Volume 75 — Pennsylvania Superior Court Reports

Appeal, No. 89, April T., 1920, by defendant, from judgment of C. P. Jefferson County, April T., 1919, No. 152, on verdict for plaintiff in the case of Joseph R. Pentz v. The First National Bank of Reynoldsville, Penna. Assumpsit to recover pension money deposited with a bank and applied to the payment of indebtedness of the pensioner. Before Corbet, P. J. The facts are stated in the opinion of the Superior Court. Verdict for plaintiff for $836.75 and judgment thereon.

Appeal, No. 84, April T., 1920, by defendant, from judgment of C. P. Allegheny County, April T., 1919, No. 977, on verdict for plaintiff in the case of Jacob Herscovitz v. B. Linder. Trespass to recover damages for malicious prosecution. Before Evans, J. The facts are stated in the opinion of the Superior Court. Verdict for plaintiff for $750 and judgment thereon.

Appeal, No. 98, April T., 1920, by defendant, from judgment of C. P. Allegheny County, January T., 1920, No. 1405, refusing to allow an appeal from judgment of the county court in the case of Henry H. Lesb Lumber Company v. Aberdeen Lumber Company. Petition for appeal from judgment of the county court. Before Stone, J. The' facts are stated in. the opinion of the Superior Court. Verdict for plaintiff for $498.62 and judgment thereon.

Appeal, No. 99, April T., 1920, by defendant, from judgment of C. P. Allegheny County, Oct. T., 1917, No. 1031, on verdict for plaintiff in the case of David R. P. Mann v. Joseph W. Mann. Ejectment to recover mesne profits. Before Swearingen, J. The facts are stated in the opinion of the Superior Court. Verdict in favor of the plaintiff for land described in writ and $832 in damages, and judgment thereon. Defendant appealed.

Appeal, No. 3, March T., 1920, by respondent, from decree of C. P. Tioga County, Sept. T., 1914, No. 169, granting a divorce in the case of Preston E. King v. Ola G. King. Libel in divorce. Before Smith, P. J., of 34th Judicial District, specially presiding. The facts are stated in the opinion of the Superior Court. The court awarded a divorce. Eespondent appealed. Error assigned was the decree of the court.

Appeal, No. 74, April T., 1920, by defendant, from judgment and sentence of Q. S. Beaver County, June Sessions, 1919, No. 25, on verdict of guilty in the case of Commonwealth of Pennsylvania v. Rosario Morura. Indictment for extortion under the Act of June 9, 1911, P. L. 833. Before Baldwin, P. J. The facts are stated in the opinion of the Superior Court.

<p>Appeal, No. 79, April T., 1920, by defendant, from judgment and sentence of Q. S. Beaver County, June Sessions, 1919, No. 25, on verdict of guilty in the case of Commonwealth of Pennsylvania v. Gernan Mestroiana.</p>

<p>Appeal, No. 80, April T., 1920, by defendant, from judgment of Q. S. Beaver County, June Session, 1919, No. 25, on verdict of guilty in the case of Commonwealth of Pennsylvania v. Francesco Yalenzia.</p>

<p>Appeal, No. 9, March T., 1920, by the Newport & Shermans Valley Railroad Company from decree and order of the Public Service Commission of the Commonwealth of Pennsylvania, Complaint Docket No. 2757, in the case of the Newport & Shermans Valley Railroad Company v. The Public Service Commission of the Commonwealth of Pennsylvania, on appeal, and The Oak Extract Company, Intervener.</p> <p>Appeal from order of the Public Service Commission making reparation for alleged unlawful freight rates collected.</p> <p>The commission filed the following report and order:</p> <p>The rates to be charged and collected for the transportation of oak extract wood by the respondent company have been subject to considerable contention before this commission, and the present petition is for reparation in the amount of $295.44, for alleged excess payments made by the complainant between June 25, 1918, and February 12, 1919.</p> <p>After hearing upon a complaint, this commission fixed the rates to be charged for this transportation, and they were made effective by tariff supplement on March 18, 1918. These rates were collected by the respondent until June 25,1918, when they were increased under the order of the director general of railroads, the respondent at that time being under federal control. About July 1, 1918, the respondent was released from federal control, but continued to collect the increased rates which had been established at the direction of the railroad administration, and complaint was made to this commission against this practice. The commission by its order of February 10, 1918, directed the respondent to cease and desist from charging and collecting any rates in excess of those which had been established by the commission, and the present petition is presented to secure an adjustment of t-heir accounts between the parties. In its order of February 10, 1919, directing the respondent to collect only the rates determined by the commission, we said that the power of the Interstate Commerce Commission over intrastate rates established under federal control “ended when the road was released from that control,” and held that “if the respondent desires and is entitled to change the rates established by this commission, it must proceed in the manner prescribed by the Public Service Company Law.”</p> <p>Between June 25, 1918, and February 12, 1919, which includes a period of about ten days when the respondent was under federal control, the respondent has collected from the complainant for the transportation of oak extract wood $1,795.44 in excess of the amount which should have been collected for that transportation under the rates established by this commission, and it has repaid to the complainant $1,500 on account of this excess, having promised and agreed to pay the entire sum.</p> <p>[We are of the opinion and find and determine that the respondent should repay to the complainant all sums collected by it for this transportation in excess of the amount due under the rates established by the commission, except for the transportation which took place while the respondent was under federal control. From the record we are unable to determine this amount and if the complainant and respondent cannot agree upon it within ten days further hearings will be held for the introduction of testimony which will enable the commission to make a proper order of reparation.]</p> <p>ORDER.</p> <p>This matter being before the Public Service Commission of the Commonwealth of Pennsylvania upon complaint and answer on file and the commission having found and determined by its order dated November 18, 1919, that the respondent, the»Newport and Shermans Valley Railroad Company, should pay to the complainant, the Oak Extract Company, all sums collected by it for the transportation of extract wood in excess of the amounts due under the rates established by the commission except for the transportation which took place while said respondent was under federal control, and the parties having by agreement dated December 2, 1919, and filed of record with the commission determined upon a true balance of the claim, in the sum of two hundred and thirty-seven dollars and forty-two cents, which said agreement is hereby approved:</p> <p>[Now, to- wit, December 9, 1919, the Newport & Shermans Valley Railroad Company is ordered and directed, within fifteen days from the date of the service of this order, to pay to the Oak Extract Company the sum of two hundred and thirty-seven dollars and forty-two cents, being the amount of damages actually sustained by said last mentioned company, in consequence of the unjust and unreasonable collections above referred to.]</p> <p>Error assigned was the order of the commission.</p>

<p>Appeal, No. 55, April T., 1920, by defendant, from judgment of C. P. Beaver County, March T., 1917, No. 243, on verdict for plaintiff in the case of Samuel K. Conkle, Administrator of Mary J. Laughlin, deceased, v. Robert L. Laughlin.</p> <p>Assumpsit for breach of contract for support. Before Ruppel, P. J. of 16th Judicial District, specially presiding.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict for plaintiff for $644.70 and judgment thereon. Defendant appealed.</p> <p>Errors assigned were various rulings on evidence, the charge of the court, and refusal of defendant’s motion for judgment non obstante veredicto.</p>

Appeal, No. 68, April T., 1920, by defendant, from judgment of C. P. Westmoreland County, November T., 1919, No'. 263, discharging rule to open judgment in the case of Elizabeth Czepull v. David Sam. Rule to open judgment. Before Snyder, J. The facts are stated in the opinion of the Superior Court. The court discharged the rule. Defendant appealed. Error assigned, among others, was the decree of the court.

<p>Boroughs — Borough Act of 1915, P. L. 812 — Ordinance—Appeals.</p> <p>Where an appeal has been taken to the court o£ quarter sessions to have a borough ordinance declared void under the provisions of section 9, article I, chapter 7, of the Act of May 14, 1915, P. L. 312 (General Borough Act), the decision of the court sustaining the ordinance is not conclusive. Under the provisions of the Act of April 18, 1919, P. L. 72, the depositions will be examined and a decision rendered on the merits by the Superior Court.</p> <p>The borough may permit property owners to construct terraces, slopes and steps between the paved footway and the property line of the street, and to construct stone or cement steps between the footway and the curb. Such enactment is reasonable and in accordance with the statute conferring the authority to regulate streets and footwalks and the heights and grades, widths and slopes and forms thereof.</p>

<p>Appeal, No. 52, April T., 1920, by defendant, from judgment of C. P. Somerset County, February T., 1919, No. 17, on verdict for the plaintiff in the case of Rufus E. Meyers, Trustee in Bankruptcy of Roy D. Hostetler, v. Somerset Trust Company, a Corporation.</p> <p>Assumpsit by trustee in bankruptcy to recover a preference alleged to have been secured by defendant trust company over other creditors. Before Bailey, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict for plaintiff for $1,150.68 and judgment thereon. Defendant appealed.</p> <p>Errors assigned were various rulings on evidence, the charge of the court and refusal of defendant’s motion to amend affidavit of defense.</p> <p>Th*e court erred in excluding evidence of the understanding or agreement between the parties and existing prior to the bankruptcy: James’s App., 89 Pa. 54; Buckley v. Garrett, 60 Pa. 333; Appeal of the Pennsylvania Company, etc., 18 W. N. C. 469.</p>

Appeal, No. 66, April T., 1920, by defendant, from judgment of C. P. Armstrong County, June T., 1917, No. 188, on verdict for plaintiff in the case of Lemuel C. Lewis and W. H. Lewis, for the use of Lemuel C. Lewis, v. United Natural Gas Company, a corporation. Assumpsit to recover rentals under a gas lease. Before King, P. J. The facts are stated in the opinion of the Superior Court. Verdict for plaintiff for $1,298.80 and judgment thereon. Defendant appealed.

<p>Appeal, No. 103, April T., 1920, by complainants, from report and order of the Public Service Commission, Complaint No. C 1495-1917, in the case of the Township of Vernon and the School District of Vernon Township v. The Public Service Commission of the Commonwealth of Pennsylvania, on appeal, and The United Natural Gas Company intervening appellee.</p> <p>Complaint against the United Natural Gas Company before the Public Service Commission on account of schedule of increased rates effective May 15, 1917.</p> <p>The charges in said schedule were alleged to be unjust and unreasonable and the suspension of free service was claimed to be in violation of existing contract.</p> <p>After hearing, Rilling, Commissioner, filed the report of the commission holding that free service was prohibited by the provisions of section 8, article III, of the Public Service Company Law, and dismissed the complaint.</p> <p>Error assigned was the order of the commission dismissing the complaint.</p> <p>The matters at issue have already been decided by the Supreme Court and the question is res adjudicata: Vernon Township et al. v. United Natural Gas Company, 256 Pa. 435; Nernst Lamp Co. v. Hill, 243 Pa. 448; Metzger’s Est., 242 Pa. 69; Lancaster v. Frescoln, 192 Pa. 452; Schwan et al. v. Kelly et al., 173 Pa. 65; Long v. Lebanon Natl. Bank, 211 Pa. 165; Raisig v. Graf, 17 Pa. Superior Ct. 509.</p> <p>The franchise was given to the public service company by the municipality and the contract cannot be abrogated : Belfast v. Belfast Water Co., 98 Atl. 738; Vernon Township v. United Natural Gas Co., 256 Pa. 435; Old Colony Trust Co. v. City of Omaha, 230 U. S. 100; Walla Walla v. Walla Walla Water Co., 172 U. S. 1; Cleveland v. Cleveland City Ry. Co., 194 U. S. 517; New Jersey v. Yard, 95 U. S. 104; Mercantile Trust & Deposit Co. v. Collins Park and B. R. Co., 99 Fed. 812.</p> <p>The contract requiring the utility to render free service is unjustly discriminatory and violative of the provisions of the Public Service Company Law: Sandpoint Water & Light Company v. Sandpoint, P. U. R. 1918 F, 737; Re Hanover Water Co., P. U. R., 1918 D, 824; Louisiana v. Louisiana Water Co., P. IT. R., 1918 B, 774; Re Portland Water District, P. U. R., 907; Board of Education v. Oram, P. U. R., 1916 E, 100; Melvern Tel. Co. v. Carbon-dale Tel. Co., P. IT. R., 1915 B, 216; Re Dakota Central Tel. Co., P. U. R., 1915 D, 1054; Re Galveston Water Works Co., P. U. R., 1915 E, 27; Landon v. Lawrence, P. U. R., 1915 E, 763; la re Board of Trustees of Warren, P. IT. R., 1919 F, 38.</p> <p>Tbe ordinances, in so far as they legislate on rates for service, are no longer binding: Wilkinsburg Boro. v. Public Ser. Com., 72 Pa. Superior Ct. 423; Foltz v. Public Ser. Com., 73 Pa. Superior Ct. 24; Scranton v. Public Ser. Com., 73 Pa. Superior Ct. 192; McKeesport v. Pittsburgh Rys. Co., 72 Pa. Superior Ct. 435; Leiper v. Balto. & Phil. R. R. Co., 262 Pa. 328; V. & S. Bottle Co. v. Mountain Gas Co., 261 Pa. 523.</p>

Appeal, No. 104, April T., 1920, by City of Meadville, from the report and order of the Public Service Commission, complaint No. C 1471, 1917, in the case of the City of Meadville v. The Public Service Commission, on appeal, and United Natural Gas Company, intervener.

Appeal, No. 102, April T., 1920, by School District of the City af Meadville, from the report and order of the Public Service Commission, Complaint No. C 1599, 1917, in the case of the School District of the City of Meadville v. The Public Service Commission, on appeal, and the United Natural Gas Company, intervener.

Appeal, No. 109, April T., 1920, by City of Franklin, from the report and order of the Public Service Commission, complaint No. 1438, 1917, in the case of the City of Franklin v. The Public Service Commission, on appeal, the United Natural Gas Company, intervener.

Appeal, No. 113, April T., 1920, by City of Sharon, from the report and order of the Public Service Commission, Complaint No. C 1470, 1917, in the case of the City of Sharon v. The Public Service Commission, on appeal, and United Natural Gas Company, intervener.

<p>Cowts — County Courts of Allegheny County■ — Act of April 9, 1915, P. L. 1$ — Appeals.</p> <p>An appeal from the County Court of Allegheny County will not be allowed unless a retrial on the issues of fact is necessary to prevent injustice. When such an appeal has been refused by the court of common pleas in the exercise of its judicial discretion the Superior Court will not reverse.</p> <p>Practice, county court — IVitnesses—Cross-examination—Matter admitted in pleadings.</p> <p>It is not error to refuse to allow counsel for the defendant to cross-examine plaintiff on matters alleged in the statement of claim and admitted in the affidavit of defense.</p> <p>Evidence — Relevant and irrelevant matter — Exclusion.</p> <p>Where an offer of evidence is made containing relevant and irrelevant matter the trial judge is not bound to separate the good from the bad, but may reject the whole offer.</p>

<p>Practice, O. P. — Replevin—Affidavit -as to value of goods replevied — By whom made■ — Attorney—Sufficiency.</p> <p>An affidavit as to the value of the goods in an action of replevin may be made by an attorney acting for the plaintiff corporation. Such an affidavit is for the purpose of enabling the prothonotary to determine the value of the property sought to be replevied and for the purpose of assisting him in fixing the amount of the bond. Where such affidavit is followed by the filing of a bond in the amount required, a writ of replevin will be sustained.</p> <p>The plaintiff’s act in causing its bond to be delivered to the prothonotary by the attorney, as part of the process then consisting of the prascipe, statement and affidavit, was plaintiff’s declaration or publication of the attorney’s agency and authority to make tho affidavit of value, required by the statute.</p>

<p>Bankruptcy — insurance on bankrupts life — Gash surrender value of policy — Recovery—Right of trustees — Right of beneficiary.</p> <p>A trustee in bankruptcy brought an action to recover the cash surrender value of an insurance policy issued to a bankrupt, claiming the value of such policy in accordance with the provisions of section 70a of the bankrupt law. It appeared that prior to the time of the bringing- of the action the bankrupt had died and that his widow, the beneficiary, who had possession of the policy, had presented the same and collected the insurance.</p> <p>The company had no notice of the bankruptcy and no claim to the policy or any part thereof was made by the plaintiff until a year after the death of the insured. The policy had a cash surrender value.</p> <p>The company was obliged by its contract to pay the proceeds to the beneficiary and, having, done so, the contract was performed. There could be no right in any one to demand the surrender value which was payable only on a contingency, which did not and could not arise, the policy having been surrendered on payment of the proceeds to the beneficiary entitled thereto. Under such circumstances the court properly entered judgment in favor of the defendant.</p>

Appeals, Nos. 259 and 260, Oct. T., 1919, from judgment of Q. S. Phila. County, April Sessions, 1918, Nos. 552 and 558, on verdict of guilty in the case of Commonwealth of Pennsylvania v. William T. Wheeler. Indictment for embezzlement as attorney at law and agent. Before Johnson, P. J., Seventeenth Judicial District, specially presiding. The facts are stated in the opinion of the Superior Court. Yerdict of guilty upon which judgment of sentence was passed.

<p>Appeals — Motion to quash — Certification of record by court — ■ Transcript of testimony — Certificate by official stenographer.</p> <p>Where the judge who presided at the trial of a case has retired, a certificate to the record on appeal, by his successor in office is sufficient.</p> <p>The court never dies nor resigns, although its officers may; and its duties are neither Satisfied nor extinguished by a change of its functionaries. The departing judges’ unperformed duties devolve upon the successors.</p> <p>In the event of the death of the official stenographer who took the notes of testimony at the trial of the case, his successor in office who is able to translate his notes may make an official copy of the testimony, and his certificate that the transcript is a correct translation of the notes of the deceased stenographer is sufficient.</p> <p>A motion to quash an appeal, which merely complained that the transcript had not been made and certified to by the official stenographer who took the notes at the trial, and approved by the trial judge, is without merit, where there is nothing to show that any material mistake or omission had been made in the transcript of the evidence and proceedings.</p> <p>Witnesses — Surviving party to contract — Adverse testimony— Competency — Act of May %,5,1881 , P. L. 158.</p> <p>In an action to recover from a son, on certain promissory notes made by his deceased father, on the theory that the son had undertaken to pay the debts of his father, as part consideration for the sale of a farm, evidence of certain statements relative to tbe assumption of the debts, which the defendant was alleged to have made, was inadmissible, when such testimony was to the effect that the defendant had made these statements to the witness about six months prior to the conveyance of the property, and not in the presence of his father, and there was no attempt to connect it with the final negotiations between the defendant and his father, which resulted in the transfer of the title.</p> <p>In such action, it was reversible error not to allow the defendant to prove the consideration for the sale of the property and that it had been paid in full. The defendant was not incompetent to testify as to the negotiations between himself and his father, because of the latter’s death.</p> <p>Since the passage of the Act of 1887, P. L. 158, competency is the rule; incompeteney is the exception. By clause (e) of section 5 of the act, the disqualification is made to depend not only on the fact of the witness being a surviving or remaining party to the thing or contract in action, but on the fact of his having an interest adverse to the right of the deceased party, which right has passed by his own act or the act of the law to a party on the record who represents his interests in the subject in controversy. The rights of the deceased parent had not passed to the plaintiff and the plaintiff did not represent his interests in the claim in suit but was claiming adversely to his interest as well as against that of the defendant. The defendant was called to testify that he had not contracted to pay money to the plaintiff. His interest was not adverse to the interest of the deceased so far as the suit was concerned, and he was clearly competent to testify as to the matters in question.</p> <p>Practice, G. P. — Judgment non obstante veredicto — Written request — Act of April 22,1905, P. L. 286.</p> <p>The right to move for judgment non obstante veredicto upon the whole record is given by that statute only to a party who has presented a written request for binding instructions which has been reserved or refused. An oral request does not meet the requirements of the act.</p>

<p>Appeal, No. 23, April T., 1920, by defendant, from judgment of C. P. Beaver County, March T., 1918, No. 315, on verdict for plaintiff in the case of William F. Dinch v. W. F. Workman.</p> <p>Assumpsit on bond. Before Baldwin, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict for plaintiff for $614.50 and judgment thereon. Defendant appealed.</p> <p>Error assigned, among others, was the charge of the court and answers to points as follows (1-5) :</p> <p>1. The learned court below was in error in not affirming without qualification the defendant’s sixth point, which point, the answer thereto, is as follows:</p> <p>“6. It would make no difference what object the Mc-Crorys had in view, in seeking to have the defendant become or give security for the money James McCrory owed W. F. Dinch. Their object or purpose would not be binding on the defendant. Answer. Affirmed, as a general proposition. But if the McCrorys desired and purposed to save their personal property in the hotel, and the defendant knew of that desire and purpose, and signed the bond in suit because he wished to help MeCrorys save their personal property from being sold, and would have so signed it regardless of any agreement on the part of Dinch to assign his judgment to Workman, then the purposes of the McCrorys would be binding on the defendant, and the defense here interposed would not be successful.”</p> <p>5. The learned court below was in error in affirming the plaintiff’s second point, which point, the answer of the court are as follows:</p> <p>“2. If you believe that the defendant executed the bond in suit as a friendly accommodation to McCrory or because the defendant, Workman, was interested in the hotel in question, he would be liable, even if the debt were not his debt.</p> <p>“Answer. Affirmed. But, I call your attention to the fact that there is no testimony in the case from which you would be warranted in finding that Mr. Workman was interested in the hotel business which was being carried on, or which had theretofore been carried on upon the premises; but there is some evidence to the effect that he had a lien on the hotel property.”</p> <p>The learned court erred in not affirming or refusing the defendant’s points without qualification: Lingle v. Scranton Railway Company, 214 Pa. 500; Citizens Passenger Company v. Ketcham, 122 Pa. 228.</p> <p>A point which is not supported by the evidence must be refused: Commonwealth v. Nazarko, 224 Pa. 204; Maus v. Mahoning Township, 24 Pa. Superior Ct. 624.</p>

<p>Practice, O. P. — Practice Act of 1915 — 0ommencement of actions — Summons—Act of June 18, 1886, P. L. 572.</p> <p>An action in assumpsit is not properly commenced by tbe service of a plaintiff’s statement in accordance with the provisions of the Practice Act of 1915 (Act of May 14, 1915, P. L. 483).</p> <p>The Practice Act of 1915 (Act of May 14, 1915, P. L. 483), did not abolish the regular method of instituting actions in trespass and assumpsit by a summons served by the sheriff in accordance with the provisions of the Act of June 13, 1836, P, L. 572. It is still necessary in such actions to issue a writ of summons in accordance with the Act of 1836.</p> <p>The Practice Act of 1915 must be held to mean that when actions are brought in the manner provided by law the pleadings shall be conducted in the manner by that statute defined. The Act of June 13, 1836, section 1, P. L. 572, provides for the commencement of personal actions and prescribes the form of the writ and the manner of service. There is nothing in the subsequent statutes which obviates the necessity of beginning the action in the manner required by this act.</p>

Appeal, No. 2, April T., 1920, by libellant, from order and decree of C. P. Cambria County, June T., 1919, No. 154, making absolute a rule for alimony and counsel fees pendente lite in the case of Daniel E. Swank v. Ada M. Swank. Libel in divorce. Before O’Connor, J. Petition for alimony and counsel fees, pendente lite.

<p>Criminal law — Involuntary manslaughter — Pleadings—Acquittal of indictment for murder involving same facts — Special pleading — Former jeopardy and former acquittal — Sufficiency.</p> <p>1. In an indictment for involuntary manslaughter, where the defendant had been acquitted on an indictment for murder involving the same facts, a special plea of former jeopardy and former acquittal was entered. The Commonwealth demurred to the plea and the demurrer was Sustained. The defendant then entered a plea of former acquittal and a plea of not guilty. The jury rendered but one verdict, which was that the defendant was guilty in manner and form as indicted: Held, that on the issue raised by the special plea in bar that judgment should have been entered in favor of the defendant; that on a plea of autrefois acquit, the jury must render a verdict on such plea, as well as on the general issue and that the prisoner should be discharged.</p> <p>2. On the trial of an indictment for murder a defendant cannot be convicted of involuntary manslaughter. This is because of the technical rule that upon the trial for a capital felony a prisoner cannot be convicted of a misdemeanor included in the felony. All general technical rules touching the administration of justice must be so understood as to be made consistent with the fundamental principles of justice, and all cases where a strict adherence to the rule would clash with those fundamental principles are considered as so many exceptions to the rule. The technical rule here involved ought not to be permitted to impair the constitutional right of the prisoner to a trial by jury, or deprive him of the fruits of a verdict in his favor, upon a question of fact. Where the facts in the indictment for murder and involuntary manslaughter are the same and have once been determined in the course of a judicial proceeding, the final judgment rendered in accordance therewith, cannot, So long as it remains unreversed, be again litigated between the same parties.</p> <p>3. A general verdict of not guilty upon the trial of an indictment for murder, negatives the fact of the unlawful killing and is an effectual bar to any subsequent prosecution for the same killing, as a minor offense, unless it should clearly appear from the record that although the prisoner was not guilty of the felony, he was guilty of the minor offense. Where the defendant has entered a plea in bar, showing the record of the former acquittal on the indietment for murder, such a plea is an effectual bar to the indictment for involuntary manslaughter.</p> <p>4. The plea in bar shows that the defendant was charged with murder for the same killing charged in the indictment for involuntary manslaughter, that the case was tried upon the general issue and that the verdict of the jury was “not guilty.” Upon the issue raised by the special plea in bar judgment must be entered in favor of the defendant.</p> <p>Criminal procedure — Plea of autrefois acquit — Verdict.</p> <p>5. Where, on the trial of an indictment for involuntary manslaughter, the defendant filed a plea of autrefois acquit, in the form authorized by the statute, and plea of not guilty, on both of which pleas issue was joined, and the jury was sworn to try both issues, a verdict must be rendered on the former plea. Where the jury found the defendant guilty, but rendered no verdict on the plea of autrefois acquit, a motion in arrest of judgment will be sustained.</p>

<p>Boroughs — Street paving — Assessments—Acts of May 12, 1911, P. L. 288, and June 18, 1911, P. L. 887.</p> <p>The Act of May 12, 1911, P. L. 288, was not repealed by the Act of June 13, 1911, P. L. 887. The Act of May 12, 1911, P. L. 288, relates to the assessment of the cost of street paving when the ordinance is passed by the borough council without a petition from the abutting property owners. The Act of June 13, 1911, P. L. 887, amends the Act of April 23, 1889, P. L. 44, which provides for a method by which the abutting property owners may petition the borough council to pass an ordinance providing for the paving of the streets. There is no conflict between the systems provided in the two acts and both can stand.</p> <p>Municipal law — -Evidence—Proof of publication of ordinance.</p> <p>A certificate by the secretary of the borough council that an ordinance has been advertised in a newspaper published in the borough for three successive publications and by handbills duly posted is prima facie evidence of the legal publication of the notice.</p>

<p>Appeal, No. 2, April T., 1920, by Guido V. Sborigi, from the order and decree of O. P. Allegheny County, Oct. T., 1917, No. 1542, in re: Change of Grade and Grading, Paying and Curbing of South Beatty Street from Penn Avenue to Mignonette.</p> <p>Appeal from award of Board of Viewers. Before McFarland, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The Board of Viewers assessed benefits in the sum of $1,354.97. The appellant excepted to the award of the viewers, but the exceptions were overruled and the report of the Board of Viewers confirmed absolutely.</p> <p>Error assigned, among others, was the order of the court dismissing exceptions.</p>

<p>Appeals — Interlocutory order — Quashing bill</p> <p>An appeal from an interlocutory order, where no final judgment has been entered in the court below, will be quashed.</p> <p>Practice, county court — Qounty Court of Allegheny County — ■' Powers — Buie 6 — Amended statement of claim — Power to allow.</p> <p>Kule 6 of the County Court of Allegheny County, which provides that when a jury trial has been demanded by either party, any party considering himself entitled to judgment on the face of the pleadings may move the court for entry of such judgment, does not deprive the court of authority to permit an amendment of a statement of claim. The County Court of Allegheny County is a court of record with all the common law powers of such a court tq allow amendments- and it cannot, by the adoption of a general rule, divest itself of the duty to exercise a discretion with which it is by law invested.</p>

<p>Beneficial societies — Death benefits — Dues—Payments — Beneficial standing.</p> <p>The constitution of an unincorporated union provided that a member who did not pay his dues upon the first of the month would lose his beneficial standing, and that a member whose dues remained unpaid for a period of two months could be suspended. A member paid his dues for June on June 14th, and died on June 15th. Under such circumstances, it was held that the deceased, having died in the month of June, and haying failed to pay his dues for that month before the first of the month, was not entitled to sick and death benefits, although he still remained a member of the union.</p> <p>The mere receipt of the dues of a member, after the first day of the month upon which they should have been paid, was not a waiver of any right of the organization, for the constitution gave him the right to pay the dues at any time before it became the duty of the officers to suspend him, for a two months’ default. During these two months he would be a nonbeneficial member, but he had the right, by paying the dues as required by the constitution, to resume his beneficial standing with the beginning of the nest month.</p>

Appeal, No. 90, April T., 1920, by defendant, from judgment of C. P. Allegheny County, January T., 1920, No. 671, dismissing a petition to allow an appeal from the county court in the case of R. A. Szeits v. F. W. Chriss. Petition to allow an appeal from the judgment of the county court. Before Carpenter, J. The opinion of the Superior Court states the case. The court dismissed the petition. Defendant appealed. Error assigned was the order of the court.

<p>Boroughs — Incorporation—Exceptions—■Appeals — Act of May lb, 1915, P. L. 81% (Borough Code).</p> <p>A petition for the incorporation of a borough, averring essential facts, including the sworn statement that it was signed by the requisite number of freeholders residing within the limits of the proposed borough is sufficient to invoke the jurisdiction of the court.</p> <p>A contention that the court cannot exclude certain farm lands from the limits of a proposed borough is without merit, where exceptions have been filed, averring that the land in question was used exclusively for farming purposes and this averment is admitted by all parties in interest. This is an allegation of fact and it is entirely competent for those petitioning for the incorporation of the borough to admit the fact and agree that the land should be excluded. The court having jurisdiction to exclude farm land, the manner in which this jurisdiction is exercised is a matter of detail and an error in such matter does not necessarily render the decree invalid. It is not jurisdictional in its nature, even though the parties whose land was improperly excluded has the right to complain.</p> <p>Under the provisions of chapter 2, article I, section 4, of the Act of May 4, 1915, P. L. 312, an advertisement relative to the incorporation of a borough, must be published in a newspaper for a period of not less than 30 days immediately before the next regular term for which it is possible to give the notice by the act required. It was the intention of the act that the decree should be entered for the term during which notice was given, but the statute expressly provides: “If the court shall deem further investigation necessary they may make such order thereon as to right and justice shall appertain.” The court may therefore take such time as in its discretion seems necessary to properly dispose of the proceeding. In accordance with such provisions it was not error for the court to direct on the 2d day of October, 1919, that notice should be given for a period of 30 days before the first Monday of November, 1919, the first day of the next term, nor was it ¡without jurisdiction to enter the final decree at the December term.</p>

Appeal, No. 163, Oct. T., 1919, by plaintiff, from judgment of Municipal Court of Philadelphia, May T., 1916, No. 498, in favor of defendant on motion for want of a sufficient statement of claim in the case of Thomas E. Baxter v. Emma M. Maull. Assumpsit on a written lease. Before Bartlett, J. Rule for judgment for want of sufficient statement of claim. The opinion of the Superior Court states the case. The court made absolute the rule. Plaintiff! appealed.

<p>Common carriers' — Shipments—Perishable freight — Loss- — Evidence — Sufficiency.</p> <p>In an action to recover from a common carrier for the loss of part of a shipment of potatoes which were frozen, a judgment for the plaintiff will be sustained, where there is sufficient evidence to, warrant the finding that the car containing the shipment was suitable for such purpose, that the potatoes were properly loaded, and that when the car arrived at its destination the doors had been tampered with and the bulkheads broken. Under such circumstances, a judgment in favor of the plaintiff for the value of the potatoes actually destroyed will be affirmed. '</p> <p>Witnesses — Cross-examination—Objections.</p> <p>A refusal to allow the counsel for the defendant to introduce by way of cross-examination certain matters of defense is mot error, especially where the defendant made the statement that he had no objections to making the witness his own witness, and did not after-wards do so, although he had the opportunity.</p>

<p>Appeal, No. 92, Oct. T., 1920, by plaintiffs, from judgment of O. P. No. 2, Philadelphia County, Dec. T., 1918, No. 4240, directing a verdict in favor of the defendant in the case of Walter Kolaskie and Felix Kolaskie v. Sam Dressner.</p> <p>Trespass for conversion of personal property. Before Rogers, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The court directed a verdict in favor of the defendant. Plaintiff appealed.</p> <p>Error assigned, among others, was the order of the court directing a verdict in favor of the defendant.</p>

Appeal, No. 87, Oct. T., 1920, by Annie Henderson, claimant and plaintiff in interpleader proceedings from judgment of O. P. No. 3, Philadelphia County, Dec. 7, 1914, No. 4075, on verdict for defendant in the issue, Albert L. Barnes, trading as the Quaker Light Supply Company, who was plaintiff in the execution, v. Charles L. Henderson, trading as Columbia Gas Fixture Company. Sheriff’s interpleader to determine ownership of certain personal property.

Appeal, No. 8, Oct. T., 1920, by respondent, from decree of C. P. No. 1, Philadelphia County, Sept T., 1918, No. 106, granting a divorce in the case of Wilbur Hodgins v. Annie Marie Hodgins. Libel in divorce. Before Patterson, J. The case was referred to George W. Reed, Esq., as master who recommended that the libel be dismissed. On exceptions to the master’s report, the court sustained the exceptions, and granted a divorce.

Appeal, No. 102, Oct. T., 1920, by A. Lipman & Co., from decree of O. C. Philadelphia County, Oct. T., 1919, No. 845, dismissing exceptions to adjudication in the estate of William A. Cunningham, deceased. Exceptions to adjudication. Before Lamorelle, P. J. The facts are stated in the opinion of the Superior Court.

<p>Appeal, No. 110, Oct. T., 1920, by defendant, from judgment of Municipal Oourt of Philadelphia, August T., 1919, No. 130, on verdict for plaintiff in case of Harold Webb v. Elizabeth Each-mil.</p> <p>Assumpsit for the recovery of commissions for the sale of real estate. Before Crane, J.</p> <p>The facts are stated in the opinion of the Superior Oourt.</p> <p>Verdict for plaintiff for $422.58 and judgment thereon. Defendant appealed.</p> <p>Error assigned, among others, was the refusal of defendant’s motion for judgment non obstante veredicto.</p>

Appeal, No. 36, Oct. T., 1920, by defendant, from the judgment of O. P. No. 5, Phila. County, Dec. T., 1917, No. 472, on verdict for plaintiff in the ease of Charles Rose, trading as J. Rose & Son, v. Amos Scott. Assumpsit to recover for extra work done under a building contract. Before Martin, P. J. The facts are stated in the opinion of the Superior Court. Yerdict for plaintiff for $399 and judgment thereon.

<p>Appeal, No. 66, Oct. T., 1920, by Emil Levy, from judgment of O. P. No. 1, Phila. County, Sept. T., 1919, No. 125, discharging rule to open judgment in the case of Bankers-Commercial Security Company, Inc., v. William Brennan and Emil Levy, trading as Gramm-Bernstein Motor Truck Company of Philadelphia, Intervening Defendant.</p> <p>Replevin for motortruck.</p> <p>Rule for judgment for want of a sufficient affidavit of defense and rule to open judgment. Before Shoemaker, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The court made absolute the plaintiff’s rule for judgment for want of a sufficient affidavit of defense, and discharged the rule to open the judgment.</p> <p>Errors assigned were the orders of the court.</p> <p>A mechanic is entitled to a lien upon a leased automobile for extraordinary repairs made at the instance of a bailee: Stern v. Sica, 66 Pa. Superior Ct. 84.</p> <p>The plaintiff was entitled to repossess himself of the property in replevin proceedings. The affidavit of defense was wholly insufficient to meet the plaintiff’s averments of title and right of possession: Heisley v. Economy Tool Co., 33 Pa. Superior Ct. 222; General M. T. Co. v. Phila. Paving Co., 248 Pa. 499; National Cash Register Co. v. Cochran, 22 Pa. Superior Ct. 582; Liveright v. Thornton, 56 Pa. Superior Ct. 611; Miller v. Jackson, 34 Pa. Superior Ct. 31; B. L. P. Motor Co. v. Walch, 71 Pa. Superior Ct. 323.</p> <p>The defendant was not entitled to have the judgment opened: Norfolk & Western Railway Company v. Swift & Company, 59 Pa. Superior Ct. 603; Shimp v. Gray, 41 Pa. Superior Ct. 542;. Wood v. Kerkeslager, 227 Pa. 536.</p>

Appeal, No. 103, Oct. T., 1920, by Harold B. Mulligan from the decree of O. O. Pbila. County, April T., 1918, No. 715, dismissing exceptions to adjudication in tbe estate of Nicholas S. Bowers, deceased. Claim on contract for casket furnished estate of decedent. Exceptions to adjudication. Before Oummey, J. The facts are stated in the opinion of the Superior Court. The court disallowed the claim and dismissed the exception to the adjudication.

<p>Appeal, No. 288, Oct. T., 1920, by Township of Paradise, from order of the Public Service Commission of the Commonwealth of Pennsylvania in the matter of the complaint of the State Highway Department of Pennsylvania v. The Pennsylvania Railroad Company, Complaint Docket No. 3053.</p> <p>Appeal from order of the Public Service Commission ordering the alteration and relocation of a bridge over the tracks of the Pennsylvania Railroad Company in Paradise Township, Lancaster County, and apportioning the costs between the various public service companies and municipal corporations concerned.</p> <p>The commission filed the following report:</p> <p>The State Highway Department lodged' a complaint against an overhead crossing which carries State Highway Route No. 215, being the Lincoln highway, over four tracks of the main line of the Pennsylvania Railroad Company, respondent, at a point in Paradise Township, Lancaster County, near a village also known as Paradise. The highway crosses the railroad tracks at this point obliquely. The present structure, built many years ago, crosses the tracks at right angles, making a very sharp curve at each end thereof and on account of the very extensive public travel over this highway, creates a very dangerous situation. The commission determines the present structure as unsafe and dangerous. The respondent railroad company submitted plans for a new structure, which provide for a through girder type bridge on concrete abutments about 120 feet in length, carrying the highway over the four tracks of the railroad in a straight line. The plans indicate the bridge will be 35 feet in width, having a foot walk five feet wide on the northerly side and a roadway thirty feet wide in which a single track of the Conestoga Traction Company will be laid and operated along the south side of said roadway.</p> <p>The vertical clearance of the present structure is about 19 feet and that of the new structure will be 22 feet. The grade on the west approach is 2.2 per cent and on the east approach 6 per cent.</p> <p>The plans as submitted by the railroad company are approved by the street railway company, the county and the township, and the same are hereby approved by the commission. The estimated cost of the structure, including the approaches and the laying of a new concrete roadway on the approaches, also relaying and relocating the street railway track, not including any property damages, is about $112,000.</p> <p>The conclusion of the commission is that the Pennsyh vania Railroad Company build the abutments and superstructure complete, including a solid concrete floor thereon, completing both the roadway and the sidewalk ready for use by the public.</p> <p>That the State Highway Department construct the earth approaches, together with the necessary road improvement thereon and that the Conestoga Traction Company relocate and reconstruct at its own cost and expense its line of street railway upon and across said bridge and approaches, including necessary wires, etc.</p> <p>The total cost of the structure excluding the cost of relocating and relaying the street car track is hereby apportioned and shall be paid as follows:</p> <p>State Highway Department...............40 per cent</p> <p>The Public Service Commission...........10 “ “</p> <p>County of Lancaster.....................18 “ “</p> <p>Township of Paradise.................... 2 “ “</p> <p>Conestoga Traction Company.............15 “ “</p> <p>The Pennsylvania Railroad Company......15 “ “</p> <p>It is understood that the amount hereby appropriated to be paid by the Public Service Commission out of the fund appropriated to it for the elimination of grade crossings by the Act of July 18, 1919, P. L. 1048, will not exceed the sum of $12,000. In case the 10 per cent of the cost of said structure hereby apportioned to it should exceed $12,000 such excess will be paid by the State Highway Department over and above the 40 per cent herein apportioned to it. All payments are to be made to the Pennsylvania Railroad Company and the State Highway Department when and as certified to by the Public Service Commission.</p> <p>In order that the payments may be properly certified, the Pennsylvania Railroad Company and the State Highway Department shall furnish monthly estimates to the Public Service Commission as tbe work progresses. Property damages, if any, to be paid by tbe County of Lancaster in addition to the 18 per cent herein apportioned against it.</p> <p>The approaches together with the roadway thereon shall be maintained by the State Highway Department. The superstructure and abutments shall be maintained by the Pennsylvania Railroad Company and the Conestoga Traction Company, the Pennsylvania Railroad Company to pay two-thirds and the Conestoga Traction Company one-third. All work for maintenance shall be done by the Pennsylvania Railroad Company and the one-third of the expense to be paid by the traction company to the railroad company. All work shall be completed on or before July 1, 1921.</p> <p>Error assigned, among others, was the order of the commission.</p>

Appeal, No. 122, Oct. T., 1920, by defendant, from order of O. P. No. 1, Pbila. Co., Dec. T., 1919, No. 5694, discharging rule to strike off judgment and set aside execution in the case of Clement A. Fogerty y. Archibald L. Dix. Buie to open judgment entered under an ejectment clause in lease. Before Shoemaker, J. The facts are stated in the opinion of the Superior Court. The court discharged the rule to open judgment. Defendant appealed.

Appeal, No. 289, Oct. T., 1920, by plaintiff, from judgment of O. P. No. 3, Phila. Co., March T., 1920, No. 2948, in favor of defendants because of an insufficient statement of claim in the case of Elias Wexelblatt v. Jack A. Katman and Nat Green-berg, Copartners, trading as Katman & Greenberg. Assumpsit on contract of sale. Motion for disposition of question of law raised by affidavit of defense under section 20 of the Practice Act of 1915.

Appeal, No. 60, Oct. T., 1920, by plaintiffs, from judgment of the Municipal Court of Philadelphia, April T., 1919, No. 99, for defendant non Obstante veredicto in the case of George Coroneos, Peter Coroneos and Harry Coroneos, trading as Coroneos Brothers, v. Pennsylvania Railroad Company. Assumpsit on contract of shipment. Before MacNeille, J., without a jury. The facts are stated in the opinion of the Superior Court.

<p>Appeal, No. 80, Oct. T., 1920, by defendants, from judgment of O. P. No. 1, Philadelphia Co., Dec. T., 1917, No. 4176, on verdict for plaintiff in the case of Robert S. Kettyle v. Louis Davidson and Morris Silberman, trading as Davidson & Silben man.</p> <p>Trespass for damages to real estate. Before Shoemaker, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict for plaintiff for $413 and judgment thereon. Defendants appealed.</p> <p>Error assigned, among others, was the refusal of defendants’ motion for judgment non obstante veredicto.</p>

Appeal, No. 101, Oct. T., 1920, by defendants, from tbe judgment of tbe Municipal Court of Philadelphia, Aug. T., 1919, No. 268, on verdict for tbe plaintiff in tbe case of David Margulis v. John Knoell and George Knoell. Assumpsit for commissions for tbe sale of real estate. Before Knowles, J. Tbe opinion of tbe Superior Court states tbe case. Verdict for tbe plaintiff for $812 and judgment thereon. Defendants appealed.

Appeal, No. 121, Oct. T., 1920, by plaintiff, from judgment of the Municipal Court of Philadelphia, July ,T., 1919, No. 55, for defendant non obstante veredicto in the case of Bruer Kirshner v. City of Philadelphia. Trespass to recover damages for personal injuries. Before Knowles, J. The facts are stated in the opinion of the Superior Court. The jury rendered a verdict for the plaintiff for $1,-000.

Appeal, No. 196, Oct. T., 1920, by ¿Etna Casualty and Surety Company, from the order and decree of the Municipal Court of Philadelphia, Aug. T., 1919, No. 1, confirming warrant of seizure in the case of Commonwealth ex rel. y. Harry E. Riebsamen and ¿Etna Casualty and Surety Company, Garnishee. Complaint for desertion. Before McNichol, J. From the record it appears that a warrant of seizure was issued, which was subsequently confirmed by the municipal court.

Appeals, Nos. 252 to 273, by Citizens’ Passenger Bailway Company et al., from the Order of the Public Service Commission of Pennsylvania, Complaint Docket No. 3026, overruling demurrers and ordering appellants to file answers in the case of Cliveden Improvement Association and United Business Men’s Association v. Philadelphia Bapid Transit Company.

Appeal, No. 56, April T., 1921, by defendant from judgment of O. & T. Warren County, June T., 1920, No. 1, on yerdict of guilty in tbe case of Commonwealth of Pennsylvania v. Leslie Durlin. Indictment for rape and bastardy. Before Criswell, P. J., specially presiding. The facts are stated in the opinion of the Superior Court. Yerdict of guilty on which judgment of sentence was passed. Defendant appealed.

Appeal, No. 14, April T., 1921, by defendant, from judgment of Q. S. Allegheny County, September Sessions, 1918, No. 371, on verdict of guilty in the case of Commonwealth of Pennsylvania v. Dennis L. Abell. Indictment under the Act of July 11, 1917, P. L. 773, for failure to support illegitimate child. Before Carnahan, J. The facts appear in the opinion of the Superior Court. Verdict of guilty on which judgment of sentence was passed. Defendant appealed.

Petition for writ of habeas corpus to the Superior Court, October T., 1920, No. 309, by Commonwealth of Pennsylvania ex rel. Michael Gaffigan v. John Francies, Warden of the Western Penitentiary. Petition for writ of habeas corpus. The opinion of the Superior Court states the case.

<p>Appeal, No. 22, Oct. T., 1920, by defendant, from the judgment of the Municipal Court of Philadelphia, February T., 1919, No. 399, on verdict for plaintiff in the case of George B. Meyers v. James F. Tygh.</p> <p>Trespass for damages for false arrest. Before Bonniwell, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict for plaintiff for $500. On motion for a new trial the court made an order granting the new trial unless the plaintiff should file within ten days a remittitur for all sums in excess of $250, and unless the said $250 and costs should be paid within ten days after the filing of such remittitur that judgment should be entered on the verdict of $500. The plaintiff filed a formal and unconditional remittitur for all amounts in excess of $250. Defendant did not pay said sum of $250 and judgment was entered for the plaintiff for $500. Defendant appealed.</p> <p>Error assigned, among others, was the judgment of the court.</p>

<p>Landlord and tenant — Lease—Vacation of premises by tenant before expiration of lease — Affidavit of defense — Sufficiency.</p> <p>In an action of assumpsit on a lease, for rent due on the balance of the term, against the tenant who has left before the expiration thereof, an affidavit of defense is sufficient which alleges that the landlord rented the premises to another tenant at the same rent immediately after the first tenant had vacated.</p> <p>The landlord is bound to credit on his claim against the tenant whatever rent he may have received from the succeeding tenant, and if he rented the premises for the full term at the same rent there would be no balance due the landlord.</p> <p>In an action on a covenant in the lease for damage to furniture contained in a rented apartment an affidavit of defense is sufficient which specifically denies the injury. The claim for damages sounding in tort was of such a character that it required more than the mere calculation to fix the amount, and the damages could not be assessed by the prothonotary.</p>

<p>Orphans’ court — Jurisdiction—Bank account — Survivorship— Bight to funds.</p> <p>The orphans’ court has jurisdiction finally to decide questions of property already actually in a decedent’s estate, and incidentally, where the facts call for it, to decree a final surrender of such assets to outside claimants.</p> <p>Where a mother and daughter deposited to 'their joint names a fund resulting from the sale of real estate in which the mother had but a life interest, and the mother died ten days before the daughter, and the. administrator of the latter took the fund, it is not error for the orphans’ court to refuse to award it to the administrator of the mother’s estate.</p>

<p>Appeal, No. 9, April T., 1921, by Borough of Edgewood, from order of the Public Service Commission, Complaint Docket 1888, 1918, in the case of Borough of Edgewood v. Pittsburgh Railways Company, C. A. Pagan, W. D. George and S. L. Tone, receivers of Pittsburgh Railways Company, intervening appellees, and the Public Service Commission of the Commonwealth of Pennsylvania, on appeal.</p> <p>From the record it appeared that the Pittsburgh Railways Company, a public service company engaged in the transportation of persons and property in the Borough of Edgewood, filed a schedule of rates with the Public Service Commission providing for an increase of fares. The Borough of Edgewood then filed a complaint with the Public Service Commission averring that agreeably to article XVII, section 9 of the Constitution of Pennsylvania the complainant borough had given its consent to the construction of a street passenger railway within its limits, and in and by a certain duly enacted and accepted ordinance, provided a certain maximum fare as a condition of said consent, pursuant to which ordinance said railway had been constructed; that the Pittsburgh Railway Company, as lessee, having itself for years complied with the ordinance, now proposed to continue to enjoy the consent and at the same time violate said conditions by an increase of fares pursuant .to tariffs on file with the commission, in violation of the Constitution of Pennsylvania and article I, section 10, and article XV of the Constitution of the United States.’ The plaintiff further petitioned the commission to make an order refusing the application.</p> <p>The commission filed a report holding that the maximum fare condition of said ordinance of consent was abrogated by the Public Service Company Law and denying the existence of any constitutional or statutory inhibitions to the commission’s determining whether the company’s rates were unjust, unreasonable or unjustly discriminatory and ordered the complaint set down for further hearing.</p> <p>Subsequently the commission dismissed the complaint of the appellant.</p> <p>Error assigned was the order of the commission.</p>

<p>Appeal, No. 81, April T., 1921, by the Pittsburgh & Lake Erie Railroad Company, from order of the Public Service Commission, Nos. C. 3150, 3228 and 3229, in the case of the Pittsburgh & Lake Erie Railroad Company v. The Public Service Commission of the Commonwealth of Pennsylvania, on appeal, and the Pressed Steel Car Company and Carnegie Steel Company, intervening appellees.</p> <p>From the record it appeared that the Pressed Steel Car Company and Carnegie Steel Company filed a complaint before the Public Service Commission alleging that the highway bridge over the tracks and right of way of the Pittsburgh & Lake Erie Railroad Company, known as O’Donovan’s Bridge, was out of repair and closed to traffic; that the complainants have large manufacturing plants in Stowe Township, which lies immediately west of the Borough of McKees Rocks, in which the bridge is situated, and that by reason of their inability to transport a portion of their product over the bridge by automobile truck and by reason of the inability of other persons to use the bridge, the complainants, as well as the residents of McKees Kochs and Stowe Township, have suffered great inconvenience. The complaint joined as defendants the Pittsburgh & Lake Erie Railroad Company, the Borough of McKees Rocks, the Pittsburgh Railways Company and the receivers thereof.</p> <p>The defendants filed separate answers denying liability on their part for the repair of the bridge and the Pittsburgh & Lake Erie Railroad Company attached to its answer an agreement with the borough, dated March 6,1907, which provided that the railroad company should erect, at its own expense, the bridge over its tracks and right-of-way and that the borough, upon the acceptance of the bridge, should assume the repairs thereof.</p> <p>The Public Service Commission held several hearings in connection with the complaint and made an investigation of the bridge on its own behalf. Subsequently it made the following order:</p> <p>“This matter being before the Public Service Commission of the Commonwealth of Pennsylvania upon complaint and answer on file and having been duly heard and submitted by the parties and full investigation of the matters and things involved having been had, the commission finds and determines that the existing crossing above grade over the tracks of the Pittsburgh & Lake Erie Railroad Company in the Borough of McKees Rocks, Allegheny County known as ‘O’Donovan’s Bridge’ is dangerous to the travelling public and the repair thereof necessary for the safety, accommodation and convenience of the public;</p> <p>“Now, to wit, August 10, 1920, it is ordered: That the complaint in this case be and the same is hereby sustained and that the Pittsburgh & Lake Erie Railroad Company, respondent, promptly make such necessary and proper repairs to said bridge as to render it safe to meet the requirements of the travelling public and in a manner satisfactory to the commission; the nature and extent of such repairs to be reported in detail to the commission immediately upon completion thereof.”</p> <p>Error assigned, among others, was the order of the commission.</p> <p>There was no duty on the párt of the railroad company to maintain the crossing: Great Bend Township v. D., L. & W. R. R. Co., 67 Pa. Superior Ct. 95..</p> <p>The obligation of the borough to maintain the crossing was primary and not secondary: Aiken v. Phila., 9 Pa. Superior Ct. 502; Dillon on Municipal Corporations, 5th ed., sections 1723-1730; Brown y. Towanda Borough, 24 Pa. Superior Ct. 378; Illinois Central R. R. Co. v. City of Bloomington, 76 111. 447; Northern Central R. R. Co. y. Baltimore, 46 Maryland 425; Brooke v. Phila., 162 Pa. 123.</p> <p>The order of the commission was indefinite and not in conformity with law: B. & O. R. R. Co. v. Public Service Commission, 66 Pa. Superior Ct. 403; Pennsylvania R. R. Co. v. Public Service Commission, 69 Pa. Superior Ct. 404.</p> <p>The duty was on the railroad company to maintain the bridge: 3 Elliott on Railroads (second edition), section 1092; Reading y. Traction Company, 202 Pa. 571; Phcenixville v. Phoenix Iron Co., 45 Pa. 135; P. R. R. v. Duquesne Borough, 46 Pa. 223; Chester v. R. R. Co., 140 Pa. 275; P. R. R. Co. v. Borough of Irwin, 85 Pa. 336.</p> <p>The railroad company could not shift the burden of maintaining the bridge upon the borough: Somerset and Stoystown Road, 74 Pa. 61; Palo Alto Road, 160 Pa. 104; Curtis v. P., McK. & Y. R. R. Co., 250 Pa. 480; Burritt y. City of New Haven and the N. H. & H. R. R. Co., 42 Conn. 174.</p> <p>The commission had jurisdiction to order the repairs to the bridge: Borough of Franklin v. The Public Service Commission, 73 Pa. Superior Ct. 294; Northern Pacific Ry. Co. v. State of Minnesota, 208 U. S. 584; State v. Northwestern Pacific Ry. Co., 98 Minn. 429, 108 N. W. 269; State v. St. Paul M. & M. Ry. Co., 98 Minn. 380, 109 N. W. 261.</p>

<p>Appeal, No. 186, April T., 1917, by tbe Ohio Valley Water Company from order of the Public Service Commission of Pennsylvania, Complaints Nos. 335, 415, 416, 417, 496-1915, in cases of Boroughs of Ben Avon, McKees Rocks, Bellevue, Avalon, Westview, and Stowe Township and W. B. Dawson v. The Ohio Valley Water Company.</p> <p>Complaints that rates charged by Ohio Valley Water Company were unreasonable. The facts appear in Ben Avon Borough et al. v. Ohio Valley Water Company, 68 Pa. Superior Ct. 561, in Ben Avon Borough et al. v. Ohio Valley Water Company, 260 Pa. 289, and in the opinion of the Superior Court.</p> <p>On appeal to the Suprejne Court of the United States the judgment of the Supreme Court of Pennsylvania was reversed and the record remitted to the latter court for appropriate action. The Supreme Court of Pennsylvania then remitted the record to the Superior Court of Pennsylvania with the following order:</p> <p>“The above case is remanded to the Superior Court with instruction that said court determine upon its own independent judgment as to the law and facts involved, whether the order of the Public Service Commission of which the Ohio Valley Water Company complains is confiscatory, and to make such disposition of the water company’s appeal as is required by the opinion of the Supreme Court of the United States reversing the judgment of this court.”</p> <p>In accordance with the above order the Superior Court filed the following opinion dismissing the complaints before the Public Service Commission.</p>

<p>Appeal, No. 6, Oct. T., 1920, by George Griffiths, from judgment of O. P. No. 4, Phila. Co., September T., 1920, No. 3476, in the matter of the petition for the appointment of a guardian of George Griffiths, alleged weak-minded person.</p> <p>Petition under Act of May 28,1907, P. L. 292, for the appointment of a guardian of the estate of an alleged weak-minded person.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The respondent moved to dismiss the proceedings for want of jurisdiction. The court refused this petition and respondent appealed.</p> <p>Error assigned was the order of the court refusing to dismiss the petition.</p>

<p>Appeal, No. 193, Oct. T., 1920, by defendant, from judgment of C. P. No. 3, Phila. Co., Dec. T., 1919, No. 4526, on verdict for plaintiff in the case of Dennis C. Lyons v. West Chester Street Railway Company.</p> <p>Trespass to recover damages for injuries to automobile. Before Davis, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict for plaintiff in the sum of $422.71 and judgment thereon. Defendant appealed.</p> <p>Error assigned was refusal of the defendant’s motion for judgment non obstante veredicto.</p>

<p>Insurance policies — Construction—Additions and betterments.</p> <p>In an action to recover on an insurance policy which insured a brick building “with additions and extensions thereto,” an affidavit of defense is insufficient, which merely alleges that the insurance applied only to a certain building and not to an addition, which although detached, was connected by a continuous brick wall and used in conjunction, with the main building.</p> <p>The meaning of the word “addition” in an insurance policy as applied to buildings more or less closely situated, their relative location, accessibility, and adaptability to some common end, enters into the question, and from this it follows that, in a limited sense, each case must be determined from its own particular facts. The word “addition” or “additions” may often apply to buildings appurtenant to some other building though not actually in physical contact therewith.</p> <p>A building appurtenant to the main building, having one wall in common and separated only by a short space, must be held to be covered by the word “additions” in the insurance policy.</p>

Appeal, No. 29, April T., 1921, by W. T. Wilkins, from judgment of tbe Court of Q. S., Erie County, November Sessions, 1919, No. 89, on verdict of guilty in tbe case of Commonwealtb of Pennsylvania v. W. T. Wilkins, Burt Tbomas, and J. Ross Barney. Summary conviction for violation of the Act of June 18, 1895, P. L. 204, as amended by Act of June 5, 1919, P. L. 399.

<p>Appeal, No. 133, Oct. T., 1920, by plaintiff, from judgment of O. P. No. 3, Phila. Co., June T., 1919, No. 1607, in favor -of defendant for want of a sufficient statement of claim in the case of Lyndall Motor Truck Company v. Meyer Langinger.</p> <p>Assumpsit on a verbal contract. Before Ferguson, J.</p> <p>From the record it appeared that one Satinover negotiated with the plaintiff for the purchase of two automobile trucks some time prior to July 20, 1918. The plaintiff having refused to extend credit to Satinover, the latter brought the defendant, Langinger to its office where he made the statement that if the plaintiff would let Satinover have the trucks and pay him six per cent for the accommodation, he would see that the plaintiff was paid for the trucks and would endorse any notes that Satinover might give. He also gave a statement in writing of his financial standing. Subsequently the plaintiff delivered the trucks to Satinover who later went into bankruptcy. The plaintiff then sought to collect the amount due on the automobiles from the defendant.</p> <p>The court below entered judgment for the defendant in the following opinion:</p> <p>We are of opinion that judgment must be entered in this case for the defendant because the plaintiff has shown no cause of action. The obligation entered into by Langinger showed on its face an existing obligation in Satinover. In such case Langinger was at most in the position of an intended surety or guarantor. The promise alleged was that if the plaintiff would let Satinover have the trucks, the defendant would see the plaintiff paid for the trucks and would endorse any notes Satinover gave. In point of fact the defendant did endorse the note which Satinover gave, but the note was a judgment note authorizing the entry of judgment any time, either before or after maturity. Such endorsement thereafter became valueless to the plaintiff, because under the decisions the note was nonnegotiable. The defendant’s verbal promise to endorse therefore imposed no greater obligation upon Mm than the actual endorsement did. The whole contract clearly shows that the primary obligation was in Satinover, and the defendant cannot be held in the absence of an agreement or memorandum in writing.</p> <p>It is argued that Exhibit A in the Statement of Claim amounts to such a memorandum in writing. We do not so regard it. Exhibit A is merely a statement showing the financial responsibility of Langinger and a declaration of his financial ability to discharge any obligation which he might give in connection with the sale of the trucks, and particularly to pay any note given by him in connection with the sale of the trucks. A declaration of ability to perform is not a promise to perform.</p> <p>Judgment for the defendant.</p> <p>Error assigned was the judgment of the court.</p> <p>cited: Shaffstall v. McDaniel, 152 Pa. 598; Schafer v. Farmers & Mechanics Bank of Easton, 59 Pa. 144; Moore v. Eisaman, 201 Pa. 190; Goldsmith v. Stocker, 249 Pa. 180; Title Guaranty & Surety Co. v. Lippincott, 252 Pa. 122.</p> <p>cited: Milton National Bank v. Beaver, 25 Pa. Superior Ct. 494; Wilson v. Martin, 74 Pa. 159; Patterson v. Poindexter, 6 W. & S. 227; Maulé v. Bucknell et al., 50 Pa. 39; Townsend v. Long, 77 Pa. 143.</p>

Appeal, No. 14, Oct. T., 1920, by plaintiff, from judgment of Municipal Court of Philadelphia, Nov. T., 1918, No. 372, for defendant in case tried by the court without a jury in the suit of Abraham Gerson v. Pennsylvania Glass and Manufacturing Company, a corporation, and Nathan Koshar. Issue on an interpleader framed under the Act of May 26, 1897, P. L. 95. Before Knowles, J., without a jury.

Appeal, No. 163, Oct. T., 1920, by defendant, from judgment of C. P. No. 4, Pbila. Co., June T., 1918, No. 3834, on verdict for plaintiff in tbe case of Charles W. Thomas v. Miriam Townsend Sweeney, executrix of the estate of Fanny D. Sweeney, late trading as Decorative Glass Company, F. D. Sweeney, proprietor. Assumpsit for money loaned. Before Audenried, J. The facts are stated in the opinion of the Superior Court. Verdict for plaintiff for $1,309.66 and. judgment thereon.

Appeal, No. 59, Oct. T., 1920, by plaintiffs, from judgment of O. P. No. 3, Phila. Co., June T-, 1919, No. 1385, in favor of defendants for want of a sufficient statement in the case of Leon Selmi and Charles Selmi v. Milton Stern, trading as Auto Transit Company. Assumpsit on bailment lease.

Appeal, No. 159, Oct. T., 1920, by defendant, from the judgment of the Municipal Court of Philadelphia, Sept. T., 1919, No. 574, on verdict for. the plaintiff in the case of Mary Kavalkovich v. Order of Liberty. Assumpsit on beneficial certificate. Before Crane, J. The facts are stated in the opinion of the Superior Court. Verdict for plaintiff in the sum of $535 and judgment thereon. Defendant appealed.

<p>Automiobiles — Accidents■■—Fassengérs—Hired vehicles — Liability of owner.</p> <p>In an action to recover damages for .injuries sustained in an automobile accident, the case is for the jury and a verdict for the plaintiff will be sustained, where the evidence is that the plaintiff was riding in a car driven by defendant’s chauffeur and that the latter, in attempting to pass another automobile on a wet street turned his machine sharply, causing it to skid and strike a telegraph pole so violently that the front of the automobile was damaged and the occupants thrown violently forward and the plate glass windows behind the chauffeur were broken, causing injuries to the plaintiff. The progress of the machine and its violent impact with the pole, was sufficient to support the inference that, Under all the circumstances, it was not handled with the prudence of the ordinary driver or the degree of care required by the attending circumstances.</p> <p>It is also a -question for the jury whether at the time of the accident the chauffeur was an employee of the defendant and engaged in his master’s business.</p>

Appeal, No. 248, Oct. T., 1920, by defendant, from judgment of O. P. No. 2, Phila. •Co., June T., 1918, No. 5344, on verdict for plaintiff in the case of Eobert B. Walker v. Quaker City Cab Company. Trespass to recover damages for injuries to automobile. Before Barratt, P. J. The facts are stated in tbe opinion of the Superior Court. Verdict for plaintiff for $488.89. A remittitur of $60.89 was filed by the plaintiff and judgment entered in the amount of $428.

Appeal, No. 124, Oct. T., 1920, by defendant, from judgment of Municipal Court of Philadelphia, Sept. T., 1919, No. 386, for plaintiff in case tried by the court without a jury in suit of Nelson P. W. Hill v. Gilbert D. Smith. Assumpsit for commissions earned in the sale of real estate. Before Cassidy, J., without a jury. The facts are stated in the opinion of the Superior Court. The court rendered judgment for plaintiff in the sum of $205.39. Defendant appealed.

Appeal, No. 231, Oct. T., 1920, by respondent, from decree of O. P. No. 1, Phila. Co., June T., 1918, No. 2082, granting a divorce in the case of Frederick W. Hartner v. Catherine Hartner. Libel in divorce. Before Patterson, J. Tbe facts are stated in tbe opinion of tbe Superior .Court. The case was referred to Michael A. Spatola, Esq., as master, who recommended a divorce. On exceptions to tbe master’s report tbe court overruled tbe exceptions and granted a divorce.

Appeal, No. 77, Oct. T., 1920, by plaintiff, from judgment of Municipal Court of Philadelphia, Dec. T., 1919, No. 37, making absolute rule to open judgment in the case of Public Ledger Co. v. H. J. Kleinman. Rule to open judgment. The facts are stated in the opinion of the Superior Court. The court made absolute the rule to open the judgment. Plaintiff appealed. Error assigned was the order of the court.

Appeal, No. 135, Oct. T., 1920, by defendant, from judgment of O. P. No. 4, Phila. Co., Sept. T., 1919, No. 4178, for want of a sufficient affidavit of defense in tbe case of Eugene E. White, administrator of the estate of Antonio Manchi, deceased, v. M. Berardina. Rule for judgment for want of a sufficient affidavit of defense. The facts are stated in the opinion of the Superior Court. The court made absolute the rule. Defendant appealed.

Appeal, No. 209, Oct. T., 1920, by plaintiff, from judgment of Municipal Court of Philadelphia County, Dec. T., 1919, No. 268, for defendant for want of a sufficient statement of claim in the case of David Belber v. Ely Lerner. Assumpsit to recover money paid on account of purchase of real estate. Rule for judgment for want of a sufficient statement of claim. The court made absolute the rule for judgment for want of a sufficient statement of claim. Plaintiff appealed.

Appeal, No. 223, Oct. T., 1920, by defendant, from order of C. P. No. 4, Phila. Co., Dec. T., 1919, No. 2960, discharging rule to open judgment in the case of Burton C. Simon v. Charles Wintgens. Rule to open judgment. The court discharged the rule. .The opinion of the Superior Court states the case. Error assigned was the order of the court discharging the rule to open judgment.

Appeal, No. 146, Oct. T., 1920, by defendant, from judgment of C. P. No. 1, Phila. Co., June T., 1918, No. 3433, in the case of Owen Tyler v. Philadelphia Ritz-Carlton Company. Trespass to recover damages for false arrest and imprisonment. Before Finletter, J. The facts are stated in the opinion of the Superior Court, and in former appeal, 73 Pa. Superior Ct. 427. Yerdict for plaintiff in the sum of $1,500. Judgment was entered for the defendant non obstante veredicto.

<p>Negligence — Automobiles—Injury to pedestrians — Contributory negligence — Case for jury.</p> <p>In an action to recover damages for personal injuries sustained by a pedestrian, who was struck by an automobile, the case is for the jury and a verdict for the plaintiff will be sustained, where the evidence is that the plaintiff was walking along a highway on a dark and rainy night and was struck by the defendant’s motor car with such force that she was wedged between the bumper and ■radiator of the defendant’s car and carried for a distance of 150 to 200 feet. It was a question for the jury to decide whether the defendant should have seen the plaintiff walking in the road, and drove her car with due care for the rights of others using the highway.</p>

<p>. Carriers — Shipments—Delivery—Doss—Evidence—Insufficiency.</p> <p>In an action of assumpsit for the value of certain merchandise, which it is claimed was not delivered by an express company, a verdict for the defendant will be sustained, where the testimony produced to prove the loss is vague and indefinite, and there is no positive afSrmative proof of the nondelivery of the merchandise.</p>

<p>Constitutional law — Eighteenth a/mendment — Concurring powers of State and national governments — Volstead Act — Effect on State license laws.</p> <p>Prior to the adoption of the 18th amendment to the Constitution of the United States the regulation or prohibition of the sale of alcoholic liquors, except as affected by the interstate commerce laws, was within the power of the State. The authority conferred on Congress by the 18th amendment is not exclusive, but by express language of the amendment like authority of enforcement resides in the several states. Such authority must not be exercised in antagonism to the legislation of Congress on the subject. It is a lawful power effective to enforce state legislation, having for its object the suppression of the traffic in spirituous, vinous and malt liquors and admixtures thereof.</p> <p>It should never be held that Congress intended to supersede or by legislation suspend the exercise of the police powers of the states, even when it may do so, unless its purpose to effect that result is clearly manifest. The Act of May 13, 1887, P. L. 108 (Brooks License Law), is a restrictive or prohibitory law, defining who may sell alcoholic liquors, and prohibits sales except by persons holding licenses therefor. The passage of the 18th amendment and the enactment of the Volstead Act are not inconsistent with the Act of May 13, 1887, P. L. 108.</p> <p>The state statute is not directed against the manufacture and transportation of liquors, while the 18th amendment and the prohibitory law passed pursuant thereto apply to both of these. While the amendment to the Constitution renders invalid a part of the Pennsylvania statute, it is in entire harmony with another part thereof. The part which is not in conflict with the federal law is self-sustaining and capable of enforcement and is still in force.</p> <p>Nothing in the amendment or the act of Congress passed for its enforcement renders it necessary to hold that the “appropriate legislation,” mentioned in the 2d- section of the amendment, must be enacted after its adoption. Existing laws may be as' appropriate as those subsequently passed to accomplish the object. It would be a vain thing to require the states in which the prohibition of the sale of liquor was in force at the time of the adoption of the amendment to reenact their laws on the subject, and if the prohibitive provisions of the statute of Pennsylvania are sufficient in terms for that purpose, there is no convincing reason why they should not be held to be appropriate for the purpose contemplated.</p> <p>Charge of court — Instructions as to law — Province of jury.</p> <p>In a prosecution for selling liquor without a license where the defense advanced is that the amendment to the Constitution in effect repealed the state license law, a charge of the court that the “best evidence the jurors have of the law is the instructions of the court,” and that it is the duty of the latter to point it out to them and for them to accept it, is without error.</p> <p>Criminal law — Selling liquor without a license — Evidence.</p> <p>In a prosecution for selling liquor without a license it was proper to admit evidence of sales, and that large quantities of the article were found on the premises of the defendants. Such evidence bore on the kind of business conducted by them with respect to the charge in the indictment and on the question of intent and guilty knowledge.</p>

<p>Appeal, No. 77, April T., 1921, by defendant, from sentence of the Court of Q. S. Fayette County, No. 80, June Sessions, 1920, on verdict of guilty, in the case of Commonwealth of Pennsylvania v. Rosie Vigliotti.</p>

<p>Appeal, No. 75, April T., 1921, by defendant, from judgment and sentence of Q. S. Fayette County, June Sessions, 1920, No. 122, on verdict of guilty in the case of Commonwealth of Pennsylvania v. Frank Williams.</p>

<p>Appeal, No. 80, April T., 1921, by defendant, from judgment and sentence of Q. S. Fayette County, June Sessions, 1920, No. 60, on verdict of guilty in the case of Commonwealth of Pennsylvania V. Kalman Krizon.</p>

Appeal, No. 73, Oct. T., 1920, by defendant, from sentence of Q. S. of Fayette County, June Sessions, 1920, No. 59, in the case of Commonwealth of Pennsylvania v. Mike Mondalek. Indictment for selling liquor without a license. Before Beppert, J. The facts are stated in the opinion of the Superior Court. Verdict of guilty on which judgment of sentence was passed. Defendant appealed.

Appeal, No. 74, April T., 1921, by defendant, from sentence of Q. S. of Fayette County, June Sessions, 1920, No. 59, in the case of Commonwealth of Pennsylvania v. Mary Saab. Indictment for selling liquor without a license. Before Reppert, J. The facts are stated in the opinion of the Superior Court. Verdict of guilty on which judgment of sentence was passed. Defendant appealed.

<p>Appeal, Nos. 72 and 78, April T., 1921, by defendants, from judgment of Q. S. Fayette County, June Sessions, 1920, No. 96, on verdict of guilty in the case of Commonwealth of Pennsylvania v. Mike Esper and Marchie Esper.</p> <p>Indictment for selling liquor without a license. Before Reppert, 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. Defendants appealed.</p> <p>Errors assigned were various rulings on evidence, refusal to quash the indictment and refusal of defendants’ point that there can be no conviction of the wife for the act committed in the presence of her husband.</p>

<p>Appeal, No. 58, Oct. T., 1920, by defendant, from judgment of Municipal Court of Philadelphia, Jan. T., 1919, No. 477, on verdict for plaintiff in the case of Joseph Engle, trading as Enrose Knitting Mills and Daisy Manufacturing Company v. Capital Fire Insurance Company of Concord, New Hampshire.</p> <p>Assumpsit on insurance policy.</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>Errors assigned were various rulings on evidence, the charge of the court, answers to points and refusal to direct a verdict for the defendant.</p> <p>The failure of the plaintiff to comply with the Act of June 28, 1917, P. L. 645, is a bar to his recovery: Mitchell v. Smith, 1 Binney 110; Holt y. Green, 73 Pa. 198; Yenango County v. Penn Bridge Co., 215 Pa. 199; Yendegrift v. Vandegrift, 226 Pa. 254; Blandi y. Pellegrini, 60 Pa. Superior Ct. 552; Sykes v. Pa. R. R. Co., 28 D. R. 1038; Donahue v. Mellinger, 29 D. R. 346.</p> <p>The question of the ownership of the property was properly submitted to the jury: Swingle v. Sun Insurance Office, 33 Pa. Superior Ct. 261; Pittsburgh Insurance Co. v. Frazee, 107 Pa. 521; Silverman y. Safety Mutual Fire Insurance Company, 44 Pa. Superior Ct. 618.</p> <p>The failure to register under the Act of June 28, 1917, P. L. 645, did not deprive the plaintiff of his right to recover on the insurance policy: Black y. New York Life Insurance Co., 127 N. Y. S. 409; Loeb y. Firemen’s Insurance Company of Baltimore, 77 N. Y. S. 106; Sinnott v. German Bank, 164 New York 386; Doyle y. Shuttle-worth, 83 N. Y. S. 609; Segal v. Flyer, 80 Connecticut 293; Duroth Manufacturing Co. v. Cauffiel, 243 Pa. 24; New York & Scranton Con. Co. v. Winton, 208 Pa. 467; Leasure v. Union Mutual Life Insurance Co., 91 Pa. 491; King Optical Co. v. Royal Ins. Co., 24 Pa. Superior Ct. 527; Grant y. Henry Clay Coal Co., 80 Pa. 208; Federal Glass Co. y. Lorentz, 49 Pá. Superior Ct. 585.</p>

Appeal, No. 201, Oct. T., 1920, by libellant, from decree of C. P. Blair County, March T., 1919, No. 157, dismissing libel in divorce in the case of James E. Farnsworth v. Ida V. Farnsworth. Libel in divorce. Before Baldrige, P. J. The facts are stated in the opinion of the Superior Court. The case was referred to W. C. Fletcher, Esq., as master, who recommended that the divorce be refused.

Appeal, No. 11, Oct. T., 1920, by defendant, from judgment of O. P. Blair County, Jan. T., 1919, No. 128, affirming judgment of a justice of the peace in the case of Leopold Schwartz and Nathan Schwartz, trading as Schwartz Bros., y. Adams Express Company. Certiorari to review judgment of the justice of the peace. Before Baldrige, P. J. The facts are stated in the opinion of the Superior • Court. The court affirmed the judgment. Defendant appealed.

<p>Appeal, No. 65, Oct. T., 1920, by plaintiff, from judgment of O. P. No. 5, Phila. Co., Sept. T., 1917, No. 3458, sustaining demurrer in favor of defendant in tbe case of Sadye G. Kress v. Rebecca Kress.</p> <p>Interpleader to determine to whom to pay benefits of life insurance policy. Before Martin, P. J.</p> <p>Tbe facts are stated in tbe opinion of tbe Superior Court.</p> <p>Tbe fund was paid into court and an issue framed to determine tbe right thereto, with Sadye Kress, as plaintiff, and Rebecca Kress, as defendant.</p> <p>A rule was granted on tbe defendant in tbe interpleader to show cause why tbe fund in court should not be paid to petitioner, After argument and reargument, tbe court entered judgment in favor of tbe plaintiff in tbe interpleader.</p> <p>Error assigned, among others, was the judgment of the court.</p> <p>The substitution of the beneficiary was complete: Schoales v. Order of Sparta, 206 Pa. 11; Noble v. Police Beneficiary Assn., 224 Pa. 298; P. R. R. v. Wolfe, 203 Pa. 269.</p> <p>Endorsement by the company on the policy of the change in the beneficiary was essential: Shepperd v. Crowley, 61 Fla. 735; Johnson v. N. Y. Life Ins. Co., 56 Colo. 178; Joyce on Insurance, vol. 2, par. 740B, (2d Ed: 1917, page 1674); Provident Sav. Life Assur. Co. v. Deeds, 120 Ky. 285; Anderson v. Broad Street National Bank, 105 Atl. Rep. 599; Freund v. Freund, 218 111. 189.</p>

Appeal, No. 237, Oct. T., 1920, by respondent, from order of Municipal Court of Philadelphia, July T., 1920, No. 1187, directing a payment in support, in the case of Commonwealth v. William McDermott. Petition for order of support. Before Bartlett, J. The facts are stated in the opinion of the Superior Court. The .court found the petitioner to be the common-law wife of the defendant and made an order that the defendant pay a sum of five dollars a week. Defendant appealed.

Appeal, No. 168, Oct. T., 1920, by plaintiff, from judgment of O. P. Blair Go., March T., 1920, No. 163, on verdict for defendant in the case of Adams Express Company v. W. S. Albright, Charles W. Albright, Frank J. Albright, trading and doing business as Albright Bros. Assumpsit for express charges. Before Baldrige, P. J. The facts are stated in the opinion of the Superior Court. Verdict for defendant in the sum of $243.64 and judgment thereon. Plaintiff appealed.

Appeal, No. 45, Oct. T., 1920, by plaintiff, from judgment of O. P. Clinton County, Oct. T., 1918, No. 69, in favor of tbe defendant non obstante veredicto, in tbe case of Lionel S. Tripp v. Borough of Renovo. Trespass to recover damages for personal injuries sustained in a fall on an icy street. Before Heck, P. J., 55tb Judicial District, specially presiding. Tbe facts are stated in tbe opinion of tbe Superior Court. Judgment for plaintiff for $500.

Appeal, No. 69, Oct. T., 1920, by executor, from decree of O, 0. Huntingdon County, No. 173, 1920, awarding a citation on Seigel Ashman, executor, in re Estate of Ralph Kyler, deceased. Citation on Seigel Ashman, executor, to present petition to open judgment No. 34, December Term, 1917, in the Court of Common Pleas of Huntingdon County. Before Bailey, P. J. The facts are stated in the opinion of the Superior Court.

<p>Appeal, No. 16, Oct. T., 1920, by plaintiff, from judgment of O. P. Blair County, Oct. T., 1919, No. 184, on verdict for plaintiffs in the case of Wray, Moore & Company, a Limited Partnership Association, v. The American Railway Express Company, successor to Adams Express Company, a general association under the laws of the state of New York.</p> <p>Assumpsit to recover the value of goods damaged and spoiled in transit. Before Baldrige, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict for plaintiffs for $285.16. Subsequently the court reduced the verdict to $122.40, and entered judgment thereon. Plaintiff appealed.</p> <p>Error assigned, among others, was the opinion and decree of the lower court refusing motion for judgment non obstante veredicto, as quoted in the opinion of the Superior Court.</p> <p>In the default of any evidence to the contrary a presumption of negligence on the part of the terminal carrier will arise: The American Express Company y. Sands et al., 55 Pa. 140; D’Agostino y. Phila. & Reading Ry. Co., 25 Pa. District Reps. 555; Pennsylvania R. R. Co. v. Miller et ux., 87 Pa. 395.</p>

<p>Appeal, No. 34, Oct. T., 1920, by plaintiff, from decree of C. P. Carbon County, sitting in equity, Oct. T., 1917, No. 2, on bill in equity in the case of the Lehigh Coal & Navigation Company v. School District of Mauch Chunk Township, Edward It. Ronemus, Samuel Emanuel, Harry J. Steventon, Albert Norwood and Thomas E. Coke, individually and as school directors of said school district.</p> <p>Bill in equity for an injunction. Before Baebeb, P. 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, November 24, 1919, this cause came on to be heard at this term, and was argued by counsel, and thereupon, upon consideration thereof, it is ordered, adjudged and decreed as follows, namely:</p> <p>“First. — That an injunction should issue restraining the members of the school district of Mauch Chunk Township, Carbon County, from continuing to elect, in rotation, members of the board to the offices to which compensation is attached, to the end that all members shall receive compensation during their respective terms of office.</p> <p>“Second. — That an injunction should issue restraining the treasurer of said board, whether voluntarily, by arrangement or otherwise, from sharing the compensation paid him, as treasurer, with the secretary, or with any other member of the board.</p> <p>“Third. — That the moneys paid by Edward R. Ronemus, treasurer, to Samuel Emanuel, secretary of said board in July, 1916, and July, 1917/ amounting to $783.47, be declared trust funds and the property of said school district, and that said Samuel Emanuel be required and directed to pay said sum of $783.47, so received, into the treasury of said school district.</p> <p>“Fourth. — That the costs of these proceedings be paid by the defendants individually in equal proportions.”</p> <p>Error assigned, among others, was the decree of the court.</p> <p>The compensation of the treasurer of the school board was excessive, and unless the amount of compensation be reduced the illegal practice as complained of will not be prevented. The court had authority to reduce this compensation to a reasonable sum: Lamb v. Redding, 234 Pa. 481; School Code of May 18, 1911, P. L. 327; 5 Stewart’s Purdon’s Digest, 5566; Mason v. Hanover Township School Dist., 242 Pa. 359.</p>

<p>School law — School c.ode — Directors—Secretary and treasurer— Rotation of office among directors — Compensation—Illegality—In equity — Injunction.</p> <p>It is illegal for a school board to pay compensation to its secretary and treasurer •without first having approved such payments by an affirmative vote of the majority of all the members of the board, duly recorded on its minutes, showing how each member voted, in accordance with the provisions of section 403 of the School Code of 1911, P. L. 330.</p> <p>Where such payments have been made, in violation of the provisions of the School Code of 1911, P. L. 330, it is error for the court, on an appeal from the audit of the school accounts, to refuse to surcharge the directors with the amounts illegally expended, especially where the directors have indulged in the illegal practice of electing their members in rotation to the salaried officers of secretary and treasurer.</p>

Appeal, No. 145, Oct. T., 1920, by defendant, from judgment of C. P. No. 2, Pbila. Co., Sept. T., 1913, No. 3557, on verdict for plaintiff in tbe case of Dennis Buck v. Quaker City Cab Company. Trespass to recover damages for personal injuries. Before Wessel, J. The facts are stated in the opinion of the Superior Court. Verdict for plaintiff for $1,100 and judgment thereon. Defendant appealed.

Appeal, No. 206, Oct. T., 1920, by defendant from judgment of the Municipal Court of Philadelphia, Oct. T., 1919, No. 473, on verdict for plaintiff in the case of P. J. Green v. John W. Sprinkle. Trespass to recover damages for injuries to an automobile. Before Knowles, J. The facts are stated in the opinion of the Superior Court. Verdict for plaintiff for $480.65, and judgment thereon. Defendant appealed.

Appeal, No. 157, Oct. T., 1920, by defendant, from judgment and sentence of Municipal Court of Philadelphia, Criminal Division, July Sessions, 1920, No. 20, on verdict of guilty in the case of Commonwealth of Pennsylvania v. Benjamin Fogel. Indictment for larceny and receiving stolen goods. Before McNichol, J. The facts are stated in the opinion of the Superior Court. Verdict of guilty of receiving stolen goods on which judgment of sentence was passed. Defendant appealed.

Appeal, No. 93, Oct. T., 1920, by defendants, from judgment of O. P. Wyoming County, April T., 1910, No. 3, on verdict for the plaintiff in the case of S. B. Hartley v. C. L. Spencer and Harry A. Spencer. Trespass quare clausum fregit. Before Garman, J., specially presiding. The facts are stated in the opinion of the Superior Court. Verdict for plaintiff for $200 and judgment thereon. Defendant appealed.

<p>Workmen's Compensation Act — Injuries in course of employment — Injuries sustained while playing with fellow workmen— Right to compensation.</p> <p>An employee is entitled to recover compensation under the Act of June 2, 1915, P. L. 736 (Workmen’s Compensation Act) for injuries received through falling over a wall, while attempting to escape from his fellow employees on the property of his employer during the lunch hour.</p> <p>The Pennsylvania Workmen’s Compensation Act differs from that in force in many states in that it does not require that the accident resulting in an injury must “arise out of the employment” but only that it occur “in the course of the employment.” In most other jurisdictions both elements must be present, viz: the accident must arise out of and in the course of the employment.</p> <p>The Pennsylvania statute does not require that the employee should be actually engaged in his work when he is injured in order to make his injury compensable.</p> <p>Compensation, under tht Workmen’s Compensation Act of Pennsylvania, has nothing to do with the question of negligence or contributory negligence. It is not awarded because the employer is at fault or withheld from the workman because he himself is at fault, providing the injury is not intentionally self-inflicted. The purpose of the act is to relieve to some extent the employee, who has been injured in the course of his employment, from the economic consequences of his injury and make them a part of the cost of the operation of the business, to be paid ultimately by the consuming public, and the act should be construed so as to carry this purpose into effect.</p>

<p>Appeal, No. 275, Oct. T., 1920, by defendant, from judgment of O. P. Huntingdon County, May T., 1920, No. 215, affirming the decision of the Workmen’s Compensation Board in the case of Mary Strunk v. Charles Keller.</p> <p>Appeal from Workmen’s Compensation Board. Before Bailey, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The court affirmed the decision of the Workmen’s Compensation Board and judgment was entered in favor of the plaintiff for $700. Defendant appealed.</p> <p>Error assigned, among others, was the decree of the court.</p>

<p>Appeal, No. 89, Oct. T., 1920, by plaintiff, from judgment of C. P. No. 3, Phila. Co., Dec. T., 1919, No. 2306, sustaining demurrer to plaintiff’s statement in case of'Sims McCrary v. John E. McCully, administrator of the goods and chattels of Annie Monroe, deceased, and Charles W. Slemmer, bailiff.</p> <p>Replevin for household goods.</p> <p>Plaintiff’s amended statement averred not only the unlawful taking of his goods and chattels, as described in the writ, by the defendants, but also that he was the owner in fee of the premises in which they were located at the time of such taking, 1543 Thompson Street, Philadelphia, by deed dated February 20, 1919, and lodged for record in the office of the recording of deeds of Philadelphia County for which and the adjoining property, 1545 Thompson Street, he had paid a consideration of $5,700; that such goods had been unlawfully seized by defendants on December 9, 1919, under a distress for rent alleged to be due amounting to $260; that no rent was due at the time of said levy by plaintiff to the said defendants, or any other person.</p> <p>The defendants demurred to the statement on the following grounds:</p> <p>1. Plaintiff has failed to aver who was the grantor in the alleged deed dated February 20, 1919.</p> <p>2. Plaintiff has failed to aver by whom the deed was signed, and if signed, whether the same was sealed, and by whom.</p> <p>3. Plaintiff has failed to attach to his statement a copy of the deed whereby he claims to hold title to said premises, so that the court may judicially determine its validity.</p> <p>4. Plaintiff has failed to aver when the consideration of $5,700 was paid, and to whom said consideration was paid.</p> <p>Error assigned was the order sustaining the demurrer and entering judgment for the defendants. ■</p>

Appeal, No. 285, Oct. T., 1920, by defendant, from order of Municipal Court of Philadelphia, June T., 1920, No. Ill, making absolute rule for judgment for want of a sufficient affidavit of defense, in the case of D. Lessa v. S. Staler. Buie for judgment for want of a sufficient affidavit of defense. ■The facts are stated in the opinion of the Superior Court. The court made absolute the rule. Defendant appealed. Error assigned, was the order of the court.

Appeal, No. 19, March T., 1921, by defendant, from judgment and sentence of Q. S. Lackawanna County, April Sessions, 1920, No. 12, on verdict of guilty in case of Commonwealth of Pennsylvania v. Lynn H. Holgate. Indictment for assault and battery, aggravated assault and battery, and felonious wounding. Before Maxey, J. The facts are stated in the opinion of the Superior Court.

Appeal, No. 284, Oct. T., 1920, by defendant, from judgment of the Municipal Court of Philadelphia, June T., 1920, No. 263, in the case of Elk Textile Company, a corporation, v. D. Cohen, trading as Columbia Dress Company. Assumpsit on book account for goods sold and delivered. Buie for judgment for want of a sufficient affidavit of defense. The facts are stated in the opinion of the Superior Court.

Appeal, No. 183, Oct. T., 1920, by respondent, from decree of O. P. No. 2, Phila. Co., Sept. T., 1917, No. 648, granting a divorce in the case of Charles A. Abbott v. Frances F. Abbott. Libel in divorce. Before Rogers, J. The facts are stated in the opinion of the Superior Court. The case was referred to Bertram D. Rearick, Esq., as master, who recommended a divorce. On exceptions to the master’s report the court dismissed the exceptions and granted a divorce.

Appeal, No. 274, Oct. T., 1920, by defendant, from judgment of O. P. No. 5, Phila. Co., Sept. T., 1919, No. 1809, on verdict for plaintiff in the case of Joseph Kane v. American International Shipbuilding Corporation. Assumpsit for services rendered. Before Staake, J. The facts are stated in the opinion of the Superior Court. Verdict for plaintiff for $612.03 and judgment thereon. Defendant appealed.

Appeal, No. 83, Oct. T., 1920, by defendant, from the judgment and sentence of Q. S. Phila. Co., July Sessions, 1919, No. 417, on verdict of guilty in the casé of Commonwealth of Pennsylvania v. Philip S. Dailey. Indictment for practicing medicine without a certificate issued by the Bureau of Medical Education and Li-censure,. and without having been registered under the Act of June 11,1911, P. L. 639.

<p>Taxation — Ghai'ita'ble institutions — Exemptions—Acts of May 14,1874, P- L. 158; May 29,1901, P. L. 819; March 24, 1909, P. L. 54; June 18,1911, P. L. 898.</p> <p>Property of a charitable institution which is not used directly for the purpose and in the operation of the charity, but for profit, is not exempt from taxation and the devotion of the profit to the support of the charity will not alter the result. The property which is used directly for the purpose and in the operation of the charity is exempt, although it may also be used in a manner to bring some return and thereby reduce expenses.</p> <p>A bill in equity to restrain the collection of a tax on the ground that the property in question is devoted to charitable uses, and is therefore exempt, is properly dismissed, where it is shown that some portion of the premises is taxable. If any portion of the property is taxable the bill in equity must be dismissed. Whether the portions exempt and taxable have been correctly determined is a question which cannot be raised in an equity proceeding. Any complaint on that score can only be heard on appeal from the decision of the Board of Revision of Taxes.</p>

Appeal, No. 61, Oct. T., 1920, by defendant, from judgment of Municipal Court of Philadelphia, Dec. T., 1918, No. 776, in favor of plaintiff in case tried by the court without a jury, in suit of Hitchner Wall Paper and Paint Company, a Corporation, v. Samuel Shoemaker. Assumpsit on promissory notes. Before Crane, J., without a jury. The facts are stated in the opinion of the Superior Court. The court entered judgment for plaintiff in the sum of $170. Defendant appealed.

<p>Appeal, No. 62, Oct. T., 1920, by defendant, from judgment of Municipal Court of Philadelphia, Dec. T., 1918, No. 777, in favor of plaintiff in case tried by the court without jury in suit of F. C. Hitchner v. Samuel Shoemaker.</p>

<p>Appeal, No. 197, Oet. T., 1920, by plaintiffs, from judgment of Municipal Court of Philadelphia, April T., 1920, No. 113, in favor of defendant for want of a sufficient statement of claim in the case of James E. Hoffman and Mrs. James E. Hoffman v. Auto Security Company, a corporation.</p> <p>Rule for judgment for want of a sufficient statement of claim. Before MoNichol, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The court made absolute the rule. Plaintiffs appealed.</p> <p>Error assigned was the order of the court.</p> <p>The statement of claim was sufficient: El Dorado Jewelry Company v. Hopkins, 34 Pa. Superior Ct. 446; Logan v. Gardner, 136 Pa. 588; American Harrow Co. v. Swoope, 16 Pa. Superior Ct. 451; Templeton v. Shakley, 107 Pa. 370; Strawbridge v. Hawthorne, 47 Pa. Superior Ct. 647; Colt v. Diffenbach, 60 Pa. Superior Ct. 192.</p> <p>cited: Greenfield’s Est., 14 Pa. 496; Lowry v. Roy, 238 Pa. 9; Williams et al. v. Notopolos, 259 Pa. 469; General Motors Truck Company v. Philadelphia Paving Company, 248 Pa. 499; Oxweld Acetylene Co. v. Hastings, 71 Pa. Superior Ct. 178; Philadelphia Motor Speedway Association v. Murphy, 71 Pa. Superior Ct. 455.</p>

Appeal, No. 226, Oct. T., 1920, by defendant, from judgment of the Municipal Court of Philadelphia, July T., 1919, No. 128, in favor of plaintiff in case tried by the court without a jury, in suit of Michael Eichelbaum and Thomas E. Smith, late trading as Lynchburg Iron & Metal Company, v. J. Y. S. Bishop. Assumpsit for the price of a carload of scrap iron. Before Gorman, J., without a jury. The facts are stated in the opinion of the Superior Court.

Appeal, No. 73, Oct. T., 1920, by plaintiff, from judgment of C. P. Berks County, Feb. T., 1919, No. 44, for defendant non obstante veredicto in tbe case of Sarah McKeown v. Beading Transit & Light Company. Trespass to recover damages for personal injuries. Before Henry, P. J., 52d Judicial District, specially presiding. The facts are stated in the opinion of the Superior Court. Verdict for plaintiff for $850.

<p>Assault and battery — Betaking possession <of sewing machine— Undue violence — Constable—Agency—Charge of court — Punitive damages.</p> <p>In an action for damages for assault and battery by an agent of the defendant, committed while retaking possession of a sewing machine leased on a bailment lease, the case is for the jury and a verdict -will be sustained, where evidence is produced that the agent, with the assistance of a constable, used undue force and violence in accomplishing his purpose.</p> <p>In such ease, a charge of the court which reviews the testimony without any misstatement of the facts and fairly submits them to the jury is without error.</p> <p>Where the injuries complained of are the results of reckless indifference to the rights of others, which is equivalent to the violation of the same, the jury may find punitive damages.</p>

<p>Appeal, No. 166, Oct. T., 1920, by defendants, from judgment .of O. P. Northumberland County, May T., 1918, No. 287, on verdict for plaintiff in the case of Elmira Rohrbach v. Ambrose Ross, Charles E. Ross and Mary E. Dormer, administrators of Alexander Ross, deceased.</p> <p>Assumpsit for services rendered decedent. Before Cummings, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict for plaintiff for $1,100. and judgment thereon. Defendants appealed.</p> <p>Errors assigned were the charge of the court, answers to points that there was a presumption of payment for the services rendered by the plaintiff, and refusal to direct a verdict for the defendants.</p> <p>Wages for domestic services are presumed to be regularly paid, and the evidence to overthrow this presumption must be supported by .affirmative proof: Carpenter v. Hays, 153 Pa. 132; Hughes Est., 176 Pa. 387; Taylor v. Beatty, 202 Pa. 120; Winings v. Hearst, 17 Pa. Superior Ct. 311; Haye’s Est., 17 Pa. Superior Ct. 112; Winfield v. Beaver Trust Co., 229 Pa. 530.</p> <p>The evidence of the plaintiff was not sufficient to take the case to the jury: Gregory Exrs. v. Com., 121 Pa. 611; Porter v. Nelson, 121 Pa. 628; Runner’s-App., 121 Pa. 619; Devereux’s Est., 181 Pa. 129; Fláccus v. Wood, 260 Pa. 161.</p> <p>The question was for the jury: Wertz v. Williamsport, 67 Pa. Superior Ct. 156; Schrader, Appellant, v. Beatty, 19 Pa. Superior Ct. 212; Ranninger’s App., 118 Pa. 29; Schrader v. Beatty, 206 Pa. 181; Davies’s Est., 60 Pa. Superior Ct. 360; Hewitt v. Democratic Pub. Co., 260 Pa. 61.</p>

<p>Appeal, No. 32, Oct. T., 1919, by Johnstown and Stony Creek Railroad Company, from order of the Public Service Commission of the Commonwealth of Pennsylvania, Complaint Docket No. 1356, regulating a -railroad crossing in the case of City of Johnstown, y. Johnstown & Stony.Creek Railroad Company & (Johnstown Traction Company).</p> <p>Petition of city of Johnstown for order regulating grade crossing at Messenger Street in the City of Johns-town.</p> <p>The Public Service Commission ordered the installation of crossing gates and the maintenance of a watchman and divided the cost of construction and maintenance between the defendant railroad company and the Baltimore and Ohio Railroad Company. The defendant took an appeal to the Superior Court, which was reported in 70 Pa. Superior Ct. 608.</p> <p>The appeal was dismissed as set forth in the opinion in the present case.</p> <p>On appeal to the Supreme Court, the case was remanded to the Superior Court with direction that the latter court dispose of the question raised upon its own independent judgment as to the law and the facts involved.</p>

<p>Boroughs — Annexation <of territory — Validity of proceeding— Method to determine — Act of May lit, 1915, P. L. 812 (Borough Code).</p> <p>The legality of proceedings to annex territory adjacent to a borough, under sections 18 and 19 of chapter III, of article I, of the Act of May 14, 1915, P. L. 312 (Borough Code), may be tested by the freeholders of the annexed territory upon an attempt of the borough to enforce an ordinance relating to the annexed territory. Such a remedy may be invoked by the party aggrieved whenever the ordinance is attempted to be enforced, and proceedings must not necessarily be brought to the next term of the court of quarter sessions following the passage of the ordinance.</p> <p>Under the provisions of section 9 of chapter YH, article I, of the Borough Code, a remedy by complaint to the court of quarter sessions is provided in such case, and this remedy is exclusive. The court may inquire, if the question is raised, whether the petition of the borough was actually gigned by a majority of the freeholders of the territory proposed to be annexed, and, whether the ordinance followed the petition and complied with the legal requirements as to its passage, approval and recording; and whether the other requisites relative to filing a certified copy of said ordinance, and the description of plot showing the courses and distances of the boundaries of the borough before and after gueh annexation in the court of quarter sessions, and notice of such filing given the county commissioners had been complied with. All these matters were the subject of inquiry in a court of equity and are now reviewable by a court of quarter sessions, but it may not, however, substitute its judgment or discretion for that of the borough authorities, as it is concerned only with the legality, and not the wisdom of their action.</p> <p>Where the complaint to the quarter sessions averred that the petition to the borough council had not been gigned by a majority of the freeholders of the territory proposed to be annexed, it was the duty of the court to inquire into and determine this matter if the proceedings were otherwise regular and in conformity with law.</p> <p>Where the description and plot showing the courses and distances of the annexed territory were not in compliance with the plain mandate of the statute, the order of the court dismissing the petition will be reversed.</p>

<p>Appeal, No. 174, Oct. T., 1920, by respondent, from judgment of C. P. Huntingdon County, Dec. T., 1918, No. 17, granting a divorce in the case of Orlady Isenberg v. Sadie M. Isenberg.</p> <p>Libel in divorce. Before Bailey, P. J.</p> <p>The case was referred to Charles C. Brewster, Esq., as master, who recommended that the libel be dismissed.</p> <p>On exceptions to the master’s report the court sustained the exceptions and granted a divorce. Respondent appealed.</p> <p>Error assigned was the decree of the court.</p>

<p>School code — School taxes — Special hond — General hond — Failure to file special hond — Liahility on general hond.</p> <p>A tax collector was elected to his office in accordance with the provisions of the Act of June 25,1885, P. L. 187, and, before entering upon tbe duties of bis office, executed a bond to tbe Commonwealth in accordance with tbe provisions of that statute. He did not give a special bond as provided under tbe Act of May 18,1911, P. L. 309 (School Code). Subsequently, on Ms default for certain school taxes which he had collected, judgment was entered on the general bond.</p> <p>Under such circumstances, it was error to refuse a petition by the sureties on the general bond to open the judgment and let them into a defense.</p> <p>Under the provisions of the school code a special bond was required of the tax collector, to be approved by the board of school directors. Upon failure of the school board to exact such a bond, the sureties on the general bond are not liable for the misappropriation of the school taxes.</p>

<p>Appeal, No. 165, Oct. T., 1920, by defendant, from judgment of O. P. Northumberland County, May T., 1919, No. 166, on verdict for the plaintiffs in the case of Thomas Ditchfield and Cora Ditchfield, his wife, v. Clinton A. Tharp.</p> <p>Trespass to recover damages for death of minor child. Before Cummings, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict for plaintiffs for $1,500 and judgment thereon. Defendant appealed.</p> <p>Error assigned, among others, was refusal of defendant’s motion for judgment non obstante veredicto.</p> <p>The deceased was guilty of contributory negligence which the defendant could not be expected to guard against: Eastburn v. United States Express Company, 225 Pa. 33; Frank v. Allegheny Valley Street Bailway Company, 58 Pa. Superior Ct. 546; Chilton v. General Traction Company, 152 Pa. 425; McKee v. Harrisburg Traction Company, 211 Pa. 47; Sontgen v. Kittanning & Ford City Street Bailway, 213 Pa. 114; Tatarewicz v. United Traction Company, 220 Pa. 560; Miller v. Union Traction Company, 198 Pa. 639; Harry Funk v. The Electric Traction Company, 175 Pa. 559.</p> <p>cited: Hulhern v. Phila. Homemade Bread Co., 257 Pa. 22; Bloom v. Whelan, 56 Pa. Superior Ct. 277; Kuehne v. Brown, 257 Pa. 37; Walbridge v. Schuylkill Electric Ry. Co., 190 Pa. 274; Yenger y. Gately & Fitzgerald, Inc., 262 Pa. 466; Tatarewicz v. United Traction Co., 220 Pa. 560; Reese v. France, 62 Pa. Superior Ct. 128.</p>

<p>Equity — Injunction—Strihes—Contempt—Inquiry by court.</p> <p>Where a decree has been granted enjoining the members of an unincorporated labor union, who were on a strike, from interfering with the plaintiff’s business by 'threats or intimidations, it is proper practice upon the violation of such decree, for the court to grant a rule on the defendants to show cause why they should not be adjudged in contempt.</p> <p>Such contempt not having been committed in the presence of the dourt. The power to ascertain the important fact, whether or not the contempt had actually been committed by a violation of the decree, resided in the court which had entered the decree.</p> <p>In order that a court may compel obedience to its orders, it must have the right to inquire whether there has been any disobedience thereof. To submit the question of disobedience to another tribunal, be it to a jury or another court, would operate to deprive the proceeding of half its efficiency. The court in which the decree was entered was the proper tribunal to ascertain and determine the fact, whether or not there had been a specific violation of it.</p> <p>The fact that the plaintiff’s property had, subsequent to the decree, passed into the hands of a receiver is immaterial, in so far as the contempt of the defendants is concerned.</p>

<p>Negligence — Sidewalk—Subterranean vault■ — Collapse of sidewalk —Case for jury.</p> <p>In an action to recover damages for personal injuries, sustained in the collapse of defendant’s sidewalk, the case is for the jury and a verdict for the plaintiff will be sustained where it appeared that there was a vault connected with the defendant’s premises, and extending under the sidewalk. It also appeared that a violent explosion had occurred a short time previously in the vicinity of the property, and that the plaintiff had made only a cursory inspection to ascertain if any damage had been done.</p> <p>In such case, the question was for the jury to decide whether the inspection was such as a reasonably prudent and careful man should have made, under the circumstances, and whether or not the defendant had negligently failed to discharge a duty imposed on him by the law.</p>

<p>Practice, C. P. — Judgments—Execution—Stay—Appeal to Superior Court — Procedure.</p> <p>An application to stay a writ of execution on a judgment, is properly refused, where an appeal had .been taken to the Superior Court more than three weeks after the entry of the judgment. An appeal to the Superior Court will not have the effect of superseding the execution duly issued in the court below, unless taken and perfected and bail entered in the manner prescribed, within three weeks from the date of the entry of the judgment.</p>

<p>Appeal, No. 148, Oct. T., 1920, by petitioner, from the decree of O. P. Huntingdon County, Sept. T., 1919, No. 1, refusing to appoint a receiver in the case of Richard Bookwalter, petitioner, v. E. R. Bookwalter, an insolvent.</p> <p>Petition for rule to show cause why a receiver should not be appointed. Before Bailey, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The court dismissed the petition. Petitioner appealed.</p> <p>Error assigned was the order of the court.</p>

Appeal, No. 224, Oct. T., 1920, by County of Northumberland, from judgment of C. P. Northumberland County, No. 170, Feb. T., 1920, in favor of plaintiff in the casé of S. H. McKinney v. County of Northumberland. Case-stated to determine the amount of salary to which the plaintiff was entitled as county commissioner of Northumberland County. Before Cummings, P. J. The facts are stated in the opinion of the Superior Court.

<p>Appeal, No. 64, Oct. T., 1920, by plaintiff, from judgment of C. P. Lancaster County, March. T. 1919, No. 51, directing a verdict for the defendant in the case of Millard G. Miller v. Peter F. Sheaffer, Sallie E. Sheaffer, Clara E. Bair, Albert N. Sheaffer, Edgar M. Sheaffer and Mary A. Usner.</p> <p>Ejectment for an undivided one-twelfth interest in a certain tract of land containing 105 acres and 146 perches in Earl Township, Lancaster County. Before Landis, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The court directed a verdict in favor of the defendants. Plaintiff appealed.</p> <p>Error assigned, among others, was the refusal of plaintiff’s motion for judgment non obstante veredicto.</p> <p>A mere testamentary power of sale, vested in executors to sell real estate, did not work a conversion. There must be an intent to convert, either express or implied: Hunt’s App., 105 Pa. 128; Sheridan v. Sheridan, 136 Pa. 14; Marr’s Est., 240 Pa. 38; Chamberlain’s Est., 257 Pa. 113; Carter’s Est., 225 Pa. 355.</p> <p>The deed from one of the heirs to the wife of the plaintiff vested in her an undivided one-fourth interest in the real estate, in which the plaintiff was entitled to his curtesy: Commissioners v. Poor District, 169 Pa. 116; Peck v. Ward, 18 Pa. 506; Thorndell v. Morrison, 25 Pa. 326; Houck v. Ritter, 76 Pa. 280; Miller v. Ruble and wife, 107 Pa. 395; Sanders’s Estate, 41 Pa. Superior Ct. 77; Bailey v. Allegheny National Bank, 104 Pa. 425.</p> <p>cited: Spring’s Est., 216 Pa. 529; Gibbons v. Gibbons, 235 Pa. 24; Shirk’s Est., 242 Pa. 95; Kerr et al. v. Verner, 66 Pa. 326; Potts v. Breneman, 182 Pa. 295; Watt’s Est., 202 Pa. 85.</p>

Appeal, No. 119, Oct. T., 1920, by defendant, from judgment of C. P. Lancaster County, May T., 1919, No. 32, on verdict for plaintiff in case of the Borough of Adamstown v. Nathan E. Hartman. Scire facias sur municipal lien. Before Landis, P. J. The facts are stated in the opinion of the Superior Court. The court directed a verdict in favor of the plaintiff in the sum of $101.18 and judgment was entered thereon. Defendant appealed.

Appeal, No. 303, Oct. T., 1920, by defendant, from judgment of C. P. Lancaster County, Feb. T., 1920, No. 63, on verdict for plaintiff in tbe case of J. W. Brown, trustee, in bankruptcy of Thomas Humphreville v. C. G-. Engle. Scire facias sur mechanic’s lien. Before Hassler, J, The facts are stated in the opinion of the Superior Court. Verdict for plaintiff for $22.80 and judgment thereon. Defendant appealed.

Appeal, No. 278, Oct. T., 1920, by plaintiff, from judgment of Municipal Court of Philadelphia, July T., 1919, No. 144, for defendants in case tried by the court without a jury in the suit of Philip J. Hoffman v. Benjamin Hockfield and Harry Hockfield, copartners, trading as Hockfield Brothers. Assumpsit for breach of warranty. Before Bonniwell, J., without a jury. The facts are stated in the opinion of the Superior Court. The court entered judgment for defendant.

Appeal, No. 194, Oct. T., 1920, by respondent, from decree of C. P. Berks County, April T., 1919, No. 41, granting a divorce in the case of Peter Homrich v. Lizzie Homrich. Libel in divorce. Before Wagner, J. The facts are stated in the opinion of the Superior Court. The case was referred to George M. Ermentrout, Esq., as master, who recommended that a divorce should be granted. On exceptions to the master’s report the conrt dismissed the exceptions and granted a divorce.

<p>Trusts — Deed of trust — Construction—Tested and contingent remainders.</p> <p>A deed of trust was made conveying land to trustee to hold for the benefit of Rosa C. Frill for and during her natural life, with power to the trustee to sell the property at the direction of Rosa C. Frill. In the event of her death without having made such direction, the deed provided that the land should descend and become vested in the children of the said cestui que trust.</p> <p>The power to sell was not exercised. The cestui que trust had three children, one of whom died before his mother, leaving to survive him two children.</p> <p>Held, that the children of Rosa C. Frill acquired a vested interest and that the interest of one of the children passed upon his death to his issue.</p>

Appeal, No. 156, Oct. T., 1920, by defendant, from judgment of C. P. Delaware County, March T., 1917, No. 23, Mechanic’s Lien Claim, making absolute rule for judgment for want of a sufficient affidavit of defense, in the case of the Derr Lumber Company, a corporation, v. Hattie I. Johnson, owner or reputed owner. Scire facias sur mechanic’s lien. Before Johnson, P. J. Buie for judgment for want of a sufficient affidavit of defense.