Volume 76 — Pennsylvania Superior Court Reports

Appeal, No. 283, Oct. T., 1920, by plaintiff, from judgment of C. P. Berks County, March T., 1918, No. 64, on verdict for defendant in the case of E. T. Barnum, a corporation, v. Daniel H. Hunter. Assumpsit on contract to furnish steel cells. Before Endlich, P. J. The facts are stated in the opinion of the Superior Court. Verdict for defendant and judgment thereon. Plaintiff appealed. Errors assigned were in the following form: 1.

<p>Appeal, No. 130, Oct. T., 1920, by New Street Bridge Company, from order of the Public Service Commission on complaint of tbe Lehigh Valley Transit Company v. New Street Bridge Company, Complaint Docket No. 2372, 1918, and the Public Service Commission of Pennsylvania on appeal.</p> <p>Complaint by Lehigh Valley Transit Company against charges made by New Street Bridge Company for passengers carried by the Lehigh Valley Transit Company over the New Street Bridge.</p> <p>From the record it appeared that the Lehigh Valley Transit Company on September 18, 1918, filed its complaint with the Public Service Commission alleging that the rates charged, under an agreement between it and the New Street Bridge Company, providing for the right to cross said bridge, were unjust and unreasonable.</p> <p>The respondent, after filing an answer, presented a petition setting forth that the answer had raised certain legal questions as to the authority of the commission to grant any relief in the premises and asking that such matters of law be heard and determined before proceeding further with the case. The respondent in effect demurred to the complaint on the ground that it dealt with an unexpired contract of lease, made for a definite term of years before the approval of the Public Service Company Law. The commission by its report filed May 18, 1919, held that the respondent was a public utility and that the contract between the complainant and the respondent company covering the period from January 30, 1912, to January 30, 1932, did not preclude the commission from inquiry into the reasonableness of the rates paid by the complainant to respondent, pursuant to said contract in consideration for its right to operate over respondent’s bridge. Subsequent to the above order, further hearings were held on the question as to the reasonableness of the rates complained of.</p> <p>On March 9, 1920, the commission filed its report in which it found that one-third of one cent for passenger, instead of one-half cent, was the maximum, just and reá-sonable rate that the respondent should be allowed to collect from the complainant for each passenger carried over the respondent’s bridge, and the present car charge for the passage of other than passenger cars should be continued. From this order the New Street Bridge Company appealed.</p> <p>Error assigned was the order of the commission.</p> <p>— Tbe Public Service Commission bad no jurisdiction to change tbe provisions of tbe contract between tbe two public service companies. Tbe agreement was a lease and not subject to tbe regulatory powers of the commission in regard to rates: Tbe Express Cases, 117 U. S. 1; City of Pittsburgh v. Pittsburgh Rys. Co. et al., 8 P. C. R. 441; Beaver County v.. Beaver Valley Transit Co., 229 Pa. 565; Point Bridge Co. v. Railway, 230 Pa. 289; Reading City P. Ry. Co. v. Berks County, 246 Pa. 44; Beaver County v. Telegraph Co., 219 Pa. 340; Babbit v. Albion Elec. L., H. & P. Co., 2 Pa. P. S. C. Decisions, 30; Citizens Elec. Ill. Co. v. Jenkin Township L., H. & P. Co., 2 Pa. P. S. C. 152; Pittsburgh & Shawmut R. R. Co., 2 Pa. P. S. C. 1163; Application of Relief Electric Light, Heat & Power Company, 63 Pa. Superior Ct. 1; Wilkes-Barre Co. v. The Public Service Commission, 70 Pa. Superior Ct. 464; Allegheny v. Mill-ville Ry. Co., 157 Pa. 411; McKeesport v. McKeesport & R. P. Ry. Co., 252 Pa. 142.</p> <p>— The agreement between the two public service companies in effect regulated the rates to be charged and was subject to the jurisdiction of the Public Service Commission: Chicago & Alton Ry. Co. v. Tranbarger, 238 U. S. 76; Leiper v. Baltimore & Ohio R. R. Co. et al., 262 Pa. 328; Potts-ville, etc., Co. v. Public Service Commission, 67 Pa. Superior Ct. 301; Foltz v. Public Service Commission, 73 Pa. Superior Ct. 24; Scranton v. Public Service Commission, 73 Pa. Superior Ct. 192.</p>

Appeal, No. 52, Oct. T., 1920, by plaintiff, from decree of O. P. No. 1, Phila. Co., March T., 1919, No. 4444, on bill in equity for specific performance of agreement to convey real estate between Samuel Saler and Michael Lessy and Tillie Lessy. Bill in equity for specific performance to convey real estate. Before Shoemaker, J. The facts are stated in the opinion of the Superior Court.

Appeals, Nos. 207, 208, \Oct. T., 1920, by defendant, from judgment of Q. S. PMla. County, August Sessions, 1919, Nos. 474-477, on verdict of guilty in case of Commonwealth of Pennsylvania v. Ralph T. Moyer. Indictments for perjury, and for making false entries in a statement in writing of a corporation. Before Davis, 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. 186, Oct. T., 1920, by defendant, from order of C. P. No. 2, Pbila. Co., Dec. T., 1919, No. 6179, dismissing appeal from decision of Workmen’s Compensation Board in tbe case of John E. Sullivan y. United States Shipping Board Emergency Fleet Corporation. Appeal from order of the Workmen’s Compensation Board. The facts are stated in the opinion of the Superior Court. The court dismissed the appeal and confirmed the award of the Workmen’s Compensation Board.

Appeal, No. 141, Oct. T., 1920, by defendant, from judgment of C. P. Bucks County, March T., 1920, No. 70, on verdict for plaintiff in the case of Benjamin P. Terry v. W. Sackett Duel! Assumpsit for compensation alleged to be due for services rendered and materials furnished. Before Ryan, P. J. The facts are stated in the opinion of the Superior Court. Verdict and judgment for plaintiff for $714.87. Defendant appealed.

<p>Appeal, No. 225, Oct. T.,</p> <p>1920, by respondent, from decree of O. P. Delaware Co., Dec. T., 1919, No. 699, sustaining demurrer to answer in tbe case of City of Chester v. Francis A. Paxson, City Treasurer.</p> <p>Mandamus to compel city treasurer to pay a warrant. Before Johnson, P. J.</p> <p>Tbe facts are stated in the opinion of the Superior Court.</p> <p>On demurrer to the answer of the defendant, the court sustained the demurrer and entered judgment against the defendant for $55.64. Respondent appealed.</p> <p>Errors assigned were in sustaining demurrer to the defendant's answer and the judgment of the court.</p>

Appeal, No. 236, Oct. T., 1920, by plaintiffs, from judgment of C. P. Delaware County, March T., 1919, No. 421,, discharging rule for judgment for want of a sufficient affidavit of defense in the case of Frank G-. Sweeney and Samuel D. Clyde, trading as Sweeney & Clyde, v. Frank Berman. Assumpsit to recover commissions on contract for the sale of real estate. Before Broomall, J. Rule for judgment for want of a sufficient affidavit of defense.

<p>Appeal, No. 46, Oct. T., 1920, by Katharine H. Pennock, Marian A. Pennock and Howard L. Mendenhall, administrator, from tbe order of O. 0. of Chester County, dismissing exceptions to auditor’s report in the estate of Hannah J. Morris, deceased.</p> <p>Exceptions to adjudication. Before Hause, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The case was referred to A. P. Reid, Esq., as auditor, who took testimony to ascertain the intention of the testatrix, and awarded the legacy to Anna S. Pennock, a grandniece of the testatrix.</p> <p>On exceptions to the auditor’s report, the court dismissed the exceptions and affirmed the report. Excep-tants appealed.</p> <p>Error assigned was in dismissing the exceptions.</p> <p>— The claim for medical service was not sufficiently established: Caroth. er’s Est., 41 Pa. Superior Ct. 126; Weaver’s Est., 182 Pa. 349; Hoy’s Est., 73 Pa. Superior Ct. 512; Peters’s App., 106 Pa. 340; Fulton’s Est., 178 Pa. 78.</p> <p>The intention of the testatrix was a question of law for the court: Root’s Est., 187 Pa. 118; Appel v. Byers, 98 Pa. 479; Miller’s Est. (No. 1), 26 Pa. Superior Ct. 443; Button v. Amer. Tract Soc., 23 Yt. 336.</p> <p>cited: 17 Cyc. 676; Trustees v. Sturgeon, 9 Pa. 321; Newell’s App., 24 Pa. 197; 40 Cyc. 1439; Miller’s Est. (No. 1), 26 Pa. Superior Ct. 443.</p>

Appeal, No. 325, Oct. T., 1920, by libellant, from judgment of C. P. Chester County, Aug. T., 1919, No. 86, dismissing libel in divorce in the case of Joseph H. Thomas, Jr., v. Hannah K. Thomas. Libel in divorce.

<p>Appeal, No. 9, Oct. T., 1920, by respondent, from order and determination of tbe Public Service Commission, Complaint Docket Nos. C. 1903 and C. 1901, 1918, in the case Mercersburg, Remasters and Markes Electric Company, Harry E. Geiser, Owner, y. The Public Service Commission of the Commonwealth of Pennsylvania, and J. G. Rose et al. and J. M. Myers et al., interveners.</p> <p>Complaint against Mercersburg, Remasters and Markes Electric Company on account of schedule of increased rates effective February 1, 1918.</p> <p>All of the complaints alleged that the new rates were unreasonable and excessive.</p> <p>After hearing Rilling, commissioner, filed the report of the commission fixing the valuation of respondent’s property and determining the rate thereon. In this report the commission finds, inter alia, as follows:</p> <p>The theory of the law is that the owner of a public utility is entitled to a fair return upon the used and useful property engaged in public service, the same being-considered as having been dedicated to public use. The term “fair value” is relative, depending upon all the facts and circumstances surrounding the rendition of the service. Many elements must be considered by the commission in reaching a determination, but no hard and fast rule can be applied. Each utility must be considered from the conditions surrounding it. If the present property were swept out of existence and a new plant constructed to render the service now rendered by respondent, the present plant wonld not be reproduced, and the corresponding outlay of capital would therefore be unwarranted. The present property is used only because the owner was able to acquire it at a price far below its reproduction cost in its original form and the commission is of opinion that under the circumstances the purchase price, as fixed by the parties, plus the additions and improvements made since that time, substantially represents the fair value. The commission is sustained in this conclusion by the fact that the owner has so carried it upon his boohs.</p> <p>Our Supreme Court, in the Ohio Yalley case, 260 Pa. 289, held:</p> <p>“Then again, the reproduction cost less depreciation, may not give the present fair value of an old property, for it may not now be desirable to reproduce the old type of plant.”</p> <p>It is proper to recognize that where a judicious investment has been made in the utilization of an existing property to a more or less extent, a value may be created greater than the actual investment made, which should be recognized by the commission in its conclusion. The exercise of good judgment and forethought as well as the taking advantage of a situation may, and often does, result in the création of values which, in connection with the investment itself, should be considered in arriving at a fair value.</p> <p>Taking into consideration all the facts in connection with respondent’s plant and the evidence adduced, and considering the extent and the character of the community served, the eaiming power and the prospects for future growth, and deducting a reasonable allowance for the value of the dwelling house occupied by the owner, and the automobile, the commission is of opinion that the used, and useful property of respondent, upon which a fair return of 7% per annum should be computed, represents a fair value or worth of $18,500, and that sum will be used as a basis on which to compute such return.</p> <p>In the first three months of 1918, of which period two months were under the present rates, the- company had gross revenue of $2,038.53. On this basis it is safe to estimate that the annual gross. return to respondent, under the existing rate, would be upwards of $8,000.</p> <p>On account of the increased cost of materials and the character of respondent’s plant, the commission will allow annual depreciation of 3% on tbe fair value of tbe property, as fixed by tbe commission.</p> <p>Errors ,assigned, among others, were as follows:</p> <p>1. Tbe learned commission erred in tbe following finding:</p> <p>“Tbe property as now operated is a hydroelectric plant with a sustaining auxiliary steam plant to carry it over periods when its tvater supply fails. Its maximum capacity is about 75 kilowats.”</p> <p>2. Tbe learned commission erred in tbe following-finding :</p> <p>“If tbe present property were swept out of existence and a new plant constructed to render tbe service now rendered by respondent, tbe present plant could not be reproduced, and tbe corresponding outlay of capital would therefore be unwarranted. Tbe present property is used only because tbe owner was able to acquire it at a price far below its reproduction cost in its original form and tbe commission is of opinion that under tbe circumstances tbe purchase price, as fixed by tbe parties, plus tbe additions and improvements made since that time, substantially represents tbe fair value.”</p> <p>3. Tbe learned commission erred in tbe following finding :</p> <p>“Taking into consideration all tbe facts in connection with respondent’s plant and tbe evidence adduced, and considering tbe extent and tbe character of tbe community served, tbe earning power and tbe prospects for future growth, and deducting a reasonable allowance for tbe value of tbe dwelling bouse occupied by tbe owner, and the automobile, the commission is of tbe opinion that tbe used and useful property of the respondent, upon which a fair return of 7% per annum should be computed, represents a fair value or worth of $18,500, and that sum will be used as a basis on which to compute such return.”</p> <p>— If tbe appellant by bis foresight obtained a valuable property at a low price and then by bis enterprise built up tbe business, it is not fair to value bis property on tbe basis of wbat be paid for it, and to do so amounts to a confiscation: Ben Avon Boro. v. Ohio Valley Water Co., 68 Pa. Superior Ct. 561; Beaver Valley Water Co. v. Public Service Commission, 71 Pa. Superior Ct. 43.</p> <p>Tbe valuation as fixed by tbe commission was unreasonable: Ben Avon Boro. v. Obio Valley Water Co., 68 Pa. Superior Ct. 561; Beaver Valley Water Co. v. Public Service Commission, 71 Pa. Superior Ct. 43; Wilcox v. Consolidated Gas Co., 212 U. S. 19; Des Moines Gas Co. v. Des Moines, 238 TJ. S. 153; Knoxville v. Knoxville Water Co., 212 IT. S. 1; Tbe Minnesota Rate Cases, 230 TJ. S. 352.</p>

Appeal, No. 120, Oct. T., 1920, by defendants, from judgment of Municipal Court of Philadelphia, Dec. T., 1918, No. 263, on verdict for plaintiff in the case of Henry M. Burns v. Robert F. Bonner and Galen Hemperly. Assumpsit to recover commissions for the sale of real estate. Before Knowles, J. The facts are stated in the opinion of the Superior Court. Verdict for plaintiff for $383 and judgment thereon. Defendants appealed.

Appeal, No. 149, Oct. T., 1920, by defendant, from judgment of C. P. Northumber-land County, Sept. T., 1919, No. 263, on verdict for plaintiff in the case of David J. Bright, noAV for the use of Sarah E. Bright, v. George J. Higgins. Assumpsit to recover amount due for interest in an alleged partnership. Before Cummings, P. J. Prom the record it appeared that the plaintiff had been engaged in the business of running a moving picture house in Shamokin, Northumberland County.

<p>Criminal law — Receiving stolen goods — Indictment—Duplicity —Effect of motion in arrest of judgment — Question on appeal.</p> <p>A count which joins the larceny of several distinct articles belonging to different owners is good, providing the time and place of. the taking of each are the same. The rule is the same in an indictment for receiving stolen goods.</p> <p>A motion in arrest of judgment raises only the question whether the record is sufficient to sustain the verdict.</p> <p>An indictment charging the defendant with receiving stolen goods, the property of two distinct persons, in one count is not invalid on account of duplicity.</p> <p>Upon an appeal from a refusal of a motion in arrest of judgment the Superior Court is only concerned as to the question whether the record is sufficient to sustain the judgment.</p>

<p>Practice, O. P. — Affidavit of defense — Denial—Information and belief — Demand of proof — Practice Act of 1915, P. L. 188.</p> <p>In an action against the endorser of a check, an affidavit of defense which avers that the defendant has no knowledge as to the fact of presentation and demand for payment, but denies the same, is sufficient to prevent judgment for want of a sufficient affidavit of defense.</p> <p>Where the fact alleged is one in which the defendant was not the actor, and which happened in a distant state, averment of belief that it was not true as stated, with a statement of defendant’s expectation to prove its falsehood at trial, is a specific denial in compliance with the eighth section of the Practice Act of 1915, P. L. 483.</p> <p>Demand for proof following- such a denial of a statement of fact is mere surplusage.</p>

Appeal, No. 13, Oct. T., 1920, by defendant, from judgment of C. P. Northumber-land County, Feb. T., 1919, No. 30, affirming award of Workmen’s Compensation Board in the case of George Karasavage v. The Philadelphia and Reading Coal and Iron Company. Appeal from the Workmen’s Compensation Board. Before Cummings, P. J. The facts are stated in the opinion of the Superior Court. The court affirmed the award of the Workmen’s Compensation Board. Defendant appealed.

Appeal, No. 96, Oct. T., 1920, by defendant, from judgment of C. P. Schuylkill County, Sept. T., 1919, No. 323, affirming award of Workmen’s Compensation Board for plaintiff in the case of Alex Parlovich v. The Philadelphia and Reading Coal and Iron Company. Appeal from the Workmen’s Compensation Board. Before Bechtel, P. J. The facts are stated in the opinion of the Superior Court. The court affirmed the award of the Workmen’s Compensation Board. Defendant appealed.

Appeal, No. 302, Oct. T., 1920, by respondent, from decree of C. P. No. 4, Phila. Co., March T., 1919, No. 2075, granting a divorce in the case of Anna IT. Donnelly v. James H. Donnelly. Libel in divorce. Before Audenried, J. Tbe case was referred to James Alcorn, Esq., as master, who recommended that a divorce be granted. On exceptions to the master’s report the conrt dismissed the exceptions and granted a divorce. Error assigned was the decree of the conrt.

Appeal, No. 175, Oct. T., 1920, by prosecutrix, from judgment of Q. S. Bucks County, Nov. T., 1910, No. 24, making an order in support in the case of Commonwealth of Pennsylvania v. Jacob C. Betts. Petition for support. Before Ryan, P. J. The facts are stated in the opinion of the Superior Court. The court ordered the defendant to pay to his wife Alice M. Betts for the support of herself and child, the sum of $9 per week.

Appeal, No. 153, Oct. T., 1920, by Commonwealth of Pennsylvania ex relator David Foster and Mary Foster from judgment of Q. S. of Philadelphia, January Sessions, 1920, No. 107, dismissing petition for writ of habeas corpus in case of Commonwealth of Pennsylvania ex relator David Foster and Mary Foster v. Keeper of Philadelphia County Prison. Petition for writ of habeas corpus.

Appeal, No. 200, Oct. T., 1920, by defendant, from judgment of C. P. No. 2, Phila. Co., June T., 1918, No. 2375, on verdict for plaintiff in the case of Antonio D’Amato v. Harry Segal. Trespass to recover damages for death of plaintiff’s wife. Before Rogers, J. From the record it appeared that the wife of the plaintiff, while crossing a street in the City of Philadelphia, was struck by an ice wagon belonging to the defendant.

Appeal, No. 14, March T., 1921, by defendant, from judgment of Q. S. York County, Jan. Sessions, 1919, No. 30, on verdict of guilty in the case of Commonwealth of Pennsylvania v. M. C. Wilt. Indictment for larceny, larceny by bailee embezzlement by broker and embezzlement by agent. Before Wanner, P. J. Verdict of guilty on which judgment of sentence was passed. Defendant appealed.

Appeal, No. 309, Oct. T., 1920, by defendant, - from judgment of Q. S. Centre County, Dec. sessions, 1919, No. 23, on verdict of guilty in the case of Commonwealth of Pennsylvania v. Bur-dine Butler. Indictment for violation of sections 1414-1423 of the School Code of 1911, P. L. 383-386. Before Quigley, P. 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. 246, Oct. T., 1920, by plaintiffs, from judgment of C. P. Lehigh County, Jan. T., 1918, No. 120, for defendant in case tried by the court without a jury in suit of Charles F. Guth, Minnie K. Guth, Nan C. Ewing and Boyd R. Ewing v. Harry A. Butterwick. Assumpsit to recover balance due on an agreement for the sale of real estate. Before Groman, P. J., without a jury. The facts are stated in the opinion of the Superior Court.

Appeal, No. 276, Oct. T., 1920, by plaintiff, from judgment of C. P. Schuylkill County, May T., 1920, No. 121, discharging alternative writ of mandamus in tbe case of Edward J. Maginnis v. John E. Schlottman. Petition for alternative mandamus. Before Bechtel, P. J. Tbe facts are stated in tbe opinion of tbe Superior Court. The court discharged the petition. The petitioner appealed.

Appeal, No. 339, Oct. T., 1920, by defendant, from judgment of Q. S. Lycoming County, Dec. Sessions, 1919, No. 42, on verdict of guilty in the case of Commonwealth of Pennsylvania v. William A. Sheehan. Indictment for involuntary manslaughter. Before Whitehead, P. 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. 335, Oct. T., 1920, by plaintiffs, from decree of C. P. Schuylkill County, March T., 1918, No. 2, Sitting in Equity, dismissing preliminary injunction in the case of James McGonigle, for himself and in behalf of Bridget McKernan, Edward McGonigle, Sophia McNulty, Mary Donnelly and William McGonigle, v. The St. Clair Coal Company. Bill in equity to restrain the diversion of the waters of a stream.

Appeal, No. 330, Oct. T., 1920, by plaintiff, from decree of C. P. Montgomery County, sitting in equity, Dec. T., 1919, No. 4, dismissing bill in equity in the case of John W. Smyth v. William J. McCarroll. Bill in equity for injunction to restrain the erection of a private garage. Before Swartz, P. J.. The facts are stated in the opinion of the Superior Court. The court dismissed the bill. Plaintiff appealed.

Appeal, No. 342, Oct. T., 1920, by defendant, from judgment of Q. S. Lycoming County, Sept. Sessions, 1918, No. 47, on verdict of guilty in the case of Commonwealth of Pennsylvania v. Frank I. Wilson. Indictment for larceny by bailee. Before Whitehead, P. J. The facts are stated in the opinion of the Superior Court. Verdict of guilty on which judgment of sentence was passed. Defendant appealed. Error assigned, among others, was the charge of the court.

Appeal, No. 214, Oct. T., 1920, by defendant, from order of C. P. Delaware County, June T., 1919, No. 366, on certiorari to judgment of a justice of the peace in the case of Township of Haver-ford v. William Armstrong, Ethel Atkinson and jane Rosser. Certiorari from judgment of justice of tbe peace.

Appeal, No. 215, Oct. T., 1920, by defendants, from judgment of C. P. Delaware County, June T., 1919, No. 589, on certiorari to judgment of justice of the peace in the case of the Commonwealth of Pennsylvania v. Edward Browning and Louise Pharo. Certiorari from judgment of justice of the peace.

Appeal, No. 216, Oct. T., 1920, by defendants, from judgment of C. P. Delaware County, June T., 1919, No. 590, on certiorari to judgment of justice of the peace in the case of Commonwealth, of Pennsylvania v. Howard Smith and T. Dandreas. Certiorari from judgment of justice of the peace.

<p>Equity — Contracts—Equitable subrogation — Application.</p> <p>To apply tbe doctrine of subrogation it is necessary to show an obligation of tbe person against whom relief is sought. It rests on tbe principle that one who is compelled to pay a debt which another should pay because of the neglect of the latter so to do, may recover on the ground that the law infers the debtor requested such payment.</p> <p>The principle of gubrogation will only be applied where a person under some sort of compulsion or in protection of his property or credit, has been compelled to pay that which was primarily the liability of another person.</p> <p>A plaintiff having a contract of warranty available for his protection has a legal remedy available, and, in such case, the equitable doctrine of subrogation cannot be invoked.</p> <p>Where a publishing company having purchased a magazine and having agreed to pay an annuity to its former owners, subsequently sold it to another publishing company, without providing for the assumption of this obligation, and the purchasers in turn sold the magazine, the latter cannot be compelled, under the equitable- doctrine of subrogation to pay the annuity, which the present owners of the magazine had paid under a threat that the trustee for the annuitants would institute proceedings to prevent the publication of the magazine.</p>

<p>Appeal, No. 211, Oct. T., 1920, by defendant, from judgment of O. P. No. 1, Pbila. Co., June T., 1915, No. 3056, amending verdict for defendant in tbe case of Milton Stern, trading as Auto Transit Company v. Joseph Martin.</p> <p>Replevin for automobile leased or bailment lease. Before Patterson, J.</p> <p>Tbe facts are stated in tbe opinion of tbe Superior Court.</p> <p>Verdict for plaintiff for $800. Subsequently tbe court amended tbe verdict so as to read “verdict for defendant for nominal damages, to wit, $1.” Defendant appealed.</p> <p>Errors assigned, among others, were various rulings in evidence, and refusal of defendant’s offer to put in evidence the lease of the automobile, and the judgment of the court.</p> <p>— The lease between the parties was for the consideration of the jury in determining the value of the machine: Numbers v. Shelly et al., 78 Pa. 426, 428; Garrigues v. Harris, 17 Pa. 344, p. 351.</p> <p>cited: Beck v. Phila. Trade Assn., 59 Pa. Superior Ct. 145; Moldower v. Trust Co. of North America, 59 Pa. Superior Ct. 155; Fitzgerald v. Caldwell, Addison’s Report, p. 119.</p>

<p>Criminal law — Fornication and bastardy — Reputation of defendant — Charge of court.</p> <p>On the trial of an indictment for fornication and bastardy, it is error for the court to charge, on the question of reputation for chastity, that the character testimony as to the morality of the prosecutrix and defendant is equal.</p> <p>In prosecutions for fornication and bastardy evidence of good reputation is of special importance, if not 'to establish the innocence of the defendant, at least to create a reasonable doubt in the minds of the jury as to the commission of the offense. When requested the court should instruct the jury as to the purpose and effect of such testimony. Instructions that the prosecutrix and the defendant stand on an equality is not meeting this duty, as the reputation of the prosecutrix is not involved, and a failure to instruct the jury fully and adequately on this question constitutes reversible error.</p>

<p>Public Service Commission — Railroad companies — Federal control — Grade crossings — Relocation of trades — Power of commission to order relocation.</p> <p>1. Tbe fact tbat a railroad company was under tbe control of the director general of railroads did not deprive tbe Public Service Commission of jurisdiction over tbe corporation which owned tbe road, in a proceeding to abolish a grade crossing. Where in such proceedings a second crossing is abolished, without expense to tbe railroad company, tbe fact tbat there was no complaint against tbe latter crossing or tbat no testimony was taken in reference thereto, is immaterial.</p> <p>2. In a complaint to abolish a grade crossing tbe ascertainment of damages must not necessarily be determined before tbe order is made, or is the order, on tbat account, incomplete or unsupported by tbe evidence. Tbe order which adopted tbe plan for tbe abolition of tbe crossing is not a taking of property. It is tbe putting tbe plan into execution which injures tbe owner of adjacent property. Tbe assessment of damages would follow the appropriation and tbe estimate of tbe proportionate share of tbe costs, as distributed by tbe commission, would be made following tbe aseer-tainment of land taken and tbe expense of construction. For tbe commission to find tbe damage's would be merely Suggestive, for tbe owner would not be bound by such finding, having a right of appeal to tbe court of comm'on pleas from tbe determination of the' damages by tbe commission.</p> <p>3. Tbe compensation for damages accrues when tbe property has been taken, injured or destroy®! in the Construction;,- relocation, alteration or abolition of any crossing. Tbe injury must result before tbe right to damages arises. Otherwise no order could take effect before the amount of damages was determined by tbe commission. Tbe subject of damages remains within tbe power of tbe Public Service Commission, pending tbe completion of tbe work.</p> <p>4. Under tbe police power of tbe Commonwealth, tbe Public Service Commission has authority to require a railroad company to relocate its tracks in order to abolish a grade crossing. In such case, it is not tbe railroad company which takes private property to facilitate tbe carrying out of a crossing change, but tbe Commonwealth acts and makes the necessary appropriation. While there is no express provision in tbe Public Service Company Law which authorizes the commission to require a relocation of the tracks to make practicable the abolition of a grade crossing, that would seem to be the necessary implication as to the power of the commission, to be exercised within reasonable limits.</p>

<p>Beneficial associations — Death benefits — Constitution — Death through intemperance.</p> <p>In an action to recover the amount due on a beneficial certificate, the plaintiff cannot recover, where the constitution provides that no death or funeral benefits shall be paid where death was the result of intemperance, and it is admitted that the deceased member died of alcoholism. The fact that the member had not been espelled from the society because of his intemperate habits, does not estop the association from refusing the benefits in accordance with the provisions of its 'constitution.</p>

<p>Carriers — Railroads'- — BUI of lading — Liability for freight charges.</p> <p>The bifi of lading is the contract between the consignor and the carrier. The consignor is primarily liable for the cost of transportation whether he be the owner of the goods or not. In the absence of an express contract there is no duty upon the carrier to collect charges from the consignee. General directions of the carrier to its agents that transportation charges must be collected be^ fore delivery of the goods do not affect this liability on the part of the shipper.</p> <p>In an action to recover from a consignor the amount due a carrier for a shipment of freight, judgment is properly entered in favor of the plaintiff where the bill of lading expressly charged the consignor with the payment of the freight. The fact that the charges might have been collected from the consignee does not relieve the consignor from the primary liability to pay,</p>

<p>Appeal — Practice, Superior Court — Question not raised below— New theory.</p> <p>If a party does not avail himself of a legal position that was fairly before him, had he decided to use it in the court below, he cannot, on appeal, raise it to' the prejudice of the opposing party. Having admitted a fact at the trial, defendant cannot on appeal have the testimony on that point excluded, because the plaintiff had a right to rely upon the admission, and might well have established the fact by other evidence had there been a dispute.</p> <p>Automobiles — Negligent driving — Former accidents — Evidence.</p> <p>In an action arising out of the death of one who was killed by an automobile, where the negligence alleged was careless driving and the defendant testified that his driver was a “good and safe driver” it was competent, and a fair test, to ask the defendant whether or not the driver had “run into anybody before” and whether he had killed him.</p>

Appeal, No. 235, Oct. T., 1920, by defendant, from judgment of Q. S. Northampton County, Dec. Sessions, 1919, No. 24, on verdict of guilty in the case of Commonwealth of Pennsylvania v. Morris Kelsey. Indictment for adultery, fornication and bastardy. Before Stewart, P. J. The opinion of the Superior Court states the case. Verdict of guilty upon which judgment of sentence was passed.

Appeal, No. 249, Oct. T., 1920, by defendant, from judgment of C. P. Schuylkill County, July T., 1920, No. 121, for want of a sufficient affidavit of defense in the case of Abe Cohen and Samuel Feinstein, trading as Cohen & Feinstein, v. William Freid. The plaintiff instituted an action of assumpsit on a book account on May 14, 1920, and filed a statement on the same day. The defendant in his affidavit of defense averred that the bill was not due when suit was brought.

<p>Appeal, No. 317, Oct. T., 1920, by plaintiff, from judgment of C. P. No. 1, Phila. County, March. T., 1919, No. 2752, discharging rule for judgment for want of a sufficient affidavit of defense in the case of Automobile Finance Company v. Ephraim Brownstein.</p> <p>Beplevin under a bailment lease.</p> <p>Eule for judgment for want of a sufficient affidavit of defense.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The court discharged the rule. Plaintiff appealed.</p> <p>Error assigned was the order of the court.</p> <p>— The term having ended, the contract entitled the plaintiff to have the automobile returned. The offer of tender was invalid: Cobb & Chase v. Dei-ches, 7 Pa. Superior Ct. 252; Potter v. Stetson & Co., 11 Pa. Superior Ct. 627; Painter v. Snyder, 22 Pa. Superior Ct. 603; Stead v. Bandall, 236 Pa. 64; Vulcanite Company v. Chester Trac. Co., 52 Pa. Superior Ct. 447.</p>

<p>Physicians and surgeons — Unlawfully assuming to practice medicine — Evidence.</p> <p>In the trial of an indictment charging the defendant with being unlawfully engaged in the practice of medicine and surgery, a conviction will be sustained where the evidence established that the defendant, who was not a licensed physician, examined patients by physical tests, made inquiry of their past condition, examined the pulse and tongue to diagnose the cause of the real or alleged malady, after which he prescribed his special remedy that would afford relief.</p> <p>It has been uniformly held that where one holds himself out as competent to prescribe, he is engaged in the practice of medicine, notwithstanding that the remedy prescribed by him, and for which alone he assumes to charge, is one of his own inventions or compounding.</p>

<p>Appeal, No. 331, Oct. T., 1920, by plaintiffs, from judgment of O. P. No. 2, Phila. County, June T., 1920, No. 6653, discharging rule for judgment for want of a sufficient affidavit of defense in tbe case of Isaac Renick and Raphael Brand, trading as the Perfect Undergarment Company, v. Samuel Aro-noff, and Benjamin Naineark, trading as Anco Manufacturing Company.</p> <p>Assumpsit on book account. Before Barratt, P. J.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The court discharged the rule. Plaintiffs appealed.</p> <p>Error assigned was the order of the court.</p> <p>— What is a reasonable time within which to exercise the right of rescission is a question of law to be determined by the court: Money-weight Scale Co. v. Woodward, 29 Pa. Superior Ct. 142; Zellar v. Haupt, 41 Pa. Superior Ct. 647; Elzea v. Brown, 59 Pa. Superior Ct. 403.</p> <p>The affidavit was insufficient: Wanner v. Emanuel’s Church, 174 Pa. 466; Swartz v. Historical Publishing Company, 55 Pa. Superior Ct. 407; McGowan v. Boney, 74 Pa. Superior Ct. 123; Tete Bros. v. Eshler, 11 Pa. Superior Ct. 225; Spiegelberg v. Karr, 24 Pa. Superior Ct. 339; Levy & Koplin v. Queen Co., 73 Pa. Superior Ct. 425.</p>

Appeal, No. 337, Oct. T., 1920, by defendant, from judgment of Municipal Court of Philadelphia, April T., 1920, No-. 435, in favor of plaintiff in the case, tried by the court without a jury, in suit of Edward J. Klopp v. Lena Sternberg. Assumpsit for professional services. Before Gor-man, J., without a jury. The facts are stated in the opinion of the Superior Court. The court entered judgment in favor of the plaintiff for $513. Defendant appealed.

<p>Appeal, No. 340, Oct. !T., 1920, by defendants, from judgment of Municipal Court of Philadelphia, Dec. T., 1919, No. 159, in favor of plaintiff for want of a sufficient affidavit of defense in the case of Daniel Clark Wharton Smith v. Joseph Wertheimer and Mabel Wertheimer.</p> <p>Trespass for injuries to an automobile. Before MacNeille, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Rule to strike off judgment. The court discharged the rule. Defendants appealed.</p> <p>Error assigned was the order of the court.</p> <p>— Judgment by default cannot be taken in an action of trespass and any rule of court to the contrary is invalid: Corry v. Railroad, 194 Pa. 516; Kelly v. Pennsylvania Co., 253 Pa. 553; Marlin v. Waters, 127 Pa. 177; Wilson v. Adams Express Co., 72 Pa. Superior Ct. 384.</p> <p>cited: Gerlach v. Moore, 243 Pa. 603; Philadelphia & Reading Co. v. Walton, Prothonotary, 23 Dist. Rep. 535; Emademe v. Weadick, 69 Pa. Superior Ct. 369; Marlin v. Waters, 127 Pa. 177.</p>

<p>Beneficial societies — Police pension fund — Death benefits — Deaths in discharge of duty — Construction.</p> <p>A policeman of the City of Philadelphia who was killed in battle, while on leave of absence in the service of the United States, is not entitled to pension under the by-laws of an incorporated society, which provide for the payment of a pension to the family of a member of the police force, who is killed in the actual discharge of his duty. Because the deceased was serving on leave of absence from the City of Philadelphia, cannot affect the requirements as laid down in the by-laws and the constitution of the corporation.</p> <p>In order to entitle the plaintiff, who was the wife of the deceased, to any pension, her husband must have been killed while he was actually in the discharge of hig duty as a policeman. The leave of absence was not given by the defendant corporation and did not change the status of the deceased, who as a member of the association was subject to all of the requirements set forth in the charter and by-laws of the organization.</p>

Appeal, No. 310, Oct. T., 1920, by plaintiff, from decree of C. P. No. 1, Phila. Co., June T., 1919, No. 6246, sitting in equity, dismissing bill in equity in case of Angelo Cusano v. James Mecaskie and Sarah Mecaskie. Bill in equity for specific performance. Before Shoemaker, J. The facts are stated in the opinion of the Superior Court. The court dismissed the bill. Plaintiff appealed. Error assigned, among others, was the decree of the court.

Appeal, No. 4, Out. T., 1919, from decree of C. P. Delaware County, March T., 1914, No. 411, sitting in equity, dismissing bill in equity in the case of Griswold Worsted Company v. John W. Harrigan. Bill in equity for an injunction. Before Broom all, J. The opinion of the Superior Court states the case. The court dismissed the bill. Plaintiff appealed.

<p>Criminal procedure — Indictments—Endorsement—Private prosecutor — Necessity for.</p> <p>Tbe fact that no prosecutor’s name was endorsed on a bill returned by a grand jury is not ground for quashing tbe indictment. It is only where there is a private prosecutor, active in carrying on the proceeding, that his name, as such, is required to be endorsed upon the bill. If there is no such private prosecutor the defendant cannot refuse to plead. When'the name of the prosecutor, if any there be, is not endorsed upon the indictment, the proper practice is for the defendant to offer to prove that there is such a private prosecutor. It then becomes the duty of the court to hear the evidence, and if upon such hearing it appears that there is a private prosecutor, or that the indictment is founded upon an information made by a private prosecutor, his name should by endorsement upon the indictment, be designated as the prosecutor. The court ought not to require the defendant to plead, when there is a private prosecutor, unless his name, as such, be endorsed upon the indictment. When, however the defendant does not stand upon his rights, secured to him by the statute, and upon the overruling of Ms motion to quash voluntarily enters a plea of not guilty, he cannot, afterwards, complain of the failure of the endorsement of the name of the prosecutor.</p> <p>Criminal pro cedure — Larceny—Indictment.</p> <p>An indictment which charges the larceny of several distinct articles is sustained by proof of the larceny of any one of the said articles.</p> <p>When an indictment contained repugnant counts the proper practice, at common law, was to move to quash. Under the Criminal Procedure Act of 1860, section 24, it is proper, in separate counts, to charge defendant with larceny and the receiving of stolen goods and an indictment will not be quashed because it contains such counts.</p>

<p>Appeal, No. 195, Oct. T., 1920, by defendant from judgment of C. P. No. 1, Pbila. Co., March T., 1918, No. 4633, on verdict for plaintiff in the case of Stanley Szmigel v. Director General of Railroads, United States Railroad Administration, operating Philadelphia & Reading Railroad.</p> <p>Trespass to recover damages for personal injuries. Before Shoemaker, J.</p> <p>Verdict for plaintiff for $1,500 and judgment thereon. Defendant appealed.</p> <p>Error assigned was refusal of defendant’s motion for judgment non obstante veredicto.</p> <p>cited: Hare v. Phila. & R. Ry. Co., 65 Pa. Superior Ct. 39; Thompson v. Phila. & R. Ry. Co., 263 Pa. 569; Kipp v. Central R. R. of N. J., 265 Pa. 20; Smith, admr., v. Director General of Railroads, 266 Pa. 328; Gasser v. Phila. & R. Ry. Co., 266 Pa. 493; Provost v. Director General of Railroads, 265 Pa. 589.</p>

<p>Appeal, No. 154, Oct. T., 1920, by plaintiff, from tbe judgment of the Municipal Court of Philadelphia, August T., 1919, No. 307, on verdict for defendant, in the case of Harry C. Wernick v. John S. Bowes.</p> <p>Assumpsit to recover commissions due for sale of merchandise. Before Crane, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The jury rendered a verdict in favor of the defendant and judgment was entered thereon. Plaintiff appealed.</p> <p>Errors assigned, among others, were the refusal to direct a verdict in favor of the plaintiff and refusal of plaintiff’s points, as quoted in the opinion of the Superior Court.</p>

Appeal, No. 53, Oct. T., 1920, by plaintiffs, from judgment of Municipal Court of Philadelphia, June T., 1919, No. 158, on verdict for defendant in the case of B. F. Roberts and I. M. Moritz, copartners, trading as Roberts Embroidery Company, v. Joseph Fickler, trading as Joseph Fickler & Company. Assumpsit for services rendered. Before Knowles, J. The facts are stated in the opinion of the Superior Court. Verdict in favor of defendant for $147.25 and judgment thereon.

Appeal, No. 95, Oct. T., 1920, by defendant, from judgment of O. P. Phila. Co., Dec. T., 1917, No. 668, on verdict for plaintiff in the case of Lorenzo Anastasi v. Edward A. Devlin. Assumpsit for amounts due under building contracts. Before Patterson, J. . The facts are stated in the opinion of the Superior Court. Verdict for plaintiff for $950.61 and judgment thereon. Defendant appealed.

Appeal, No. 57, Oct. T., 1920, by defendant, from judgment of Municipal Court of Philadelphia, Nov. T., 1918, No. 377, on verdict for plaintiff In the case of Solomon Hopkins v. William Phillips. Assumpsit for money paid on account on the sale of real estate. Before Knowles, J. The facts are stated in the opinion of the Superior Court. Verdict for plaintiff for $378.92 and judgment thereon. Defendant appealed.

Appeals, Nos. 229 and 230, Oct. T., 1920, by plaintiffs, from judgment of Municipal Court of Philadelphia, Oct. T., 1919, No. 292, on verdict for defendant in the case of Yetta Block and Bernard Block v. City of Philadelphia. Trespass to recover damages for personal injuries. Before Bartlett, J. Tbe opinion of tbe Superior Court states tbe case. Tbe jury rendered a verdict for tbe defendant. Plaintiffs appealed.

Appeal, No. 240, Oct. T., 1920, by plaintiff, from decree of O. P. No. 1, Phila. Co., March T., 1920, No. 2845, dismissing bill in equity in the case of Philip Shapiro v. Abraham Press, Simon Press and Joseph Press, trading as I. Press & Sons. Bill in equity for specific performance and an injunction. The facts are stated in the opinion of the Superior Court. The court dismissed the bill. Plaintiff appealed.

<p>Appeal, No. 88, April T., 1917, by Beaver Valley Water Company, from order of tbe Public Service Commission of Pennsylvania, Complaints Nos. 187,188, in case of Solon G. Tbayer et al. v. Beaver Valley Water Company.</p> <p>Complaint against Beaver Valley Water Company on account of increased rates effective April 1,1914.</p> <p>Tbe charges in tbe suit were alleged to be unjust and unreasonable.</p> <p>The facts appear in Beaver Valley Water Company v. The Public Service Commission, 71 Pa. Superior Ct. 43, and in the opinion of the Superior Court.</p> <p>Following the judgment of the Superior Court of the United States in case of Ben Avon Boro, et al. v. Ohio Valley Water Company, 253 U. S. 287, the Supreme Court of Pennsylvania remitted the record of this case to the Superior Court of Pennsylvania, with direction that the latter court should, upon its own independent judgment as to the law and facts involved, dispose of the questions therein raised. 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. 311, Oct. T., 1920, by plaintiff, from judgment of C. P. Lancaster County, Jan. T., 1919, No. 90, sustaining demurrer in tbe case of Florence Gottselig v. Cigarmakers International Union of America, No. 257, Daniel McGeever, President, Jacob L. Click, Financial Secretary and Treasurer.</p> <p>Assumpsit to recover benefits which it was alleged vested in the plaintiff, upon the death of her husband who was a member of a beneficial society. Before Hass-ler, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>On demurrer the plaintiff’s statement, the court sustained the demurrer and entered judgment in favor of defendant. Plaintiff appealed.</p> <p>Error assigned was the order of the court.</p> <p>cited: Liederkranz Singing Society v. German Turn Verein, 163 Pa. 265; Ash v. Guie, 97 Pa. 493; Schriber v. Rapp, 5 Watts 351; Leech v. Harrise, 2 Brewster 571; Dobson v. Hall et al., 30 W. N. S. 305; Kurz v. Eggert et al., 9 W. N. C. 126; Solis v. Blank, 199 Pa. 600; Hamill v. Royal Arcanum, 152 Pa. 537.</p> <p>cited: Fletcher v. Gawanese Tribe, 9 Pa. Superior Ct. 393; Sharrow v. Yohoghany Lodge et al., 8 D. R. 616; Maisch v. Order of Americus, 223 Pa. 199; Wolf v. Limestone Council, 233 Pa. 357; Liederkranz Singing Society v. German Turn Yerein, 163 Pa. 265.</p>

<p>Appeal, No. 144, Oct. T., 1920, by defendant, from judgment of O. P. No. 3, Phila. County, Dec. T., 1919, No. 6337, making absolute rule for judgment for want of a sufficient affidavit of defense in the case of Franklin Paper Company, a corporation, v. Frank J. Gorman.</p> <p>Assumpsit for goods sold and delivered.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>The facts.are stated in tlie opinion of the Superior Court.</p> <p>The court made absolute the rule. Defendant appealed.</p> <p>Error assigned was the order of the court.</p> <p>— The affidavit of defense was sufficient: 16 Cyc. 869; Monongahela City v. Monongahela Electric Co., 12 C. C. 529; Third Ward Election Case, 5 Northampton 193; Wilmoth v. Hensel, 151 Pa. 200; Independence Party Nomination, 208 Pa. 108; Supper v. Strauss, 39 Pa. Superior Ct. 393; Pain et al. v. Sample, 158 Pa. 428; Csizik v. The Benefit Association, 60 Pa. Superior Ct. 466.</p> <p>cited: Hutton v. McLaughlin, 1 Pa. Superior Ct. 642; DeCou Bros. Co. v. Englander, 39 Pa. Superior Ct. 243; 31 Cyc. 1189; 31 Cyc. 1206.</p>

Appeal, No. 354, Oct. T., 1920, by defendant, from judgment of C. P. No. 4, Pbila. County, June T., 1919, No. 5583, making absolute rule for judgment for want of a sufficient affidavit of defense in the case of John J. Meskill y. Tbe Firemen’s Pension Fund of Philadelphia, a corporation. Assumpsit to recover sum claimed to be due as a pension. Before Finletter, J. The opinion of the Superior Court states the ease.

Appeal, No. 318, Oct. T., 1920, by defendant, from judgment of the Municipal Court of Philadelphia, Dec. T., 1918, No. 576, for plaintiff in the case tried by the court Avithout a jury in suit of Paul Dobransky v. Adams Express Company. Assumpsit to recover the value of goods lost while in the custody of an express company. Before Crane, J., without a jury. The facts are stated in the opinion of the Superior Court. The court entered judgment for plaintiff for $150.

<p>Appeal, No. 300, Oct. T., 1920, by respondent, from decree of C. P. No. 3, Pbila. Co., Dec. T., 1919, No. 140, granting a divorce in tbe case of Albert C. Hagy v. Nettie Hagy.</p> <p>Libel in divorce. Before Ferguson, J.</p> <p>Tbe facts are stated in tbe opinion of tbe Superior Court.</p> <p>Tbe case was referred to Francis J. Walsh, Esq., as master, who recommended a divorce.</p> <p>On exceptions to tbe master’s report tbe court overruled tbe exceptions and granted a divorce. Respondent appealed.</p> <p>Error assigned was tbe decree of tbe court.</p>

Appeal, No. 243, Oct. T., 1920, by John A. Fitzpatrick, from decree of O. O. Phila. Co., Jan. T., 1920, No. 398, dismissing exceptions to adjudication in the estate of Marcella Ennis, deceased. Exceptions to adjudication. Before Henderson, J. The facts are stated in the opinion of the Superior Court. The court dismissed the exceptions. Exceptant appealed. Error assigned, among others, was the order of the court.

Appeal, No. 319, Oct. T., 1920, by plaintiff, from order of C. P. No. 1, Phila. Co., Sept. T., 1920, No. 407, discharging rule for judgment for want of a sufficient affidavit of defense in the case of David Nierenberg v. E. C. Maxwell Company. Assumpsit for rent alleged to be due on lease. Before Patterson, J. Eule for judgment for want of a sufficient affidavit of defense. The facts are stated in the opinion of the Superior Court. The court discharged the rule.

Appeal, No. 308, Oct. T., 1920, by plaintiff, from judgment of C. P. No. 3, Phila. Co., June T., 1918, No. 649, in favor of defendant non ob-stante veredicto, in the case of Max Schoenfeld, trading as Max Schoenfeld & Company, v. Eoyal Indemnity Company. Assumpsit on insurance contract. Before Ferguson, J. The facts are stated in the opinion of the Superior Court. Yerdict for plaintiff in the sum of $1,278.27.

Appeal, No. 336, Oct. T., 1920, by defendant, from judgment of C. P. No. 4, Phila. Co., March T., 1918, No. 412, on verdict for plaintiff in the case of Nelson P. Evans v. Commercial Trust Company. Trespass to recover damages for dishonor of check. Before McCullen, J. The facts are stated in the opinion of the Superior Court. Verdict for plaintiff for $1,000 and judgment thereon. Defendant appealed.

Appeal, No. 31, March T., 1921, by defendant, from judgment of O. & T. Susquehanna County, Nov. Sessions, 1920, No. 1, on verdict of guilty in the case of Commonwealth of Pennsylvania v. Leroy L. Gumaer. Indictment for robbery. Before Smith, _ The facts are stated in tile opinion of tbe Superior Coraré., Verdict of guilty upon which judgment of sentence was passed. Defendant appealed. Errors assigned were various rulings on evidence and the charge of the court.

Appeal, No. 13, March T., 1921, by plaintiff from judgment of C. P. Luzerne County, Oct. T., 1919, No. 392, discharging rule for judgment for want of a sufficient affidavit of defense in the case of Willys-Overland, Inc., assigned to Continental Guaranty Corporation, v. Fritz Stry. Replevin for motor truck. Before Strauss, J. Rule for judgment for want of a sufficient affidavit of defense. The facts are stated in the opinion of the Superior Court.

Appeal, No. 14, March T., 1921, by defendant, from order of C. P. Luzerne County, March T., 1920, No. 180, dismissing motion to set aside service and summons in the case of S. K. Barber and Company v. Scranton Railway Company. Trespass to recover damages for injury to motor truck. Before Woodward, J. Motion to set aside service of summons. The facts are stated in the opinion of the Superior Court. The court dismissed the motion. Defendant appealed.

<p>Worhmeris Compensation Law — Claim of parents of deceased employee — Dependency—Actual dependency — Evidence.</p> <p>In a claim under the Workmen’s Compensation Law by the parents against the employer of a deceased minor, it must be affirmatively established that the claimants were actually dependent on the decedent.</p> <p>The term dependency contemplates actual dependency, and must affirmatively appear in the record as a fact. The question is whether the contributions of the son were needed to provide the claimants with some of the ordinary necessities of life suitable for persons in their class and position. The statute was designed to provide compensation; that is, the making good of the loss of support. Where such loss did not exist, compensation does not accrue.</p>

Appeal, No. 27, March T., 1921, by defendant, from judgment of C. P. Lackawanna County, June T., 1917, No. 50, on verdict for plaintiff in the case of Martha Soroko v. The Woodmen of the World. Assumpsit on beneficiary certificate. Before Maxwell, P. J., specially presiding. The facts are stated in the opinion of the Superior Court. Verdict for plaintiff in the sum of $967.47. A remit-titur of $100 was filed by the plaintiff and judgment entered in the sum of $867.47.

<p>Appeal, No. 5, March T., 1921, by plaintiff, from judgment of C. P. Lackawanna County, Jan. T., 1920, No. 790, sustaining exceptions to award of the Workmen’s Compensation Board in the case of Elizabeth Granville v. Scranton Coal Company.</p> <p>Appeal from order of Workmen’s Compensation Board. Before Newcomb, J.</p> <p>The facts are stated in the opinion of the Superior ' Court.</p> <p>The court reversed the order of the Workmen’s Compensation Board awarding compensation. Plaintiff appealed.</p> <p>Error assigned, was the order of the court.</p> <p>cited: Stahl v. Watson Coal Co., 7 Dept. Reps. 195; Kuca v. Lehigh .Valley Coal Co., 268 Pa. 163; Flucker v. Steel Co., 263 Pa. 113.</p>

<p>Practice, Superior Gourt — Appeal—Discretion of trial court.</p> <p>The Superior Court will not reverse a judgment of the lower court, where the only error assigned is an abuse of discretion in refusing a new trial, and an examination of the record fully and clearly demonstrates the fairness of the verdict.</p> <p>Criminal law — Sodomy—Alibi—New trial — Weight of the evidence.</p> <p>Where, in the trial of an indictment for sodomy, the defense is an alibi, depending upon the testimony of witnesses who fix the date by reference to notations upon delivery slips, and the evidence is that the notations referred to were made not at the time of delivery but several days before, a new trial will not be granted on the ground that a verdict of guilty was against the weight of the evidence.</p>

<p>Appeal, No. 356, Oct. T., 1920, by defendant, from judgment of Q. S. Berks County, December Sessions, 1919, No. 75, on verdict of guilty in the case of Commonwealth of Pennsylvania v. Charles Pearson.</p>

<p>Public Service Commission — Public service companies — Bates— Increased, rates — Complaints—Second increase — Pending hearing on complaint — Validity—Power of Public Service Commission to order.</p> <p>A public service company which has filed a schedule of increased rates with the Public Service Commission, against which complaint has been filed within thirty days, cannot file another schedule further increasing its rates, until it has discharged the burden of establishing the reasonableness of the first increase or secured the permission of the Public Service Commission to file such new schedule.</p> <p>In such ease, the Public Service Commission has authority to order the company to continue to render service at the original •rate under investigation, pending the determination and action of the commission.</p>

Appeal, No. 185, Oct. T., 1920, by plaintiff, from judgment of C. P. Lancaster County, Oct. T., 1917, No. 53, for defendant non obstante veredicto in the case of Davis Carpenter v. Horace J. Wolf. Assumpsit to recover part of the expense of repairing a line fence. Before Landis, P. J. The opinion of the Superior Court states the case. Verdict for plaintiff in the sum of $21.20. Judgment for defendant n. o. v. Plaintiff appealed.

<p>Assumpsit — Contract for materials and labor — Lien—Practice, C. P. — Affidavit of defense — Sufficiency—Counterclaim.</p> <p>Where a plaintiff sues in assumpsit, to recover the value of materials which were furnished the defendant to have certain work done thereon, without asking- damages for the breach of the contract, dgfendant cannot set up as a defense that he sold the goods to compensate himself on account of another indebtedness of the plaintiff to him. While the defendant had a lien for the value of his labor on the goods, a sale of them was a breach of fidelity toward his bailor.</p> <p>A counterclaim for work previously supplied to the plaintiff on an open book account, showing item by item how the amount is ascertained is a good defense, to the extent of the amount shown to be due, against a claim in assumpsit for the value of goods delivered to the defendant to have work done upon them.</p>

<p>Practice, O. P. — Judgments—Buie to open judgment — Petition —Answer—Depositions—Oath against oath.</p> <p>Upon a petition for rule to open judgment a responsive answer puts upon the petitioner the duty of furnishing proper proof to support his petition. When the petitioner has shown a good defense and supported his petition by his own depositions and those of another witness without any contradiction except that contained in the answer itself he should have the opportunity to be heard before a jury. It is error to regard an answer unsupported by evidence as testimony of equal weight with depositions and to discharge the rule as presenting the case of oath against oath.</p>

Appeal, No. 11, March T., 1921, by plaintiff, from judgment of C. P. Luzerne County, Dec. T., 1912, No. 653, in favor of defendant non obstante veredicto in tbe case of Allen Glennon, administrator of tbe estate of Joseph H. Glennon, deceased, v. Stanislava Hrobak. Issue to determine liability of a married woman on a judgment note.

<p>Public Service Commission — Public Service Company Lem ■— Act of July 17, 1917, P. L. 1025 — Railroads—Grade crossings — ■ Abolition — Powers of commission — Assessment of cost.</p> <p>Under the provisions of the Act of July 17, 1917, P. L. 1025, amending the Public Service Company Law, the Public Service Commission has authority to abandon or vacate highways or portions of highways in proceedings to abolish grade crossings.</p> <p>An order of the Public Service Commission, vacating- certain portions of a highway at either end of a village street, for the purpose of eliminating two grade crossings, will be affirmed, where the plans adopted show adequate provision for the public travel from the village street to the relocated highway by means of a subway to be constructed by the railroad company and also by a grade crossing at which additional safeguards are required to be placed by the railroad company and there.is nothing in the evidence to warrant a reversal of the conclusions of the commission.</p>

<p>Appeal, No. 16, March T., 1921, bj Mary S. Waters, from order and decree of O. C. York County refusing prayer for citation to Margaret Mary Marsteller and J. Y. Cowhick Marsteller, executors of the last will and testament of John Marsteller, deceased.</p> <p>Petition for citation to file supplemental account. Before Ross, 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> <p>— An account is only conclusive for the matters therein and the executors may be made to file a supplemental account for cause shown: Irvine’s Est. (No. 2), 209 Pa. 325; Chambers’s Est., 11 Pa. 443; Witman’s and Geisinger’s Appeal, 28 Pa. 376; Shindel’s App., 57 Pa. 43; Leslie’s App., 63 Pa. 355; McLellan’s App., 76 Pa. 232.</p> <p>— The confirmation of the first account is conclusive of everything contained in it and every objection which might have been made at that time: Borell’s Est., 25 District Rep. 430; May’s Est., 25 District Rep. 608; Smith’s Est., 25 District Rep. 683; Miller’s Est., 25 District Rep. 777; Dibble’s Est., 71 Pa. Superior Ct. 214; Groff’s Appeal in Eby’s Est., 45 Pa. 379.</p>

<p>Public Service Commission — Water companies — Rates—Notice of intention to collect — Complaints—Burden of proof.</p> <p>An ordinance fixing a maximum rate to be charged by a public utility is enacted subject to the power of the state to regulate the rate.</p> <p>A water company having filed its schedule of rates failed to collect them from a certain section of its territory. Three years after-wards, on notice that it would collect the uniform rate throughout all of the territory which it supplied, a complaint was filed alleging that the charges were unjust and unreasonable. On hearing before the Public Service Commission.</p> <p>Held, that the burden of proof was upon complainants and that the evidence produced at the trial of the case was sufficient to warrant the findings of the commission.</p>

<p>Public Service Commission — Water companies — Valuation for rate-mahing purposes — Property used and useful — Depreciation— Failure to provide fund.</p> <p>An order of the Public Service Commission determining the valuation of a water company for rate-making purposes at $51,538 is not confiscatory, where the reproduction cost new, less accrued depreciation, and after making deductions for property not used or useful, equals that amount.</p> <p>In the determination of a valuation for rate-making purposes it is proper to deduct the value of a reservoir and wells which were not used and useful in the public service.</p> <p>In determining the fair value of a water company for rate-making purposes, different methods may be used in computing the losses in early years, during the development period of the business, for the purpose of capitalization, and as an aid to judgment in deciding whether or not such early losses should be capitalized. Whatever method is adopted, however, it is necessary, in order to arrive at any satisfactory conclusion, that there must be some evidence as to the operating expenses and gross revenues of the company during the years of the development of the business. Where there is testimony submitted that the original plant was completed within six months, and that there was no evidence on which to found a confident assertion that the business of the company was not profitable from the beginning, there is nothing to warrant a finding that the company is entitled to an allowance, as capital, for any loss sustained by it, during the period of development of its business.</p> <p>A public service company is entitled to see that, from the earnings, the value of the property invested is kept unimpaired, so that at the end of any given term of years the original investment remains as it was in the beginning. If, however, a company fails to perform this plain duty and to exact sufficient returns to keep the investment uninjured, whether this is the result of unwarranted dividends upon over-issues of securities or omission to exact proper charges for its service, the fault is its own. When, therefore, a public regulation of its prices comes under question, the true value of the property then employed for the purpose of earning a return, cannot be enhanced by a consideration of the errors in management which have been- committed in the past.</p> <p>Where a water company has failed to make any provision out of its earnings for the replacement or depreciation of its property, it cannot ask for an allowance for such depreciation which would have been taken care of, if the earnings had been properly applied.</p>

<p>Malicious ‘prosecution — Want of probable cause — Burden of proof —Sufficiency of evidence — Municipal court-~ — Trial ivithout jury— Practice.</p> <p>In an action for malicious prosecution, tried by the municipal court without a jury, it is the duty of the court to find the facts and then declare the law properly applicable to the facts so found.</p> <p>In an action for malicious prosecution, proof that a charge of larceny was brought by the defendant against the plaintiff, and the subsequent discharge of the plaintiff by the magistrate, constitutes a prima facie ease, and the burden is upon the defendant to produce evidence of the existence of probable-cause.</p> <p>In such an action, the offer of the record before the magistrate would have been sufficient to shift the burden of proof, as to the existence of probable cause, or the want of it, from the plaintiff to the defendant.</p> <p>An opinion filed by the court below, indicating that, notwithstanding any evidence offered in the case, the burden of proof as to probable cause had never shifted, constitutes reversible error and the judgment thereon will be reversed.</p> <p>Actions — Joint tort-feasors — Practice, O. P.</p> <p>To entitle the plaintiff to a verdict against two defendants, as joint tort-feasors, it must appear that tbey acted in concert in committing the tort complained of. If no concert of action is shown, and therefore no joint tort, and the case is one of separate’ tort upon the part of one or of several defendants, the action is not sustained, and there should be no verdict against any one. In a suit for a joint tort, there should be no recovery, upon proof of one or more separate torts. When a joint tort is charged, a joint tort must be proved in order to sustain the action.</p>

Appeal, No. 251, Oct. T., 1920, by defendant, from judgment of C. P. Berks County, Oct. T., 1919, No. 79, for plaintiff, for want of a sufficient affidavit of defense in tbe case of Thomas B. Donaldson, Insurance Commissioner, as Such Statutory Liquidator of the Dissolved Central Mutual Fire Insurance Company v. Emma L. Fortna. Assumpsit to recover assessments levied for losses in a dissolved mutual fire insurance company.

<p>Criminal law — Forgery—Uttering forged instrument — Tax receipts — Duplicate tax receipts — Bvidence.</p> <p>A duplicate state tax receipt, not containing the seal of the ¡state treasurer may be the subject of a charge of forgery.</p> <p>In a prosecution for forgery, and for uttering a forged instrument, judgment on the verdict will be sustained, where the defendant is found guilty of forgery, even although the only proof of the forgery within the county wherein the indictment was brought, is found in the evidence of the uttering therein of the forged instrument, as to which latter charge the defendant is found not guilty.</p> <p>Forgery and knowingly uttering a forged instrument are two distinct offenses; although they may be joined in one count if the forging and uttering were practically simultaneous and arose from the same act or transaction. An acquittal of forgery does not bar a prosecution for uttering the same forged instrument, nor does an acquittal of uttering a forged instrument preclude a subsequent prosecution for forging it.</p> <p>In the absence of direct evidence as to where a forgery was actually done, proof of the uttering of the forged instrument is prima facie or presumptive evidence that the forgery was committed in the county where it was uttered.</p>

Appeal, No. 301, Oct. T., 1920, by respondent, from decree of O. P. No. 5, Phila. Co., June T., 1916, No. 17, granting a divorce a mensa et thoro in the case of Alberta H. Lyñn v. Jacob H. Lynn. Libel in divorce. Before Martin, J. Tbe facts are stated in tbe opinion of tbe Superior Court and in tbe opinion upon an earlier appeal in tbe same case in Lynn v. Lynn, 68 Pa. Superior Ct. 324.

Appeal, No. 277, Oct. T., 1920, by respondent, from order of C. P. No. 5, Phi la. Co., June T., 1918, No. 17, allowing additional counsel fees, expenses and master’s fees in tbe case of Alberta H. Lynn v. Jacob H. Lynn. Rule for additional counsel fees, expenses and master’s fees. Before Martin, J. Tbe' facts are stated in tbe opinion of tbe Superior Court. Tbe rule was made absolute. Respondent appealed. Error assigned was tbe order of tbe court.

<p>Appeal, No. 357, Oct. T., 1920, by libellant, from order of C. P. No. 5, Phila. Co., June T., 1916, No. 17, discharging rule for security for payment of alimony in the case of Alberta H. Lynn v. Jacob H. Lynn.</p> <p>Buie for security for payment of alimony. Before Martin, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The court made an order discharging the rule. Li-bellant appealed.</p> <p>Error assigned was the order of the court.</p>

<p>National banks — Drafts—Bills of lading — Bight to purchase— Property rights in commodities.</p> <p>National banks have no authority to engage in the purchase of bills of lading. The purchase of drafts is clearly within their authority, and this includes drafts to which bills of lading are attached. Upon payment of such drafts every interest of the bank in the commodity represented by the bill of lading would be extinguished. But until the draft is paid, and where the purpose disclosed by the evidence is to enforce collection of the draft, the bank may enforce its property rights in an attached bill of lading even against the real owner of the property represented thereby.</p> <p>Bond — Foreign attachment — Assignability—Bight of action.</p> <p>A bond given to the sheriff and his assigns for his protection in executing a writ of foreign attachment is assignable to the use-plaintiff. Having procured an assignment of the bond the use-plaintiffs may proceed at once thereon. It is not necessary that suit be first brought against the sheriff and that he thereafter bring suit upon the bond.</p>

Appeal, No. 9, March T., 1921, by defendant, from judgment of C. P. Laick’awanna County, May T., 1918, No. 374, in favor of plaintiff in the case of Sophie Morel v. Louis Morel. Assumpsit for use and occupation of plaintiff’s land and barn. Before Newcomb, J. The case was referred to A. S. Prokopovitch., Esq., as referee, under the provisions of the Act of April 6, 1869, -P. L. 725, as supplemented by the Act of June 22, 1871, P. L. 1363.

Appeal, No. 12, March T., 1921, by respondent, from decree of C. P. Lackawanna County, June T., 1918, No. 266, granting a divorce in the case of James A. Saville v. Emma Isabella Saville. Libel in divorce. Before O’Neill, J. The facts are stated in the opinion of the Superior Court. The court granted a divorce. Respondent appealed. Error assigned, among others, was the decree of the court.

Appeals, Nos. 32, 33, 34, 35 and 36, March T., 1921, by plaintiff, from judgment of C. P. Luzerne County, May T., 1919, Nos. 706, 707, 708, 709 and 710, on verdict for defendant in the case of Ber-wick Store Company v. Joseph Zadyejka and George Rapalavicz. Issue framed upon rule opening judgment. Before Strauss, J. The facts are stated- in the opinion of the Superior Court. Verdict for defendants and judgment thereon. Plaintiff appealed.

Appeal, No. 3, March T., 1921, by defendants, from judgment of C. P. York County, Aug. T., 1919, No. 138, on case stated in the suit of Walter B. Hays, Trustee in Bankruptcy of Ivan R. Wirt and John A. Knadig individually and trading as John A. Knadig and Company, v. Elmer E. Weikel and Eli Marks, trading as Weikel and Marks. Trespass to recover value of motor truck.

Appeal, No. 18, March T., 1921, by plaintiff, from decree of C. P. Lackawanna County, sitting in equity, November Term, 1915, No. 5, dismissing bill in equity in the case of Anna Lightfoot v. Willard M. Bunnel, Trustee, and Willard M. Bunnel and Hugh J. Evans, Receivers of Adolph Blau, as Individual Bankrupt, and Adolph Blau, trading as the Blau Banking House, Bankrupt, and the West Side Bank of Scranton. Bill in equity to compel the delivery of a check.

Appeal, No. 30, March T., 1921, by defendant, from judgment of C. P. Lackawanna County, Nov. T., 1915, No. 457, on award for plaintiff in the case of Borough of Dunmore v. A. L. Conrad. Sci. fa. sur municipal lien for sewer assessment. Before Newcomb, J. The facts are stated in the opinion of the Superior Court.

<p>Appeal, No. 26, Oct. T., 1921, by defendant, from judgment of Q. S. Monroe County, Sept. Sessions, 1920, No. 29, on verdict of guilty in the ease of Commonwealth of Pennsylvania v. Andrew J. Brady.</p> <p>Indictment for larceny of an automobile. Before Shull, P. J.</p> <p>The opinion of the Superior Court states the case.</p> <p>Verdict of guilty on which judgment of sentence was passed. Defendant appealed.</p> <p>Error assigned was refusal of the court to grant a new trial on the ground of after-discovered evidence.</p>

Appeals, Nos. 321, 322 and 323, Oct. T., 1920, by plaintiff, from judgment of O. P. Delaware County, March T., 1920, Nos. 47, 53 and 86, in the cases of Wayne Sewerage Company v. Joseph M. Fronefield, Herman S. Leinhart and Charles Schwarz. Assumpsit to recover for sewer service furnished by the plaintiff in accordance with rates established by the Public Service Commission. Before Broomall, J. Rule for judgment for want of a sufficient affidavit of defense.

Appeal, No. 332, Oct. T., 1920, from judgment and sentence of O. & T. Lehigh County, April T., 1920, No. 47, on verdict of guilty in the case of Commonwealth of Pennsylvania v. Ammon C. Godshalk. Indictment for voluntary manslaughter and involum tary manslaughter. Before Groman, P. 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, No. 4, March T., 1918, by Highspire Water Company, from order of the Public Service Commission, Complaint Docket No. C. 517-1915, in case of George W. Cover et al. v. Highspire Water Company.</p> <p>Complaint against Highspire Water Company on account of increased rates effective November 1, 1915.</p> <p>The charges in the schedule were alleged to be unjust and unreasonable.</p> <p>The Public Service Commission, after hearing, made an order fixing the fair value of the property of the High-spire Water Company as of April 1,1916, at $28,000 and allowed a gross income of not more than $2,600 per year. From this order the Water Company appealed.</p>

Appeal, No. 13, March T., 1921, by plaintiff, from judgment of C. P. York County, April T., 1920, No. 11, making absolute rule to open judgment in the case of Edward P. Noll y. The Corporation of the Royal Exchange Assurance of London, England. Rule to open judgment. Before Wanner, P. J. The facts are stated in the opinion of the Superior Court. The court made absolute the rule to open judgment. Plaintiff appealed.

Appeal, No. 90, Oct. T., 1920, by defendant, from judgment of O. P. Bradford County, Sept. T., 1918, No. 325, on verdict for plaintiff in the case of John J. Borden v. Lehigh Yalley Railroad Company. Trespass to recover damages for personal injuries. Before Maxwell, P. J. The facts are stated in the opinion of the Superior Court. Verdict for plaintiff for $750 and judgment thereon. Defendant appealed.

Appeal, No. 20, Oct. T., 1921, by defendant, from judgment and sentence of Q. S. Phila. Co., Oct. Sessions, 1919, No. 718, on verdict of guilty in the case of Commonwealth of Pennsylvania v. John G. Dougherty. Indictment for prescribing drugs to an habitual user. Before Stern, J. The facts are stated in the opinion of the Superior Court. Verdict of guilty upon which judgment of sentence was passed. Defendant appealed.

Appeal, No. 350, Oct. T., 1920, by plaintiff, from judgment of C. P. No. 1, Phila. Co., June T., 1920, No. 603, in favor of defendant, on question of law raised in affidavit of defense in the case of Mason A. Moyer, William H. Carpenter and David C. Miller, trading as Moyer & Carpenter, v. Ralp Kennedy. Assumpsit for goods sold and delivered.

Appeal, No. 15, March T., 1921, by plaintiff, from judgment of C. P. Lackawanna County, June T., 1916, No. 314, on verdict for plaintiff in the ease of Prudden-Winslow Company, Inc., v. Mathias Stipp. Assumpsit for materials sold and delivered.

Appeal, No. 114, Oct. T., 1920, by defendant from judgment of O. P. No. 4, Phila. Co., June T., 1918, No. 1128, on verdict for plaintiff in the case of Martha Elliott (Mattie Norris) v. Prudential Insurance Company of America. Assumpsit on a policy of insurance Before McCul-len, J. The facts are stated in the opinion of the Supeifior Court. Verdict for plaintiff for $1,062.50, the jury finding specially that the insured died October 17, 1916.

Appeal, No. 80, Oct. T., 1920, by defendant, from judgment of Municipal Court of Philadelphia, June T., 1919, No. 525, on verdict for the plaintiff in the case of Pickney P. Samuel v. Charles Blackwell. Trespass for false imprisonment. Before Knowles, J. The facts appear in tlie opinion of tbe Superior Court. Verdict for plaintiff for $1,000 and judgment thereon.

Appeal, No. 51, Oct. T., 1920, by defendant, from judgment of Municipal Court of Philadelphia, Jan. T., 1919, in favor of plaintiff in case tried by the court without a jury in suit of Louis M. Uhr, Guardian of Bertha Band, a feeble-minded person, v. Gamaliel K. Davidyan. Assumpsit to recover the value of a rug. Before Crane, J., without a jury. The facts are stated in the opinion of the Superior Court. The court entered judgment for the plaintiff for 1333.67.

Appeal, No. 245, Oct. T., 1920, by defendant, from judgment of Municipal Court of Philadelphia, May T., 1919, No. 406, on verdict for plaintiff in the case of Jacob Essreg, a minor, by his father and next friend, Abraham Essreg, and Abraham Essreg in his own right, v. Jacob Bronstein. Trespass to recover damages for assault and battery. Before Knowles, J. The facts are stated in the opinion of the Superior Court.

Appeal, No. 176, Oct. T., 1920, by defendant, from judgment of C. P. Delaware County, Sept. T., 1917, No. 223, on verdict for plaintiff in the case of Frank Williams v. Nicholas Damico. Trespass to recover damages for injuries to automobile. The opinion of the Superior Court states the case. Verdict for plaintiff for $565.80 and judgment thereon. Subsequently the defendant filed a motion for judgment non obstante veredicto and motion for new trial.

Appeal, No. 91, April T., 1921, by plaintiff, from decree of Court of C. P. Allegheny County, July T., 1919, No. 1768, Sitting in Equity, sustaining demurrer to bill in equity in the case of A. E. Anderson, for himself and others, v. Amalgamated Association of Street and Electric Railway Employees, an unincorporated association of Detroit, Michigan, W. D. Mahon,'President; William B. Fitzgerald, Vice-president; P. J. McGrath, Vice-president, and other officers and members…

Appeal, No. 137, April T., 1921, by Harriet Murray, Jennie Hodil and Catharine Geisler, from decree of O. C. Allegheny County, May T., 1920, No-. 243, dismissing exceptions to adjudication in the case of Estate of Margaret Geisler. Exceptions to adjudication.

Appeal, No. 26, April T., 1920, by defendants, from judgment of C. P. Clarion County, sitting in equity No. 2, Dec. 10, 1920, granting an injunction in tbe case of Elsie Jane Hawk v. Tbomas Davis and Nellie Davis. Bill in equity for injunction restraining tbe use of a cesspool resulting in tbe pollution of a spring. Before Sloan, P. J. Tbe facts are stated in tbe opinion of tbe Superior Court. Tbe court granted tbe injunction as prayed for. Defendants appealed.

Appeal, No. 40, April T., 1921, by respondent, by decree of C. P. Venango County, Aug. T., 1919, No. 35, granting a divorce in tbe case of William James Breene v. Susan Alaska Breene. Libel in divorce. Before Criswell, P. J. Tbe facts are stated in tbe opinion of tbe Superior Court. Tbe court granted a divorce. Respondent appealed. Error assigned was tbe decree of tbe court.

Appeal, Nos. 4 and 5, March T., 1921, by defendants, from judgment of Q. S. Luzerne County, February Sessions, 1921, No. 116, on verdict of guilty in the case of Commonwealth of Pennsylvania V. Joseph Elias and Mike Johns. Indictment for larceny and receiving stolen goods. Before Garman, J. The facts are stated in the opinion of the Superior Court. Verdict of guilty upon which judgment of sentence was passed. Defendants appealed.

<p>Appeal, Nos. 2 and 3, March T., 1921, from judgment of Q. S. Luzerne County, February Sessions, 1921, No. 116, on verdict of guilty in the case of Commonwealth of Pennsylvania v. Joseph Elias and Mike Johns.</p>

<p>Workmen’$ Compensation Law — Accident in course of employment — Mixed questions of law and fact.</p> <p>The determination that an employee’s injury was received in an accident arising in the course of his employment is a mixed question of law and fact.</p> <p>An employee of a railroad company, employed in a clerical capacity, was given reduced transportation to and from his place of employment. His working hours were from 8:30 a. m. to 5:30 p. m. While traveling from his work his train stopped at a point a slight distance from the station platform waiting for a freight train to pull out. The claimant, instead of waiting until his way to the station platform was clear, left the passenger coach and crawled up on the bumpers of two freight cars for the purpose of making his way across to the platform of the station. While so doing the freight train started and he fell to the track and sustained severe injuries.</p> <p>Seldj that the claimant’s employment having ceased at a definite time, that he was not an employee, but a passenger while returning from the place of his employment, and that he was not entitled to compensation under the Workmen’s Compensation Law.</p>

<p>Trespass — Talcing possession of premises belonging io another— Case for jury.</p> <p>In an action of trespass, resulting from the unlawful taking possession of the plaintiff’s premises in his absence and the consequent loss of profits, the ease is for the jury, where the defendant, without authority, took the keys of the plaintiff’s restaurant from the plaintiff’s agent, locked the doors and closed the same for two days. In such case, the defendant committed a trespass and the court should have submitted the case to the jury with instructions to that effect.</p> <p>Trials — Depositions of witnesses — Admissibility.</p> <p>The depositions of a witness about to leave the jurisdiction are admissible, where there is sufficient evidence to establish the fact that the witness was about to leave the jurisdiction at the time the depositions were taken and that, although since the taking of the first depositions he had been within the jurisdiction of the court at various times, he was not there at the time of the trial.</p> <p>Whether the evidence supports the conclusions that depositions should become admissible is a question of law, to be determined by the trial judge. Where, however, the only evidence supporting the exclusion of the depositions is the statement by opposing counsel that he saw the witness in the county a week before the time of trial, there is not sufficient testimony to sustain the conclusion of the court that the depositions were inadmissible, and their exclusion constituted reversible error.</p>

Appeal, No. 88, April T., 1921, by plaintiff, from judgment of C. P. Greene County, Dec. T., 1918, No. 76, quashing writ of replevin in the case of John Renner v. James Stephens. Replevin for automobile. Before Ray, P. J. The facts are stated in the opinion of the Superior Court.

<p>Appeal, No. 89, April T., 1921, by Harry K. Miller, from decree of the O. C. Indiana County, June T., 1919, No. 20, dismissing exceptions to auditor’s report in the case of In re Estate of Anne Ferguson, deceased.</p> <p>Before Orlady, P. J., Porter,</p> <p>Exceptions to auditor’s report. Before Langham, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>On exceptions to the auditor’s report the court sustained the exceptions as regards' the widow’s exemption and modified the report in the following opinion which was, in part, as follows:</p> <p>Exceptions 4 and 5 of the “Additional” exceptions are sustained so far as the $300 exemption claimed by the widow of Albert Ferguson is concerned. We think the auditor would not have been warranted by allowing $500 to the legal representatives of Anne Ferguson for the reason that her legal representatives could not claim after her death more exemption than she claimed and had set aside to her in her lifetime. Albert Ferguson died August 12, 1917, and Anne Ferguson, widow, died March 25,1919. She had nineteen months and upwards in which to claim the full $500 exemption to which she was entitled under the Act of June 7, 1917, but she did not do it. She only claimed $300, and we think her legal representatives cannot come in after her death and claim the balance amounting to $200. The other exceptions are dismissed.</p> <p>In keeping with the foregoing opinion we must modify the distribution made by the auditor so far as it affects Frank Ferguson and the legal representatives of Anne Ferguson, deceased. The awards to the other claimants to remain as reported by the auditox*.</p> <p>DISTRIBUTION AS MODIFIED BY THE COURT.</p> <p>Balance now for distribution,.$3,376.74</p> <p>Clair Longwell, Register and Recorder, additional fee lor recording report as modified,.. 3.74</p> <p>To the legal representatives of Anne Ferguson, deceased, ..,. 300.00</p> <p>Balance to Frank Ferguson, as per provisions of codicil of will of Albert Ferguson, deceased, ... 3,073.00</p> <p>And now, April 8, 1920, this case came on to be heard by argument of counsel on exceptions filed to the auditor’s report, distributing the fund declared to be in the hands of L. S. W. Ray, executor of Anne Ferguson, deceased, and upon due consideration it is ordered and decreed that the executor, L. S. W. Ray, pay over the fund decreed to be in his hands in accord with the auditor’s report, except that it is hereby directed that the legal repi’esentatives of Anne Ferguson, deceased, be paid the sum of $300, and the balance of the fund less $3.74, additional fees for recording to wit, the sum of $3,073, be paid to Frank Ferguson. All exceptions inconsistent with this order and decree are dismissed, and an exception to this order and decree allowed exceptants.</p> <p>Exceptant appealed.</p> <p>Error assigned, was the order of the court.</p>

<p>Appeal, No. 60, April T., 1921, by defendant, from judgment of C. P. Allegheny County, April T., 1920, No. 1750, ordering payment of detectives’ fees, as costs, in the case of Selma J. Kaufmann v. Nathan Kaufmann.</p> <p>Petition for alimony, counsel fees and detectives’ fees.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The court having granted a divorce a mensa et thoro, in addition, made the following order from which the respondent appealed.</p> <p>“This case came on to be heard upon petition for alimony, counsel fees and expenses arising out of the above entitled case.</p> <p>“After a careful consideration of the testimony, we are of the opinion that the amount set forth for detective services is highly excessive. The court in some instances has approved vast sums for such services but, that has been in cases where it was rendered obligatory by virtue of the development of the case at the time of the trial and not before, as in this case. The sum of $4,000 is hereby approved for detective services.</p> <p>“As to counsel fees, the services rendered by counsel were mostly interviews as to the progress of the case and practically no legal work was done until the libel was filed. The sum of $1,000 to Thomas M. Marshall, Jr., Esq., and the sum of $500 to J. B. Brown, Esq., is hereby approved.”</p> <p>Error assigned was the order of the court.</p>