence against him related to that charge.</p> <p>Where no special instructions were requested, unless it is clear that an omission to charge the jury on a relevant point of law did in fact work material harm to the defendant, the verdict will not be reversed on appeal.</p>

<p>Appeal, No. 105, Oct. T., 1919, by defendants, from judgment of Q. S. Centre Co., Dec. Sess., 1918, No. 8, on verdict of guilty in case of Commonwealth v. Irvin G. Gray, Clyde G. Gray and George F. Gray.</p> <p>Indictment for larceny. Before Quigley, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict of guilty on which judgment of sentence was passed. Defendant appealed.</p> <p>Error assigned was the charge of the court.</p>

<p>Appeal, No. 101, Oct. T., 1919, by defendants, from judgment of Q. S. Centre Co., Dec. Sess., 1918, No. 5, on verdict of guilty in case of Commonwealth v. Irvin G-. Gray, Clyde G. Gray and George F. Gray.</p>

<p>Appeal, No. 148, Oct. T., 1918, by defendant, from judgment of Municipal Court of Philadelphia, July T., 1917, No. 346, in favor of plaintiffs in case tried by the court without a jury in suit of Ellicott H. Worthington and Howe Totten v. Adams Express Company.</p> <p>Assumpsit for total loss of interstate shipment of a dog. Before Knowles, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $400. Defendant appealed.</p> <p>Errors assigned, among others, were various findings of fact and refusal of defendant’s motion for judgment n. o. v.</p>

<p>Criminal procedure — Juries—Challenge of array.</p> <p>A challenge of the array of jurors, because the record fails to affirmatively show that the jurors purporting to have been drawn and summoned, were drawn from the body of the county wherein the trials were held, is properly overruled, where the record shows that the venire was issued in pursuance of the precept to the sheriff and jury commissioners, and that the sheriff returned a list of names with the residence of each individual attached. The court has the right to presume that the jury wheel was filled in the manner prescribed by law and, under such presumption, no names other than those qualified according to law to serve as jurors within the particular county, could have been drawn.</p> <p>Criminal procedure — Prosecuting officers — Counsel for the Commonwealth.</p> <p>An objection on the part of the defendant to the admission of the district attorney of another county to assist in the prosecution is without merit. Where, in an indictment for conspiracy, the venue is changed in accordance with the order of the Supreme Court, the district attorney of the county to which the case was sent became the responsible head of the prosecution; he had the right to associate with him the district attorney of, the county in which the offense was committed, or any of his assistants, and the defendant had no legal concern with the personality of those selected by the Commonwealth, to conduct the prosecution.</p> <p>Criminal procedure — Challenge for cause — Opinion of the court.</p> <p>The challenge of a juror for cause is addressed to the trial judge and much weight must be given to his judgment in passing upon it. He has all the advantages which a trained intellect possesses in drawing conclusions from the impressions gathered by the senses in the open examination of an individual juror under such cireumstancesl There necessarily resides in him a wide discretion and his conclusions are not to be reversed unless there appears to be some substantial reason to convince the appellate court that the action taken was erroneous.</p> <p>Criminal procedure — Indictment for conspiracy — Number of challenges.</p> <p>The provisions of the 40th Section of the Act of March 81, 1860, providing that “In all cases in which two or more persons are in-dieted for any offense......the accused shall have the right to the same number of peremptory challenges to which either would be entitled if separately tried and no more,” fixes the number of peremptory challenges allowable in the trial of an indictment of two or more persons for conspiracy. The right of the accused to peremptory challenges is legislative in its origin and the power necessarily resides in the general assembly which may from time to time change the method by which a jury' is to be selected in accordance with the dictates of wisdom and experience, so long as the statutes do not attempt to set up a new kind of trial body other than that secured by the bill of rights.</p> <p>Criminal law — Indictment for conspiracy — Coconspirators—Evidence of coconspirators — Admissibility.</p> <p>On an indictment for conspiracy, the acts and declarations of one individual, done and uttered in pursuance of a common design, become the acts and declarations of all concerned and are, therefore, admissible against each of the defendants. While the declarations of a third person, made in the absence of the defendant and without his knowledge, are inadmissible against him as a general rule, if the conspiracy is afterwards established by evidence, and it is shown that the person whose declarations have been admitted in evidence is one of the coconspirators, then it is not error to have received the declaration of such co-conspirator in advance of the proof of the conspiracy itself.</p> <p>Criminal law — Conspiracy — Influencing jury — Newspaper articles.</p> <p>It is not error for a trial judge to refuse to withdraw a juror and continue the case, because of certain publications in newspapers, reciting in their own language, the substance of the testimony produced in the court on the day previous to such publications, and making certain comments concerning the witnesses by whom the testimony was delivered. Where the verdict of the jury was amply warranted by the evidence, there is no reason for the court to assume that the jurors were improperly influenced by reading the newspaper accounts of the trial.</p> <p>Criminal law — Attempt to influence juror — Examination of juror during trial.</p> <p>Where, during the trial of a criminal ease an alleged attempt to influence one of the jurors is brought to the attention of the court, the trial judge may interrupt the course of the trial and examine the jury. Having made such investigation and being satisfied that no harm had been done he may proceed with the case.</p>

<p>Decedent’s estate — CUaim for services rendered decedent — Nursing and housekeeping — Evidence—Gontract.</p> <p>In an action against a decedent’s estate for compensation for services rendered the decedent, during the latter years of his life, the plaintiff cannot recover the full amount of her claim, in addition to a legacy, where the evidence upon which the claim is based establishes the fact that she was to be paid by a legacy. In such case, credit for the amount of the legacy must, at least, be given on any amount, found to be due.</p> <p>Decedents’ estates — Gontract with decedent — Settlement by agent —Repudiation by principal.</p> <p>A principal cannot repudiate the acts of her agent and at the same time retain the fruits of his settlement. If she repudiates the acts of her agent she must repudiate the whole transaction and restore the parties to the status existing before the settlement.</p> <p>Practice, G. P. — Case tried on mistaken theory — -New trial. ■</p> <p>When a ease was tried upon a wrong theory, and the record fails to furnish a satisfactory foundation for the verdict upon which judgment was entered, a new trial should be granted.</p>

<p>Decedents’ estates — Wills—Construction—Devise of remainder with power to resume — Intention of testator.</p> <p>Where the testator devised the remainder of his estate to his wife for the term of her natural life, with full power and authority to sell and use any part of it for her own use without being compelled to go into the orphans’ court for permission to make such disposition, giving her full authority to make deeds, etc., for the property which she desired to sell, but subsequently made various provisions of his estate to take effect after the death of his wife, the language of the will must be held to contemplate a gift to the widow for life of the entire residue of the estate, with power to sell any portion of such residue, even to the extent of exhausting it. At most it must be held to be a gift in posse only, and not in esse, which would actually come into being only after subsequent and affirmative exercise by her of the power conferred upon her under the will.</p> <p>Decedents’ estates — Inheritance taxes — Act of July 11, 1917, P. L. 882.</p> <p>When the intention of a testator, as deduced from the terms of his will, was to give to his wife an estate for life with a power to consume, an appraisement for the purposes of determining the direct inheritance tax due, should ascertain the value of such life estate. Under such circumstances the direct tax should only be paid on the life estate.</p>

<p>Practice, Superior Court — Appeal—Order granting new trial— Judicial discretion — Proper exercise.</p> <p>The Superior Court has power to entertain an appeal from an order granting a new trial, hut this power is to he exercised only in clear eases of abuse of discretion on the part of the trial court.</p> <p>Where the record does not present a situation, from which it could be determined satisfactorily, either that judgment should he entered on the verdict, or in favor of the defendant notwithstanding the verdict, the case is not a proper one for the exercise of the power lodged in the appellate court, to reverse the order of the court below awarding a new trial.</p>

<p>Appeal, No. 158, April T., 1919, by Lucy Oldfield, from the decree of O. C. Allegheny Co., September T., 1918, No. 704, dismissing exceptions to adjudication in the estate of Thomas Oldfield, deceased.</p> <p>Exceptions to adjudication. Before Trimble, J.</p> <p>The court dismissed the exceptions.</p> <p>Error assigned was the decree of the court.</p>

<p>Appeal, No. 134, April T., 1919, by defendant, from judgment of C. P. Fayette Co., March T., 1918, No. 284, making absolute rule for judgment for want of a sufficient affidavit of defense in the case of The Eothrock Stores, a corporation, for the use of Jersey Shore Trust’ Company, a Corporation, v. Domenick Panzera.</p> <p>Rule for judgment for want of a sufficient affidavit of defense. Before Van Swearingen, P. J.</p> <p>Tlie opinion of the Superior Court states the case.</p> <p>The court made absolute the rule for judgment for want of a sufficient affidavit of defense.</p> <p>Error assigned was the decree of tbe court.</p>

<p>Appeal, No. 116, April T., 1919, by the Commonwealth, from order of Q. S. Armstrong Co., No. 44, March Sess., 1917, arresting judgment in the case of Commonwealth v. Pennsylvania Railroad Company, a Corporation.</p> <p>Indictment for maintaining a nuisance along the eastern embankment of the Allegheny river. Before King, P. J.</p> <p>The opinion of the Superior Court states the case.</p> <p>Verdict of guilty. Subsequently the court, on motion, arrested the judgment and set aside the verdict. Commonwealth appealed.</p> <p>Error assigned was the order of the court.</p>

<p>Appeal, No. 93, April T., 1919, by Samuel Dibella, from judgment of Q. S. Allegheny Co., Jan. Sess., 1917, No. 241, on verdict of guilty in the case of Commonwealth v. Samuel Dibella, Orazio Leone and Nicola Gentile.</p> <p>Indictment for conspiracy to cheat and defraud creditors. Before Baldwin, J., specially presiding.</p> <p>The facts appear in the opinion of the Superior Court.</p> <p>Verdict of guilty upon which judgment of sentence was passed. Defendants appealed.</p> <p>Errors assigned, among others, were various rulings on evidence referred to in the opinion of the Superior Court and refusal to grant a new trial.</p>

Appeal, No. 133, April T., 1919, by defendants, from judgment of C. P. Allegheny Co., April T., 1917, No. 770, on verdict for plaintiffs in case of F. W. Meysenburg and Howard B. Payne, Partners, Trading as Front Construction Company, v. J. B. Speer and A. M. Speer, Executors of the last will and testament of Ellen C. Speer, deceased. Assumpsit on contract for labor and material furnished.

<p>Appeal, No. 141, April T., 1919, by Emma Erdner, from judgment of C. P. Allegheny Co., January T., 1919, No. 1729, approving a bond of Equitable Gas Company to Emma Erdner.</p> <p>Exceptions to bond in condemnation proceedings.</p> <p>The opinion of the Superior Court states the case.</p> <p>The court dismissed the exceptions and approved the bond.</p> <p>Error assigned was the order of the court.</p>

<p>Appeal, No. 159, April T., 1919, by accountant, from the decree of C. P. Allegheny Co., Jan. T., 1918, No. 673, sustaining exceptions to first and final account of T. M. Gealy, Receiver, in the case of H. R. Lambert, next friend to Gladys M. Lambert, M. Marie Lambert and Irma R. Lambert, all minor children of the said H. R. Lambert and Martha Lambert, wife of H. R. Lambert, v. National Hog Company, a Corporation.</p> <p>Exceptions to account of receiver. Before Brown, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The court sustained the exceptions and surcharged the receiver with $815.03, the amount expended in resisting the appointment of a receiver in bankruptcy, and the execution by him of the powers resulting from his appointment. The accountant appealed.</p> <p>Error assigned was the decree of the court.</p>

Appeal, No. 97, April T, 1919, by plaintiff, from judgment of C. P. Allegheny Co., July T, 1917, No. 1316, on verdict for plaintiff in case of Kennedy-Stroh Corporation, for the use of Edgewater Steel Company, a Corporation, v. Charles Davis, doing business as C. Davis & Co. Assumpsit for balance due on a book account and for damages for breach of oral contract for the sale of scrap iron.

<p>Practice, C. P. — Action of trespass — Affidavit of defense — Practice Act of 1915A Section IS.</p> <p>Under the provisions of Section 13 of the Practice Act of 1915, it is not necessary to file an affidavit of defense in an action of trespass. The first clause of the 13th section recites a number of facts, which the averments of the declaration may be considered to establish, if they are not denied by an affidavit. Any other defense may properly be heard at the trial of the action, even where no affidavit of defense is filed.</p> <p>Common earners — Express companies — Interstate Commerce-Uniform live stock contract — Limitation of liability — Amendment of Interstate Commerce Act — Act of Congress of August 9,1916— 89 Stat. at Large, p. -4-41.</p> <p>Tbe Act of Congress of August 9,1916, 39 Stat. at Large, p. 441, modifies tbe Cummins’s Amendment to tbe Interstate Commerce Law, which prohibited the limitation of liability for negligence, in a shipping contract. Since the passage of the Act of August 9, 1916, a carrier may limit its liability for negligence with regard to certain kinds of property, received for transportation, in which are included animals other than ordinary live stock. Baee horses come within the category of animals on which there can be a limitation of liability.</p> <p>In an action of trespass to recover the value of a shipment of horses, injured through the negligence of the carrier, the shipper cannot recover beyond the valuation, stipulated in the uniform live stock contract, where there is ample evidence to show that the horses were used for racing purposes and were not “ordinary live stock.”</p> <p>Common carriers — Uniform live stock contract — Construction.</p> <p>A limitation in a uniform live stock contract to liability of a certain amount fixes the maximum liability of the carrier, and where the injury resulting from the defendant’s negligence exceeded the amount of the limitation, the shipper can recover to the full amount stipulated in the contract.</p>

<p>Criminal law — Fortune telling — Act of April 8, 1861, P. L. 270 —Assignments of error.</p> <p>Assignments of error which do not quote the language complained of, and where no exceptions have been taken, will not be considered on appeal.</p> <p>Criminal law — Charge of court — Sufficiency.</p> <p>Instruction of the court that it was the duty of the Commonwealth to convince the jury beyond a reasonable doubt of the guilt of the defendant, and that he starts with a presumption of law in his favor that he is innocent, and that that presumption goes with him throughout the trial until it is overcome by evidence on the part of the Commonwealth, is sufficient.</p> <p>If more specific instruction was desired it was the duty of the counsel to bring the subject to the attention of the court, .and a complaint that the charge was not adequate, in respect to the question of reasonable doubt, will not be entertained on appeal.</p>

<p>Appeal, No. 20, April T., 1918, by plaintiff, from the order of C. P. Butler Co., Dec. T., 1917, No. 100, making absolute rule to open judgment in case of Jersey Shore Trust Co. v. Clara C. Gold and W. F. Gold.</p> <p>Rule to open judgment.</p> <p>The facts appear in the following opinion of Reiber, P. J., making absolute rule to open judgment:</p> <p>On hearing of this matter in rule to show cause why judgment should not be opened, after hearing the evidence and due consideration thereof, we forthwith made an order making the rule absolute and awarded an issue to determine the validity of said note, without stating our reasons. We, therefore, now file this opinion giving our reasons for such action.</p> <p>The note upon which judgment in controversy is confessed shows on its face that it is a nonnegotiable instrument, as the warrant of attorney authorizes confession of judgment before maturity, and it therefore follows that the use-plaintiff in said judgment is not a holder in due course and took said note subject to any infirmity and subject to any defense that the maker thereof had as against the original holder.</p> <p>The petition to open said judgment is not specific in its averments, but a rule having been granted on the petition and the respondent appearing and filing an answer merely denying the averments of the petition, without raising the question of the sufficiency thereof by way of demurrer, under these circumstances we are of the opinion that the petition was sufficient to go into the merits. No evidence was offered on part of respondent.</p> <p>The note in controversy was given by Mrs. Clara C. Gold, engaged in the grocery business, as part of the consideration of the purchase of two shares of stock in The Rothrock Stores Company and solicited by its agent, and* her testimony related to the manner in which she was induced, by fraudulent misrepresentation of facts going to the consideration thereof and by which she was induced to sign said note, such agent alleging that a certain other grocer, naming him, had already taken stock in said enterprise and that his company would act as a jobber and would save her a large percentage on the purchase of her merchandise, put in a list of goods as premiums and would furnish in the next few days a price list of groceries, which the company, under the evidence, failed to do, and it further appearing that Tebay at no time purchased any stock in said company, as represented by the agent and upon which fact the petitioner was relying and ■was induced to purchase the stock and sign the note in controversy. Her testimony was corroborated by that of her husband, who was present, and also by Tebay. From the exhibits and the proofs in the case the whole transaction has the earmarks of a sale of stock in a worthless enterprise and a fraudulent transaction and therefore required the exercise of the equitable principles of the common law court in opening said judgment.</p> <p>Error assigned was the order of the court.</p>

Appeal, No. 120, January T., 1919, by Nellie M. Lowry, from decree of O. C. Erie Co., November T., 1916, No. 58, dismissing exceptions to adjudication in Estate of E. A. Mizener.' Exceptions to adjudication. Before Rossiter, P. J. The court dismissed the exceptions. The facts appear in the opinion of the Superior Court and in Mizener’s Estate, 262 Pa. 62. Error assigned was the decree of the court.

Appeal, No. 22, March T., 1919, by plaintiff, from judgment of C. P. Perry Co., Nov. T., 1916, No. 5, on verdict for defendant in the case of Oxweld Acetylene Company v. Charles L. Johnson. Assumpsit on written contract pi sale of gas generator. Before Keller, P. J. The facts are stated in the opinion of the Superior Court. The jury rendered a verdict in favor of the defendant. Plaintiff appealed.

<p>Appeal, No. 156, April T., 1919, by libellant, from decree of C. P. Allegheny Co., January T., 1918, No. 656, refusing divorce in the case of Frank Finger, Jr., v. Bertha Finger.</p> <p>Libel in divorce. Before Carnahan, J.</p> <p>The case was referred to Harry P. Burns, Esq., as master, who recommended that the court grant a divorce.</p> <p>The court helow, on its own motion, stated that the evidence did not disclose a case of wilful and malicious desertion and entered an order refusing a decree in divorce. Libellant appealed.</p> <p>Error assigned was decree of the court.</p>

Appeal, No. 294, Oct. T., 1918, by plaintiff, from judgment of C. P. Northampton Co., No. 66, June T., 1917, for defendant non obstante veredicto in case.of Rivilli Primo v. The Safety Mutual Fire Insurance Company of Lebanon, Pa. Assumpsit on a policy of fire insurance. Before' Stewart, P. J. The facts are stated in the opinion of the Superior Court. The jury rendered a verdict in favor of plaintiff for f>l,204.21.

<p>Appeal, No. 84, Oct. T., 1918, by defendant, from judgment of C. P. No. 2, Philadelphia Co., March T., 1917, No. 264, on verdict for plaintiff in case of Republic Trust Company, a Corporation, to use of J. K. Griffith, v. Walter M. Gorham, Trading as Henry Levis & Co.</p> <p>Summons íd assumpsit on promissory note. Before Wessel, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $1,387.83. Defendant appealed.</p> <p>Error assigned, among others, was the refusal of defendant’s motion for judgment n. o. v.</p>

<p>Common carriers — Bailment—Delivery by mistahe — Liability.</p> <p>A delivery, by a common carrier, of a shipment consigned to its care, otherwise than in accordance with the bill of lading, is at the carrier’s risk. The title remaining in the consignor until an authorized delivery, the carrier was bound to deliver the shipment to the person to whom the owner consigned it.</p> <p>If delivery of goods be made to a person other than the consignee, though innocently and by mistake but without the order of the consignor, the carrier is liable to the consignor in case of loss.</p>

<p>Boroughs — Borough code — Incorporation—Act of May II, 1915, P. L. 812, Chapter 2, Article I.</p> <p>On. a petition for the incorporation of a borough the court may refer the task of taking testimony to an examiner, for the purpose of making an investigation, under the provisions of the Act of May 14, 1915, P. L. 312, Chapter 2, Article I, Sections 1, 2, 3, and 4.</p> <p>Constitutional law — Election districts — Incorporation of borough.</p> <p>The fact that a small triangular piece of ground will be cut off from the rest of a township, by the incorporation of a borough, does not violate Section 2, of Article VIII, of the Constitution, providing that townships shall form or be divided into election districts of compact and contiguous territory, etc. The mere separation of portions of the township is not contrary to the provisions of the Constitution, unless such separation results in the disfranchisement of the voters in the districts affected.</p>

<p>Constitutional law — Public service corporations — Street railways - —Contracts with municipalities — Bates.</p> <p>1. The enactment of the Public Service 'Company Law (Act of July 26, 1913, P. L. 1374) gave to the Public Service Commission “the power to inquire into and regulate the service, rates, fares, tolls or charges of any and all public service corporations” and is a valid delegation of the police power of the Commonwealth.</p> <p>2. A contract with a public service corporation fixing rates for service, whether for a definite or indefinite period, has no binding force, when its terms conflict with the rates fixed in the method prescribed by the Public Service Company Law; and this is so even where there has been a limitation by a municipality of the rates to be charged by a public service company, contingent upon the consent of the municipality to the use of its streets.</p> <p>3. The franchises of a street railway company conferred in accordance with Section 9 of Article XVII of the Constitution of Pennsylvania, providing that “no street passenger railway company shall be constructed within the limits of any city, borough or township without the consent of its local authorities,” does not remove the subjects contained therein from the domain of legislative action. A general law, designed to affect all public service corporations, of the State, applies equally to companies operating under ordinances which regulate rates as a condition precedent to the consent of the municipality, or under franchises in which the rates are not so regulated.</p> <p>Constitutional law — Constitution of Pennsylvania — Police power —Constitution of the United States — Impairment of contracts.</p> <p>Section 9 of Article XYII of the Constitution of Pennsylvania, construed in connection with Section 3 of Article XYI of the same Constitution, providing that “the exercise of the police power of the State shall never be abridged or so construed as to permit corporations to conduct their business in such manner as to infringe the equal rights of individuals or the general well-being of the State,” does not deprive the State of authority to regulate the rates of public service corporations for the general welfare of its inhabitants. It, therefore, follows that when parties enter into a contract with a public service corporation, relating to rates, they are presumed to have done so with the knowledge that the right of the State to exercise this police power, in the future, is expressly reserved, and that, where the common weal and the interests of the public demand that the provision of the contract thus entered into shall be modified, it can be done without any violation of the provision of the Constitution of the United States with reference to the impairment of the obligation of contracts.</p> <p>Porter and Henderson, JJ., dissent.</p>

<p>Appeal, No. 78, April T., 1919, by Borough of North Braddock, from order of the Public Service Commission of the Commonwealth of Pennsylvania. Complaint Docket No. 1867, in case of Borough of North Braddock v. Pittsburgh Railways Company and James D. Colley, H. S. A. Stewart, and Charles A. Fagan, Receivers of Pittsburgh Railways Company and the Public Service Commission of the Commonwealth of Pennsylvania.</p>

<p>Appeal, No. 84, April T., 1918, by City of Pittsburgh, from order of the Public Service Commission, Complaint Docket No. 1916, in the case of the City of Pittsburgh v. The Public Service Commission of the Commonwealth of Pennsylvania on appeal and the Federal Street and Pleasant Valley Passenger Railway Company, United Traction, and James D. Colley, H. S. A. Stewart, and. Charles A. Fagan, Receivers of Pittsburgh Railway Company.</p>

<p>Appeal, No. 77, April T., 1919, by Township of Harbor Creek, Township of North East, and Borough of North East, from order of the Public Service Commission in the case of the Township of Harbor Creek, Township of North East, and Borough of North East v. The Public Service Commission of the Commonwealth of Pennsylvania.</p>

<p>Appeal, No. 83, April T., 1919, by City of McKeesport, from the order of the Public Service Commission of the Commonwealth of Pennsylvania, Complaint Docket No. 1887, in the case of the City of McKeesport v. The Public Service Commission of the Commonwealth of Pennsylvania on appeal and the Pittsburgh Railways Company and James D. Colley, H. S. A. Stewart and Charles A. Fagan, Receivers of the Pittsburgh Railway Company.</p>

<p>Public service corporations- — Street railways — Operation under municipal consent — Bates—Constitutional law.</p> <p>Where a contract fixing a rate has been entered 'into by a public service company with a borough, the State has the right, through the Public Service Commission, to inquire into and adjust the rate to a reasonable basis, notwithstanding the fact that the contract is in the form of an ordinance enacted under the provisions of Section 9, of Article XVII, giving consent to the entry of the railway company upon the streets of the municipality, and containing a limitation of the maximum fare to be charged by the company.</p> <p>Public service corporations — Equity—Bill in equity — Jurisdiction, Q. P.</p> <p>A bill in equity, brought by a borough against a street railway company, to restrain the defendant from charging more than a certain fare, on the ground that the proposed increase of fare was illegal because a contract existed with the borough, under which the defendant was prohibited from charging a higher rate, was properly dismissed, where it appeared thát the Public Service Commission had jurisdiction in the matters involved in the bill. -</p>

<p>Appeal, No. 57, April T., 1919, by plaintiff, from decree of C. P. Allegheny County, April T., 1918, No. 223, in equity in favor of defendant in case of Borough of Willdnsburg v. Consolidated Traction Company and Pittsburgh Railways Company.</p>

<p>Appeal, No. 80, April T., 1919, by defendant, from judgment of C. P. Venango County, April T., 1914, No. 47, on verdict for plaintiff in case of Keystone Mausoleum Company v. Emma F. Salzman, Executrix of the Last Will and Testament of Albert Salzman, deceased.</p> <p>Assumpsit on written contract. Before Criswell, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The court directed a verdict for the plaintiff for |622.08 and judgment was entered thereon. Defendant appealed.</p> <p>At the trial the defendant made the following offer:</p> <p>By Mr. Breene: (Not in the hearing of the jury.) : I want to get on the record what I am offering. That portion of the advertisement which was desired to be offered by the defendant read as follows: “The building to be erected here will be of solid granite with the interior finished in polished marble and bronze.”</p> <p>By Mr Breene: We offer in evidence the same.advertisement relative to the same portion that was read into the record as contained in the Oil City Blizzard under date of Wednesday, June twenty-fifth, 1913, by the same plaintiff, and headed “To the Public.”</p> <p>By Mr. Carmichael: That is objected to.</p> <p>By the Court: The objection is sustained.</p> <p>(Exception noted and bill sealed for the defendant.)</p> <p>Error assigned, among others, were the refusal of the court to allow the offer of the defendant in reference to the advertisement appearing in local newspapers, quoting bill of exceptions, and in directing a verdict for the plaintiff.</p>

<p>Appeal, No. 28, April T., 1918, by W. H. McMurray et al., from order of C. P. Allegheny Co., Jan. T., 1913, No. 2336, confirming Report of Viewers in re petition of Dormont Borough.</p> <p>Petition of the Borough of Dormont for the appointment of viewers to ascertain the cost and assess the benefits and damages for the grading, paving and curbing of West Liberty avenue from Ivywood avenue to the centre line of LaSalle avenue, in the Borough of Dormont.</p> <p>Exceptions to the report of viewers.</p> <p>The facts are stated in the opinion of the Superior Court. The court dismissed the exceptions and confirmed the report.</p> <p>Error assigned, among others, was the order confirming the report of the viewers.</p>

<p>Roads — Road view — Report of viewers — Reasons for action — Review.</p> <p>Where a report of viewers reports against the opening of a proposed road, and gives as a reason therefor, matters which could not properly be considered by them in the investigation as to the necessity of the proposed road, the court can review such reasons, and when they are illegal or invalid, can set aside the report. Under such circumstances it is not error to set aside a report of review, when the amended report merely eliminated the reasons given in the first report, and did not show that additional hearings had been held or that the case had been considered de novo.</p> <p>Roads — Road view — Board of viewers — Composition of Act of June 28,1911, P. L. 1128.</p> <p>To refer a report back to the same viewers who sat in the original view for review is not improper. The Act of June 23, 1911, P. L. 1123, provides for a permanent board of view and fixes the minimum number at three and the maximum at nine. Necessarily occasions will arise where the same viewers will be required to consider matters which they have passed upon heretofore.</p> <p>Roads — Road law — New road — Description—Termini—Act of April S3, 1909, P. L. 1&.</p> <p>The Act of April 23, 1909, P. L. 42, requires that a petition for the laying out of a road shall fix definitely, the point of beginning and the point of ending, by giving the exact distance from an intersecting public road, and the report and draft upon confirmation shall be certified to the State highway department. The puiqpose of the act is to give that department the information required in order to have a complete system of the roads of the Commonwealth. Where a reference to the map, submitted in the case, removes any doubt as to the identity of the road, and the termini therein referred to, the requirements of the act are substantially complied with.</p>

<p>Municipalities — Taxes—License taxes — Act of May 16, 1901, P. L. 286 — Revenue taxes.</p> <p>Taxes levied for revenue and taxes levied under the police power may be provided for in the same city ordinance.</p> <p>The Act of May 16, 1901, P. L. 226, gives cities the right to levy certain taxes; and the fact that the taxes so levied are imposed for general revenue purposes or under the police power is immaterial.</p> <p>As the term license tax embraces both kinds of taxes, it would be unreasonable to bold that in order to exercise a power given in relation to both, the city would be required to pass two ordinances, one for tbe purpose of general revenue, and one under the police power.</p> <p>Evidence — Boohs of city treasurer — Oral recital from — Prima facie evidence.</p> <p>Where a treasurer of tbe municipality testified as to tbe entries in the books of bis department and there is no contradiction of tbe matters contained therein, the amounts shown on such books are prima facie evidence of such indebtedness. Under such circumstances the testimony of the treasurer was not oral testimony in the sense that it had to be passed upon by the jury. His veracity was not in question. He was merely giving audible testimony of the written pages and the amounts shown under his testimony constituted prima facie evidence of the indebtedness.</p>

<p>Practice, C. P. — Appeals from justice of the peace — Certiorari after appeal — Affirmance of judgment — Appeals nunc pro tunc.</p> <p>Where the defendant against whom a judgment has been rendered before a magistrate filed a petition asking that the judgment be stricken ofi, and subsequently procured a writ of certiorari, and upon the hearing upon the certiorari the judgment was affirmed, the decision of the court is final.</p> <p>It was too late to consider a petition to strike off tbe transcript of a judgment, as a petition for an allowance to appeal nunc pro tune, made within the proper time, when such petition was not made until four months after the entry of the judgment. The defendant should have presented his petition for an allowance of an appeal nunc pro tunc promptly, and the court should not have relieved him from the effect of his laches.</p>

<p>Roads — Road views — Locus of road — Act of June 7, 1907, P. L. hhh-</p> <p>A road -which begins in one township and ends in another and does not occupy the division line, except where it bisects it, is not a public road between two or more townships as contemplated in the Act of June 7, 1907, P. L. 444.</p> <p>Under Section 1 of the Act of April 21, 1846, P. L. 416, the courts of quarter sessions have power to vacate public roads whether laid out by authority of law or existing by prescription or lapse of time and generally over all roads, except private roads, resting upon express grant, the evidence of which is still in existence. Where a petition avers that the road has been opened for a period of forty years, the court of quarter sessions has jurisdiction.</p> <p>Roads — Road views — Board of viewers — Composition of — Act of June 28,1911, P. L. 1128.</p> <p>To refer a report back to the same viewers who sat in the original view for review is not improper. The Act of 1911, provides for a permanent board of view and fixes the minimum number at three and the maximum at nine. Necessarily, occasions will arise where the same viewers will be required to consider matters which they have passed upon heretofore.</p> <p>Roads — Road review — Report of viewers — Harmless error.</p> <p>Where no wrong or injury has resulted to any party in interest, from an alteration in the petition for the vacation of the road, even if made after the presentation of the petition, the order of the court will not be set aside.</p> <p>Where there is no evidence, either in the record or the deposition of the witness submitted, that the hearing of the board was held in any other place than as provided by the provisions of the Act of 1911, the proceedings will be presumed to have been conducted in strict accordance with the act.</p>

Appeal, No. 41, Oct. T., 1919, by defendant, from the judgment of Q. S. Lycoming Co., Sept. Sess., 1918, No. 47, on verdict of guilty in the case of Commonwealth v. Prank I. Wilson. Indictment for larceny. Before Whitehead, P. J. The opinion of the Superior Court states the case. Verdict of guilty on which judgment of sentence was passed. Defendant appealed. Errors assigned were various rulings on evidence, answers to points and the charge of the court.

<p>Constitutional law — Decedents’ estates — Lien of debts — Act of June 7,1917, P. L. W (Fiduciaries Act).</p> <p>Tbe Act of June 7, 1917, P. L. 447, Section 15, Clause (a) (Fiduciaries Act), is constitutional, in so far as it provides that no debts, etc., of a decedent shall remain a lien on his real estate any longer than one year after the decease of such debtor, unless within, said period an action for the recovery thereof be brought against the executor or administrator of such decedent. Nor does the provision contained in said act — clause, (c) — which declares the foregoing provision to be retroactive render the act unconstitutional.</p> <p>The term ex post facto, as used in the Constitution of the United States and of this State, is .limited to penal statutes, and the Fiduciaries Act of 1917, does not come within that category.</p> <p>Retroactive laws are not in violation of the Constitution which' do not work an impairment of contracts, and which affect remedies of procedure only.</p>

<p>Constitutional law — Act of June 12,1918, P. L. 1¡81 — Defrauding innkeeper — Definition of proof.</p> <p>It is entirely proper for the legislature to declare that proof, i. e., evidence, of certain things, shall be prima facie evidence of an intent to defraud. Such a provision in the act of assembly is not unconstitutional or in violation of Article III, Section 7, of the Constitution of Pennsylvania providing that no bill shall be passed changing the rules of evidence in any judicial proceeding or inquiry before courts. Where the statute contains the provision that certain acts therein specified shall be prima facie evidence of fraudulent intent, the burden of proving the defendant guilty still remains on the Commonwealth, and neither the rules of evidence nor the regulation of the practice of the courts is changed.</p> <p>Criminal law — Defrauding innkeeper — Act of June 12, 1918, P. L. Jt-81 — Evidence—Charge of court.</p> <p>While the refusal on demand to pay for the accommodations rendered by an innkeeper to a guest is prima facie evidence of fraudulent intent, the Commonwealth must establish the guilt of the defendant beyond reasonable doubt as in all other criminal cases. Evidence of the acts referred to in Section 9 of the Act of June 12, 1913, P. L. 481, are sufficient to take the case to the jury on the question of fraudulent intent, but they may be open to explanation, and because such acts are testified to or proven on the trial does not, perforce, render the defendant guilty under the act.</p> <p>Such refusal to pay was only prima facie evidence of fraudulent intent and the court should have instructed the jury that, in order to convict, they must believe from all the evidence, and beyond a reasonable doubt, that the defendant secured the accommodation or any part of it with the purpose and inteat to defraud.</p>

<p>Appeal, No. 28, April T., 1919, by Charles Anderson et al., from order of Q. S. Allegheny Co., December Sess., 1916, No. 1, dismissing a petition for review in re Petition for a Public Road in the Township of Hampton.</p> <p>Exception to report of Board of Viewers. Before Davis, J.</p> <p>The opinion of the Superior Court states the case.</p> <p>The court dismissed the exceptions.</p> <p>Error assigned was the order of the court.</p>

<p>Appeal, No. 153, April T., 1919, by plaintiffs, from judgment of Q. S. Westmoreland Co., Feb. T., 1917, No. 12, dismissing petition in the case of the Directors of a Home for the Destitute of the County of Westmoreland, Directors of the Westmoreland County Poor District, v. The Fayette County Almshouse, alias Dictus, The Directors of a Home for the Destitute of the County of Fayette.</p> <p>Petition for citation to compel the directors of the Home for the Destitute of the County of Fayette to contribute to the support of certain paupers and compel their removal to Fayette County. Before Copeland, P. J. of O. C., specially presiding.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The court refused the citation and entered a decree dismissing the petition.</p> <p>Error assigned was the order of the court.</p>

<p>Appeal, No. 142, April T., 1919, by plaintiff, from judgment of C. P. Payette Co., Sept. T., 1916, No. 83, in favor of plaintiff non obstante veredicto, in the case of Clara Carrow v. Massachusetts Bonding and Insurance Company, a Massachusetts corporation.</p> <p>Assumpsit on policy of insurance. Before Reppert, J.</p> <p>From the record it appeared that the plaintiff was the beneficiary in a policy of insurance which contained the following clause:</p> <p>“(1) Written notice must be given to the Company at Saginaw, Michigan, within ten days from the happening of any accident or beginning of any illness by reason of which claim is to be made, giving full name and address of the assured. Notice to any agent shall not constitute notice to the company. Failure to comply strictly with said notice requirement shall limit the liability of the company to one-tenth of the amount that would otherwise be payable.”</p> <p>The insured sustained an accident on January 15, 1916, which later resulted in his death. He never gave the company any notice of the accident in accordance with the terms of the policy and received no benefits thereunder. The beneficiary, however, within ten days of the death of the insured gave notice to the defendant, which declined to recognize its liability on the policy on the ground that the death of the insured had not resulted from the accident.</p> <p>At the trial the jury rendered a verdict in favor of the plaintiff for $600.</p> <p>The defendant submitted, inter alia, two points, one that in accordance with the terms of the policy, as recited, there could not be a verdict for more than $80, and one, that under all the evidence, the verdict must be for the defendant, both of which were refused. Thereafter the defendant moved for judgment non obstante veredicto on the whole record. Upon argument of this motion the court directed that judgment be entered in favor of the plaintiff for $69.07, being $60 or ten per cent of the amount of the policy, as provided for in the policy, in the event of failure to give notice, and $9.07 interest. Plaintiff appealed.</p> <p>Terror assigned was the order of the court.</p>

<p>Appeal, No. 119, April T., 1919, by defendants, from judgment of C. P. Allegheny Co., July T., 1917, No. 1527, on verdict for plaintiffs in case of William Balser and Corinne Balser, his wife, v. George W. Young, Victor J. Schmitt and John L. Schmitt, partners trading as Young & Schmitt.</p> <p>Trespass to recover damages for death of minor child. Before Evans, J.</p> <p>The circumstances of the accident are stated in the opinion of the Superior Court.</p> <p>Verdict for plaintiff for $750 and judgment thereon. Defendants appealed.</p> <p>Errors assigned were refusal to give binding instructions for the defendant and to enter judgment for defendant n. o. v.</p>

<p>Road law — Dedication of street — Width dedicated — Reservation to owner.</p> <p>The dedication of a piece of property, and its acceptance by public user for the purposes of a street, does not necessarily carry with it the dedication of the entire lot on which the street was laid, where the evidence failed to show the intention on the part of the donor to devote more than twenty-five feet for street purposes, which would leave a certain part of the property remaining in the owner.</p> <p>Under such circumstances, a preliminary injunction to restrain the owner from erecting a fence and billboard on the land not dedicated to the public use, will be dissolved.</p> <p>Equity — Courts—Findings of fact and conclusions of law— Form.</p> <p>Under Rule No. 62 of Equity Rules no fixed form is required of the chancellor in presenting his findings of fact and conclusions of law. Where the opinion on which the decree is based is sufficiently definite and specific, the mere omission to number or paragraph the various component parts does not constitute reversible error.</p>

<p>Appeal, No. 155, April T., 1919, by defendant, from judgment of C. P. Armstrong Co., June T., 1918, No. 18, striking off appeal in tbe case of Fred C. Lentz y. Kittanning Real Estate Company.</p> <p>Motion to strike off appeal from justice of tbe peace. Before King, P. J.</p> <p>Tbe facts are stated in tbe opinion of tbe Superior Court.</p> <p>Tbe court entered an order striking off tbe appeal. Defendant appealed.</p> <p>Error assigned, among others, was tbe order of tbe court.</p>

<p>Divorce — Age of respondent — Minority—Guardian ad litem — ■ Marriage license — Contradiction of evidence — Admissibility.</p> <p>In a divorce proceeding, where the respondent is a minor, the appointment of a guardian ad litem is essential, and in the absence of such appointment, a decree in divorce is voidable.</p> <p>While marriage license,dockets are public records in the sense that they are open to the inspection of the public, the only record which imports verity and cannot be collaterally attacked is the record of the issuance of the marriage license. The same verity does not apply to the evidence, or the answers which induced the clerk to issue the license.</p> <p>The record, in the technical sense, is conclusive proof of the fact of the issuing of the license, and is evidence that the parties appeared and made answer as therein set forth, but it is not conclusive that the answers as made were exactly correct.</p> <p>Where a minor has misrepresented her age in the procurement of a marriage license, parol testimony in contradiction of the facts contained therein, is admissible, and such testimony can be taken under a commission to take testimony, directed to a commissioner outside the United States. While letters rogatory may be more efficacious, they are only necessary in countries which will not permit a commission to be executed, or where the witness refuses to testify under the commission.</p>

<p>Public service corporations — Surrender of charter — Act of April 9, 1856, P. L. 898 — Public Service Company Law.</p> <p>The Act of April 9, 1856, P. L. 293, furnishes a full and complete method of procedure for corporations desiring to surrender their charter powers and quit business or dissolve. There is nothing in the Public Service Company Law, giving the Public Service Commission power and authority to regulate corporations, which applies to such surrender or dissolution. The provisions of that act are limited to such corporations as continue to retain their charters and enjoy their franchises and are actually engaged in the service of the public, under their charter rights.</p> <p>Public service corporations — Surrender of charter — Jurisdiction, C. P. .</p> <p>The court of common pleas, wherein the corporation is doing business, has jurisdiction to entertain a petition for dissolution; under the provisions of the Act of April 9, 1856, P. L. 293. A decree of dissolution, made in accordance with such petition, is not contrary to the provisions of the Public Service Company Law.</p> <p>Where a railroad company ceased to do business and presented its petition to have its charter dissolved, which was granted by the court of common pleas and a decree entered, it is not necessary also to obtain the consent of the Public Service Commission before ceasing to exercise its charter rights.</p>

<p>Appeal, No. 228, Oct. T., 1918, by plaintiff, from judgment of O. P. Lehigh County, June T.; 1916, No. 37, refusing to strike off nonsuit in the case of Ada M. Flyte v. Ellen Stover.</p> <p>Trespass for an alleged unlawful .eviction. Before Groman, P. J.</p> <p>The opinion of the Superior Court states the case.</p> <p>The court entered a compulsory non suit which it subsequently refused to strike off. Plaintiff appealed.</p> <p>Error assigned, among others, was the decree of the court.</p>

<p>Appeal, No. 8, April T., 1919, by defendant, from judgment of C. P. Armstrong Co., June T., 1916, No. 239, on verdict for plaintiff in case of A. G. C. Walker v. J. A. Kirk.</p> <p>Assumpsit for the purchase price of a horse. Before King, P. J.</p> <p>The court directed a verdict in favor of the plaintiff for $146.47 and entered judgment thereon. Defendant appealed.</p> <p>Errors assigned were in giving binding instructions for the plaintiff and refusal of a new trial.</p>

<p>Practice, O. P. — Judgment on order certified from quarter sessions — Execution—Act of May 8,1901, P. L. UfS.</p> <p>1. Under the provisions of Section 1 of the Act of May 8, 1901, P. L. 143, which authorizes the certification of an order or sentence of the quarter sessions court to the court of common pleas and its entry and indexing therein as a judgment, such judgment shall have like force and effect as if the same had been entered in the court of common pleas and had been recovered therein as a judgment of that court. The force and effect thus to be given the judgment in the common pleas is to be of the date of its entry in that court, and not the date when the sentence was pronounced, in the court of quarter sessions.</p> <p>2. A writ of fi. fa. for the collection of such judgment may be issued within five years from its entry without first issuing a writ of scire facias quare executionem non to revive the same.</p> <p>3. Section 2 of the Act of May 8, 1901, P. L. 143, providing that when said order, sentence, decree or judgment is filed as a judgment of the court of common pleas, the same may be revived by scire facias et quare executionem non, and be collectible by writ of fi. fa., etc., does not require that the judgment must be revived by scire facias quare executionem non, before it may be collected by a writ of fieri facias. Such a course would not be necessary with respect to a judgment less than five years old originally recorded in the court of common pleas, and as, by the provisions of the act, the judgment is to have the same force and effect and the writ of execution on it is to issue in the same manner, as on a judgment in the common pleas, execution may issue on a writ of fieri facias without a previous revival.</p>

<p>Practice} O. P. — Judgment on order certified from the quarter sessions — Act of May 8, 1901, P. L. US.</p> <p>1. The Act of May 8, 1901, P. L. 143, providing for the certification of an order or sentence of, the court of quarter sessions, to the court of common pleas is not ex post facto, in so far as it relates to an order or sentence entered prior to its passage. The sentence itself contemplates payment in full by the defendant and the Act of 1901 did not increase that payment, but simply provided a remedy for the enforcement of the liability created by the sentence.</p> <p>2. Under the provisions of the Act of May 8,1901, P. L. 143, it is not required that the court of quarter sessions or the judge thereof should certify a copy of its order or sentence to the court of common pleas. In the absence of any statutory requirement to the contrary, the clerk of the court is the proper officer to make such certification, and the direction or authority of the court to do so is no more necessary than it is to certify a judgment of the court of common pleas, or an order of the orphans’ court.</p> <p>3. While the primary purpose of an order for support in fornication and bastardy is to indemnify the township or poor district against being called upon to pay for the maintenance of the child, the mother of the child, who has actually supported it, has an interest in the order and the sentence of the court of quarter sessions, to the extent of the payments due her during the period the child was supported by her, and she may avail herself of the provisions of the Act of May 8, 1901, P. L. 143. In the case of her death such right survives to her legal representatives.</p>

<p>Appeal, No. 151, April T., 1919, by W. T. McChesney et ah, from decree of O. C. Beaver Co., Sept. T., 1918, No. 35, In re Partial Account of the Federal Title & Trust Company, and Roger Cope, Executors of the Will of William James McClure, deceased.</p> <p>Exceptions to auditor’s report. Before Baldwin, P. J.</p> <p>The opinion of the Superior Court states the case.</p> <p>The court dismissed the exceptions and confirmed the report of the auditor.</p> <p>Errin'- assigned was the order of the court dismissing exceptions.</p>

<p>Appeal, No. 131, Oct. T., 1918, by defendant, from judgment of O. P. Huntingdon Co., Dec. T., 1917, No. 27, on verdict for plaintiff in case of J. Emmett Sebree v. Huntingdon Water Supply Company.</p> <p>Trespass to recover damages for injuries to plaintiff’s land resulting from the maintenance of a dam. Before Bailey, P. J.</p> <p>The facts appear in the opinion of the Superior Court.</p> <p>Verdict for plaintiff for $600 and judgment thereon. Defendant appealed.</p> <p>Errors assigned were various rulings on evidence, the charge of the court and refusal of defendant’s motion for a new trial.</p>

<p>Appeal, No. 289, Oct. T., 1918, by defendant, from judgment of O. P. Huntingdon Co., Dec. T., 1917, No. 27, on verdict for plaintiff in case of John W. Snyder v. Huntingdon Water Supply Company.</p>

<p>Appeal, No. 186, April T., 1918, from judgment of C. P. Armstrong Co., Sept. T., 1918, No. 61, reversing decision of Workmen’s Compensation Board in the case of Joseph Schuey v. Kittanning Borough.</p> <p>Appeal from judgment of common pleas reversing award under the Workmen’s Compensation Act, Before Kino, P. J.</p> <p>The referee found the claimant’s injury was due to disease and refused an award. On appeal to the workmen’s compensation board this decision was affirmed. The claimant then appealed to the court of common pleas which reversed the ruling of the workmen’s compensation board and awarded the claimant compensation to the amount of $772.50. Defendant appealed.</p> <p>Error assigned was the order of the court.</p>

<p>Appeal, No. 137, April T., 1919, by plaintiff,' from judgment of C. P. Indiana Co., Sept. T., 1918, No. 106, in favor of defendant, in tbe case of United States Casualty Company v. Joseph E. Parnell.</p> <p>Assumpsit ou insurance agency contract. Before Langham, P. J.</p> <p>The opinion of tbe Superior Court states tbe case.</p> <p>Tbe court entered judgment in favor of the defendant. Plaintiff appealed.</p> <p>Error assigned was tbe order of tbe court.</p>

<p>Appeal, No. 144, April T., 1919, by plaintiff, from judgment of C. P. Allegheny Co., July T., 1918, No. 151, opening judgment in the case of Edward Kuehn v. John Kalisch and Mary Kalisch, his wife.</p> <p>Buie to open judgment, entered by confession on a judgment note.</p> <p>The facts appear in the opinion of the Superior Court.</p> <p>The court made absolute the rule to open the judgment. Plaintiff appealed.</p> <p>Error assigned was the order of the court.</p>

<p>Appeal, No. 30, April T., 1919, by respondent, from decree of C. P. Allegheny Co., April T., 1917, No. 2358, granting a divorce in case of John W. Whiffen v. Mary M. Whiffen.</p> <p>Libel in divorce. Before Carnahan, J.</p> <p>The case was referred to F. J. Tyrell, Esq., as master, who recommended a divorce.</p> <p>Exceptions were filed to the master’s report, which were overruled by the court and a decree of divorce granted. Respondent appealed.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was decree granting the divorce.</p>

<p>Poor law — Settlement—Removal from jurisdiction — Act of June IS, 18S6, P. L. 5S9, and April 6, 1905, P. L. 112.</p> <p>The refusal of a justice of the peace to grant an order of removal of a pauper from one poor district tp another, which was subsequently affirmed by the court of quarter sessions, will be considered, on appeal, only on such points of evidence as have.been excepted to, or for errors in law. The appellate court will not review the ease on its merits.</p> <p>Where a person not in receipt of relief has removed from one district to another, and proceedings are begun before a justice of the peace for his removal on the ground that he was likely to become chargeable, which, after hearing, were dismissed, a subsequent Application by him for relief, and the granting of the same, while conclusive of the pauper’s status, at the time of the issuance of the order, is not necessarily conclusive of the fact that he was “likely to become chargeable” on the district at any time prior to the making of the order.</p>

Appeal, No. 32, March T., 1919, by plaintiffs, from judgment of C. P. Lackawanna County, October T., 1913, No. 793, in the case of Lephe Hall, Jessie Hall and Harriet Hall Shoemaker v. D. B. Hand and A. D. Dean. Framed issue in the nature of ejectment for land situate in the Borough of Waverly, Lackawanna County. Before Maxwell, P. J., 42d Judicial District, specially presiding. The opinion of the Superior Court states the case.

<p>Partnership — Accounting—Receivers—Decree—Act of June 16, 1886, P. L. 789.</p> <p>In a suit in equity for an accounting and for the appointment of a receiver of the assets of an insolvent partnership association, a decree appointing such receiver is proper, where it appears that the association was insolvent and had not carried on its business for several years.</p>

<p>Appeal, No. 35, April T., 1919, by respondent, from judgment of C. P. Washington Co., Nov. T., 1916, No. 38, annulling a marriage contract in the case of Sybella Hornbake v. Joseph D. Hornbake.</p> <p>Action for annulment of marriage under the Act of April 11, 1859, P. L. 617, on the ground of a former subsisting marriage. Before McIlvaiNe, P. J.</p> <p>On issue framed: “Was the marriage between the libellant and the respondent on the 19th day of July, 1910, void, for the reason of the fact that the said Joseph D. Hornbake had a wife living at said time, from whom he was not lawfully divorced, as charged in the libel and denied in the answer,” the jury returned a verdict in the affirmative.</p> <p>The court subsequently decreed the marriage contract entered into by libellant and respondent to be wholly null and void. Respondent appealed.</p> <p>Errors assigned, was the admission of the testimony of the alleged first wife, various rulings on evidence, and the decree of the court.</p>