Volume 74 — Pennsylvania Superior Court Reports

<p>Appeal, No. 109, Oct. T., 1919, by defendant, from judgment of Municipal Court of Philadelphia, Sept. T., 1917, No. 49, on verdict for plaintiff in the case of Isador Lazar v. State Bank of Philadelphia.</p> <p>Trespass to recover damages for refusing payment of a check. Before Knowles, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Yerdict for plaintiff for $500 and judgment thereon. Defendant appealed.</p> <p>Errors assigned were in the following form:</p> <p>1. The learned trial judge erred in sustaining the objection to the following question propounded by the defendant to the plaintiff:</p> <p>“Q. So that you, knowing at the time you gave this check of forty-five ($45) dollars to the Empire Printing Company, that there was some discrepancy between your account that you kept and the account kept by the State Bank of Philadelphia, you did not make any investigation at that time to find out where the discrepancy existed?”</p> <p>2. The learned trial judge erred in declining the defendant’s point.</p> <p>Defendant’s point which was declined without reading is as follows:</p> <p>“If you believe that the plaintiff was aware of the discrepancy existing between his account and that of the defendant and drew a check negligently without investigation as to the condition of the account, your verdict should be for the defendant.”</p> <p>3. The learned court below erred in refusing to grant a new trial as requested by the defendant.</p>

<p>Criminal procedure — Affidavit to information — Proof of unsigned jurat — Evidence.</p> <p>It is error for the lower court to dismiss a petition for warrant of arrest charging nonsupport, on the ground that the information on which the warrant was based was not sworn to, where it appears that, although the jurat attached to information was unsigned, there was uneontradicted testimony, to the effect that the prosecutrix had sworn to the information before a notary public in the office of the district attorney, and that the notary public had failed to attest the affidavit.</p> <p>In determination of questions preliminary to trial, the decision should he in accordance with the weight of the evidence. It is not required, in such cases, to produce evidence establishing the fact beyond all possible doubt.</p>

<p>Vendor and vendee — Marketable title — Doubtful title.</p> <p>1. If a vendor has covenanted to convey a marketable title and, when the time arrives for carrying out his agreement, he is unable to do so, the vendee has the right to rescind and recover back the portion of the money which he has paid on the purchase price. A title is not marketable which exposes the party holding it to litigation.</p> <p>2. In an action by a vendor to recover the purchase price alleged to be due on a contract for the sale of real estate, which called for a good marketable title, a verdict is properly rendered in favor of the defendant, where the question of title could not be definitely settled as against the interests of certain minors.</p>

<p>Criminal law — Perjury—Evidence.</p> <p>On the trial of an indictment for perjury in which it appeared that the defendant swore in the prior civil proceedings that he had purchased a pair of mules, as agent, and given a note therefor, which was offered in evidence, such note and testimony were material to the issue and were admissible in evidence to establish the nature of the defendant’s testimony.</p> <p>Evidence — Experts—Handwriting.</p> <p>The testimony of an expert witness in regard to the effects produced by photograph from different kinds of ink for the purpose of demonstrating the results of the alteration of a written instrument are admissible when accompanied by instructions from the court as to the character of the evidence, the purpose for which it was offered, and a caution as to how it should be received, and the limitation of the weight to which it was entitled.</p> <p>Evidence — Original entries — Admissibility.</p> <p>An entry of a note on a collection register, made in the regular course of business by the person whose duty it was to enter it when he had the note before him at the time he made the entry, when the facts were within his knowledge and no motive to pervert the truth was apparent, are admissible to show the condition of the note when it was received at the bank.</p>

<p>Appeal, No. 263, Oct. T., 1919, by plaintiff, from judgment of Municipal Court of Philadelphia, Sept. T., 1919, No. 381, making absolute rule for judgment for want of a sufficient statement of claim in the ease of J. Morris Carter v. Walter Yandegrift.</p> <p>Rule for judgment for want of a sufficient statement.</p> <p>The opinion of the Superior Court states the case.</p> <p>The court made absolute tbe rule. Plaintiff appealed.</p> <p>Error assigned was the decree of tbe court.</p>

<p>Negligence — Railroads—Vires—Sparhs—Proximate cause.</p> <p>In an action against the director general of railroads for damages caused by the burning of a barn, it appeared that according to the evidence of the plaintiff, a fire was discovered by defendant’s employees in the plaintiff’s field at a point 15 to 90 feet from the tracks. After the fire in the field had been extinguished another in a barn about 420 feet from the defendant’s right-of-way and across a public road was discovered. There was no affirmative evidence that the fire from the field was communicated to the bam, and it was not contended that sparks reached the bam directly from the engine passing 420 'feet away. Under such circumstances, the negligence of the defendant was not the proximate cause of the burning of the barn, and it was not error for the lower court to enter judgment non obstante veredicto.</p> <p>Keller, J., dissents.</p>

<p>Mechanics’ liens — Building contracts — Construction—Bight to file liens — Execution.</p> <p>A stipulation that a contractor shall furnish releases from mechanics’ liens before the last installment of the contract price will be paid, will not preclude the filing of a mechanic’s lien by the contractor in advance of the furnishing or procuring of such releases. Such an agreement is not a covenant against liens and in such case the contractor has the right to file a mechanic’s lien for the work done and materials furnished, even though subcontractors and workmen have filed liens. The contractor has the right to file his claim, and there is no reason why he cannot proceed by scire facias to liquidate the amount due thereon. Under such circumstances, however, the court would restrain the execution until the liens were paid and satisfied.</p>

<p>Appeal, No. 92, Oct. T., 1919, by defendant, from judgment of C. P. Lancaster County, Oct. T., 1919, No. 40, on verdict for plaintiff in the case of D. C. Morrison v. Robert F. Altland.</p> <p>Assumpsit on account arising from tbe leasing of land. Before Landis, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict for plaintiff for $199.79 and judgment thereon. Defendant appealed.</p> <p>Errors assigned were various rulings on evidence.</p>

<p>Beal estate — Deeds—Misiahe in description — Possession—Notice to subsequent purchasers — Evidence.</p> <p>In an action of ejectment, to determine the title to a strip of land belonging to either one of two adjoining properties, an unrecorded deed is admissible in evidence, where the defense was possession under the deed, and notice thereof to the purchaser, when he purchased.</p> <p>Where there is uncertainty as to what lands are included in the description, or there is doubt as to the limits of the land sold, evidence aliunde may be resorted to, for the purpose of aiding the jury to determine what land was to be included in the grant.</p>

<p>Appeal, No. 296, Oct. T., 1919, by plaintiff, from judgment of C. P. Bradford County, Dec. T., 1915, No. 50, on verdict for the defendant in tbe case of C. P. Whipple v. C. J. Lewis.</p> <p>Assumpsit on promissory note. Before Maxwell, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was the charge of the court and refusal to grant a new trial.</p>

<p>Appeal, No. 3, Oct. T., 1919, by defendant, from judgment of O. P. Bradford County, May T., 1914, No. 96, on verdict for plaintiff in the case of Warren Hall and Eunice E. Hall v. Le-high Valley Railroad Company.</p> <p>Trespass to recover damages for personal injuries. Before Maxwell, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict for plaintiff for $500 and judgment thereon. Defendant appealed.</p> <p>Error assigned was refusal of defendant’s motion for judgment for defendant non obstante veredicto.</p>

<p>Appeal, No. 42, Oct. T., 1919, by plaintiff, from order of C. P. Delaware County, March T., 1918, No. 466, striking off item of mechanic’s lien in the case of Walter D. Prouse v. Carolyn W. Stock-er.</p> <p>Rule to strike off mechanic’s lien. Before Broom-all, J.</p> <p>The court made absolute the rule to strike off an item in the lien. Plaintiff appealed.</p> <p>Error assigned was order of the court.</p>

<p>Appeal, No. 61, April T., 1920, from decree of C. P. Beaver County, December T., 1918, No. 5, sitting in equity, dissolving preliminary injunction, in the ease of Metal Products Company v. Beaver County Light Company.</p> <p>Bill in equity for an injunction. Before Baldwin, 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 order of the court.</p>

<p>Wills — Construction—JEstate in fee.</p> <p>A testatrix deviged her estate to her husband in the following language :</p> <p>“I give and devise unto my husband Peter E. Kreidler, for himself, his heirs and assigns forever, all my house and lot of ground with all the appurtenances thereunto belonging situate in the said Borough of Bath and County and State aforesaid, together with all other lots of ground and lands belonging to me on the day of my death,......; also paying my funeral expenses and just debts if any will be on the day of my decease; and he may also keep an account of the money he had and may receive of my estate herein this will giving to him, and then order the same or such part that may remain unused by him to be paid after his death unto our son, John Snyder Kreidler, our only issue to himself the said John Snyder Kreidler and to his heirs and assigns forever.”</p> <p>Held, that the estate devised was absolute and unlimited, and the effort to deprive the absolute estate of some of its essential legal attributes failed.</p>

<p>Appeal, No. 5, March T., 1920, by defendant, from judgment of C. P. Columbia County, Feb. T., 1916, No. 149, on verdict for the plaintiff in the case of Clark Miller v. American Car & Foundry Company.</p> <p>Trespass to recover damages for injuries to an automobile. Before McCormick, P. J., 25th Judicial District, specially presiding.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict for plaintiff for $320.65 and judgment thereon. Defendant appealed.</p> <p>Errors assigned were the charge of the court, answers to points, as quoted in the opinion of the Superior Court, and refusal to grant a new trial.</p>

<p>Appeal, No. 18, March T., 1920, by libellant, from decree of C. P. Luzerne County, March T., 1915, No. 240, dismissing libel in divorce in the case of Rebecca Gold v. Nathan Gold.</p> <p>Libel for divorce on the ground of cruel and barbarous treatment. Before G arman, J.</p> <p>The case was referred to John E. Sharpless, Esq.,' who recommended the granting of a divorce.</p> <p>Upon exceptions to the master’s report, the court sustained the exceptions and dismissed the libel. Libellant appealed.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was the decree of the court.</p>

<p>Contracts — Sales—Written contracts — Contemporaneous agreement — Affidavit of defense.</p> <p>Where a contract for a gas generator provides that all the terms of the agreement are merged in the written instrument, and that no agent of the company has made any statement or verbal agreement modifying or adding to the terms thereof, and stipulating that it cannot be altered or modified except in writing, the vendee in an action for the purchase price cannot set up a parol contemporaneous agreement, varying the terms of the written instrument.</p> <p>In such case an affidavit of defense is insufficient which avers matters outside the agreement.</p>

<p>Appeal, No. 19, Oct. T., 1920, by defendant, from judgment of O. & T. Bradford County, Sept. T., 1919, No. 4, on verdict of guilty in the case of Commonwealth v. Thomas Randolph.</p> <p>Indictment for rape. Before Maxwell, 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>Errors assigned were various rulings on evidence.</p>

<p>Commorú carriers — Delivery—Unauthorized delivery — Case for fury.</p> <p>In an action to recover tbe value of certain shipments, lost while in the custody of the carrier, a verdict for the plaintiff will be sustained, where the evidence established the fact that delivery of the shipment was made to an unauthorized person who afterwards stole the property.</p> <p>Practice, C. P. — Affidavits of defense — Averments of ignorance —Admissions.</p> <p>An averment of ignorance and demand for proof is not a denial within the meaning of the Practice Act of 1915. Where the statements of plaintiff are not denied, they must be taken to be admitted, and the mere averment of ignorance is not sufficient to traverse the statements of the plaintiff.</p>

<p>Decedents’ estates — Account of administratrix — Assets not belonging to decedent — Surcharge.</p> <p>Crops which had been raised during the lifetime of a deceased husband, on a farm belonging to a wife, remaining unsold and in the barns at the time of the death of the decedent, are not a part of his estate.</p> <p>Where it appeared that a wife allowed her husband during his lifetime to sell the crops of a farm belonging to her and deposit the proceeds to his own account, it does not necessarily follow that such a practice would continue indefinitely or that the crops should be considered as belonging to the husband’s estate, in the event of his death.</p> <p>Where the administratrix failed to account for such crops remaining unsold at the time of the death of her husband, it was reversible error to surcharge her for the value of the same.</p>

<p>Criminal law — Accomplice—Evidence.</p> <p>On the trial of an indictment for arson, the court is not bound to instruct tbe jury to acquit the defendant, where tbe Oommonwealtb relies on the testimony of an accomplice alone, but it is proper for tbe jury to be advised that it is not safe to convict tbe defendant upon tbe uncorroborated testimony of an accomplice. Tbe corroboration should be to tbe person of tbe accused and not simply to tbe fact of tbe crime.</p> <p>Criminal law — Evidence—Cross-examination.</p> <p>On tbe trial of an indictment for arson, where tbe Commonwealth relies largely upon the evidence of a particular witness, who was also an accomplice, Such a witness may be asked on cross-examination, for tbe purpose of showing motive and impeaching bis credibility, whether or not he bated tbe defendant, and whether or not be bad ever made any threats concerning him.</p> <p>A wide latitude is allowed in the cross-examination of an accomplice and the most searching question is permitted in order to test his veracity.</p> <p>Expert testimony — Cause of conflagration — Admissibility.</p> <p>Testimony of expert witnesses, called for the purpose of discrediting a witness for the Commonwealth as to the manner in which a fire was started, is admissible in answer to a hypothetical question, supported by the evidence introduced at the trial. The objection that such a question was leading is without merit.</p> <p>Expert testimony that gasoline was not explosive, under the conditions shown by the Commonwealth’s evidence, was both relevant and important, and the defendants were entitled to the testimony of the expert, for the purpose of weakening, to that extent, the force of the evidence for the prosecution.</p> <p>Criminal law — Separate trials — Discretion of court.</p> <p>An application for a separate trial of two defendants is addressed to the discretion of the court, and is not subject to review except upon proof of gross abuse of discretion.</p>

<p>Appeal, No. 2, March T., 1920, by plaintiffs, from judgment of C. P. Tioga County, May T., 1919, No. 1, for defendant non obstante veredicto in the case of Emet R. Davis and Sadie A. Davis v. The Home Insurance Company, New York.</p> <p>Assumpsit on policy of insurance. Before Channell, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict for plaintiffs for $711.33. Subsequently the court, on motion, entered judgment in favor of defendant non obstante veredicto. Plaintiffs appealed.</p> <p>Error assigned was the order of the court.</p>

<p>Criminal law- — Larceny—Common carriers — Charge of court — ■ Adequacy.</p> <p>On the trial of an indictment for larceny of goods while in the custody of a common carrier, it is not necessary for the Commonwealth to establish at the trial that the carrier was the absolute owner of the goods. It was quite sufficient to show the property had been in the possession of the carrier for delivery to the real owner, and that possession carried with it such a qualified ownership as to discharge the burden of proof on the Commonwealth in this respect.</p> <p>A charge of the court which, considered as a whole, fairly and adequately presented the case to the jury, and which did no more than express the opinion of the trial judge as to the value of the uncontradicted evidence, produced at the trial, is without error.</p>

<p>Appeal, No. 270, Oct. T., 1919, by defendant, from judgment of Municipal Court of Philadelphia, April Sessions, 1918, No. 27, on verdict of guilty in the case of Commonwealth of Pennsylvania v. Charles Salot.</p> <p>Indictment for larceny and receiving, stolen goods. Before Gilpin, J.</p> <p>The indictment charged the defendant with larceny of a certain Ford automobile and, in addition, with receiving stolen goods by purchasing an automobile with the knowledge that it was stolen.</p> <p>The jury rendered a verdict of guilty of receiving a stolen automobile and not guilty of larceny of the same. Defendant appealed.</p> <p>Error assigned, among others, was that the municipal court had no jurisdiction to try the defendant where the bill of indictment had been found in the Court of Quarter Sessions of Philadelphia County.</p>

Appeal, No. 31, Oct. T., 1920, from judgment of Q. S. of Phila. County, Sept. Sessions, 1919, No. 194, on verdict of guilty in the case of Commonwealth of Pennsylvania v. John C. Fay. Indictment for false pretense. Before Johnson, P. J., 17th Judicial District, specially presiding.

Appeal, No. 2, March T., 1920, by defendant, from judgment of C. P. Lackawanna County, Oct. T., 1916, No. 281, on verdict for plaintiff in the case of Jefferson McConnell v. Moosic Mountain Coal Company. Trespass to recover damages for the death of plaintiff’s minor son. Before Edwards, P. J. The court charged in part as follows: I will try to explain to you in a very simple way, so that you will thoroughly understand, what the particular negligence in this case is.

Appeal, No. 7, March T., 1920, by defendant, from judgment of C. P. Luzerne County, March T., 1917, No. 872, on verdict for the plaintiff in the case of Daniel Kilgallon, to the use of Joseph M. Stark, as his interest may appear, v. Niagara Fire Insurance Company of New York. Assumpsit on policy of insurance. Before Steauss, J. The facts are stated in the opinion of the Superior Court. Verdict for plaintiff for $1,185.60 and judgment thereon. Defendant appealed.

Appeal, No. 53, Oct. T., 1919, by defendant, from judgment of C. P. No. 3, Phila. Co., Sept. T., 1918, No. 387, for want of a sufficient affidavit of defense in the case of Thomas E. McGowan v. Anna W. Boney. Assumpsit for work done and material furnished. Buie for judgment for want of a sufficient affidavit of defense. The opinion of the Superior Court states tbe case. Tbe court entered judgment for want of a sufficient affidavit of defense. Defendant appealed.

Appeal, No. 50, Oct. T., 1919, by defendant, from judgment of the Municipal Court of Phila. County, July T., 1917, No: 380, on verdict for plaintiff in the case of Isadore Freedman v. Joseph J. Martin. Trespass to recover damages for personal injuries and for property damaged. Before Knowles, J. The facts are stated in the opinion of the Superior Court. Verdict for plaintiff for $200 and judgment thereon. Defendant appealed.

Appeal, No. 10, Oct. T., 1919, by defendant, from judgment of O. P. No. á, Phila. Co., Dec. T., 1888, No. 212, on verdict for plaintiff in the case of Theodore Brasington v. Michael McManus. Scire facias to revive judgment for costs. Before Finletter, J. From the record it appeared that the plaintiff, Theodore Brasington, filed a bill in equity against Michael McManus, defendant, in December, 1888. The bill called for a partnership accounting.

Appeal, No. 217, Oct. T., 1919, by defendant from judgment of Municipal Court of Phila. Co., April T., 1919, No. 433, discharging rule to open judgment in the case of L. Adder v. Carl Miller. Rule to open judgment. Before Crane, J. The court discharged the rule. Defendant appealed. Error assigned was in discharging defendant’s rule to open the judgment and vacate and set aside the execution.

Appeal, No. 280, Oct. T., 1918, by tbe Pennsylvania Railroad Company from tbe report and order of tbe Public Service Commission Complaint Docket No. 1739, on complaint of tbe Brotherhood of Railroad Trainmen and George B. Rowand, against tbe Pennsylvania Railroad Company. Complaint for violation of tbe Act of June 19,1911, P. L. 1053.

Appeal, No. 98, Oct. T., 1919, by plaintiff, from decree of C. P. Montgomery County, Oct. T., 1916, No. 8, sitting in equity, dismissing bill for injunction in tbe case of H. F. Spayd y. Ringing Rock Lodge No. 665, Brotberbood of Railroad Trainmen, Pottstown, et al. Bill in equity for a mandatory injunction to compel the reinstatement of plaintiff as a member of an unincorporated association. Before Swartz, P. J. The facts are stated in the opinion of the Superior Court.

Appeal, No. 1, April T., 1920, from judgment of Q. S. Beaver County, Sept. Sessions, 1918, No. 18, on verdict of guilty in the case of Commonwealth v. R. D. A. Thompson. Indictment for playfully or wantonly pointing a pistol. Before Baldwin, P. J. The facts are stated in the opinion of the Superior Court. Verdict of guilty upon which, judgment of sentence was passed.

Appeal, No. 273, Oct. T., 1919, by defendant, from order of C. P. No. 4, Phila. County, June Term, 1919, No. 8024, discharging rule to open judgment in the case of LeEoy A. Worrell, Agent, to the use of Jacob Toub, y. Frederick B. Rosenberry. Rule to open judgment entered by confession. The opinion of the Superior Court states the case. The court discharged the rule. Defendant appealed. Error assigned was the order of the court.

<p>Practice — Assumpsit—Affidavit of defense — Evidence—New defense at tried — Acts of June 28,1917, and May H, 1915 (Practice Act).</p> <p>1. A defendant since the passage of the Practice Act of 1915 is required to set forth in his affidavit of defense not only such matters as are sufficient to prevent judgment but also every matter of defense upon which he intends to rely unless the defect appears in the plaintiff’s own case.</p> <p>2. In an action of assumpsit for goods sold and delivered, where the defendant, at the trial, offered to prove that the plaintiffs, at the time when the goods were sold and the action was brought, were not registered in the prothonotary’s, office nor with the secretary of the Commonwealth as provided in the Act of June 28, 1917, P. L. 645, the lower court rightfully refused the offer because such defense was not set forth in the defendant’s affidavit of defense, as required by the Act of May 14, 1915, P. L. 483.</p> <p>Contract — Building contract — Materials ordered by owner — Liability for.</p> <p>3. The fact that a general contractor was erecting the defendants building under a contract which waived the filing of mechanics’ liens by subcontractors did not prevent the owner from buying fixtures on his own account or making himself liable for fixtures included in the contract if ordered by and sold to him.</p>

<p>'Replevin — Biray cattle — Impounding—Aci of April 18, 1807.</p> <p>One who has impounded a cow, which is subsequently replevined by its owner, cannot acquire a lien for shelter, care and feeding of the cow under the Act of April IS, 1807, 4 Sm. L. 472, unless he has given notice of such impounding to the owner or to the township clerk, as provided by said act.</p>

<p>Appeal, No. 161, April T., 1919, by plaintiff, from judgment of O. P. Allegheny County, April Term, 1916, No. 2111, in suit tried by the court without a jury in the case of J ames P. Murphy v. Atlantic Refining Company.</p> <p>Assumpsit to recover compensation for gauging barrels under authority of the Act of April 5, 1862, P. L. 261. Before Swearingen, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The court entered judgment in favor of the defendant. Plaintiff appealed.</p> <p>Errors assigned were in dismissing exceptions to various findings of facts and conclusions of law and the decree of the court.</p>

<p>Landlord and tenant — Amicable action in ejectment — Opening judgment — Discretion of court — Married woman.</p> <p>There is no legal inhibition against a married woman, on her own behalf, entering into a lease for premises to be occupied by her, and since the Act of June 8, 1893, P. L. 344, she may authorize the confession of judgment in an amicable action of ejectment by agreement contained in such a lease.</p> <p>It was not necessary for a lessor under a written lease to show affirmatively that notice to quit the premises had been given, in accordance with the procedure required under the Act of April 3, 1830, P. L. 187, to the lessee prior to the entry of an amicable action of ejectment for default in payment of rent, under, the provisions of the written lease. The remedies were cumulative, and the notice required by the Act of Assembly of April 3, 1830, or by the lease relative to such proceedings, was not necessary if those proceedings were not resorted to.</p> <p>Where a judgment has been entered in an amicable action of ejectment, by virtue of a warrant of attorney contained in the lease, and the defendant took a rule to open judgment, and it appeared, when the ease was called for argument, that defendant had taken no depositions to support the rule, and asked for a continuance of the argument, which the court refused to grant because of the vagueness of the allegations in her petition, and afterwards discharged the rule to open the judgment, the action of the court will not be reversed, in the absence of any evidence of abuse of judicial discretion.</p>

<p>Landlord and tenant — Amicable action of ejectment — Judgment —Opening judgment — Discretion of court.</p> <p>An application to open a judgment in ejectment, entered in accordance with a warrant of attorney contained in a lease, is ah equitable proceeding addressed to the sound discretion 'of - the ■court, and the decision of the lower court will not be disturbed on •appeal, unless there is proof of abuse of judicial discretion.</p> <p>The fact that a judgment was entered in the name of the agent, with whom a lease was made, to the use of the assignee of the original lessor, is no reason for striking off the judgment. A judgment entered in favor of the agent as lessor could not have Been contested by the defendant, and it is not necessary to set out the interest of the use-plaintiff, except for his special protection.</p> <p>A lessee, under a lease containing a waiver of all defects and errors in entering an amicable action of ejectment, is not in a position to raise any question as to such errors, when he has waived his right to a review of any action of the court below, in accordance with the terms of the written lease.</p>

<p>Trust and trustees — Education of beneficiaries — Liberal educar tion — Reimbursement of parent.</p> <p>A trust fund, created for the express purpose of educating the grandchildren of the testator, may be applied for that object, notwithstanding the liability of the parents and the fact that they may be able to support and educate their children out of their own means.</p> <p>The views of a mother having the custody of her children in regard to their education are entitled to fair consideration by the trustees who have charge of a fund .providing for such education. The trusteeship cannot be used as a means to coerce the children to live with one of their parents, nor will a court of equity permit the wishes and directions of a testator, with respect to the education of his grandchildren, to be nullified by the inaction of the trustees, or their failure to perform their duties under the trust.</p> <p>Where the will of a testator created a trust fund, which was to be used in providing his grandchildren with a liberal education, from the time they were fifteen years old, it was the duty of the trustees to defray the expenses of the education of such grandchildren in the preparatory schools before they were ready to go to college, as well as to pay the expenses of their collegiate education. Where two of such grandchildren were living with their mother who had been divorced from their father, it was none the less the duty of the trustees to reimburse her for money expended by her in the preparatory education of such grandchildren. The mother in such cases was more than a mere volunteer; she was the legal custodian of the children, though not the parent primarily responsible for their maintenance and support. If the trustees failed to perform the duty imposed upon them with reference to the education of her children, she was justified in seeing that the matter was attended to, and could look to the trustees for reimbursement of such reasonable sums as she spent for that purpose.</p>

<p>Appeal, Nos. 12, 13 and 14, April T., 1920, by defendants, from judgment of Q. S. Allegheny County, February sessions, 1917, No. 264, on verdict of guilty in the cases of Commonwealth v. C. A. Spillman, C. W. Hays and C. A. Coggins.</p> <p>Indictment for conspiracy to cheat and defraud trust company. Before Haymaker, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Yerdict of guilty on which judgment of sentence was passed. Defendants appealed.</p> <p>Errors assigned were various rulings on evidence, answers to points, and charge of the court.</p>

<p>Appeal, No. 240, Oct. T., 1919, by defendant, from judgment and sentence of Municipal Court of Philadelphia, July Sessions, 1919, No. 1311, in the case of Commonwealth of Pennsylvania v. Lavina Dickson.</p> <p>Indictment for disorderly street walking. Before McNichol, J.</p> <p>The opinion of the Superior Court states the case.</p> <p>Yerdiet of guilty on which judgment of sentence was passed. Defendant appealed.</p> <p>Error assigned, among others, was the sentence of the court.</p>

<p>Public service companies — Water companies — Boroughs—First-class townships — Fire protection rates — .Reasonableness.</p> <p>1. Under the procedure before the Public Service Commission it is not necessary that boroughs, affected by an increase of rates of water companies doing business therein, should have special notice of complaints made to the increased rate. The rights of all parties are fully protected by the provisions of article VI, section 14, of the Public Service Company Law authorizing a rehearing, or by permitting parties interested to file complaints as to the new rates ordered by the commission, and to present their ease as to the alleged unfairness, injustice and unreasonableness of the schedule complained of.</p> <p>2. The amount to be paid by a municipality for fire protection should be based on the cost of the plant devoted to public fire protection, in connection with its fair share of the cost of maintenance, operation and depreciation. Where the same pumps, reservoirs and mains are used for both domestic consumption and fire protection, the problem confronting the commission is to apportion the cost of the plant between the two services, for in order to afford adequate fire protection, the pumps, reservoirs, mains, etc., are necessarily larger than would be required for domestic use alone. Just how the apportionment should be made is- a scientific not a legal question.</p> <p>3. The determination by the Public Service Commission that approximately 75 per cent of the total investment in a water company’s plant was properly apportionable to domestic and industrial service, and approximately 25 per cent to fire service; and that 9.6 per cent of the company’s operating expenses were applicable to fire protection, and apportioning $180,130, or practically 20 per cent of the company’s gross revenues, to be derived from fire protection service, is reasonable and in conformity with law, and will not be disturbed on appeal.</p> <p>4. The order of the Public Service Commission, fixing the rates to be charged the various boroughs and first-class townships to which its lines extend, for fire protection service, will be affirmed, where it appears that the commission determined the approximate amount of the company’s invested capital which should be apportioned to such fire service, and determined the proportional amount of revenue which should be obtained for such service and fixed rates to raise this amount of revenue, which provided for- a nominal charge of $7 for each fire hydrant and for a charge of $355 a mile for each mile of water main furnishing fire protection service within the borough or township.</p> <p>5. The determination of such rates is within the power of the Public Service Commission, even though they will supersede rates fixed by contracts between the company and the respective boroughs and townships made before the Public Service Company Law went into effect.</p> <p>6. The Public Service Company Law does not violate article III, section 20> of the Constitution of Pennsylvania forbidding the general assembly to delegate to any special commission any power to make, supervise or interfere with any municipal improvement, money, property or effects, or to levy taxes or perform any municipal function whatever. The Public Service Commission is not a special commission within the meaning of this section of the Constitution, and it has not the power or authority to usurp, and is not usurping, in the determination of rates to be charged by a public utility, any municipal power or function.</p> <p>7. The determination by the commission of the fair, just and reasonable amount which a borough must pay for fire protection service, is not a levying of a tax against the borough, nor is it material, in the fixing of such rates, that the borough or township has not provided for the payment of the requisite gums during the current year.</p>

<p>Appeals, Nos. 21 and 22, Oct. T., 1919, from order of the Public Service Commission dismissing complaints in the cases of Borough of Norwood and Borough of Prospect Park v. The Springfield Consolidated Water Company and the Public Service Commission on appeal.</p>

<p>Public service companies — Water companies — Fire protection service — Second-class townships — Powers—Act of July Ify, 1917, P. L. 8Jf0, chapter 7, article I, section 881.</p> <p>Townships of the first class are, in effect, quasi municipal corporations and contracts which they make for public service are 'subject to the scrutiny and approval of the Public Service Commission in the same manner as those of a borough or city.</p> <p>Where the township commissioners, under the authority of the Act of July 14, 1917, P. L. 840, chapter 7, article I, section 381, enter into contracts with a water company to supply fire protection, such contracts are subject to the power of the Public Service Commission to determine the - fair and reasonable rates which the water company is entitled to receive for said service.</p> <p>The determination by the Public Service Commission of the rate to be charged by the water company, which was not unconstitutional, unlawful, arbitrary or unreasonable, is the proper legal rate, notwithstanding the fact that the various townships had entered into contracts with the water company providing for other rates prior to the Public Service Company Law.</p>

<p>Appeal, No. 27, Oct. T., 1919, by complainant, from the order of the Public Service Commission in the case of Township of Springfield, (Delaware County), v. The Public Service Commission of Pennsylvania and The Springfield Consolidated Water Company.</p> <p>Complaint against the Springfield Consolidated Water Company on account of schedule of increased rates for fire protection service.</p> <p>The charges in said schedule were alleged to be unjust and unreasonable.</p> <p>After a hearing the commission filed a report dismissing the complaint.</p> <p>Error assigned, among others, was the order of the commission.</p>

Appeal, No. 200, Oct. T., 1919, by defendant, from judgment of C. P. Centre Co., Dec. T., 1917, No. 3, on verdict for plaintiff in the case of William Blauser y. Frank A. Carson. Trespass to recover damages for injuries to real estate. Before Quigley, P. J. The facts are stated in the opinion of the Superior Court. Verdict for plaintiff for $6 and judgment thereon. Defendant appealed.

Appeal, No. 174, Oct. T., 1919, by defendant, from judgment of C. P. Lancaster County, Jan. T., 1918, No. 38, on verdict for plaintiff in the case of William G. St. Clair, trading as William G. St. Clair Co., v. William S. Hastings, Sr. Assumpsit on a promissory note. Before Hassler, J. The facts are stated in the opinion of the Superior Court. The court directed a verdict in favor of the plaintiff for the sum of §1,068.72, and judgment was entered thereon.

Appeal, No. 43, Oct. T., 1920, by defendant, from judgment of the Municipal Court of Philadelphia, May Sessions, 1919, No. 372, on a verdict of guilty in the case of Commonwealth of Pennsylvania v. Jacob Markowitz, alias Jack Miller. Indictment for fornication and bastardy. Before McNichol, J. Verdict of guilty on which judgment of sentence was passed. Defendant appealed. Error assigned, among others, was in refusing and dismissing defendant’s motion of autrefois acquit.

Appeal, No. 23, Oct. T., 1920, by defendant, from judgment of Q. & Philadelphia County, December Sessions, 1919, No. 286, in the case of Commonwealth v. William H. Bricker. Indictment for committing an abortion. Before Baldrige, P. J., of the 24th Judicial District, specially presiding. The facts are stated in the opinion of the Superior Court. Verdict of guilty on which judgment of sentence was passed. Defendant appealed.

<p>Easement — Right to a tailrace — Adverse possession — Deed—Obstruction of easement — Retrial.</p> <p>Where a deed reserved to the grantor the right to a tailrace from a gristmill, and the grantee in the deed covenanted not to obstruct the passage of the water in the race, and the owner of the fee, thereafter, constructed across the mill race a one-story frame building with a trapdoor in the floor, and this structure remained in its original condition for over twenty-one years without the owner of the easement ever having taken up the boards to clean the race, it was not error for the trial judge to submit to the jury the question “if there was that clear platform, did it afford practicable access to the race and opportunity for the cleaning of it ?” The jury was instructed correctly, to the effect, that if the plaintiff could have had access to clean the race, if he had wished, his right was not lost.</p> <p>A mere nonuser will not extinguish an easement reserved in a grant.</p> <p>"Verdict for plaintiff — Damages—Nominal damages.</p> <p>Where the jury rendered a verdict in favor of the plaintiff which, in effect, decided that he had the right to go to the race for the purpose of cleaning it, but refused to award damages or even nominal damages, on the ground that none were proven, the verdict will be sustained and judgment will be entered upon such verdict.</p>

<p>Appeal, No. 13, March Term, 1920, by plaintiff, from decree of C. P. Columbia County, sitting in equity, December Term, 1919, No. 1, dissolving preliminary injunction in the case of T. M. Shobert v. Town of Bloomsburg, A. B. Hartman, President of the Town Council, I. A. Snyder, William Leiby, D. H. Creveling, Jacob Stiner, W. L. Eornwald, W. E. Geisinger, members of the Town Council, and McDonald Construetion Company, Daniel J. Lynch Company, and Daniel J. Lynch.</p> <p>Bill in equity for injunction. Before Harman, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The court granted a preliminary injunction which, after hearing, it subsequently dissolved. Plaintiff appealed.</p> <p>Error assigned was the order of the court.</p>

<p>Appeal, No. 94, October Term, 1920, by Herbert B. Green from decree of O. O. Berks County, vacating and setting aside a previous order and confirmation of sale and awarding an order of resale in the estate of Amanda Ludwig, deceased.</p> <p>Petition to vacate and set aside an order of sale. Before Schaeffer, P. J.</p> <p>The opinion of the Superior Court states the case.</p> <p>The court made the following order:</p> <p>“And now, to wit: April 26,1919, the above rule having come on for final hearing, and the court having heard the proofs and allegation of the parties after due consideration, do hereby make the rule heretofore granted absolute.</p> <p>“It is ordered and decreed that the order of March 30, 1918, ratifying and confirming sale of real estate of above, named decedent to Herbert R. Green, be and the same is hereby vacated and set aside; and it is further ordered and decreed that an order of sale be and is hereby awarded for the premises described in the said proceedings for the purposes of distribution, as in cases of proceedings in partition, under the act of assembly in such case made and provided......”</p> <p>Error assigned was the order of the court.</p>

Appeal, No. 1, March T., 1920, by defendant, from judgment of O. P. Lackawanna County, Oct. T., 1918, No. 879, in favor of plaintiff for want of a sufficient affidavit of defense in the case of Commonwealth of Pennsylvania ex rel. R. L. French v. A. L. Foley. Assumpsit for penalty for illegal use of milk cans of another under Act of May 4, 1889, P. L. 84. Before O’Neill, J. Rule for judgment for want of a sufficient affidavit of defense.

<p>Municipalities — Main sewers — Construction—Cost—Assessment of property owners — Ordinances.</p> <p>Where it was the purpose and intention of a borough council, as manifested in the several ordinances providing for the construction of a sewerage system, that the main outfall sewer of the borough should be constructed solely at public expense, no part of the cost thereof can be assessed against abutting property owners.</p> <p>To collect the cost of such improvement from the abutting property owners, it is a basic and fundamental prerequisite that the borough should signify its intention to make such assessment.</p> <p>Ordinances for the assessment of the cost of lateral sewers in a given district, and for the main and trunk sewers leading to the main outfall sewer, which have no reference to the latter improvement, are not authority for assessments on properties abutting on the outfall sewer. The basic and fundamental legislation necessary for such assessment being lacking, it cannot be sustained.</p>

<p>Appeal, No. 15, Oct. T., 1919, by defendant, from judgment of Municipal Court of Philadelphia, June Sessions, 1919, No. 207, on verdict of guilty in the case of Commonwealth of Pennsylvania v. James P. Carney.</p> <p>Indictment for assault and battery, aggravated assault and battery and indecent assault. Before Bonniwell, J.</p> <p>The opinion of the Superior Court states the ease.</p> <p>Verdict of guilty on which judgment of sentence was passed. Defendant appealed.</p> <p>Error assigned was the charge of the court as quoted in the opinion of the Superior Court.</p>

<p>Public Service Company Law — Act of July 26,1918, P. L. 187If —Railroads—Abolition of grade crossings.</p> <p>The provisions of section 12 of article V of the Act of July 26, 1913, P. L. 1374, give the Public Service Commission exclusive jurisdiction to order any crossing of a highway over the tracks of a railroad to be relocated, or altered, or to be abolished. Necessarily, when crossings are abolished, the part of the street which crosses the railroad tracks can no longer be a part of the thoroughfare.</p> <p>Act of June 27,1918, P. L. 568 — Municipalities—Closing of city streets.</p> <p>The Act of June 27, 1913, P. L. 568, conferring upon municipalities the control and jurisdiction over the city streets, is not inconsistent with the provisions of the Public Service Company Law. In so far as the closing of streets is a necessary concomitant to the abolition of a grade crossing, the Public Service Commission, to that extent, has control of the streets of a municipal division.</p> <p>Public Service Company Law — Amendment of July 17, 1917, P. L. 1025</p> <p>The amendment to the Public Service Company Law of July 17, 1917, P. L. 1025, giving to the Public Service Commission authority to open highways and to abandon highways, in connection with the reconstruction or abolition of grade crossings, applies only to highways located in boroughs or townships.</p>

<p>Agency — Mortgages—Payment to agent — Embezzlement—Repudiation of agent.</p> <p>On the trial of a feigned issue, on rule to open a judgment entered upon confession contained in a bond accompanying the mortgage, it appeared that the plaintiff had loaned the defendants, through the medium of a third party, one thousand ($1,000) dollars, secured by mortgage. The defendants paid the whole of the said sum to the persons who had'negotiated the loan, who after-wards embezzled the money. Upon the discovery of the default, the plaintiff first tried to collect from the agents, and after failure so to do, entered judgment against the defendants. Under such circumstances, the question of whether or not the third parties were agents for the plaintiff was a question for the jury, and it was error for the trial judge to enter judgment for the plaintiff non obstante veredicto.</p>

<p>Appeal, No. 44, April Term, 1919, by the City of Erie and the United States Housing Corporation from decree of Q. S. Erie County, February Sessions, 1919, No. 114, sustaining exceptions to the ordinance for annexation of land in the matter of the proposed annexation of land in the Township of Mill Creek, Erie County, Pennsylvania, to the City of Erie, Pennsylvania.</p> <p>Exceptions to proceedings for the annexation of certain portions of Mill Creek Township to the City of Erie. Before Whittelsey, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The court entered the following decree:</p> <p>And now, July 24, 1919, this case came on for hearing, and after examination of the papers and proceedings certified by the clerk of the council of the City of Erie, and hearing argument of counsel, it is ordered, adjudged and decreed that the appeals be sustained, and that Bill No. 4701 of the Ordinances of the City of Erie, entitled, “An Ordinance providing for the annexation of land in the Township of Mill Creek to the City of Erie, Pennsylvania,” be and the same is hereby declared null and void; and it is further ordered that the City of Erie pay the costs of proceedings in this case.</p> <p>Error assigned was the order of the court.</p>

<p>Beneficial societies — Beneficiaries — Dependents — Partial support.</p> <p>The by-laws of a cigarmakers’ union provided that if a member failed to designate the person “to whom his death benefit shall be paid” it was payable “to any relatives of the deceased member who at the time of his death were dependent for support in whole or in part upon such deceased member.” Decedent died unmarried leaving to survive him, two aged parents. They filed a bill in equity against the union, an unincorporated beneficial society alleging their Son’s membership, death and other facts entitling them, under the by-laws, to death benefits. The answer denied that the decedent “was aiding to support” his parents and averred that they were not “wholly or partly dependent.” Evidence was submitted that the decedent had paid to his parents certain sum of money for sometime prior to his death, but that for several months immediately preceding his death no money had been received.</p> <p>Held, that the parents were partly dependent upon decedent, and were entitled to death benefits.</p>

<p>Appeal, No. 29, Oct. T., 1920, by defendant, from judgment of Q. S. Philadelphia County, Nov. Sessions, 1919, affirming judgment of magistrate, in the case of Commonwealth of Pennsylvania v. Clemont H. Congdon.</p> <p>Appeal from summary conviction. Before Bregy, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The court below entered the following decree:</p> <p>The judgment of the magistrate is affirmed and the appeal is dismissed.</p> <p>Error assigned was the decree of the court.</p>

Appeal, No. 10, March T., 1920, by defendant, from judgment of C. P. Dauphin County, January T., 1919, No. 469, affirming judgment of justice of the peace, in case of Cumberland Valley Telephone Company v. E. Bender. Certiorari to the judgment of a justice of the peace. Before McCarrell, J. The opinion of the Superior Court states the case. The court dismissed the exceptions and affirmed the judgment of the justice of the peace. Error assigned was the decree of the court.

<p>Boroughs — Incorporation—Exceptions—Assignments of error.</p> <p>On an appeal from a decree incorporating a borough, where the only assignment of error is that the court erred in entering the decree, unless it appears upon the face of the record that there is some jurisdictional defect, the judgment must be affirmed. Whether the incorporation should have been allowed was a question, by law committed to the discretion of the court below, and even if the manner in which that discretion was exercised was the subject of review, it could only be made so by a distinct assignment of error.</p> <p>Appeals — Assignments of error — Exceptions.</p> <p>On an appeal from a decree incorporating a borough, the question of the sufficiency of the description of the boundaries of the borough will not be considered, where it is not supported by a particular assignment of error.</p> <p>Boroughs — Incorporation—Advertising notice of application— Act of May H, 1915, P. L. SIS, article I, chapter S, section A</p> <p>Under the provisions of the Act of May 14, 1915, P. L. 312, article I, chapter 2, section 4, which require_s that notice of the application for the incorporation of a borough “shall be given in one newspaper of the county, for a period of not less than thirty days immediately before the next regular term following the filing thereof, during which time exceptions may be filed to the application by any person interested,” the notice is sufficiently advertised if published thirty days prior to the beginning of the next term of court. The mere addition in the advertisement that exceptions could be filed on or before the first Monday in March, which was the beginning of the next term of court, did not vitiate the notice, particularly as it did no more than add one day in which exceptions could be filed, and exceptions had already been filed within the thirty days.</p>

Appeal, No. 85, April T., 1920, by plaintiff, from judgment of O. P. Cambria County, Sept. T., 1919, No. 872, affirming judgment of a justice of the peace, in the case of Alton Widener v. Max Schwartz, trading and doing business as Schwartz Brothers, now for use of C. W. Mosholder. Certiorari to the judgment of a justice of the peace. Before O’Connor, J. The opinion of the Superior Court states the case. The court below affirmed the judgment of the justice of the peace.

Appeal, No. 164, March T., 1920, by plaintiff, from judgment of C. P. Luzerne County, Oct. T., 1918, No. 560, for defendant on case stated in suit of James A. Dewey v. Luzerne Co. Case stated to determine if plaintiff was entitled to the increase of salary authorized by the Act of June 8, 1915, P. L. 915. The facts are stated in the opinion of the Superior Court.

<p>Appeal, No. 151, Oct. T., 1919, by Harry Bisbing, a minor, by Ms guardian ad litem, W. F. Hampton, from decree of O. C. Chester County, Dec. T., 1918, No. 27, dismissing exceptions to auditor’s report in Estate of Eugene Bisbing.</p> <p>Exceptions to report of Thomas W. Pierce, Esq., auditor. Before Hause, J.</p> <p>The facts are stated in the opinion of the Superior Court and in the opinion of the Supreme Court in Bisbing’s Estate, 266 Pa. 529.</p> <p>The exceptions were to the finding that the mother of the claimant had not been the wife of the decedent, and to the distribution of the fund.</p> <p>Error assigned was decree dismissing exceptions.</p>

<p>Appeal, No. 114, April T., 1920, by defendant, from judgment of Q. S. Allegheny Co., May Sessions, 1919, No. 297, on verdict of guilty in case of Commonwealth of Pennsylvania v. Frank Burke, Jr.</p> <p>Indictment for larceny and receiving stolen goods. Before Swearingen, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict of guilty on the charge of larceny on which judgment of sentence was passed. Defendant appealed.</p> <p>Errors assigned were various rulings on evidence, the charge of the court and in permitting the cross-examination of the defendant concerning another similar of-</p>

<p>Appeal, No. 2, March T., 1921, by defendant, from judgment of Q. S. Lackawanna County, January Sessions, 1920, No. 149, on verdict of guilty in case of Commonwealth of Pennsylvania v. Joseph Coccodralli.</p> <p>Indictment for aggravated assault and battery and assault and battery. Before Edwards, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict of guilty on the charge of aggravated assault and battery on which judgment of sentence was passed. Defendant appealed.</p> <p>Errors assigned were various rulings on evidence and the charge of the court.</p>

<p>Title insurance — Terms of policy — Measure of damages.</p> <p>Where a title insurance company covenanted, for a valuable consideration, to indemnify the insured against defects in title or encumbrances 'which might impair its value, the deprivation of the right to use a part of the property for the purpose which the plaintiff contemplated, was a loss for which the plaintiff is entitled to be indemnified.</p> <p>The measure of damages is the loss which the plaintiff sustained by reason of the defect in his title, and this is not only the value of the strip of ground taken, but also additional expenditures rendered necessary by such defect.</p> <p>An insurance company issued a policy which undertook to insure the plaintiff’s title to a certain piece of ground, excepting such defects as “accuracy of description and dimensions and any other objections which an official survey would disclose.” The plaintiff desiring to erect a building upon the property, employed an architect to prepare plans and superintend the erection of the building. Application was made to the surveyor of the proper district of the City of Philadelphia for an official survey of the lot, and a plan of survey was furnished by the district surveyor to the architect. The latter prepared plans for the building, in accordance with the plan of survey furnished by the district surveyor, and the work of excavating for the foundation was being carried on when a bill in equity was filed by the owners of the property adjoining the western line of the lot, averring that they had acquired by adverse user, for a long period of years, the right to use, as an alley or passageway, a strip of ground two feet six inches wide, along the western portion of the property in question. Upon the filing of the bill in equity, the plaintiff company gave notice to the defendant company of the proceeding and requested it to make a defense to the same. The title company declined to assume the burden of defending the ease upon the ground that the claim of the alley, if established, would be one which fell within the exception to the covenant of the policy, and that the defect was one which an official survey would disclose. The equity suit established the right to the alley.</p> <p>In an action on the policy, the case was for the jury with instructions that, if the alley was such an encumbrance that any plan furnished by a competent surveyor would show it, the plaintiff was not entitled to recover. The court could not declare, as a matter of law, that the existence of the alleged alley would have appeared upon a plan furnished by the district surveyor, and whether it came within the exception set forth in the policy, was a question for the jury.</p> <p>Res judicata — Identity of cause of action — Identity of matter in issue.</p> <p>In applying the principle of res judicata, the inquiry is not always as to the identity of the cause of action, but as to the identity of the matter in issue, and the matter in issue is not what comes collaterally or incidentally in controversy under the evidence, but what is essentially and directly in issue in the cause.</p>

<p>Public Service Commission — Public Service Company Paw — Act of July 26, 1918, P. P. 137b- — Sidings—Maintenance of sidings.</p> <p>A railroad company cannot be compelled to maintain a private siding off its own right-of-way which is not for any general public use. When the siding is for the use of an individual shipper, and not for that of the public, the duty of the railroad company is to furnish a switch connection.</p> <p>Under the provisions of the Public Service Company Law, relating to the construction of side tracks or switches, the Public Service Commission is vested with authority to require a railroad company to make the necessary switch connections, but it cannot compel tbe company to construct or maintain a siding off its own right-of-way.</p> <p>Public Service Commission — Public Service Company Law— Government control of railroads.</p> <p>The Public Service Commission of the Commonwealth of Pennsylvania derives its authority from the Public Service Company Law, which authority the director general of railroads, when he took possession of the railways, was without power to expand. It was not within the jurisdiction of the Public Service Commission to control roads while in the hands of the government of the United States, by virtue of the authority vested by the act of Congress in the director general of railroads. The federal control having ceased on March 1, 1920, the orders of the director general of this particular class ceased, as of that date, to be effective.</p>

<p>Appeal, No. 20, March. T., 1920, by defendant, from judgment of C. P. Lackawanna County, Oct. T., 1916, No. 176, on verdict for plaintiff in the case of Mary Sweeney v. City of Scranton.</p> <p>Appeal from award of viewers. Before Newcomb, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Defendant presented the following points:</p> <p>4. “In determining the effect upon the market value of plaintiff’s property caused by the improvement of Wyoming avenue the jury should take into consideration all the benefits to such property, if any, resulting from such improvement, and this is true even though the jury may further find that any or all the other properties abutting on said improvement received similar benefits.</p> <p>“Answer. I am unable to affirm that, and it is therefore denied.”</p> <p>5. “In determining the market value of plaintiff’s property, if the jury find and believe that plaintiff’s property sustained both injuries and benefits from the said improvement of Wyoming avenue, a balance should be struck between the two, and if the damages exceed the benefits, their verdict should be for the plaintiff in the amount of the difference, but if the benefits exceed or equal the damages, their verdict must be for the defendant.</p> <p>“Answer. That is affirmed only upon the theory that the benefits here referred to, which you have a right to take into consideration in mitigation of any possible damages, would be benefits which would be peculiar and special'to this property, and not common to all of the properties affected by the improvement. As to those which are common to all of the properties affected by the improvement this lady has paid her share, because that is the theory upon which improvements are laid and paid for, that so far as her property in common with other properties affected by the improvement, situated along its line, are improved, pro rata, her property must pay for the cost of the improvement. That is the reason why any benefits now to be charged against any damages which you possibly find in her favor, must be special to her property rather than general in which all the properties along the line are entitled to share, because they are required to pay.”</p> <p>6. “If the market value of plaintiff’s said property in the condition caused by the improvement exceeds the market value of said property prior to said improvement the verdict of the jui’y should be for the defendant in the amount of such excess.</p> <p>“Answer. Refused.”</p> <p>Verdict and judgment for plaintiff for $650. Defendant appealed.</p> <p>Errors assigned, among others, were (1, 2, 3) above instructions, quoting them.</p>

<p>Appeal, No. 5, March T., 1920, by Matthias Beaver and Simon Peter Beaver, heirs-at-law and administrators, from decree of O. C. Union County, Jan. T., 1918, No. 6, in the Estate of Daniel Beaver, deceased.</p> <p>Exceptions to auditor’s report. Before Johnson, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The court dismissed the exceptions.</p> <p>Error assigned was the decree of the court.</p>

<p>Appeal, No. 261, Oct. T., 1919, by defendant, from judgment of Q. S. Phila. County, August Sessions, 1918, Nos. 458 and 459, on verdict of guilty in case of Commonwealth v. William MacDonald.</p> <p>Indictment for fraudulent conversion. Before Martin, 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>Errors assigned, among others, were various rulings on evidence, the charge of the court, and the refusal to give binding instructions for defendant.</p>

<p>Decedents’ estates — Federal estate tax — Residuary estate — Act of Congress, Sept. 8, 1916, 39 U. S. Statutes at Large, chap. 468, as amended by Act of March 8,1917, chap. 159.</p> <p>The Federal Estate Tax levied on decedents’ estates under the Act of Congress of September 8, 1916, 36 U. S. Statutes at Large, chapter 463, as amended by Act of March 3, 1917, chap. 159, is a charge upon the estate of a decedent and not upon the individual legacies. It is a probate or estate tax levied upon the interest whieb ceased by reason of death, and not upon the interest to ■which some person succeeds on a death. It is a charge upon and payable out of the general revenue of the estate.</p> <p>The specific and general pecuniary legatees and not the residuary legatees are entitled to the benefit of the exemption from taxation to the amount of $80,000, allowable by the act of Congress. A distinction must be made between a statute which imposes a tax at a uniform rate upon the whole net estate, and one which partially exempts the estate from taxation, and taxes the remainder at a progressive rate which increases in proportion as the net estate increases in size.</p> <p>The evident intention of Congress was that the tax should be paid by the estate before distribution. The receipt of the collector for the tax entitles the executors to be credited and allowed the amount thereof, by any court having jurisdiction to audit and settle his accounts. After the payment of the proper expenses against the estate, the tax imposed by this statute is an exaction by the sovereign to be taken out of the net estate, and the will, or in case of intestacy, the law of the jurisdiction, comes into operation upon what remains for distribution. The burden of such tax must therefore be borne by the residuary legatees.</p>

<p>Trust and trustees — Principal and income — Stoch dividend — • Might to subscribe for new shares — Sale of rights.</p> <p>Tbe right to subscribe for new shares at par, upon an increase of the capital stock of the corporation, which is an incident of the ownership of the stock, does not belong as a privilege to the life tenant, but such an increment must be treated as capital and be added to the trust for the benefit of the remainderman. This is equally the rule whether the trustee subscribes for the new stock for the benefit of the trust, or sells the right to subscribe for a valuable consideration. In either event the increase goes to the corpus.</p> <p>Where a trustee, upon the increase of the capital stock of the' corporation, sells the right to subscribe to such shares at par, the money derived from such sale goes to the corpus of the estate.</p>

<p>Appeal, No. 108, April T., 1920, by respondent, from decree of C. P. Washington County, May T., 1918, No. 133, granting a divorce in the case of Abner C. Lacock v. Theressa P. Lacock.</p> <p>Libel in divorce. Before Brownson, J.</p> <p>The case was referred to Harry A. Jones, Esq., as master.</p> <p>The court granted a divorce. Respondent appealed.</p> <p>Error assigned was the decree of the court.</p>

<p>Subrogation — Mortgages—Right to assignment of mortgages— Payment of debt by third party.</p> <p>The doctrine of subrogation is not applied for the mere stranger or volunteer who has paid the debt of another without any assignment or agreement for subrogation, being under no legal obligation to make the payment, and not being compelled to do so for the preservation of any rights or property of his own.</p> <p>Where a mortgage is given to secure a loan, accompanied by notes as collateral security, the payment of such notes by a third party will not entitle him to the assignment of the mortgage, nor will he be subrogated to the rights of the original creditor. Not being under any legal or moral compulsion to pay the notes and not having an existing interest, fixed or contingent, to safeguard, he had no equity to entitle him to subrogation in the absence of an agreement between him and the mortgagor.</p> <p>Any instruction which would permit the jury to find for the plaintiff, on the equitable ground, that having paid the notes the third party became entitled to the security of the mortgage, irrespective of any agreement between himself and the mortgagor, constituted reversible error.</p>

<p>Appeal, No. 94, April T., 1920, by defendant, from judgment of C. P. Allegheny County, July T., 1917, No. 2061, in case of Michael De Noble v. Wilkins Township.</p> <p>Trespass for injuries to land. Before Stone, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict for plaintiff for $250 and judgment thereon. Defendant appealed.</p> <p>Error assigned, among others, was in refusing defendant’s motion for judgment non obstante veredicto.</p>

Appeal, No. 28, Oct. T., 1920, by defendant, from judgment of C. P. Berks County, August T., 1919, No. 182, on.verdict directed in favor of plaintiff in the case of Commonwealth of Pennsylvania ex rel. Erwin C. Gery, treasurer of the County of Berks, v. The Atlantic Refining Company. Assumpsit to recover mercantile tax.

Appeal, No. 130, April T., 1918, by plaintiff, from decree of C. P. Allegheny County, Jan. T., 1917, No. 2237, sitting in equity, dismissing bill for discovery and an accounting in the case of Hannah Sullivan v. Ellen Walsh Sullivan, executrix of the will of Eugene Sullivan, and Ellen Walsh Sullivan. Bill in equity for discovery and an accounting. Before Davis, J. The opinion of the Superior Court states the case. The court dismissed the bill. Plaintiff appealed.

<p>Appeal, No. 121, April T., 1920, by plaintiffs, from judgment of C. P. Somerset County, Sept. T., 1919, No. 238, in favor of defendant in the case of D. A. Cerkovnik and George Cerkovnik, Trading as Cerkovnik Brothers, v. East Windber Coal Company.</p> <p>Assumpsit for services rendered. Before Bailey, P. J., twentieth judicial district, specially presiding.</p> <p>The opinion of the Superior Court states the case.</p> <p>The court entered judgment in favor of the defendant. Plaintiffs appealed.</p> <p>Error assigned, among others, was the decree of the court refusing to strike off judgment in favor of the defendant.</p>

<p>Negligence — Railroads—Grade crossings — Case for jury.</p> <p>It is the rule that when a driver stops at a place where he cannot get a view of the railroad he is about to cross, from the vehicle in which he is riding, it is his duty to make further observation, and in some cases, to alight and walk to a spot where he can secure such view. But when a driver has stopped at the usual place for stopping from which he has view of the tracks whether he should go forward for a better place to look is a question to be determined by the circumstances of the particular case.</p> <p>The plaintiff was driving southwardly over the road which crossed the railroad diagonally. The length of view from the crossing in the direction in which the train came was about 650 or 700 feet— beyond that the view was shut out. On the side track, at the right of the crossing as the plaintiff traveled two coal cars were standing; the nearest within about thirty-seven feet of the highway. The plaintiff stopped when about twelve feet from the siding and looked and listened. This was the usual place at which persons approaching the crossing from that side stopped to look for trains. The ears on the siding shut off his view of the track for a space of about 240 feet, but above that distance he could see up the track as far as it was visible from the crossing. He waited to observe that there was no train on the track beyond the cars on the siding and then started to cross. After starting he observed a train coming about seventy or seventy-five yards from him, and deeming it impossible to reverse and get it off the track, he tried to make the .crossing as the safest plan for avoiding danger.</p> <p>Under such circumstances the case is for the jury and a verdict for the plaintiff will be sustained.</p>

<p>Appeal, No. 112, April T., 1920, by plaintiffs, from judgment of C. P. Jefferson County, April T., 1919, No. 48, for defendant non obstante veredicto, in the case of Melvin Burkett, by his father and next friend, Ralph J. Burkett, and Ralph J. Burkett in his own right, v. The Pittsburgh & Shawmut Railroad Company.</p>

Appeal, No. 130, April T., 1920, by E. J. Riffle, from judgment of Q. S. Allegheny County, Jan. T., 1920, No. 16, In re Petition of E. J. Riffle for refund of license fee. Petition for refund of fee paid for liquor license under provision of Act of May 8, 1919, P. L. 167. Before Swearingen, J. The opinion of the Superior Court states the case. The court dismissed the petition. Error assigned was the order of the court dismissing the petition.

Appeal, No. 131, April T., 1920, by Christian Burkel, from judgment of Q. S. Allegheny County, Jan. T., 1920, No. 17, In re Petition of Christian Burkel for Refund of License Fee and Additional Tax. Petition for refund of proportionate part of a license fee under the provisions of the Act of May 8, 1919, P. L. 167. Before Swearingen, J. The opinion of the Superior Court states the case. The court dismissed the petition. Petitioner appealed.

Appeal, No. 78, April T., 1920, by Commonwealth of Pennsylvania, from judgment of Q. S. of Westmoreland County, Nov. T., 1919, No. 7, quashing indictment in the case of Commonwealth of Pennsylvania v. David Hamilton. Indictment for practicing medicine without a license in violation of the provisions of the Act of June 3, 1911, P. L. 639, as amended by the Act of July 25, 1913, P. L. 1220. Before McConnell, P. J. Rule to quash indictment.

<p>Div orce — A dultery — Evidence—Sufficiency.</p> <p>In an action for divorce on the ground of adultery a decree of divorce is properly granted, where the charges were amply supported by the weight of the evidence, and the counter charges against the respondent failed for lack of proof.</p>

Appeal, No. 86, April T., 1920, by defendant, from judgment of C. P. Allegheny County, Oct. T., 1918, No. 829, on verdict for plaintiff in the case of Luke Luckock v. The Daily News Publishing Company. Trespass for libel. Before Carpenter, J. At the trial it appeared that the alleged libelous publication was as follows: “arrest burgess eor stopping caucus “Politics in Chalfant Borough is no child’s play. It’s a game for strong men — and the police.

Appeal, No. 4, April T., 1920, by defendant, from judgment of C. P. Allegheny County, Oct. T., 1914, No. 1112, discharging rule to open judgment in the case of A. Wallace Wynn, administrator d. b. n. c. t. a. of the estate of L. L. Wynn, deceased, v. Theannah Duve, otherwise known as Theanna E. Duve. Buie to open judgment. Before Macfarlane.

<p>Trespass — Nuisance—Acid plant — Noxious fumes and vapors — Oase for jury.</p> <p>In an action of trespass against a Steel mill owning and operating an acid plant in connection with its other mills, the case is for the jury and a verdict and judgment for the plaintiff will he sustained, where evidence was produced to ; how that heavy noxious fumes and vapors resulted from the operation of the plant and that the dwelling of the plaintiffs was damaged and the health of the occupants impaired by the operation of the mills. Under such circumstances the causal relation between the emission of the fumes and vapors from the defendant’s mills, and the injuries to the plaintiff and her property were questions for the jury.</p> <p>Where the testimony disclosed plainly that a recurrence of the alleged cause was uniformly followed by results, deleterious to the plaintiff’s health and destructive of her property, it would be denying the common experience of men to say that an inference of causal relation between the two facts was but a mere guess or a vague conjecture.</p>

Appeal, No. 27, April T., 1920, by defendant, from judgment of C. P. Allegheny County, Jan. T., 1915, No. 793, on verdict for plaintiff in the case of the City of Pittsburgh v. J. Allison Reed, doing business as J. R. Reed & Company. Assumpsit by a municipality against a property owner to recover the amount of a judgment obtained against if. Before Haymaker, J. The court directed a verdict in favor of the plaintiff for $778.10 and entered judgment thereon. Defendant appealed.

<p>Contracts — Written contracts — Construction—Case for jury.</p> <p>Where a contract for the sale of sauerkraut provided that, in the event of a short crop, the contract orders might he filled pro rata, and where there was no evidence introduced of the shortage of the crop, other than upon a certain tract, the burden of proof was clearly upon the defendants to produce evidence which would support a finding that the plaintiff knew, or should have known, their methods of doing business, and that the ghortage of the crop mentioned was a shortage in about 200 acres of territory adjacent to their plant, the product of which they had bought to enable them to fulfill their contract. Without such evidence they could not ask the jury to write into their contract, an exemption from liability not imported by the language of the written contract.</p> <p>Contracts — Breach of contract — Damages—Case for jury.</p> <p>Where the testimony as to the amount of damages sustained in a breach of contract is parol, even though it be uncontradicted, the credibility of the witness testifying as to such damages, is for the jury and until that attribute is stamped on his testimony by a verdict it is not competent for the trial judge to assume their function and to direct them to find for the plaintiff in a specified amount. The only correct method when the testimony is oral, and especially in cases where damages are to be liquidated, is to submit the case to the jury, and failure to do so constitutes reversible error.</p>

<p>Wills — Provisions against contest — Forfeiture of legacy.</p> <p>A provision in a will declaring the forfeiture of a legacy in case the legatee, a child of the testator, shall present a claim against his estate, is valid and does not violate any rule of law or public policy. Such a condition is lawful and one which the testator had a right to annex, in the disposition of his own property. The legatee is not bound to accept the bequest, but if accepted, it must be subject to the disability annexed. It must be taken cum onore, or not at all.</p>

<p>Negligence — Street railways — Automobiles—Head-on collision — Contributory negligence.</p> <p>In an action- against a street railway company, to recover for injuries, sustained by a driver of an automobile in a collision with a trolley car, it appeared that the plaintiff in order to run around an automobile parked in the street, turned into the portion of the highway occupied by the tracks of the street car company, and before he had regained the part of the street beside the trolley track, the collision occurred. Evidence was produced to show that the plaintiff could have seen the street car, if he had looked, for a distance of nearly 200 feet and there was no evidence of the defendant’s negligence. Under such circumstances, the' case should have been withdrawn from the jury.</p>

Appeal, No. 127, April T., 1920, by defendant, from judgment of O. and T. Allegheny County, May Sessions, 1919, No. 87, on verdict of guilty in the case of Commonwealth of Pennsylvania v. Tony Puretta and Joe Torino. Indictment for attempt to commit arson.

<p>Appeal, No. 128, April T., 1920, by defendant, from judgment, of O. and T. Allegheny County, May Sessions, 1919, No. 87, on verdict of guilty in the case of Commonwealth of Pennsylvania v. Tony Puretta and Joe Torino.</p>

Appeal, No. 49, April T., 1920, by defendants, from judgment of C. P. Armstrong County, Dec. T., 1917, No. 173, on verdict for plaintiff in the case of Ira J. Wray v. Adam R. Bowman et al. Foreign attachment to recover real estate commissions. Before King, P. J. The facts are stated in the opinion of the Superior Court. Verdict for plaintiff for $742.10 and judgment thereon. Defendants appealed.

<p>Negotiable instruments — Checks—Bolder in due course — Burden of proof — Evidence—Admissibility.</p> <p>In an action by an endorsee of a check, where the defendant shows that the check was procured by the fraudulent act of the payee and avers that the plaintiff became the holder of the check charged with knowledge of the fraud, the burden is upon the plaintiff to show affirmatively that he is an innocent purchaser for value.</p> <p>An offer of the defendant to prove the circumstances under which the check was passed, and that it subsequently was given to the plaintiff with knowledge of its defects is admissible, and failure to allow the same, constitutes reversible error.</p>

Appeals, Nos. 124 and 125, April T., 1920, by defendant, from sentence of Q. S. Lawrence County, Dec. Sessions, 1918, Nos. 17 and 18, on verdict of guilty in the ease of Commonwealth of Pennsylvania v. Mark Levine. Indictment for breaking into a freight car, larceny and receiving stolen goods. Before Emery, P. J. The opinion of the Superior Court states the case. Verdict of guilty on which judgment of sentence was passed. Defendant appealed.

<p>Contracts — Contracts for the benefit of third persons — Action by third person.</p> <p>One who is not a party to a contract may sometimes maintain an action upon it in his own name, where he is the only one who is beneficially interested in its performance, and where the party with whom it was actually made has ceased to have any real interest in it.</p> <p>Bailments — Bailment lease substitution of third pwty for bailee.</p> <p>Where a bailment lease provides that if default is made by the bailee a third person named shall have the right to comply with the terms of the agreement, upon notice from the bailor, and such default occurs, the interest of the bailee in the property ceases, and the third person may bring an action on the contract for the bailor’s breach.</p> <p>In such case any amounts which the bailor was compelled to pay on account of the indebtedness of the bailee in order to preserve the title in his property, are properly charged against the third party who seeks to take the place of the bailee.</p>

Appeal, No. 34, April T., 1920, by libellaut, from judgment of C. P. Jefferson County, April T., 1917, No. 102, suppressing and striking from the records the answer to respondent’s rule for an increase of alimony pendente lite and further counsel fees in the case of W. B. Adams v. Fannie M. Adams. Rule to show cause why answer to motion for alimony pendente lite and further counsel fees should not be stricken off.

<p>Appeal, No. 48, April T., 1920, by defendant, from judgment of C. P. Beaver County, December T., 1917, No. 50, on verdict for plaintiff in the case of American Steel Foundries v. Metal Products Company.</p> <p>Assumpsit for goods sold. Before Prather, P. J., 30th Judicial District, specially presiding.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict for plaintiff for $528.78 and judgment thereon. Defendant appealed.</p> <p>Error assigned, among others, was refusal of defendant’s motion for judgment non obstante veredicto.</p>

<p>Insolvency — Bond—Insolvent’s petition — Postponement — Affi~ davit of defense — Sufficiency.</p> <p>Where a defendant, arrested on a capias, enters into a recognizance to appear on the first day of the next term of the court of common pleas, and present his petition for discharge, under the benefit of the insolvent laws, and upon that day appears, and for sufficient reasons obtains a continuance until the following term, his failure to present his petition upon the day named in the recognizance, does not work a forfeiture of his bond. In such case the debtor did everything that it was necessary for him to do to prevent the forfeiture, and the court had authority to grant the continuance.</p>

Appeal, No. 106, April T., 1920, by defendants, from judgment of Q. S. Allegheny County, May Sessions, 1918, No. 285, on verdict of guilty in the case of Commonwealth of Pennsylvania v. Anton Lewandowski, Peter Wicinski and Prank Breczinski. Indictment for conspiracy to cheat and defraud. Before Swearingen, J. The opinion of the Superior Court states the case. Verdict of guilty upon which judgment of sentence was passed. Defendants appealed.

<p>Appeal, No. 42, April T., 1920, by defendants, from judgment of C. P. Allegheny County, Oct. T., 1918, No. 568, on verdict for plaintiff in the case of T. P. Bedilion v. William F. Muehler and Robert G. Muehler, partners, trading as Muehler Brothers.</p> <p>Assumpsit for agent’s commissions. Before Brown, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict for plaintiff for $516.75 and judgment thereon. Defendants appealed.</p> <p>Error assigned was refusal of defendant’s motion for judgment non obstante veredicto.</p>

<p>Appeal, No. 69, April T., 1920, by defendant, from decree of C. P. Allegheny County, July T., 1918, No. 2196, in equity in case of George C. Hughes v. W. E. Ireland.</p> <p>Bill in equity for an injunction to restrain the defendant from continuing in the coal and ice business, and for an accounting. Before Wasson, J.</p> <p>The court found as a fact that the defendant had engaged in the coal and ice business, in violation of his covenant and agreement not to engage in such business, and subsequently entered a decree, enjoining the defendant from engaging in such business and directing that he account to the plaintiff for all transactions done in violation of his covenant. A master was appointed to take testimony and report as to the nature and extent of damage suffered by the plaintiff. Judgment in favor of the plaintiff for fl,120 and costs of suit. Defendant appealed.</p> <p>Error assigned was in dismissing exceptions to the master’s report and the decree of the court.</p>

<p>Infants — Adoption—Acts of May It, 1855, P. L. J¡$0; May 19, 1887, P. L. 125, and April 22,1905, P. L. 297.</p> <p>The “next friend” of an infant whose consent is required in adoption proceedings under the Act of May 4, 1855, P. L. 430, as amended by the Acts of May 19, 1887, P. L. 125, and April 22, 1905, P. L. 297, is any one who is interested in the welfare of the child to such an extent as to see that a proper person is entrusted with its rearing. It is not necessarily the next of kin, and it is for the court to determine whether the person consenting is really the next friend.</p> <p>On a petition for the adoption for two children, the consent of a granduncle as next friend is a sufficient compliance with the provisions of the acts of assembly relative to adoption, and this is the case, even although the grandparents of the children are living.</p>

<p>Appeal, No. 111, Oct. T., 1920, by defendant, from judgment of Municipal Court, Philadelphia County, December Sessions, 1919, No. 319, on verdict of guilty in case of Commonwealth v. Joseph Goodleman.</p> <p>Indictment for larceny and receiving stolen goods. Before McNiohol, J.</p> <p>The opinion of the Superior Court states the ease.</p> <p>Verdict of guilty on which judgment of sentence was passed. Defendant appealed.</p> <p>Error assigned was the charge of the court and refusal to quash the indictment.</p>

<p>Appeal, No. 76, Oct. T., 1920, by defendant, from judgment of O. & T. Clearfield County, Sept. Sessions, 1919, No. 88, on verdict of guilty in the case of Com. v. H. A. Yarner.</p> <p>Indictment for statutory rape. Before Bell, P. J.</p> <p>The indictment charged that the defendant, “being of the age of sixteen years and upwards, on the fifteenth day of July in the year of our Lord one thousand nine hundred and nineteen at the county aforesaid, and within the jurisdiction of this court, with force and arms, in and upon the body of one, Minnie Varner, feloneously did make an assault, she, the said Minnie Varner, then and there being a woman-child under the age of sixteen years, to wit: of the age of fourteen years and upwards; and that the said H. A. Varner, her, the said Minnie Varner so being such woman-child as aforesaid, then and there feloneously did unlawfully and carnally know and abuse, contrary to the form of the act of the general assembly in such case made and provided, and against the peace and dignity of the Commonwealth of Pennsylvania.”</p> <p>The jury rendered a verdict of guilty of assault and battery with intent to ravish, on which judgment of sentence was passed. Defendant appealed.</p> <p>Error assigned, among others, was refusal of defendant’s motion in arrest of judgment.</p>

<p>Municipalities — Boroughs—Road law — Damages — Practice, C. P. — Proceedings "before viewers.</p> <p>The owner of property abutting on a street in a borough cannot recover, in an action of trespass, for injuries to his property caused by percolating waters, which were the direct and necessary conse/juence of certain municipal improvements, constructed according to the plan adopted by the borough authorities. For such injuries he is confined to the remedy provided by statutory proceedings before viewers.</p> <p>Where, in the grading and improvement of a street, water which would not naturally find its way over the property owned by the plaintiff, thereafter was diverted upon it, the remedy was by proceedings before viewers, and not in an action of trespass.</p> <p>The burden of proving negligence was upon the plaintiff, and the mere fact that the injury resulted after the improvement was completed raises no presumption of negligence.</p> <p>A municipality has the right in grading a street to make such changes of drainage as it deems proper, and there is no presumption of negligence arising from the mere fact that such changes were made.</p> <p>A municipality'may be called upon to answer for negligence in the actual work of construction, or for failure to keep the work in repair after it is completed, but not for lack of judgment in the selection of a plan.</p>

<p>Divorce — Buies of court — Argument—Mandatory requirement.</p> <p>A rule of court that in divorce proceedings, after testimony has been taken, the case shall be placed upon the argument list, is mandatory. The rule affects the respondent’s rights and, until abrogated, is in force and cannot be disregarded by the court.</p> <p>Decree — Motion to vacate — Term.</p> <p>A motion to vacate a decree of divorce having been made within the term at which the decree was entered may be heard and decided at a subsequent term. It is the application to vacate the decree or judgment, which must be made before the end of the term at which the decree was entered, and the granting of the rule suspends the operation of the decree until the motion is disposed of.</p> <p>A term of court includes all adjournments thereof until the commencement of the next term.</p> <p>Divorce — Duty of lower court to write opinion.</p> <p>It is the duty of the court below, in reviewing a proceeding for divorce, either to find the facts itself on which it bases its decree, or to adopt the findings of fact of the master.</p> <p>Divorce — Adultery—Tempting respondent — Corrupt evidence— Act of March 8,1815, section 7, Bm. L. 288.</p> <p>A husband who suspects his wife of adultery may take means to procure proof, but he must not lead her into a fresh wrong because he feels that she is guilty of an old one. He may leave open the opportunities which he finds, but he must not lay new temptation in her way; it is one thing to permit, and another to invite; and when he takes advantage of an agent’s unauthorized fraud he is answerable for the fraud. When a husband intentionally lays a lure for his wife, either acting in person or through an agent, his will necessarily concurs in her act.</p>

<p>Municipal liens — Name of owner — Sufficiency.</p> <p>A municipal lien may be filed against the heirs of a decedent without giving their specific names. A lien filed against “George B. Berger’s heirs, owners or reputed owners,” is valid.</p> <p>Municipal liens — Amendment—Act of June 4, 1901, P. L. 864, section 85.</p> <p>Under the authority of section 35 of the Act of June 4,1901, P. L. 364, an amendment to a municipal lien may be made by adding the word “opening” when the lien was filed following an assessment for the opening and grading of a street. The lien being regular on its face, the omission of the word “opening” did not afford a valid reason for striking off the lien, as the omission was a mistake in the description of the subject of the assessment and plainly comes within the provision of section 35 of the Act of June 4, 1901, P. L. 64. It was not the introduction of a new cause of action.</p> <p>Where omissions are made in a municipal lien, even though they be of what might be regarded as material facts, they may be supplied or amended unless new rights intervene, or an entirely different property is charged.</p> <p>Stare decisis — Effect of judgment or decree affirmed by divided court.</p> <p>A judgment or a decree of a lower court, affirmed in the Superior Court by a divided court, is not a decree or judgment of the Superior Court, in support of which the rule of stare decisis can be successfully invoked.</p>

<p>Appeal, No. 105, April T., 1920, by libellant, from decree of C. P. Allegheny County, Oct. T., 1919, No. 823, dismissing libel in divorce in the case of John A. McCoy v. Angeline McCoy.</p> <p>Libel for divorce. Before Stone, J.</p> <p>The case was referred to Stewart M. Cunningham, Esq., as master, who recommended that a divorce be granted.</p> <p>On exceptions to the master’s report the court sustained the exceptions and dismissed the libel.</p> <p>Error assigned was in sustaining the exceptions.</p>

<p>Equity — Findings of fact — Appeals.</p> <p>Findings of fact by an auditor or master based on sufficient evidence and approved by tbe court below, have tbe effect of tbe verdict of jury and will not be set aside, except for manifest error. Tbe only duty of tbe appellate court is to examine tbe testimony to see whether there was sufficient evidence in the case to support the findings, and where there is such evidence, tbe decree will not be disturbed.</p> <p>Findings of fact by an auditor surcharging a defendant, who had been required to. account to a corporation for money and property of the corporation unlawfully retained by him, and which are confirmed by tbe court below, will not be disturbed on appeal where there is evidence to support such findings.</p>

Appeal, No. 18, April T., 1920, by defendant, from judgment of C. P. Allegheny County, April T., 1917, No. 1500, on verdict for plaintiff in the case of John A. Woolheater v. Mifflin Township. Trespass for damages to real estate. Before Shafer, P. J. The facts are stated in the opinion of the Superior Court. Verdict for plaintiff for $250 and judgment thereon. Defendant appealed.

<p>Appeal, No. 101, April T., 1920, by defendant, from judgment of C. P. Allegheny County, July T., 1918, No. 521, in the case of Isaac Landis y. The Colonial Life Insurance Company of America.</p> <p>Assumpsit to recover commissions of insurance agent. Before Cohen, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Yerdict for plaintiff for $600 and judgment thereon. Defendant appealed.</p> <p>Errors assigned were various rulings on evidence and refusal to grant a new trial.</p>

<p>Appeal, No. 134, April T., 1920, by defendant, from judgment of C. P. Allegheny County, Jan. T., 1920, No. 1318, dismissing appeal from judgment of the county court in the case of The South Side Trust Company of Pittsburgh, a corporation, Guardian of the Estate of Mary Lafferty, otherwise known as Mary A. Lafferty, v. The Eureka Life Insurance Company, a corporation.</p> <p>Petition to allow appeal from the judgment of the county court. Before Stone, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The court dismissed the petition and affirmed the judgment of the county court. Defendant appealed.</p> <p>Error assigned was the order of the court.</p>

<p>Appeal, No. 56, April T., 1920, by defendant, from judgment of C. P. Lawrence County, Sept. T., 1916, No. 68, on verdict for plaintiff in the case of Almira J. Duvall v. City of New Castle.</p> <p>Trespass to recover damages for personal injuries. Before Emery, P. J.</p> <p>The facts are stated in the opinion of the Superior Court,</p> <p>Verdict for plaintiff for $1,300 and judgment thereon. Defendant appealed.</p> <p>Error assigned, among others, was refusal of defendant’s motion for judgment non obstante veredicto.</p>

<p>Appeals, Nos. 76 and 77, April T., 1920, by James Tweedy and Rebecca J. Tweedy, from order of C. P. Beaver County, March T., 1919, No. 379, on writ of habeas corpus to determine the custody of a minor child in the case of Commonwealth ex rel. Myrtle Tweedy v. John A. Tweedy, Rebecca J. Tweedy and J ames Tweedy.</p> <p>Habeas corpus to determine the custody of a minor child. Before Baldwin, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The court awarded the custody of the child to her grandmother, Rebecca J. Tweedy, with the provision that she be allowed to visit her mother, the relatrix, at various intervals.</p> <p>Subsequently the court entered the following supplementary order:</p> <p>Now, November 20, 1919, the general custody of this child having been awarded to the child’s paternal grandmother, Rebecca J. Tweedy, and an order of court having been heretofore made directing that said child be permitted to visit her mother after school hours on Friday evening and until the following Sunday evening, as will appear by the text of the order heretofore made, and the custodian of the child having been directed to surrender the custody of the child to the child’s mother on Friday evening, the custodian, Mrs. Rebecca J. Tweedy, is ordered and directed to exercise her authority over said child and to direct the child to accompany her mother on Friday evening after school hours as frequently as the child’s mother may call for said child at the residence of the child’s general custodian, and to use her authority as general custodian of said child to compel obedience to the order of the court as heretofore made.</p> <p>Errors assigned were the orders of the court.</p>

<p>Taxes — School taxes — Liens—Duration—Act of June 1, 1915, P. L. 660.</p> <p>School taxes which were liens, and upon which writs of scire facias had been issued, prior to the passage of the Act of June 1, 1915, P. L. 660, which amended the Act of May 21, 1913, P. L. 285, were vested rights secured under the Act of June 4, 1901, P. L. 364, and are payable out of the funds, raised by a sale of the property, in the hands of the sheriff.</p> <p>The repeal of a statute will not operate to impair rights vested under it, nor affect existing liens acquired under it.</p> <p>Constitutional law — Insufficient title — Act of May 10, 1917, P. l. m.</p> <p>The title of the Act of May 10, 1917, P. L. 162, validating tax liens filed since May 21, 1913, gives no notice that this act authorizes the filing of tax liens under the provisions of the Act of June 4, 1901, P. L. 364, for a period of three months after its approval, and to that extent it is unconstitutional and void.</p> <p>The Act of May 21, 1913, P. L. 285, as amended by the Act of June 1,1915, P. L. 660, provides a remedy to enforce a lien created under the Act of June 4, 1901, P. L. 364. The duration of such lien, as fixed by the Act of 1901, is three years after the year in which the tax was levied.</p>

Appeal, No. 87, April T., 1920, by defendants, from judgment of O. P. Westmoreland County, August T., 1917, No. 273, in the case of Minnie Matthews and J. EL Matthews, her husband, in right of his wife and for her use, and Nora A. Fox, v. Logan Rush and W. E. Rice, partners, trading as Tyrone Coal Company. Exceptions to taxation of costs by prothonotary. Before Snyder, J. The facts are stated in the opinion of the Superior Court.

Appeal, No. 43, April T., 1918, by Emma Prager, from decree of O. C. Allegheny County, April T., 1915, No. 25, sustaining exceptions to adjudication in the Estate of George Prager, deceased. Exceptions to adjudication. Before Trimble, J. The facts are stated in the opinion of the Superior Court. The court sustained the exceptions. Error assigned was the decree of the court.

<p>Public Service Commission- — Telephone companies — Merger—Act of July 22,1919, P. L. 1123.</p> <p>A corporation organized as a telegraph company at a time when there was no provision for the incorporation of telephone companies, but engaged only in telephone service is subject to the constitutional prohibition against the merger or purchase of competing telegraph companies; the legislature may, however, provide for the organization of telephone companies and permit their merger, etc., subject to the approval of the Public Service Commission, if it determines that there is a substantial and fundamental difference between telegraph and telephone companies. And the legislature may provide for such a corporation organized as a telegraph company but giving only telephone service accepting the provisions of such act and becoming exclusively a telephone company.</p> <p>The Act of J uly 22, 1919, P. L. 1123, supplemented the General Corporation Act so as to authorize the formation and creation of telephone companies and provided therein for the acceptance of its provisions by corporations theretofore incorporated under the laws of the Commonwealth engaged in the business of furnishing telephone service. By its terms authority is given to competing telephone companies created under said act, or having accepted its provisions, to merge and consolidate subject to the approval of the Public Service Commission.</p> <p>An order of the Public Service Commission permitting competing telegraph companies engaged only in telephone service, which had accepted the provisions of the Act of J uly 22, 1919, P. L. 1123, relative to the incorporation of telephone companies, to merge will be affirmed where it appears that such merger will be for the benefit and interest of the public.</p> <p>Where the commission has found that the merger of the applicant companies is necessary to their continued existence and will result in a greatly improved service, inuring to the accommodation and convenience of the public, the order of the commission will be affirmed.</p>