Volume 77 — Pennsylvania Superior Court Reports

<p>Lunatics — Maintenance—Claims of Commonwealth and poor district — Statute of limitations — When applied — Act of June 1,1915, P. L. 661.</p> <p>"Under the Act of June 1,1915, P. L. 661, where a claim is made on behalf of the Commonwealth and on behalf of any county or poor district, for the reimbursement for money expended in the care of an indigent lunatic, and there is not sufficient in the estate to pay the claim in full, the same shall be paid pro rata to the state and county, in the proportion of the amount of maintenance legally recoverable by each.</p> <p>Where a guardian of an insane person has filed an account showing moneys in his hands for distribution and the Commonwealth and the Poor District claim distribution pro rata for the moneys expended in the care of a lunatic, the claim of the poor district is limited to the amount contributed within six years prior to filing its claim for reimbursement.</p> <p>The statute of limitations may be pleaded against the poor district as its right to recover is based upon an implied contract. And the Commonwealth can restrict the claim of the poor district to six yearg from the date of the filing of the claim for reimbursement.</p> <p>Where the fund is not sufficient to pay all, each creditor hag the right to oppose any other claimant, by showing payment of the debt or that it is barred by the statute of limitations. The Commonwealth can therefore plead the statute of limitations against the claim of the poor district.</p>

<p>Appeal, No. 110, April T., 1921, by Duquesne Light Company and Allegheny County Steam Heating Company, from order of the Public Service Commission of the Commonwealth of Pennsylvania, Complaint Docket No. 2942, in the case of Duquesne Light Company and Allegheny County Steam Heating Company v. The Public Service Commission of the Commonwealth of Pennsylvania, Adelaide H. C. Frick, Helen C. Frick, Childs Frick, Henry C. McEldowney and William Watson Smith, Executors of the Will of Henry C. Frick, deceased, and the Union Trust Company of Pittsburgh, Trustee for Helen C. Frick under said Will, Intervening Appellees.</p> <p>From the record it appeared that H. C. Frick filed a complaint with the Public Service Commission, alleging that he entered into certain contracts with the Duquesne Light Company and the Allegheny County Steam Hewing Company, dated November 15, 1916, wherein it was agreed that the said companies would furnish to the complainant electric current and steam at certain rates for 25 years.; that the respondent companies had filed schedules increasing their rates and were charging complainant at the increased rates. Answers were filed by the respondent companies setting forth that they had filed schedules at increased rates and could not longer furnish current and steam to the complainant at the contract rates. The commission made an order finding that the rates as set forth in the contract for the first period thereof were reasonable and directed that the respondent companies file schedules with a classification, which would include complainant and such other of their patrons as may hereafter fall within the said classification, at a rate in accordance with the private contract. The respondents appealed.</p> <p>Other facts are set forth in the opinion of the Superior Court.</p> <p>Error assigned, among others, was the order of the commission.</p> <p>The contracts are ineffective as against higher published rates: Leiper v. The Baltimore & Philadelphia R. R. Co. et al., 262 Pa. 328; Schaper v. Cleveland & Erie Ry. Co., 265 Pa. 109; V. & S. Bottle Co. v. Mountain Gas Co., 261 Pa. 523; Klein-Logan Co. v. Duquesne Light Co., 261 Pa. 526; James A. Whitcomb v. Duquesne Light Co., 4 P. C. R. 444; Armour Packing Co. v. United States, 209 U. S. 56; Suburban Water Co. v. Oakmont Boro., 268 Pa. 243; Pinney & Boyle Co. v. Los Angeles Gas & Electric Co., (Cal.) L. R. A., 1915, C. 282, 287.</p> <p>There is nothing in the Public Service Company Law invalidating contracts, where the contract rates were the tariff rates when the contract was made, so long as the contract rates remain reasonable: Leiper v. R. R. Co., 262 Pa. 328; Slate Belt Elec. Street Ry. Co. v. Public Service Comm., 73 Pa. Superior Ct. 493; Wilkinsburg v. Pittsburgh Rys. Co., 6 P. C. R., 281; Baltimore County Water and Electric Co., P. U. R., 1918, F. 522; N. Y. & Queens Gas Co. v. McCall, 245 U. S. 345.</p> <p>The light, heat and power demands of the buildings of the complainant required a separate classification and the maintenance of the rates in effect when the contracts were made: Mercur v. Electric Light, etc., Co., 19 Pa. Superior Ct. 519; Hoover v. P. R. R. Co., 156 Pa. 220; Bald Eagle Valley R. R. Co. v. Nittany Valley R. R. Co., 171 Pa. 284; P. & L. E. R. R. Co. v. Colonial Steel Co., 251 Pa. 460; C. D. & P. Tel. Co. v. Com., 114 Pa. 592; Baily v. Fayette Gas-Fuel Co., 193 Pa. 175; Allegheny County Light Co. v. Shadyside Electric Light Co., 37 Pa. Superior Ct. 79; Steinman v. Edison Electric Illuminating Co., 43 Pa. Superior Ct. 77; Manufacturers Ry. Co. v. U. S., 246 U. S. 457; Interstate Commerce Commission v. B. & O. R. R. Co., 145 U. S. 263; L. & N. R. R. v. Behlmer, 175 U. S. 648; East Tenn. Ry. Co. v. I. C. C., 181 U. S. 1; I. C. C. v. L. & N. R. R., 190 U. S. 273; I. C. C. v. Chicago G. W. Ry. Co., 209 U. S. 108.</p>

<p>Appeal, No. 6, March T., 1921, by defendant, from judgment and sentence of Q. S. Luzerne County, Sept. Sessions, 1920, No. 544%, on verdict of guilty in the case of Commonwealth of Pennsylvania v. Henry Stefanezyk.</p> <p>Indictment for breaking into and entering a freight car. Before Woodward, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdiet of guilty on which judgment of sentence was passed. Defendant appealed.</p> <p>Errors assigned, were the charge of the court and refusal to direct a verdict in favor of the defendant.</p>

Appeal, No. 50, April T., 1921, by plaintiff, from judgment of C. P. Allegheny County, Oct. T., 1918, No. 264, for defendant in the case of F. W. Schomaker v. Clifford S. Heinz et al., executors of the estate of H. J. Heinz, deceased. Assumpsit to recover rental under a lease. Before Evans, J. Verdict for defendant and judgment thereon. Plaintiff appealed.

<p>Appeal, No. 3, April T., 1921, by defendant, from judgment of C. P. Allegheny County, April T., 1920, No. 1464, refusing an appeal from the county court in the case of John E. Hanley, in his own right, and Margaret Hanley, in her own right, v. Andrew J. Batey.</p> <p>Petition for the allowance of an appeal from the county court. Before Carpenter, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The court dismissed the petition. Defendant appealed.</p> <p>Error assigned was the order of the court. .</p>

<p>Parent and child — Husband and wife — Maintenance — Act of April IS, 1867, P. L. 78 — Municipal court — Act of July 12,1918, P. L. 711 — Act of July 17,1917, P. L. 1016.</p> <p>By tbe Act of July 12, 1913, P. L. 711, as amended by tbe Act of July 17, 1917, P. L. 1015, the municipal court is given exclusive jurisdiction in all proceedings brought against any husband or father •wherein he has, without. reasonable cause, separated himself from his wife or children or from both, or has neglected to maintain his wife and children.</p> <p>On a petition for an order of support for the complainant, who is the wife of the defendant and their minor children, an order awarding the sum of $500 a month for the support of the petitioner and her children will be sustained, where there is evidence that a former order had been made by the municipal court on October 20, 1919, and the order appealed from was an application for an increase, due to the birth of a second child.</p> <p>The fact that the defendant did not question at the first proceeding by appeal or otherwise, his marriage with the petitioner, that they had one child, and the necessity for maintenance within the statute, conclusively established such facts. The appellant could not, on the application for an increase of the allowance, retry the fact of marriage determined before.</p> <p>An order requiring the defendant to pay the sum of $500 'a month will be sustained where there is evidence to support it. A consideration of 'the record by the appellate court under the Act of April 18, 1919, P. L. 72, does not require that court to reverse a conclusion of the lower court, where there was evidence to sustain the finding.</p>

Appeal, No. 44, April T.. 1921, by defendant, from judgment of C. P. Somerset County, Sept. T., 1910, No. 148, refusing to grant a rule to show cause why condemnation proceedings should not be quashed in the case of the Connellsville and State Line Railway Company v. Prank Cooper. Petition to grant a rule to show cause why condemnation proceedings should not be quashed. Before Ruppel, P. J. The opinion of the Superior Court states the case. The court dismissed the petition.

<p>Appeal, No. 106, April T., 1921, by defendant, from judgment of C. P. Indiana County, June T., 1919, No. 355, on verdict for plaintiff in case of Florence Holmes and Margaret Holmes by tbeir next friend, William Best, v. Elmer Lamer, appellant.</p> <p>Ejectment for parcel of land of twelve acres in Cherry Hill Township, Indiana County. Before Langham, P: J.</p> <p>At the trial it appeared that the plaintiffs were the children of Frank Holmes. The defendant was Elmer Lamer who took title to the land in question by deed dated April 19, 1918. The plaintiffs claimed title under an alleged parol gift of the land to their father from his mother in 1909. Other facts appear by the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff. Defendant appealed.</p> <p>Errors assigned, among others, were various rulings on evidence, the charge of the court, answers to points, and refusal of defendant’s motion for judgment non obstante veredicto.</p> <p>The parol gift of land claimed by the plaintiffs was not sufficiently supported by the evidence. To take a case out of the operation of the statute of frauds, an alleged parol gift of lands must be shown by fully complete and indubitable proof: Dunning v. Reese, 7 Kulp 201; Matthews v. Matthews, 11 Pa. Superior Ct. 381; Hertzog v. Borgel, 7 Pa. Superior Ct. p. 257; Haslet v. Haslet, 6 Watts, p. 464; Baxter v. Doane, 208 Pa. 585; Bowers v. Bowers, 95 Pa. 477.</p> <p>for appellee, cited: Wickersham v. Irwin, 14 Pa. 108; Schroyer v. Smith, 204 Pa. 310; Sower’s Admr. v. Weaver, 84 Pa. 262; Caldwell v. Caldwell 24 Pa. Superior Ct. 230.</p>

<p>Workmen's compensation — Payments—Release—Mistaken facts —Serious consequences of accident — Opening of award.</p> <p>Where the court of common pleas dismisses an appeal from an award of Workmen’s Compensation Board it should enter judgment for the total amount stated by the award or order to be payable, whether then due and accrued or payable in future installments, in accordance with section 427 of the Act of June 26,1919, P. L. 642.</p> <p>The Workmen’s Compensation Board has authority to set aside a final receipt and modify an agreement 'go as to provide for the loss of an eye, when at the time that a release had been executed by the plaintiff, the accident was thought to be trivial. In such ease the provisions of section 315 of the Act of June 2,. 1915, P. L. 736, providing that “where payments of compensation have been made in any case” the limitations of the right to claim compensation ghall not take effect until the expiration of one year from the time of the making of the last payment, do not apply.</p>

Appeal, No. 85, April T., 1921, by defendant, from order of C. P. Allegheny County, Oct. T., 1920, refusing an appeal from county court in the case of Knapp Co., Inc., v. Harry J. Saul, Trading as Keystone Tire Co., Appellant. Petition to allow an appeal from the county court. The facts are stated in the opinion of the Superior Court. The court dismissed the petition. Defendant appealed. Error assigned was the order of the court.

Appeal, No. 86, April T., 1921, .by defendant, from order of C. P. Allegheny County, .April T., 1920, No. 2367, refusing to allow an appeal from the county court in the case of Kress House Moving .Company Corporation v. James P. Brennan. Petition to allow an appeal from the county court. Before Swearingen, J. The facts are stated in the opinion of the Superior Court. The court dismissed the petition. Plaintiff appealed. Error assigned was the order of the court.

<p>Appeal, No. 126, April T., 1921, by plaintiffs, from decree of C. P. Allegheny County, Jan. T., 1920, No. 562, sitting in equity, in the case of Addison S. Altaffer and Mary E. Altaffer v. Anderson Automobile Company, a corporation, R. L. Anderson and John C. Anderson.</p> <p>Bill in equity to compel the issue of a new certificate of one share of stock, and to enjoin the holding of a stock, holders’ meeting until said certificate has been issued. Before Ford, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The court dismissed the bill. Plaintiff appealed.</p> <p>Errors assigned were overruling exceptions to certain findings of fact and conclusions of law, and the decree of the court.</p>

Appeal, No. 48, April T., 1921, by defendant, from order of C. P. Allegheny County, July T., 1920, No. 1984, refusing to allow an appeal from the county court in the case of George P. Morgan, Trading as George P. Morgan Lumber Company, v. J. W. Logan & Sons Company, a Corporation. Petition to allow an appeal from county court. Before Carpenter, J. The court dismissed the petition in the following opinion.

Appeal, No. 150, April T., 1921, by defendant, from judgment of C. P. Allegheny County, July T., 1920, No. 386, on case stated in the suit of School District of the Borough of Ben Avon v. School District of Pittsburgh. Case-stated to determine liability for cost of tuition of indigent children.

Appeal, No. 151, April T., 1921, by defendant, from judgment of C. P. Allegheny County, July T., 1920, No. 387, on case stated in the suit of School District of the Borough of Ben Avon v. School District of the Borough of Wilkinsburg, Appellant. Case-stated to determine liability for cost of tuition of indigent children. Before Swearingen, J.

Appeal, No. 79, April T., 1921, by defendant, from judgment of C. P. Westmoreland County, Feb. T., 1918, No. 454, on verdict for plaintiff in the case of James U. Thomas v. W. W. Nichols. Assumpsit for damages for wrongful cancellation of lease of coal mine. Before McConnell, P. J. Eule to show cause why money paid into court should not be credited as part payment of the judgment and costs. The facts are stated in the opinion of the Superior Court.

<p>Appeal, No. 92, April T., 1921, by Kittanning Telephone Company, from order of the Public Service Commission. Complaints Nos. 3133-3156-3170, 1920, in the cases of Borough of Ford City, Borough of Leechburg, and J. W. Patterson et al. v. Kittanning Telephone Company and the Public Service Commission of the Commonwealth of Pennsylvania on appeal.</p> <p>Complaint against increased schedule of rates of telephone company.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>After hearing the commission sustained the complaints and issued the following order from which the respondent appealed:</p> <p>These matters being before the Public. Service Commission of the Commonwealth of Pennsylvania upon complaints and answers on file, and having been duly heard and submitted by the parties, and full investigation of the matters and things involved having been had, and the commission having on the date hereof made and filed of record a report containing its findings of fact and conclusions thereon, which said report is hereby approved and made part hereof:</p> <p>Now, to wit, September 22, 1920, it is ordered: that the complaints in so far as they relate to the rates charged by respondent be and they are hereby sustained.</p> <p>It is further ordered: That the Kittanning Telephone Company, respondent, file, post and publish, effective October 1,1920, upon one day’s notice to the public and this commission, “Supplement No. 3 to tariff schedule P. S. C. Pa. No. 2”; said supplement to cancel Supplement No. 2 to tariff P. S. C. Pa. No. 2 and to reinstate the rates and charges contained in tariff schedule P. S. C. Pa. No. 2 and Supplement No. 1 thereto, effective prior to January 1,1920.</p> <p>Error assigned was the order of the commission.</p>

Appeal, No. 130, April T., 1921, by Commonwealth of Pennsylvania, from decree of C. P. Allegheny County, Oct. T., 1920, No. 2292, Docket “D” in the matter of appeal of Pittsburgh Coal Company from assessment of mercantile license tax for the year 1920. Appeal from tax settlement. Before Reid, J. The facts are stated in the opinion of the Superior Court.

Appeal, No. 351, Oct. T., 1920, by defendants, from judgment of O. P. No. 3, Philadelphia County, June T., 1920, No. 7624, in favor of plaintiff on pleadings in case of Julia Hannoek v. John Herman Tope and Margaret J. Tope. Assumpsit to recover money paid on account of the sale of real estate.

Appeal, No. 24, March T., 1921, by defendant, from judgment of C. P. Luzerne County, July T., 1919, No. 283, on verdict for plaintiff in case of Anna M. Brown v. Thomas A. Judge. Replevin for household goods and ornaments. Before Garman, J. The facts are stated in the opinion of the Superior Court; The court directed a verdict in favor of plaintiff and entered judgment thereon. Defendant appealed.

<p>Corporations — Foreign corporations — Internal management — Stochholder’s hill — Equity.</p> <p>The courts of this state will not take jurisdiction of a ease involving the internal management of a foreign corporation. Where the plaintiff is seeking to interfere with the internal management of a foreign corporation, he must seek his redress ir. the domicile of the corporation.</p> <p>Where the act complained of in a stockholder’s bill affects the complainant solely in his capacity as a member of the corporation, whether it be as a stockholder, director, president or other officer, and is the act of the corporation whether acting in stockholders’ meeting or through its agent, the board of directors, such action is the management of the internal affairs of the corporation and in case of a foreign corporation, the courts of Pennsylvania will not take jurisdiction.</p>

Appeal, No. 18, April T., 1921, by defendant, from judgment of C. P. Erie County, Sept. T., 1918, No. 273, on verdict for plaintiff in the case of Tony Bounomo, use of Max Engelberg, v. United Distiller’s Company. Assumpsit for breach of contract. Before Whittelsey, J. The facts are stated in the opinion of the Superior Court. Verdict for plaintiff for $1,187.60 and judgment thereon. Defendant appealed.

Appeal, No. 35, April T., 1921, by plaintiff, from judgment of C. P. Westmoreland County, Aug. T., 1918, No. 675, on a directed verdict in favor of defendant, in case of M. M. Bowman v. The Cochran Coal Company, a Corporation. Assumpsit for breach of contract to supply coal at a reduced price. Before McConnell, P. J. The facts are stated in the opinion of the Superior Court. The court directed a verdict in favor of the defendant and entered judgment thereon.

Appeal, No. 98, April T., 1921, by defendant, from judgment of C. P. Fayette County, March T., 1919, No. 209, dismissing appeal from decision of the Workmen’s Compensation Board in the case of Dominic Fornatti v. Tower Hill Connellsville Coke Company. Appeal from award of Workmen’s Compensation Board. Before Yan Swearingen, P. J. The facts are stated in the opinion of the Superior Court.

<p>Equity — Practice—Preliminary injunction — Dismissal—,-Appeal.</p> <p>On an appeal from a decree dissolving a preliminary injunction, the Superior Court will not consider the merits of the ease, but only determine whether, under the facts presented in the common pleas, there were reasonable grounds for the action of the court. Where there were such reasonable grounds for the dismissal of the bill, the decree of the court below will be affirmed.</p> <p>Borough code — Act of May Jj, 1915, P. L. 812, chapter V, article I, section 2, subdivision XXV — Pool rooms — License—Tax—Authority of borough to levy tax.</p> <p>Under the Act of May 14, 1915, P. L. 312, chapter V, article I, section 2, subdivision XXV, (Borough Code), and its amendment of July 6,1917, P. L. 704, boroughs have the right, as part of their general powers, to regulate and license and to fix the time of opening and closing of pool rooms, billiard rooms and ten pin alleys.</p>

<p>Worhmen’s Compensation Law — Federal Employers’ Liability Act — Interstate railroads — Injuries to employees — Joint employees ■- — Contracts fixing liability.</p> <p>The liabilities and obligations of interstate railroads to make compensation for personal injuries, suffered by their employees, while engaged in interstate commerce, are regulated both inclusively and exclusively by the Federal Employers’ Liability Act. Liabilities imposed by that act cannot be escaped by carriers engaged in interstate commerce, either by contracts or by operation of state laws.</p> <p>An employee injured while engaged in interstate commerce as the joint employee of an interstate railroad and the Western Union Telegraph Company is entitled to the benefit of the Federal Employers’ Liability Act and that act, wherever it does apply, excludes the benefits and the operation of the Pennsylvania Workmen’s Compensation Act.</p>

Appeal, No. 294, Oct. T., 1920, by Commonwealth from judgment of O. & T. Bradford County, May T., 1920, No. 3, paroling defendant in the case of Commonwealth of Pennsylvania v. Fannie Wilcox. Petition to release on parole, under the provisions of the Act of May 11, 1911, P. L. 2T3, a prisoner who had been acquitted on the charge of murder on the ground of insanity, and subsequently committed to the Homeopathic State Hospital, at Allentown.

Appeal, No. 222, Oct. T., 1920, by defendant, from judgment of Municipal Court of Philadelphia, December T., 1919, No. 541, on verdict for plaintiff in the case of Edith Edwards v. A. C. Mott. Trespass to recover damages for personal injuries. Before Knowles, J. The facts are stated in the opinion of the Superior Court. Verdict for plaintiff for $800 and judgment thereon. Defendant appealed.

<p>Landlord and tenant — Leases—Hotels—Month to month lease— Eviction.</p> <p>One who rents a room in a hotel does not acquire the right to use the office of the hotel for advertising purposes, and the refusal of the management to permit him to put up signs in the places of public resort in the hotel is not an interference with the beneficial enjoyment of his room, in the absence of a special contract with regard to such matter.</p> <p>In an action of trespass to recover damages because of the wrongful eviction of the plaintiff from a room in a hotel, it is reversible error not to. give binding instructions for the defendant, where the evidence established that the plaintiff had leased from the defendant a room in the hotel, by the day, for a period of not longer than one month; that it was not to be used as a millinery display in tbe hotel but as a temporary accommodation for lessee’s private trade, and that although she occupied the room for more than a month she paid rent for only the first week, and used the room for a purpose provided against in the contract.</p>

Appeal, No. 38, Oct. T., 1920, by defendant, from judgment of C. P. Lehigb County, June T., 1917, No. 37, on verdict for plaintiff in the case of Louisa Tritschler, Executrix of. Charles Tritschler, deceased, v. Louis P. Tritschler, attorney in fact for heirs of Henry Tritschler, Sr., deceased. Assumpsit to recover payment of balance of amount due on sale of real estate. Before Grom an, P. J. The facts are stated in the opinion of the Superior Court.

Appeal, No. 293, Oct. T., 1920, by libellant, from judgment of C. P. Lehigh County, Jan. T., 1920, No. 162, refusing a divorce in the case of Jacob M. Moses v. Marjorie May Moses. Libel in divorce. Before Henninger, J. The case was referred to Morris Hoats, Esq., as master, who recommended that a divorce be granted. Subsequently, on exceptions to the master’s report, the court sustained the exceptions and dismissed the libel. Error assigned was the order of the court.

Appeal, No. 82, Oct. T., 1920, by plaintiff, from judgment of C. P. Lycoming County, Sept. T., 1918, No. 55, for defendant non obstante veredicto in the case of 'yVilliam Bailey v. Sarah Elizabeth Nicely Bailey, Executrix of J. Hess Bailey, deceased. Assumpsit for balance of purchase money alleged to be due on verbal contract. Before Whitehead, P. J. The facts are stated in the opinion of the Superior Court. Yerdict for plaintiff for $1,258.

Appeal, No. 142, Oct. T., 1920, by defendants, from judgment of O. P. Lycoming County, June T., 1918, No. 189, making absolute rule for judgment for want of a sufficient affidavit of defense in tbe case of Frederick G. Wooden, Trustee in Bankruptcy of tbe George Webster Lumber Company, v. B. S. • Beese and E. B. Sheriff, copartners, trading under tbe firm name of Reese-Sberiff Lumber Company. Assumpsit to recover purchase price of lumber not delivered.

Appeal, No. 112, Oct. T., 1920, by complainant, from order and determination of the Public Service Commission, Complaint Docket No. 2745,1919, in the case of J. J. Shubert v. The Public Service Commission of the Commonwealth of Pennsylvania and the Philadelphia Electric;Company, intervener. Complaint against the Philadelphia Electric Company and petition for an order of reparation. The facts are stated in the opinion of the Superior Court.

Appeal, No. 314, Oct. T., 1920, by defendant, from judgment of O. P. No. 1, Phila. Co., Dec. T., 19Í7, No. 540, on verdict for plaintiff in the case of Daniel V. Allen, trading as Allen & Company, v. Adams Express Company. Assumpsit against common carrier for failure to deliver a shipment consigned to its care. Before Shoemaker, J. The facts are stated in the opinion of the Superior Court. Verdict for plaintiff for $974.25 and judgment thereon. Defendant appealed.

Appeal, No. 184, Oct. T., 1920, by Joseph McGarrity, executor, from decree of O. O. Phila. Co., April T., 1919, No. 584, dismissing exceptions to adjudication in the estate of Frank Reilly, deceased. Exceptions to adjudication. Before Lamorelle, 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 decree of the court dismissing exceptions.

Appeal, No. 281, Oct. T., 1920, by defendants, from judgment of O. P. No. 5, Phila. Co., Dec. T., 1918, No. 3833, on verdict for plaintiff in the case of Charles W. Baughn v. Nathan Benson and Harry Fine. Trespass to recover damages for unlawful arrest and false imprisonment. Before Monaghan, J. The facts are stated in the opinion of the Superior Court. Verdict for plaintiff for $2,050.

Appeal, No. 305, Oct. T., 1920, by defendants, from order of C. P. No. 5, Phila. Co., Dec. T., 1918, No. 3833, discharging rule to show cause why sheriff should not pay into court certain money in his hands in the case of Charles W. Baughn v. Nathan Benson and Harry Fine. Rule to show cause why money paid to sheriff should not be paid into court. Before Monaghan, J. The opinion of the Superior Court states the case. The court discharged the rule. Defendants appealed.

<p>Public Service Commission — 1Public Service Company Law — Common carriers — Jitneys—Operation without certificate of public convenience — Evidence.</p> <p>An order of the Public Service Commission, requiring respondent who did not have a certificate of public convenience to cease and to desist from operating a motor vehicle as a common carrier, will be affirmed, where it appeared that the latter conducted a line of autobusses, which moved on a regular schedule between certain localities, and received a uniform fare from any passenger who chose to ride. Under such circumstances, there was competent testimony before the commission that the respondent was operating, as a common carrier without a certificate of public convenience, and the order of the commission was reasonable and in conformity with law.</p>

Appeal, No. 155, April T., 1921, by defendant, from judgment of C. P. Butler Co., Sept. T., 1918, No. 75, on verdict for the plaintiff in the case of Thomas J. Sbufflin and W. H. Green, trading and doing business as Shuffiin & Green, v. The Duster Contracting Company. Assumption on breach of contract. Before Reiber, P. J. The facts are stated in the opinion of the Superior Court. Verdict for plaintiff for $259.69 and judgment thereon. Defendant appealed.

<p>Public Service Commission — Public Service Company Law — Railroad companies — Grade crossings — Abolition—Change of road by Highway Department, without intervention of Public Service Commission — Costs—Assessments of cost by Public Service Commission — Act of May SI, 1911, P. L. lj-68.</p> <p>Where the State Highway Department, under the provisions of the Act of May 31,1911, P. L. 468, changed a state highway, thereby avoiding certain grade crossings over the tracks of. a railroad company, the Public Service Commission cannot assess against that railroad Company any portion of tbe cost of relocating such, highway, upon the theory that it is apportioning the costs of eliminating a grade crossing in accordance with the provisions of the Public Service Company Law.</p> <p>The Highway Department having proceeded to relocate the highway prior to the complaint before the commission, in accordance with the powers conferred under the Act of 1911, the Public Service Commission had no jurisdiction to assess the costs for a road so relocated.</p> <p>The order of the Public Service Commission requiring the railroad company to contribute to the cost of a great state highway, because certain grade crossings are thereby eliminated, is confiscatory and will not be sustained.</p> <p>A new road laid out by the commission in the elimination of a grade crossing is not necessarily to be a state highway, nor must it be built in accordance with the plans and specifications, which have been determined as requisite for the construction of the great trunk highways of the Commonwealth. Where such a highway is contemplated the railroad company cannot be required to contribute to the expense of such an elaborate construction, and an order that required such contributions is confiscatory.</p>

<p>Ejectment — Deeds—Description of real estate — Plan of lots— Sufficiency of description — Numbers of lots — Evidence.</p> <p>In an action of ejectment for the possession of certain city lots, the ease is for the jury and a verdict for the plaintiff will be sustained, where there is evidence to show that the deed to the plaintiffs referred to a plan of lots, which was in existence at the time of the execution of the deed, and in the description contained in the deed, the lots were definitely described by numbers designated on the plot. In such case, there was sufficient evidence of the plaintiff’s title to submit the question to a jury.</p> <p>Where the subject-matter of a grant is insufficiently described in a deed, parol evidence may be given to show precisely what was intended to be conveyed, and when there is any doubt as to the extent of the subject-matter devised by will, demised or sold, it is a matter of extrinsic evidence to show what is included under the description as parcel of it, and the extent of the grant must go to the jury.</p> <p>Where the thing granted has been described by its number as found on the ground or a plat, or by a name by which it is known or designated, or where it is described as a tract occupied by a particular person, such description is sufficient in a conveyance contract or writ of ejectment to be a sufficient description to effectuate the purpose of the parties, and even when the instrument contained a repugnant description by metes and bounds, the latter has been made to yield to the former.</p>

<p>Appeal, No. 126, April T., 1921, by defendant, from judgment of C. P. Allegheny Co., Oct. T., 1917, No. 1805, on verdict for plaintiff in the case of Washington Tin Plate Company, a corporation organized and existing under the laws of the State of Pennsylvania, v. Ohio Iron & Metal Company, a corporation organized and existing under the laws of the State of Illinois, and United Engineering & Foundry Company, Garnishee.</p> <p>Assumpsit for breach of contract. Before Swearingen, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict for plaintiff for $1,819.40 and judgment thereon. Defendant appealed.</p> <p>Errors assigned were the charge of the court, answers to points and refusal to grant a new trial.</p>

<p>Divorce — Desertion—Evidence—Insufficiency.</p> <p>A mutual consent that will prevent a divorce on the ground of desertion may be inferred from the conduct of the parties, and need not be put in the form of a solemn written agreement.</p> <p>Where it appears that there was no attempt on the part of libellant to relieve the situation or to open the way for the wife’s return, the conclusion is justifiable that the libellant did not care for bis wife’s presence and companionship, and that the separation was by consent, but did not amount to wilful and malicious desertion.</p>

<p>Appeal, No. 118, April T., 1921, by defendant, from judgment of C. P. Allegheny County, April T., 1918, No. 4, on verdict for plaintiff, on feigned issue in the case of the Standard Bank of Canada v. Allegheny Lumber Company.</p> <p>Feigned issue to determine ownership of fund in hands of garnishee. Before Carpenter, J., without a jury.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The court entered judgment in favor of the plaintiff. Defendant appealed.</p> <p>Error assigned, among others, was the order of the court.</p>

<p>Appeal, No. 127, April T., 1921, by defendants, from judgment of C. P. Allegheny Co., Oct. T., 1919, No. 1584, on verdict for plaintiff in the case of William J. Smith, Peter S. Smith, James Smith, Mary E. Anderson, Katherine Smith Pastorius, Bella Smith Moegele and Anna Jones Smith, v. Hattie Smith and Hattie Smith, Executrix of the Estate of Dennis J. Smith, deceased.</p> <p>Ejectment to recover two pieces of ground in the 17th Ward, City of Pittsburgh. Before Reid, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The jury entered the following verdict:</p> <p>And now, to wit, October 20, 1920, we the jurors empanelled in above entitled case find for the plaintiffs Mary E. Anderson, James Smith, Katherine Smith Pastorius and Bella Smith Moegele together the undivided one-fourth (%) of the lands described in the writ, being the undivided one-sixteenth (1/16) for each of said plaintiffs, subject to the dower of Anna Jones Smith, widow of Joseph Smith, deceased; and we further find and award in favor of the said Mary E. Anderson, James Smith, Katherine Smith Pastorins and Bella Smith Moegele, the sum of four hundred nineteen & 76/100 dollars (being the sum of $104 94/100 for each of said plaintiffs) as damages being mesne profits due them from the said defendant.</p> <p>As to the above-named plaintiffs William J. Smith and Peter S. Smith we find for the defendant.</p> <p>Subsequently the court, on motion, made the following order in favor of the plaintiffs non obstante veredicto:</p> <p>And now, January 7,1921, it is ordered that the rule in the above entitled case ex parte William J. and Peter S. Smith upon defendant to show cause why judgment should not be entered in favor of said plaintiffs and against the defendant n. o. v. be and the same is hereby made absolute.</p> <p>The prothonotary is therefore directed to enter judgment in favor of said plaintiffs for the undivided one-fourth (%) each in and to the lands in controversy.</p> <p>It is further ordered, for the purpose of determining the amount, if any, of damages due and payable by defendant to the said William J. and Peter S. Smith in the nature of mesne profits for the detention of the land, that a retrial of said case be had, solely for the purpose aforesaid, and the prothonotary is therefore directed to place such cause upon the trial list whence it will be taken in due course for the purpose of determining the issue aforesaid.</p> <p>Defendant appealed.</p> <p>Error assigned, among others, was the order of the court.</p>

<p>.Decedents’ estates — Wills—Eusland and wife — Election to take against the will — Separation—Bight of wife to take against will.</p> <p>Where a testator executed a will in which he made no provision for his wife, the latter can take against the will, notwithstanding the fact that she was not living with her husband at the time of his death, unless her wilful and malicious desertion has been clearly established.</p> <p>Where the widow had obtained an order of support against the deceased less than a year before his death, and there was no sufficient evidence to contradict the fact of thé desertion, the right of the widow to take against the will will be sustained.</p> <p>Evidence — Witnesses — Competency of witness — Party dead— Devolution of title — Act of May 28, 1887, P. L. 158, section 5, clause (e).</p> <p>Where a widow who claims, by devolution of law, her exemption and other interest in the estate, and seeks to establish her right by evidence relating tp matters occurring in her husband’s lifetime, she is not a competent witness, where the other parties in interest claim not by devolution, but under the will of decedent. In such case, the claims of the parties are of a different class and are not within the exception of the Act of May 23, 1887, P. L. 158, section 5, clause (e).</p> <p>An estate is said to devolve upon another when by operation of law, and where without any voluntary act of the previous owner, it passes from one person to another; but it does not devolve from one person to another as the result of some positive act or agreement between them.</p> <p>An order of support issued by the court of quarter sessions is admissible in evidence to establish the relations between the widow and her deceased husband.</p>

Appeal, No. 58, April T., 1921, by Commonwealth, from order of C. P. Fayette Co., March T., 1918, No. 846, on certiorari from judgment of justice of the . peace in the case of Commonwealth of Pennsylvania ex rel. Jacob Swoger, Prosecutor, v. James W. Allen. Certiorari from judgment of justice of the peace. Before Van Swearingen, P. J. The facts are stated in the opinion of the Superior Court.

<p>Appeal, No. 144, April T., 1921, by plaintiffs, from decree of C. P. Erie Co., Nov. T., 1919, sitting in equity, dismissing bill in equity in the case of Margaret Strycker, Alice Nourse, v. P. G. Richardson, Leon Richardson, Frank M. Ward, Roy Kibler, Sumner Teller, Vern Blakely, and such other parties as may be affected by these proceedings.</p> <p>Bill in equity for injunction. Before Hirt, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The court dismissed the bill. Plaintiffs appealed.</p> <p>Error assigned, among others,^was the decree of the court.</p>

<p>Appeal, No. 8, April T., 1921, by plaintiff, from judgment of C. P. Clarion Co., May T., 3917, E. D. No. 20, sustaining exceptions to auditor’s report in the case of P. M. Yeany, to use of Gold Standard National Bank of Marienville, Pa., v. I. M. Shannon, Executor of the Last Will and Testament of E. Y. Shannon, deceased, and L. A. Baker.</p> <p>Exceptions to auditor’s report awarding distribution' of the proceeds of the sale of real estate by the sheriff. Before McCormick, P. J., 25th Judicial District, specially presiding.</p> <p>The case was referred to A. A. Geary, Esq., as auditor, who made distribution as set forth in the opinion of the Superior Court.</p> <p>On exceptions to the auditor’s report and court sustained the exceptions and restated the account. Plaintiff appealed.</p> <p>Errors assigned, among others, were various findings of fact and conclusions of law and the decree of the court.</p>

<p>Wills — Construction—Residuary clause — Devise of real estate— Ejectment.</p> <p>In an action of ejectment the title to the land in question was claimed by tbe defendant under tbe following residuary bequest in tbe will: “I give, devise and bequeath all the rest, residue and remainder of my estate, both real and personal, to Frank Hoen,shell’s heirg, to have and to hold to their heirs and assigns forever.” Frank Hoensbell was living at the date of the death of the testatrix. Tbe plaintiffs claimed that a devise to the heirs of a person, living at tbe time of tbe death of tbe testatrix is meaningless, and identifier no individual or class of persons who could take title under such a devise.</p> <p>Held: That tbe word heirs could be used interchangeably with children to carry out the clearly expressed intention of tbe testatrix.</p> <p>When it is necessary to effectuate tbe clearly expressed intention of a testatrix the word “heirs” may be construed' as if tbe testatrix bad written children; and where tbe will must be substantially east aside and tbe intent of tbe testatrix overthrown, unless tbe word can be given such effect, tbe courts will not hesitate to so interpret it.</p>

<p>Decedents’ estates — Executors’ or administrators’ accounts — Surcharge property of decedent — Orphans’ court — Jurisdiction.</p> <p>The orphans’ court has full power to inquire into and determine all questions standing directly in the way of the conversion and distribution of the property of a decedent, if at testator’s death the property is shown to have been in his possession, or if for any other reason it was presumptively his. In such case, the mere denial of his ownership, unsupported, will not oust the court of its jurisdiction, but the court may proceed with the investigation so far as to inform itself whether the denial is made in good faith and a substantial dispute exists.</p> <p>Where, in a hearing before the orphans’ court, abundant evidence was produced to establish that several articles, with the value of which the accountant was surcharged, had been undoubtedly in the personal possession of the decedent, and that although she was a married woman she had been engaged in the management of her affairs, which reasonably accounted for the ownership in her own right of the articles in question, -the jurisdiction of the orphans’ court to dispose of the matter in controversy will be sustained, and a decree surcharging the administrator with the value of the articles erroneously omitted from the account will be affirmed.</p> <p>Since the passage of the Acts of. 1887 and 1893, relating to the rights of a married woman, the possession of personal property by a wife raises the same presumption of ownership by her that would exist in other cases. Notwithstanding the fact that a married woman lives with her husband, she may own and possess property of her own and that possession carries with it every incident that would follow the like possession by any other individual.</p>

<p>Appeal, No. 338, Oct. T., 1920, by defendant, from judgment of C. P. No. 5, Phila. Co., June T., 1920, No. 8733, refusing to open a judgment in the case of Gregory Setain v. E. Bailey.</p> <p>Buie to open judgment in ejectment.</p> <p>Motion to quash the appeal.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The court refused to open a judgment. Defendant appealed.</p> <p>Error assigned was the order of the court.</p>

<p>Appeal, No. 96, April T., 1921, by plaintiff, from judgment of C. P. Jefferson County, January T., 1920, No. 152, in favor of defendant on question of law raised in affidavit of defense in the case of Albert Ferraro and Amelia Ferraro, Trading and Doing Business as A. Ferraro & Co., v. Walker D. Hines, Director General of Railroads, of the United States Railroad Administration, operating the Pittsburgh and Shawmut Railroad.</p> <p>Trespass to recover damages for property lost in transit, while in custody of a common carrier. Before Corbet, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The defendant filed an affidavit of defense raising a question of law that the plaintiffs were a copartnership, doing business under the firm name of A. Ferraro and Company without having complied with the terms of the Act of June 28, 1917, P. L. 645, requiring registration with the prothonotary and the secretary of the Commonwealth, and that therefore they could not bring an action in the courts of Pennsylvania.</p> <p>The court entered judgment in favor of the defendant on the pleadings. Plaintiff appealed.</p> <p>Error assigned, among others, was the order qf the court.</p> <p>Line Company et al., 101 Pa. 204; Swan v. Scott, 11 Sergeant & Rawle’s Reports, 164; Wright v. Pipe Line Co., 101 Pa. 204; The Oil Creek & Allegheny River R. R. Co. v. Penn Transportation Co., 83 Pa. 160; Lestapies v. Ingraham, 5 Pa. 82; Johnson v. Huling, 103 Pa. 502; Sandy Lake Boro. v. Gas Co., 16 Pa. Superior Ct. 241.</p> <p>Sykes Department Store v. Railroad Co., 67 Pitts. L. J. 517; Snaman v. Maginn, 68 Pitts. L. J. 385; Graighill v. Hoff, 68 Pitts. L. J. 387; Codorus Planing Mill Co. v. Horn, 68 Pitts. L. J. 26; Donahue v. Mellinger, 37 Lanc. L. R. 48; Ackerman v. Meckoloff, 68 Pitts. L. J. 313; Koons v. Nice, 36 Montgomery L. R. 187.</p>

Appeal, No. 63, April T., 1921, by defendant, from judgment of C. P. Fayette County, March T., 1920, No. 412, discharging rule to open judgment in the case of Santo Del Toffolo v. Joe Marino. Rule to open judgment. Before Reppert, J. The facts are stated in the opinion of the Superior Court. The court discharged the rule.. Defendant appealed. Error assigned was the order of the court.

<p>Appeal, No. 17, March T., 1921, by defendant, from judgment of C. P. Lackawanna County, June T., 1914, No. 133, for plaintiff in case tried by the court without a jury in suit of Harry W. Storm v. City of Scranton.</p> <p>Assumpsit to recover $400 salary as fireman. Before O’Neil, J., without a jury.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Preliminary decision for the defendant. Upon exceptions the court, by Newcomb, J., entered judgment for the plaintiff in the sum of $547.20. Defendant appealed.</p> <p>Error assigned was in entering judgment for plaintiff.</p> <p>Reinstatement is a condition precedent to the right to recover salary: Rush v. Phila., 62 Pa. Superior Ct. 80; Lee v. Mayor of Wilmington, 40 N. W. 663.</p> <p>The court in banc has no power to set aside findings of fact by the trial judge under the Act of April 22,1874: Griffith v. Sitgreaves, 90 Pa. 161; Eichman v. Hersker, 170 Pa. 402; Smith v. Kaufman, 30 Pa. Superior Ct. 265. The court of common pleas has no power, upon sustaining exceptions, under the Act of April 22, 1874, to enter judgment: Merchants, etc., Bank v. Kern, 193 Pa. 67; McDermott v. Blank, 230 Pa. 392.</p> <p>The appellant filed no exceptions to the final decree of the court below and has no standing in the appellate court: McDermott v. Blank, 230 Pa. 392.</p> <p>The plaintiff, never having been properly removed from the position to which he was appointed, is entitled to recover his salary: Jenkins v. City of Scranton, 202 Pa. 267; 205 Pa. 598.</p>

<p>Contracts — Unlawful contracts — Fictitious names — •Failure to register — Effect of failure — Act of June 28, 1917, P. L. 6Jf5.</p> <p>The courts of Pennsylvania will not enforce a contract, the making of which the legislature has positively prohibited by statute.</p> <p>The Act of June 28,1917, P. L. 645, making it unlawful for any individual to carry on business under an assumed name without registration, and providing a penalty therefor, renders illegal contracts which are made in violation of such statute. A contract such as this is opposed alike to good morals and public policy and the courts, having in view public interest, will not lend their aid to the enforcement of unlawful contracts.</p>

<p>Public Service Company Law — Public Service Commission — Water companies — Regulations—Failure to pay water rent — Right to shut off water on premises — Refusal to serve subsequent occupant of premises.</p> <p>An order of the Public Service Commission requiring a water company to furnish water to a new occupant of a dwelling house, even though the former tenant was in arrears for unpaid water rent, is reasonable and in conformity with law.</p> <p>While there can be no doubt that a public service company has the power to make reasonable regulations with regard to the payment of water rentals and enforce such regulations, nevertheless if it permits its bills to run along without enforcing such reasonable requirements and employing ordinary business precaution, it is just as much at fault as the consumer who refuses to pay the account. Its dilatoriness should not be visited on the incoming tenant, who did not contract the bill, and should not be required to pay it. While the company possesses the right to establish its rates or tolls to be exacted as compensation and enforce regulations in regard to the payment thereof, it must exercise due diligence in the enforcement of such requirements, and cannot hold the incoming tenant responsible for tbe bills of the former occupant of the premises.</p>

<p>Appeal, No. 177, Oct. T., 1920, by Edward Gormley, from the judgment of Q. S. Schuylkill County, January Sessions, 1920, No. 60, on verdict of guilty in the case of Commonwealth of Pennsylvania v. Edward Gormley, Joseph Joulwan, William J. Yoyne, A. S. Faust and John Toppy.</p> <p>Indictment for conspiracy to make false return for election and for the insertion of false figures in tally sheets in violation of the Act of July 9,1919, P. L. 839. Before Berger, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The jury returned a verdict of guilty as to the first count, conspiracy, and not guilty of the second count, inserting false figures in the tally sheet. Judgment of sentence was passed. Defendant appealed.</p> <p>Errors assigned were various rulings on evidence, the charge of the court and refusal of defendant’s motion for a new trial.</p>

<p>Appeal, No. 40, Oct. T., 1921, by claimant, from order of C. P. No. 2, Phila. Co., Dec. T., 1920, No. 1593, affirming decision of Workmen’s Compensation Board, in the case of Patrick Quinn v. American International Ship Building Corporation, United States Shipping Board Emergency Fleet Corporation.</p> <p>Appeal from decision of Workmen’s Compensation Board. Before Stern, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The Workmen’s Compensation Board disallowed the petition of the claimant and refused compensation, which the court subsequently affirmed. Claimant appealed.</p> <p>Error assigned was the order of the court.</p>

<p>Taxation — Public service company — Local taxation — Land not necessary for the purposes of public utilities — Subject to local taxation.</p> <p>An island, belonging to a public service company, which is farmed and is not essential to the exercise of the franchises of the company, is subject to local taxation.</p> <p>The fact that the whole island was purchased in order to avoid paying an exorbitant rate for the water rights, and that it was occasionally flooded, did not exempt it from taxation. The test to be applied is whether the land in question is necessary, essential, and indispensable, to the public service company in the exercise and performance of its franchises and public duties. Where it is not, it is subject to local taxation.</p>

<p>Appeal, No. 131, April T., 1921, by plaintiff, from judgment of C. P. Erie Co., Feb. T., 1916, No. 175, directing a verdict for the defendant in the case of John Theil v. Richard B. Wolfe.</p> <p>Trespass to recover damages for personal injuries. Before Whittelsey, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The court directed a verdict for the defendant and judgment was entered thereon. Plaintiff appealed.</p> <p>Error assigned, among others, was the order of the court.</p> <p>Haring v. McConnell, 244 Pa. 439; Tanner v. Hughes, 53 Pa. 291; Williams v. Ludwig Floral Co., 252 Pa. 140; Holzheimer v. Lit Brothers, 262 Pa. 150.</p> <p>Grier v. Pennsylvania Coal Co., 128 Pa. 79; Keller v. Over, 136 Pa. 1; Cohen v. Phila. R. T. Co., 228 Pa. 243; Bernstein v. P. R. R. Co., 252 Pa. 581; Gordon v. Director General, 268 Pa. 497; Lonzer v. Railroad Co., 196 Pa. 610; Berkowitz v. Palruba Mfg. Co., 68 Pa. 559; Patterson v. Railway Co., 210 Pa. 47.</p>

<p>Appeal, No. 90, April T., 1921, by defendant, from judgment of Q. S. Indiana County, June Sessions, 1920, No. 44, on verdict of guilty in tbe case of Commonwealth of Pennsylvania v. Sam Gray.</p> <p>Indictment for unlawful use of dynamite. Before Langham, J.</p> <p>Tbe facts are stated in tbe opinion of tbe Superior Court.</p> <p>Verdict of guilty on wbicb judgment of sentence ¡was passed. Defendant appealed.</p> <p>Errors assigned, among others, were refusal to withdraw a juror and continue tbe case because of improper remarks of tbe counsel, and refusal to give binding instructions in favor of tbe defendant.</p>

Appeal, No. 136, April T., 1921, by defendant, from judgment of Q. S. of Cambria County, Dec. Sessions, 1920, No. 109, 'on verdict of guilty in the case of Commonwealth of Pennsylvania v. Bart Dattala. Indictment for larceny and receiving stolen goods. Before Reed, P. J., Orphans’ Court, specially presiding. 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. 128, April T., 1921, by defendant, from judgment of C. P. Beaver County, March T., 1920, No. 201, in the case of Henry W. Hughes and Elder B. Dier, Partners, trading and doing business as Hughes and Dier, v. John B. McClure. Assumpsit to recover purchase price of oil stock. Before Baldwin, J. Verdict for plaintiffs for $712.82.

Appeal, No. 107, April T., 1921, by libellant, from decree of C. P. Fayette County, March T., 1919, No. 1, refusing a divorce in the case of Mary Elizabeth Dietrich v. Frank Dietrich. Libel in divorce, a mensa et thoro, on the grounds of cruel and barbarous treatment. Before Van Swearingen, P. J. The facts are stated in the opinion of the Superior Court. The case was referred to A. C. Hagan, Esq., as master, who recommended that a divorce be refused.

Appeal, No. 116, April T., 1920, by plaintiff, from decree of C. P. Allegheny County, July T., 1918, No. 1156, dismissing bill in equity in the case of Martin J. Catón v. Fred William Oscar Wellershouse and Emma Wellershouse, his wife. Bill in equity to compel specific performance in the sale of real estate and personal property. Before Shafer, J. The facts are stated in the opinion of the Superior Court.. The court dismissed the bill. Plaintiff appealed.

Appeal, No. 154, April T., 1921, by T. C. Barnes, from order of C. P. Allegheny County, July T., 1920, discharging rule to show cause why money should not be paid into court in the case of T. Milner McDonough, now for the use of John A. Meighan, Jr., v. George Barnes, with notice to John J. Gordon, Terre Tenant, and T. C. Barnes. Scire facias sur mortgage.

Appeal, No. 156, April T., 1921, by plaintiffs, from judgment of C. P. Allegheny County, July T., 19Í7, No. 2127, refusing to take off compulsory nonsuit in the case of William Holmes, Charles Morris and John W. Grant, v. The Allemannia Fire Insurance Company, a corporation. Assumpsit on a policy of insurance. Before Evans, J. The facts are stated in the opinion of the Superior Court.

Appeal, No. 82, April T., 1921, by W. B. Croushore, from decree of O. C. Westmoreland County, August T., 1919, No. 150, dismissing exceptions to schedule of distribution in the estate of George W. Croushore, deceased. Claim against the estate of decedent based on two judgment notes given by decedent. Exceptions to adjudication. Before Copeland, J., specially presiding. The facts are stated in the opinion of the Superior Court.

Appeal, No. 119, April T., 1921, by defendant, from judgment of C. P. Westmoreland County, May T., 1917, No. 748, discharging rule to strike off judgment in the case of Frances Ingrava v. W. J. Suman. Rule to show cause why judgment by default should not be stricken off. The facts are stated in the opinion of the Superior Court. The court discharged the rule. Defendant appealed. Error assigned was the order of the court.

Appeal, No. 96, April T., 1920, by plaintiff, from judgment of C. P. Allegheny County, April T., 1918, F. I. No. 1, on verdict for defendant in the case of Packard Motor Company of Pittsburgh, a corporation, v. Joseph Mazer. Feigned issue under sheriff’s interpleader. Before Evans, J. The facts are stated in the opinion of the Superior Court. Verdict for defendant, and judgment thereon. Plaintiff appealed.

Appeal, No. 36, April T., 1921, by plaintiff, from judgment of C. P. Allegheny County, April T., 1919, No. 73, for defendant on affidavit of defense raising questions of law in the case of Township of Scott v. John Davis. Assumpsit to recover municipal claim. Before MacEARLANE, J. The facts are stated in the opinion of the Superior Court. Judgment for defendant upon affidavit of defense raising questions Of law. Plaintiff appealed.

Appeal, No. 103, April T., 1921, by plaintiff, from order of C. P. Allegheny County, Jan. T., 1921, No. 458, directing judgment for defendant in the case of Elmer It. Cavanna, trading as V. L. Cavanna Company, v. Tri-State Cooperative Association. Petition to the Common Pleas of Allegheny County for an appeal from the county court. Before Evans, J. The facts are stated in the opinion of the Superior Court.

<p>Appeal, No. 312, Oct. T., 1920, by plaintiff, from judgment of C. P. No. 1, Phila. ,Co., March T., 1920, No. 2047, discharging rule for judgment for want of a sufficient affidavit of defense in the case of Jacob Simkin, trading as Owner’s Auto Finance Company, v. George R. Reinhardt, Ethel H. Reinhardt and M. F. LaRoche.</p> <p>Replevin for automobile leased on a bailment lease.</p> <p>Rule for judgment for 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>

Appeal, No. 97, April T., 1921, by respondent, by decree of C. P. Westmoreland County, Nov. T., 1919, No. 411, in tbe case of Thomas W. Forrester v. Bertha Evelyn Forrester. Libel in divorce on the ground of cruel and barbarous treatment. Before McConnell, P. J. The facts are stated in the opinion of the Superior Court. The case was referred to Edgar R. Shirey, Esq., as master, who recommended that a divorce be granted.

Appeal, No. 30, April T., 1921, by defendant, from judgment C. P. Clarion County, Dec. T., 1918, No. 7, for plaintiff in case tried by tbe court without a jury in suit of J. H. Bowersox v. I. J. Weigle to the use of I. J. Weigle and F. L. Myers, doing business as Weigle & Myers. Sheriff’s interpleader to determine title to property levied on. Before Sloan, P. J., without a jury. The facts are stated in the opinion of the Superior Court.

<p>Criminal law — • Selling liquor without license — Horhe Vino — Medicinal properties — Volstead Act — Evidence—Sufficiency-.</p> <p>Upon an indictment for selling liquor without a license in violation of the Act of May 13,1887, P. L. 108, (Brooks License Law) evidence that defendant sold large quantities of a liquid called “Horke Vino” which purported by its label to contain 18 to 20 per cent aleohol, and that customers became intoxicated in his place of business, is sufficient to sustain a conviction. It is no answer to the accusation that the defendant sold the preparation as medicine, or that it was a lawful article of commerce, under the Volstead Act, for the defendant had no authority to sell alcoholic compounds as medicine.</p>

<p>Criminal law — Selling liquor without a license — Medicinal and chemical properties — Evidence—Competency.</p> <p>Upon an indictment for selling liquor without a license in violation of the Act of May 13, 1887, P. L. 108, (Brooks License Law), evidence as to the medicinal and chemical properties, other than the alcoholic content, of the product sold, was properly excluded since it was not responsive to the indictment. A bottle of liquor alleged to have been sold by the defendant is admissible in evidence.</p>

Appeal, No. 148, April T., 1921, by defendant, from judgment and sentence of Q. S. Somerset County, Dec. Sessions, 1920, No. 49, on verdict of guilty in the case of Commonwealth of Pennsylvania v. John Harchar. Indictment for selling liquor without a license.

Appeal, No. 149, April T., 1921, by defendant, from judgment and sentence of Q. S. Somerset County, Dec. Sessions, 1920, No. 51, on verdict of guilty in the case of Commonwealth of Pennsylvania v. D. Rizzo. Indictment for selling liquor without a license. Before Berkey, P. J. From the record it appeared that the defendant sold . Horke Vino and Jamaica Ginger and offered to prove by way of a defense that the articles were approved for medicinal uses under the V olstead Act.

Appeal, No. 95, April T., 1921, by respondent, from order of Public Service Commission of the Commonwealth of Pennsylvania in the case of Fulton L. Adams v. The Public Service Commission, on appeal. Complaint of Shaw Motor Company before the Public Service Commission, that the respondent was operating an automobile as a common carrier without a certificate of public convenience, in violation of section 2 of article 3 of the Public Service Company Law.

Appeal, No. 18, Oct. T., 1920, by plaintiff, from judgment of C. P. Northampton County, June T., 1917, No. 6, refusing to strike off compulsory nonsuit in the case of Levi L. Fritch v. The Borough of Northampton. Trespass to recover damages for unlawful diversion of surface water by a municipality upon the property of the plaintiff. Before McKeen, J. The facts are stated in the opinion of the Superior Court.

Appeal, No. 326, Oct. T:, 1920, by defendant, from judgment of Q. S. Delaware County, Dec. Sessions, 1917, No. 47, on verdict of guilty in the case of Commonwealth of Pennsylvania v. Abe Chester. Indictment for larceny and receiving stolen goods. Before Hause, J., 15th Judicial District, specially presiding. The facts are stated in the opinion of the Superior .Court. Verdict of guilty on which judgment of -sentence was passed. Defendant appealed.

Appeal, No. 333, Oct. T., 1920, by defendant, from judgment of O. & T. Lehigh County, June Sessions, 1920, No. 32, on a verdict of guilty in the case of Commonwealth of Pennsylvania v. Frank Emmett. Indictment for arson. Before Groman, P. J. The appellant was charged with having caused a fire to be ignited in a building leased to him and used by him. as a motion picture theatre from which fire was communicated to an adjoining dwelling house.

Appeal, No. 57, April T., 1921, by the Poor District of- Westmoreland County, from decree of Q. S. Armstrong County, June Sessions, 1920, No. 4, ordering and directing removal, in the case of In re: Removal of Mrs. Sarah Yiola Barr, and minor children, from the Poor District of Kittanning Borough to the Poor District of Westmoreland County. Petition for order of removal. Before King, P. J. The facts are stated in the opinion of the Superior Court.

<p>Appeal, No. 25, March T., 1920, by Joseph Sylvanus from Judgment of Q. S. Luzerne County, June Sessions, 1920, No. 128 B, on verdict of guilty in the case of Commonwealth of Pennsylvania v. John Mollahan, Patrick Callahan, Thomas Sliney, Joseph Sylvanus and James Brennan.</p> <p>Indictment for wilful fraud in the conduct of an election — indictment founded on section 102 of Act of July 2,1839, P. L. 541. Before Puller, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict of guilty on which judgment of sentence was passed. Defendant appealed.</p> <p>Errors assigned, among others, were the refusal to quash the indictment, the charge of the court and refusal to direct a verdict for the defendant.</p> <p>It was error to join all of the defendants in the same indictment and the indictment should have been quashed: Com. v. Miller et al., 2 Parsons 480; Rex v. Philips et al., 2 Strange 92; United States v. Davis et al., 33 Fed. Rep. 621; Com. v. Degan, 50 Pa. Superior Ct. 357; Com. v. Boyle et al., 14 C. C. Rep. 562; Com. v. Ziert et al., 4 C. C. Rep. 394; Com. v. Kurz et al., 14 Pa. Dist. Rep. 741; Com. v. Weiserth, 47 Pa. Superior Ct. 598.</p> <p>The charge of the court was prejudicial and misleading and the instructions as to reasonable doubt alone constituted reversible error: Lee v. Williams, 30 Pa. Superior Ct. 356; U. S. v. Foster et al., 6 Fed. Rep. 255; Com. v. Deitrick, 221 Pa. 13; Com. v. Gerade, 145 Pa. 289; Com. v. Ross, 266 Pa. 584; Com. v. Devine, 18 Pa. Superior Ct. 431; Shipp v. Schmitt and Murphy, 71 Pa. Superior Ct. 496.</p>

Appeals, Nos. 157 and 158, April T., 1921, by both parties, from judgment of O. P. Allegheny County, April T., Í921, No. 1257, in the case of H. H. Robertson Company v. Globe Indemnity Company. Case stated to determine liability on bond given in connection with the construction of a county road. Before McFarlane, J. The facts are stated in the opinion of the Superior Court.

Appeal, No. 104, April T., 1921, by F. X. Myer, Peter Zacberil, and Frank Keim, from the order of C. P. Clarion County, May T., 1920, No. 91, dismissing exceptions to report of Board of Viewers in the matter of tbe petition of Borough of Clarion for appointment of viewers to make assessment for municipal improvement. Exceptions to report of Board of Viewers. Before Sloan, P. J. Tbe facts are stated in tbe opinion of tbe Superior Court.

Appeal, No. 111, April T., 1921, by plaintiff, from decree of C. P. Beaver County, March T., 1919, No. 1, sitting in equity, dismissing bill in equity in the case of Catherine Mason Shuster v. Frank Mason and John F. Mason. Bill in equity praying for cancellation of a deed. Before Baldwin, P. J. The facts are stated in the opinion of the Superior Court. The court dismissed the bill. Plaintiff appealed. Error assigned was the order of the court.

Appeal, No. 4, April T., 1921, by South Side Trust Company of Pittsburgh, Committee of the person and estate of Amy E. Brubaker, from judgment of C. P. Allegheny County, July T., 1918, No. 835, in the case of William A. Fry v. Amy E. Brubaker. Trespass to recover damages for personal injuries. Before Macearlane, J. The facts are stated in the opinion of the Superior Court. Verdict for the plaintiff in the sum of $500 and judgment thereon. Appeal by committee of the defendant.

Appeal, No. 54, April T., 1921, ■by J. H. Watt, from decree of C. P. Allegheny County, Jan. T., 1914, No. 2310, sitting in equity, dismissing exceptions to tbe findings of the receiver in tbe case of J. C. McQuaid and Tbe Pittsburgh Swing and Furniture Company, by J. C. McQuaid, General Manager, v. W. H. Sturgeon and J. H. Watt. Bill in equity for injunction to restrain the negotiation of promissory notes. Cross' bill for an accounting and receivership.

Appeal, No. 94, April T., 1921, by plaintiff, from decree of C. P. Allegheny County, Jan. T., 1920, No. 1159, sitting in equity, dismissing the bill in equity, in the case of Walter G. Sturgeon v. Borough of Oakdale. Bill in equity for damages and abatement of nuisance. Before Shafer, P. 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. 159, Oct. T., 1921, by defendants, from judgment of C. P. No. 1, Pbila. Co., June T., 1919, No. 2723, directing a verdict in favor of tbe plaintiff in the case of Empire Galvanizing Company v. B. Maser and W. Maser. Assumpsit on written contract for sale of automobile. Before Shoemaker, J. Judgment was entered by warrant of attorney in a judgment note given at tbe time of tbe execution of tbe contract.

<p>Appeal, No. 18, Oct. T., 1921, by defendant, from judgment of Municipal Court of Philadelphia, June T., 1919, No. 386, on verdict for plaintiff in the case of Grace Geisser v. Diligent Council No. 4, Fraternal Patriotic Americans .of the State of Pennsylvania.</p> <p>Assumpsit on beneficial certificate. Before BarT-LETT, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict for plaintiff for |280 and judgment thereon. Defendant appealed.</p> <p>Errors assigned were the charge of the court, answers to points and refusal to direct a verdict in favor of the defendant.</p> <p>Lantz v. Insurance Co., 139 Pa. 546; Long v. West Philadelphia Council, J. O. U. A. M., 42 W. M. C. 296; Dickinson v. A. O. U. W., 159 Pa. 258; Rhule v. Accidental Fund, 13 Pa. Superior Ct. 416; Ellis v. Alta Friendly Society, 16 Pa. Superior Ct. 607.</p>

Appeal, No. 25, Oct. T., 1921, by intervening defendant, from judgment of O. P. No. 4, Phila. Co., June T., 1919, No. 107, in favor of tbe plaintiff in tbe case of Bankers-Commercial Security Company, Inc., a corporation created by and existing» under tbe Laws of tbe State of New Yoik, v. Austin G. Greer, Jr., Defendant, and George J. Knapp, Intervening Defendant. Replevin to recover possession of a motor truck.

Appeal, No. 201, Oct. T., 1921, by defendant, from judgment of Municipal Court of Philadelphia, Noy. T., 1920, No. 579, in favor of plaintiff in case tried by the court without a jury in suit of Philip Kolinsky v. Peter Boyajian, trading as Central Cleaning & Dyeing Company. Assumpsit on contract of bailment. Before Crane, 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 $125.

Appeals, Nos. 173 and 174, Oct. T., 1921, by defendants, from judgment of Q. S: Phila. Co., Aug. Sessions, 1920, No. 551, on verdict of guilty in the case of Commonwealth of Pennsylvania v. Charles D. Herron and William W. McLeod. Indictment for conspiracy to cheat and defraud, and to fabricate false and fraudulent evidence. Before McCullen, J. The facts are stated in the opinion of the Superior Court. Verdict of guilty on which judgment of sentence was passed.

Appeal, No. 5, March. T., 1922, by defendants, from judgment of Q. ¡3. Juniata Co., Sept. Sessions, 1920, No. 15, on verdict of guilty in the case of Commonwealth of Pennsylvania v. William A. Miller and Arthur J. Burke. Indictment for aggravated assault and. battery. Before Barnett, P. J. The facts are stated in the opinion of the Superior Court. Verdict of guilty on which judgment of sentence was passed. Defendants appealed.

Appeal, No. 7, Oct. T., 1921, by defendants, from judgment of C. P. No. 1, Pbila. Co., Dec. T., 1916, No. 2502, directing a verdict in favor of tbe plaintiff in tbe case of Tbe Pennsylvania Company for Insuring Lives and Granting Annuities, Trustee under tbe will of Thomas J. Hempbill, deceased, v. Wolf Bodek, Benjamin Rabinovitcb, David Rabinovitcb and Joseph I. Rabinovitcb, trading as W. Bodek Company. Assumpsit for rent due under a lease.

<p>Judgments — Opening judgments — Discretion of court — Appeal.</p> <p>On an appeal from the decision of a lower court, making absolute a rule to open a judgment, the appellate court will not reverse where it is satisfied, from the whole record, that the lower court has not committed any error.</p>

Appeal, No. 118, Oct. T., 1921, by defendant, from judgment of C. P. No. 2, Phila. Co., Sept. T., 1919, No. 3138, on verdict for the plaintiff in the case of James H. Ellison v. Standard Refrigerator Company, Inc. Trespass to recover damages for personal injuries. Before Rogers, J. The facts are stated in, the opinion of the Superior Court. Verdict for plaintiff for $500 and judgment thereon. Defendant appealed.

Appeal, No. 46, Oct. T., 1921, by defendant, from judgment of Municipal Court of Philadelphia, May T., 1920, No. 445, granting a new trial in the case of National Standard Clothes Company v. Max Golden. Assumpsit for money had and received by the defendant for the use of the plaintiff. Before Bonniwell, J. The opinion of the Superior Court states the case. The jury rendered a verdict in favor of the defendant.

<p>Appeal, No. 209, Oct. T., 1921, by defendant, from judgment of O. P. No. 1, Phil a. Co., June T., 1921, No. 2614, discharging rule to strike off judgment in the case of United States SMpping Board Emergency Fleet Corporation to the use of Charles F. Eggleston, v. James Vivian.</p> <p>Amicable action in ejectment. Rule to strike off judgment.</p> <p>The facts are stated in the opinion of the Superior Court. The court discharged the rule. Defendant appealed.</p> <p>Error assigned was the order of the court.</p> <p>Cochran v. Pew et al., 159 Pa. 184; Vito v. Birkel, 209 Pa. 207; Teufel v. Rowan, 179 Pa. 408.</p> <p>Wills v. Manufacturers N. Gas Co., 130 Pa. 222; Bartley et al. v. Phillips, 179 Pa. 175; Vito v. Birkel, 209 Pa. 207; Cochran v. Pew, 159 Pa. 184.</p>

<p>Practice, Superior 0<o.urt — Appeal involving questions disposed of in former a/ppeal — Dismissal.</p> <p>"Where an appeal has been taken from a decree of the lower court reducing a verdict and, upon reversal, has been remanded for the purpose of allowing the lower court to dispose of a motion for a new trial, which is dismissed, and a second appeal is taken involving the same record as was con§idered in the former proceeding, the judgment of the lower court, entered in accordance with the direction of the Superior Court, will be affirmed.</p>

Appeal, No. 172, Oct. T., 1921, by defendant, from judgment of Q. S. Phila. Co., Aug. Sessions, 1920, No. 505, on verdict of guilty in the case of Commonwealth of Pennsylvania v. Charles C. Rickerson. Indictment for practicing medicine without a license. Before Barnett, P. J., 41st Judicial District, specially presiding. Motion by appellee to quash the assignments of error. The opinion of the Superior Court states, in substance, the assignments.

Appeal, No. 184, Oct. T., 1921, by defendant, from judgment of C. P. No. 1, Phila. Co., Dec. T., 1918, No. 2271, on verdict for plaintiff in the case of B. M. Ainesworth v. D. B. Martin Company, a Corporation. Assumpsit on written contract. Before Patterson, J. The facts are stated in the opinion of the Superior Court. The court directed a verdict for the plaintiff in the sum of $343.27, and judgment was entered thereon. Defendant appealed.

Appeal, No. 142, Oct. T., 1921, by County of Lancaster, from order of tbe Public Service Commission of tbe Commonwealth of Pennsylvania in tbe matter of tbe complaint of Eli D. Wenger et al. v. The Pennsylvania Railroad Company, Complaint Docket, No. C2674. ■ Appeal from tbe order of tbe Public Service Commission ordering tbe alteration and relocation of a bridge carrying tbe tracks of tbe Pennsylvania Railroad Company over State Highway Route, No. 137, in Caernarvon…

<p>Railroad crossings — Alteration—Expense—Liability—Apportionment of costs — County—Boroughs—Public Service Company Law.</p> <p>A county, in which is located a bridge carrying the tracks of a railroad company over a state highway, which has been declared dangerous by the Public Service Commission, and ordered to be changed, is a “municipal corporation concerned,” within the meaning of the Public Service Company Law. The Public Service Commission in such case has authority to require the county to pay a portion of the cost of the alteration and relocation of the crossing.</p> <p>The fact that the crossing in question is located in a borough within the county, does not affect the liability of the county to pay a portion of the costs, upon the order of the Public Service Commission.</p> <p>The Public Service Company Law authorizes the commission to require payment of the cost of the reconstruction of crossings by the public service company or companies or municipal corporations concerned, or by the Commonwealth in such proportions as the commission may after hearing, determine.</p> <p>The inhabitants of the county have a concern and interest that is at once direct and immediate in the use of the reconstructed crossing, freed from the dangers of which complaint was made to the Public Service Commission.</p>

Appeal, No. 157, Oct. T., 1921, by defendant, from judgment of Municipal Court of Philadelphia, Jan. T., 1921, No. 302, on verdict for plaintiff in the case of Theodore B. Archer v. Franklin B. Davis. Assumpsit to recover money paid down on agreement of sale for the purchase of real estate. Before MacNeille, J. From the record it appeared that the defendant and one Mollohan entered into a written agreement on June 17,1920, for the sale of real estate.

Appeal, No. 150, Oct. T., 1921, by plaintiff, from judgment of O. P. No. 1, Phila. Co., June T., 1920, No. 501, on verdict for defendant non obstante veredicto in the case of Isabella Wilson v. Charles Hess. Trespass to recover damages for death of plaintiff’s husband. Before Shoemaker, J. The facts are stated in the opinion of the Superior Court. Verdict for plaintiff for $1,000.

Appeal, No. 49, Oct. T., 1921, by plaintiff, from judgment of C. P. No. 2, Phila. Co., June T.,,1919, No. 899, on verdict for defendant in the case of Fred H. Powell v. Elizabeth L. Doyle. Rule to open judgment, set aside, verdict and grant new trial. The facts are stated in the opinion of the Superior Court. The court discharged the rule. Plaintiff appealed. Error assigned was the order of the court discharging the rule.

<p>Workmen’s Compensation Law — Federal Employers’ Liability Act — Jurisdiction—Conflict of laws — Railroads — Interstate commerce — Injuries to employees — Question on appeal.</p> <p>In the case of an injured workman claiming compensation under the Workmen’s Compensation Act of 1915, where the defense is a denial of liability, upon the ground that the injured employee was engaged in interstate commerce, the question of federal jurisdiction is paramount, and if there is an element of interstate commerce in the traffic or employment it determines the remedy. In such a ease an appellate court draws its own conclusions from the evidence, to the extent necessary to apply the federal law, without regard to the findings of fact made by the referee and approved by the compensation board.</p> <p>A ladder track in a- freight yard, which was at all times used and available for both interstate and intrastate traffic is an instrumentality of interstate commerce, and a laborer who was injured while repairing it, was engaged in employment, interstate in character, and is not entitled to compensation under the Workmen’s Compensation Act of 1915.</p>

<p>Workmen’s Compensation Law — Federal Employers’ Liability Act — Jurisdiction—Conflict <o.f laws — Railroads — Interstate commerce — Intrastate train — Death of employee — Burden of proof— Question on appeal.</p> <p>One who claims to be a dependent, and claims compensation under the Workmen’s Compensation Act of 1915, for the death of an employee of a railroad company under circumstances in which there are constituents of interstate commerce, has the burden of showing that the employee was not engaged in interstate commerce. The appellate court, in such cases, draws its own conclusions from the evidence without regard to the findings below, to the extent necessary to apply the federal law.</p> <p>A brakeman on an intrastate train, which is delivering interstate shipments of freight, from more than half a dozen different states and from Canada, is engaged in interstate commerce, and a dependent seeking compensation for his death has no remedy under the Workmen’s Compensation Act of 1915.</p>

Appeal, No. 11, Oct. T., 1921, by plaintiff, from judgment of C. P. Centre Co., Sept. T., 1916, No. 171, on verdict for defendants in the case of Samuel Markowitz v. William Urban and Waraneka Urban. Appeal from judgment of justice of the peace in landlord and tenant proceedings for possession of real estate. Before Quigley, P. J. The facts are stated in the opinion of the Superior Court. The jury rendered a verdict in favor of the defendant. Plaintiff appealed.

Appeal, No. 105, Oct. T., 1921, by Abram Abelson, from judgment of O. P. Centre Co., Sept. T., 1917, No. 115, in tbe case of M. D. Kelley and Harry P. Kelley, Trading and doing business as Kelley Brothers, v. Nathan Ichkowitz and Abram Abelson. Replevin to recover possession of personal property. Before Quigley, P. J. The facts are stated in the opinion of the Superior Court.

<p>Appeal, No. 199, Oct. T., 1921, by defendant, from judgment of O. P. Blair Co., March T., 1921, No. 416, on verdict for plaintiff in the case of George Taylor v. Beatrice Bland.</p> <p>Trespass to recover damages for injuries to person and automobile. Before Bell, P. J., 46th Judicial District, specially presiding.</p> <p>The facts are stated in the opinion of the court below refusing a motion for a new trial.</p> <p>Various formal reasons are urged in support of the motion which do not require any special consideration, if the additional reasons filed are not sustained.</p> <p>The first and fourth reasons are based upon the measure of damages to the motorcycle of the plaintiff. It appeared from the evidence that the motorcycle was considerably damaged, the front fenders and mudguards, the front axle and handlebars being affected, so that it was necessary to get a fender, mudguard, handlebars and front axle and front tire innertube were also broken through. The only conclusion from the evidence as a whole is that the motorcycle was totally disabled in the condition which it was left immediately after the accident and commercially had no present usable value.</p> <p>In such case the cost of repairs necessary to put it in its original condition is a proper measure of damages, being plainly less than the value of the machine immediately before the accident, and while the evidence in this case is not as definite as it might well have been on this subject we think it was sufficient to go to the jury and for the jury to say whether or not upon all the evidence of damages to the motorcycle was of the amount of $35, for which a recovery was had, and as the evidence on the subject was utterly without contradiction we do not think the finding should be disturbed.</p> <p>The second reason is that the court erred in admitting in evidence the photographs offered, that at the time they were taken the ground was covered with snow and consequently the pictures did not show the edge of the traveled highway. The photographs were offered for the purpose of showing only the fence line, state road and telephone pole location and there was abundant evidence in the ease as to the measurements of the roads, the location of the concrete strip and the other matters which entered into the ability to pass successfully at the time of the accident, and we cannot see that the introduction of the photographs prejudiced the defendant. Certainly they were competent for the purpose offered unless something about them actually hád a tendency to mislead the jury and this would not appear to have been reasonably probable. The issue in the case was purely one of fact and was determined accordingly as the jury believed the plaintiff or the defendant and her witnesses, and we fail to see how photographs could have prejudiced the defendant, an opinion which is confirmed by an inspection of the pictures themselves.</p> <p>The third reason involves a matter of much consequence. The court said: “The issue in this case resolves itself into one of fact. According to the testimony, Miss Bland, in coming out of the lane and making this turn, came out along the left. That is to say, that in coming out of the lane she turned to the left, and did not according to the testimony of Taylor, keep to the right and.make her turn to the right of the centre of the state highway outside the lane. Now that is undisputed. In doing so she did not follow the provisions of the law for motor vehicles and if, by reason of her failure so to do, she caused the accident, she would be liable; provided it occurred without any negligence of the plaintiff also causing and contributing thereto.” The court applied the rule of law applicable to highways to the acts of the defendant and said, that as she came out of the inter-. secting road upon the left and turned to the left instead of proceeding across the highway and keeping to the right of the intersecting point she would be liable, providing her so doing caused the accident, unless the plaintiff was guilty of contributory negligence. So that, practically, the court held, upon the evidence, that under the evidence the defendant did that which, if the accident resulted therefrom, was negligence on her part. At the time the attention of the court was not called to any question upon this being a correct statement of the testimony and in this respect the case was presented as the court understood the evidence of the witnesses to have been, but it is not earnestly urged for the defendant that this was a misconception. If the evidence does not in fact sustain this part of the charge, it was undoubtedly injurious error and the defendant should have relief therefrom. Upon this question the evidence of the plaintiff is: “Q. As she came up the lane did she continue on up the state road in the same line as the lane runs or did she turn to her left? A. She came right along the fence, one wheel was off the cement on that side. Q. Had she gone up in a straight line with the lane to the intersection of the state road and passed to the right of the intersection before turning to her left, would you have had time to have passed her in the rear? A. Yes sir. Q. As the matter stood and faced you there, was impossible to get to the rear to avoid an accident? A. Yes.” The defendant testified in chief: “Could you have turned any shorter in that road without hitting him? A. No sir. Q. But as you came out you were on the left or the right? A. Why, On the left side. Q. (By the Court.) Had your car passed the line of that pole (that mail box) you were on the state highway, not to it or partially apast? A. Just passed it. Q. Now, as you made that turn you passed it, then was your car just opposite as you passed or had you gone a little beyond? A. Well, I was apast the telephone pole. Q. (By the Court.) Considering the state highway, had your car gotten apast the line opposite this pole when your car stopped? A. I think it was in the line of the pole. Q. As you came up the lane there is a fork there where the lane intersects the state road, one leading to the left and one to the right? A. Yes sir. Q. You came on the left-hand fork? A. Yes. Q. You didn’t go up to the center and then turn to the right? (Question withdrawn.)” The other evidence for the defendant was to the effect that a peg was placed where the right front wheel of defendant’s car stood after the accident, which was just off the concrete on the right-hand side as she was traveling and we cannot find anything in this evidence which would reasonably lead to any conclusion other than that the understanding of the court at the time'of trial was correct. The testimony of the defendant’s witnesses as to the marks on the road are in harmony with this conclusion.</p> <p>The real dispute'concerned the point at which the collision took place. The defendant and her witnesses testified that she had made the turn and was on her own side of the road going toward Altoona when her car was struck by the motorcycle, which they alleged turned across the road from its own right side and ran into the automobile, while plaintiff claimed that the accident occurred on the other side of the road while he was near the right-hand margin of the concrete upon which issue of fact the jury found in favor of the plaintiff. If the jury accepted the version of the defendant and her witnesses as to the place of the collision, then her turning as she did did not cause the accident, and all of this was submitted to the jury, who were distinctly told that the ease hinged upon their decision on this question. We do not see that a new trial could result in anything more than granting the defendant the privilege of having a second jury pass upon a question that has been once considered and decided.</p> <p>Now, June 16,1921, motion for a new trial is overruled and judgment directed to be entered on the verdict upon payment of the jury fee. Exceptions noted and bill sealed to defendant.</p> <p>Errors assigned, among others, were in overruling defendant’s objection to the admission in evidence of certain photographs and refusal of defendant’s motion for a new trial.</p>

<p>Banks mid tanking — Deposits—Special funds — Trust funds— Mingling with >o.ther funds — Bight to follow — Claim as general creditor.</p> <p>A depositor in the savings fund department of a bank, who directs the bank to withdraw $5,000 from his savings account and buy Victory Liberty Loan bonds for him is, as to that amount, no longer a depositor of the bank after his directions were acted upon and the withdrawal of $5,000 noted in his pass book.</p> <p>Where a bank buying large numbers of Liberty Bonds for its customers mingled all their payments in one general account, and purchased the bonds with the general fund, not for the special account of any particular individual, the purchaser of bonds is not entitled to impress the general funds with a trust in his favor. Such individual purchaser is a general creditor, postponed in the collection of his claim until the depositors are first satisfied.</p>

Appeal, No. 61, Oct. T., 1921, by defendant, from judgment of the Municipal Court of Philadelphia, August T., 1920, No. 250, in favor of. plaintiff, in case tried by the court without a jury in suit of Standard Refrigerator Company, v. Apeldorn & Beatty Company. Assumpsit to recover initial payment on a contract. Before Cassidy, J., without a jury. The facts are stated in the opinion of the Superior Court.

Appeal, No. 58, Oct. T., 1921, by plaintiff, from judgment of Municipal Court of Philadelphia, Sept. T., 1917, No. 49, refusing to strike off non-suit in the case of Isidor Lazar v. State Bank of Philadelphia. Trespass to recover damages for refusing payment of a cheek. Before Bonniwell, J. The facts are stated in the opinion of the Superior Court, and in the report of former appeal reported in 74 Pa. Superior Ct. 1.

Appeal, by defendant, from judgment of C. P. No. 4, Phila. Co., Dec. T., 1919, No. 3053, on verdict for plaintiff in the case of Freihofer Baking Company v. John Barton Payne, Federal Agent. Trespass to recover damages for injuries to auto-truck. Before Finletter, J. The facts are stated in the-opinion of the Superior Court. . Verdict for plaintiff for f1,000 and judgment thereon. Defendant appealed.

Appeal, No. 155, Oct. T., 1921,.by defendant, from judgment of C. P. No. 1, Phila. Co., Sept. T., 1919, No. 5267, on verdict for plaintiff in the case of John C. Hare v. Harold B. Mulligan. Trespass to recover damages for value of automobile stolen while in custody of tbe defendant. Before Bregy, P. J. Tbe facts are stated in tbe opinion of tbe Superior Court. Verdict for plaintiff for $300 and judgment tbereon. Defendant appealed.

Appeal, No. 18, March T., 1922, by defendant, from judgment of Q. S. Lackawanna Co., May Sessions, 1921, No. 87, affirming judgment of Justice of the Peace in case of Commonwealth of Pennsylvania v. Alfred Oliver. Appeal from summary conviction. Before Maxby, J. The facts are stated in the opinion of the Superior Court. The court below entered the following decree: And now, to wit, May 10, 1921, the appeal is dismissed and the judgment is affirmed. Defendant appealed.

<p>Appeal, No. 137, Oct. T., 1921, by John McGlinn, Jr., from decree of O. O. Phila. Co., • Oct. T., 1918, No. 794, dismissing exceptions to adjudication upon the second account of William J. Mc-Glinn, W. W. Montgomery, Jr., and Continental-Equitable Title and Trust Company, Trustees under item 4, of the Will of John McGlinn, deceased.</p> <p>Exceptions to adjudication. Before Henderson, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The court dismissed the exception. John McGlinn, Jr., appealed.</p> <p>Error assigned was the decree of the court.</p> <p>Woelpper’s App., 126 Pa. 562; Fetrow’s Est., 58 Pa. 424; Packer’s Est., 246 Pa. 97; Stafford’s Est., 258 Pa. 595.</p> <p>Little’s App. (Agnew’s Est.), 81 Pa. 190; Carstensen’s Est., 196 Pa. 325; Hildebrandt v. Hildebrandt, 42 Pa. Superior Ct. 190; Spang’s Est., 49 Pa. Superior Ct. 314; Harned’s Est., 54 Pa. Superior Ct. 47.</p>

Appeal, No. 135, Oct. T., 1921, by plaintiffs, from judgment of O. P. No. 4, Phila. Co., June T., 1916, No. 1566, on verdict for plaintiffs in tbe case of James H. Stevenson, trading as Stevenson Bro. & Co., v. Sun Company. Assumpsit for breach of contract. Before AudenRIED, J. Tbe facts are stated in tbe opinion of tbe Superior Court. Tbe court directed a verdict in favor of tbe plaintiffs in tbe sum of $277.88, and judgment was entered tbereon. Plaintiff appealed.

<p>Appeal, No. 41, Oct. T., 1921, by defendant, from judgment of O. P. No. 1, Phila. Co., Sept. T., 1919, No. 2781, on verdict for plaintiff in the case of Maxwell Waitsman v. Northwestern National Insurance Company.</p> <p>Assumpsit to recover on a contract of insurance. Before Baldrige, P. J., 24th Judicial District, specially presiding.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict for plaintiff in the sum of $726 and judgment thereon. Defendant appealed.</p> <p>Errors assigned were refusal of motions for judgment non obstante veredicto and for new trial, refusal of binding instructions for defendant, and refusal to withdraw a juror for improper remarks by counsel.</p> <p>Counsel’s remarks were improper and should have been the ground for withdrawal of a juror: Joyce v. Smith, 269 Pa. 439; Wagner v. Hazle Township, 215 Pa. 219; Hoffman v. Berwind-White Coal Mining Co., 265 Pa. 476; Knoller v. Everett Realty Co., 59 Pa. Superior Ct. 544.</p> <p>There was not sufficient evidence to establish a valid contract: Patterson v. The Benjamin Franklin Insurance Co., 81* Pa. 454; Ripka v. Mutual Fire Insurance Co., 36 Pa. Superior Ct. 517.</p> <p>Parties will not be heard on appeal to question the correctness of the submission of a case after the court has submitted it from the standpoint in which the parties tried it: Richardson v. Flower, 248 Pa. 35; Armstrong & Latta v. Phila., 249 Pa. 39; Knecht v. Knecht, 261 Pa. 410.</p>

Appeal, No. 148, Oct. T., 1921, by defendant, from judgment of O. P. No. 2, Phila. Co., Dec. T., 1919, No. 1900, on verdict for plaintiff in the case of William H. Stratton v. J. S. Jordan. Trespass for malicious prosecution. Before Rogers, J. The facts are stated in the opinion of the Superior Court. Verdict for plaintiff in the sum of $2,000. Subsequently a remittitur was filed of all in excess of $1,200, and judgment was entered thereon. Defendant appealed.

<p>Appeal, No. 214, Oct. T., 1921, by defendant, from judgment of Municipal Court, Philadelphia, November T., 1920, No. 718, awarding a new trial in the case of Henry A. Kauffman v. Jacob Reese.</p> <p>Assumpsit to recover commissions on sale of real estate. Bonniwell, J., without a jury.</p> <p>. The facts are stated in the opinion of the Superior Court.</p> <p>The court found for the defendant, upon which judgment was entered and satisfied. Subsequently an order Avas made Amcating the findings and finding for plaintiff. The court later struck off the second order and granted a new trial. Defendant appealed.</p> <p>The granting of a new trial is subject to review when based upon an error of law or abuse of discretion: Cleveland Worsted Mills v. Myers-Jolesh Co., 266 Pa. 309; Osterling v. Third United Presbyterian Congregation, 269 Pa. 71; Vilsack v. Wilson, 269 Pa. 77.</p> <p>A court has no power to permit a motion for new trial after the term at which judgment was entered, the discretion of the court to grant a new trial ends with the expiration of the term: Syracuse Pit Hole Oil Co. v. Carothers, 63 Pa. 379; King v. Brooks, 72 Pa. 363; Pennsylvania Stave Company’s App., 225 Pa. 178; McCready v. Gans, 242 Pa. 364; Miller v. Baker, 64 Pa. Superior Ct. 124.</p> <p>The right of the court to order a new trial of its own motion is indisputable : Com. v. Gabor, 209 Pa. 201; Cronrath v. Border, 27 Pa. Superior Ct. 15.</p>

Appeal, No. 189, Oct. T., 1921, by defendant, from judgment of Municipal Court of Philadelphia, Feb. T., 1921, No. 284, on verdict for plaintiff in the case of John Boden v. Philadelphia Rapid Transit Company. Trespass to recover damages for personal injuries. Before MacNeille, J. The facts are stated in the opinion of the Superior Court- Verdict for plaintiff in the sum of $409 and judgment thereon. Defendant appealed.