Volume 78 — Pennsylvania Superior Court Reports

Appeal, No. 83, Oct. T., 1921, by defendant, from judgment of O. P. No. 3, Pbila. Co., Sept. T., 1919, No. 4054, on verdict for plaintiff in tbe case of George W. Robb v. American Railway Express Company. Trespass to recover damages for value of shipment not delivered by carrier. Before McMichael, P. J. Tbe facts are stated in tbe opinion of tbe Superior Court. Verdict for plaintiff in tbe sum of $194.08.

<p>Warlcmen’s Compensation Law — Injuñes during noonday meal period — Injuries received while at a place not required to he — Wilful misconduct.</p> <p>A cart driver who was hurt by falling through an unprotected opening in the haymow of his employer’s stable where, because of the cold, he had gone to eat his noonday meal, during the time allowed for that purpose, is entitled to compensation under the Workmen’s Compensation Act of 1915.</p> <p>A general prohibition against the employees going into the haymow to eat does not forfeit the right to compensation of one who went there for that purpose without objection from the stable boss on the day he was hurt, in the absence of any evidence that he ever had notice of such restriction.</p> <p>There is no provision in tbe Pennsylvania law for a forfeiture of compensation by reason of tbe employee’s wilful misconduct.</p>

Appeal, No. 197, Oct. T., 1921, by defendant, from judgment of O. P. No. 4, Phila. Co., March T., 1921, No. 7359, directing an accounting in the case of Mary O’Malley v. Patrick O’Malley. Assumpsit to recover rents and compel an accounting. The facts are stated in the opinion of the Superior Court. The court entered judgment directing an accounting. Defendant appealed. Error assigned was the order of the court.

Appeal, No. 206, Oct. T., 1921, by plaintiffs, from judgment of O. P. No. 3, Phila. Co., Dec. T., 1920, No. 1794, on verdict for defendant, in tbe case of Abrabam Josepbson, Harry Josepbson and Maurice Josepbson, trading as A. Josepbson & Sons, v. Harry Weintraub. Assumpsit to recover for goods sold. Before McMichael, P. J. Tbe facts are stated in tbe opinion of tbe Superior Court.

Appeal, No. 225, Oct. T., 1921, by relator, from decree of Municipal Court of Philadelphia, Feb. T., 1921, No. 719, in the case of Commonwealth ex rel. Richard Kemble Tucker, by his next friend, John Tucker, v. Virginia Kemble Tucker. Habeas corpus for possession of Richard Kemble Tucker, a minor. Before Brown, P. J. The facts are stated in the opinion of the Superior Court. After the petition had been withdrawn and the proceedings discontinued, the court dismissed the writ.

Appeal, No. 165, Oct. T., 1921, by defendant, from judgment of O. P. Clearfield County, Sept. T., 1914, No. 129, on verdict for plaintiff in the case of Alexander Bruce v. Norman Loeb and Fred Loeb. Trespass for deceit to recover money paid on contract. Before Bell, P. J. The facts are stated in the opinion of the Superior Court. Verdict for plaintiff in the sum of $584.04 and judgment non obstante veredicto.

Appeals, Nos. 29 to 43, both inclusive, 47 and 53, April Term, 1922, by Bert Plummer et al., from order of Q. S. Cambria County, March Sessions, 1921, refusing all liquor licenses in Cambria County. Petitions for liquor licenses.

<p>Liquor laws — Licenses—Brewers—Refusal of licenses — Reason for refusal — Question on appeal.</p> <p>If the court of quarter sessions, refusing licenses for all brewers in tbe county, makes a final order to tbe effect tbat “After full bearing and upon due consideration, tbe application is refused,” it would be presumed, upon appeal, tbat a bearing was bad, and tbat tbe court bad performed its duty. Where, however, tbe court below sets forth its reasons for refusal of licenses, it becomes tbe duty of tbe appellate court to examine into tbe reason given, and to set aside the action of the court as an abuse of discretion, if the reason set forth is not a legal reason.</p> <p>Liquor laws — Licenses—Brewers—Scope of examination — Necessity — Fitness of -applicant — Act of June 9,1891, P. L. £57.</p> <p>The only question, under the Act of June 9, 1891, P. L. 251, for the consideration of the court in granting, or refusing, an application for a brewer’s license, is whether the applicant is, or is not, a fit person to whom the license should be granted. The question as to necessity does not apply to a brewer or distiller. Where the court has refused licenses to brewers, without passing upon their fitness, the order of the court must be reversed.</p> <p>Liquor laws — Licenses—Hearing—Refusal to submit to examination — Rules of couH.</p> <p>The court of quarter sessions cannot discharge its statutory duty to those who apply for licenses as brewers without a hearing. If it appeared, from the record upon appeal, that an applicant had refused to appear and be examined in the court below, an appeal, by such applicant, from the order refusing a license, would be dismissed. No rule of court could divest the court of its statutory authority to 'examine the applicant.</p>

Appeal, No. 208, Oct. T., 1921, by plaintiff, from judgment of O. P. No. 1, Pbila. Co., Sept. T., 1919, No. 5252, entering judgment for defendant non obstante veredicto in the case of Eliza C. Landy v. Philadelphia Life Insurance Company. Assumpsit on a policy of life insurance. Before Patterson, J. ■ The facts are stated in the opinion of the Superior Court. The jury returned a verdict for plaintiff in the sum of $1,042.87.

<p>Appeal, No. 217, Oct. T., 1921, by The Pottsville Water Company, from order of Public Service Commission, Complaint Docket, No. 4256 of 1921, sustaining complaint in the case of Joseph Lundy v. The Pottsville Water Company.</p> <p>Complaint by Joseph Lundy against rules and regulations of The Pottsville Water Company requiring consumer to pay for repairs to service pipes between the mains and the curb line under the public streets, and against action of the company in shutting off the water of consumer who refused to make such repairs.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The Public Service Commission sustained the complaint, and ordered The Pottsville Water Company to repair the leaks in service pipes within two days, and forthwith upon completion of such repairs to restore service to the complainant. From this order the Potts-ville Water Company appealed.</p> <p>Errors assigned were the order of the commission, the finding by the commission that the question was wholly one of law, and the allowance of but two days to complete the repairs.</p> <p>The pleadings raised a question of fact, as to ownership of the service lines, which the commission did not decide. The service pipes are not general facilities of the company: Leavenworth v. Leavenworth, etc., Water Co. (Kansas), P. U. R. 1915 B, 611; Joplin w Wheeler, 173 Mo. App. 590; Fisher v. St. Joseph Water Co., 151 Mo. App. 530; Warren v. City of Chicago, 118 111. 329.</p> <p>Appellant company, under its special charter, is under no obligation to deliver water beyond its own mains, and to require it to deliver water at the curb is an impairment of its charter rights: Hays v. Com., 82 Pa. 518; Penn’a R. R. Co. v. Duncan, 111 Pa. 352.</p> <p>The exercise of police powers of the State must be reasonable. Not only must the end sought to be attained be within the scope of the powers, but the means used must bear some fair relation to that end: Holden v. Hardy, 169 U. S. 366; Yick Wo v. Hopkins, 118 U. S. 356; L. S. & M. S. Ry. Co. v. Ohio, 173 TJ. S. 285; A. C. L. R. R. Co. v. N. C. Corporation Commission, 206 IT. S. 1,</p> <p>A charter must be construed liberally as to the public, and strictly as to the grantee: P. & L. E. R. R. Co. v. Bruce, 102 Pa. 23; 197 Pa. 80; Edgewood Boro. v. Scott, 29 Pa. Superior Ct. 156.</p> <p>A special charter is subject to the police power: Penn’a R. R. Co. v. Ewing, 241 Pa. 581; Coyle v. Smith, 221 U. S. 559; Glen Rock Motor Club v. York & Md. Line Tpk. Co., 64 Pa. Superior Ct. 147; Slate Belt Ry. Co. v. P. S. C., 73 Pa. Superior Ct. 493.</p> <p>The commission had jurisdiction: Fogelsville & Trexlertown Electric Co. v. Penn’a Power & Light Co., 271 Pa. 237.</p>

<p>Appeal, No. 218, Oct. T., 1921, by The Pottsville Water Company, from order of Public Service Commission, Complaint Docket, No. 4257 of 1921, sustaining complaint in the case of Mineral Lodge No. 285, Independent Order of Odd Fellows v. The Pottsville Water Company.</p>

Appeal, No. 143, Oct. T., 1921, by plaintiffs, from judgment of O. P. McKean County, Oct. T., 1919, No. 54, for defendant on affidavit of defense, raising a question of law, in tbe case of George W. Bovaird, Frank M. Enright, Mark V. Enright, William Enright and Joseph S. Barry, Copartners, trading as Enright & Company, v. Y. S. Barrett and Glenn V. Barrett, trading as Barrett & Son. Assumpsit on contract to recover for services rendered.

Appeal, No. 119, Oct. T., 1921, by defendant, from order of C. P. Lancaster Co., Feb. T., 1921, No. 72, making absolute rule for judgment for want of a sufficient affidavit of defense in the case of Lonker & Stevens v. A. B. Cohen. Assumpsit for goods sold and delivered. Before Landis, P. J. Rule for judgment for want of a sufficient affidavit of defense. The facts are stated in the opinion of the Superior Court.

Appeal, No. 81, Oct. T., 1921, by defendant, from judgment of O. P No. 5, Phila. Co., March T., 1917, No. 2409, on verdict for plaintiff in the case of Leah Prager, by her next friend and husband Joseph Prager, and Joseph Prager in his own right, v. Benjamin L. Gordon. Trespass to recover damages for personal injuries. Before Martin, P. J. The facts are stated in the opinion of the Superior Court.

Appeal, No. 179, Oct. T., 1921, by defendants, from judgment of Municipal Court of Philadelphia, Sept. T., 1920, No. 599, on yer-dict of guilty in the case of Commonwealth of Pennsylvania v. Alexander Altieri and E. D. Greeby. Indictment for obtaining the signature of the prosecutor to a check by false pretense. Before Gorman, J. The facts are stated in the opinion of the Superior Court. Verdict of guilty upon which judgment of sentence was passed. Defendants appealed.

Appeal, No. 4, Oct. T., 1921, by defendant, from judgment of C. P. Delaware County, Sept. T., 1919, No. 66, on verdict for plaintiffs in the case of Marshall C. Cloud and Anna May Cloud, his wife, v. Philadelphia & West Chester Traction Company. Trespass to recover damages for personal injuries. Before Johnson, P. J. The facts are stated in the opinion of the Superior Court.

<p>Appeal, No. 3, Oct. T., 1921, by defendant, from judgment of C. P. Delaware County, Sept. T., 1919, No. 65, on verdict for plaintiff in the case of Marshall C. Cloud v. Philadelphia & West Chester Traction Company.</p>

Appeal, No. 229, Oct. T., 1921, by defendant, from judgment of C. P. Delaware County, Sept. T., 1915, No. 136, for plaintiff non obstante veredicto in the case of Thomas D. Wood v. Susan Harlan. Amicable action to determine ownership of land and character and extent of easements. Before Hause, J., specially presiding. The facts are stated in the opinion of the Superior Court. Verdict for defendant, and subsequently judgment was entered for plaintiff non obstante veredicto.

Appeal, No. 222, Oct. T., 1921, by defendant, from judgment Of Municipal Court of Philadelphia, Jan. T., 1921, No. 464, for plaintiff upon trial by the court, without jury, in the case of the Northwestern Consolidated Milling Company v. Oscar H. Campbell and M. G-. Campbell, partners trading as O. H. Campbell & Co. Assumpsit on an alleged contract. Before Gilbert, J., without a jury. The facts are stated in the opinion of the Superior Court.

Appeal, No. 228, Oct. T., 1921, by plaintiff, from judgment of O. P. No. 4, Phi la.. Co., Sept. T., 1920, No. 9026, on verdict for defendants in the case of Harry H. Cluck v. Leopold Lackey and Julia Lackey. Assumpsit for services rendered under a verbal contract. Before Audenried, P. J. The facts are stated in the opinion of the Superior Court. The jury found a verdict in favor of the defendants and judgment was entered thereon. Plaintiff appealed.

Appeal, No. 99, Oct. T., 1921, by plaintiff, from the order of the Public Service Commission of the Commonwealth of Pennsylvania in the case of Lehigh Valley Transit Company v. The Public Service Commission of the Commonwealth of Pennsylvania on appeal, and Philadelphia Rapid Transit Company, intervening appelleé.

<p>Appeal, No. 212, Oet. T., 1921, by plaintiff, from decree of C. P. Lancaster County, sitting in equity, Equity Docket No. 6, page 389, dismissing bill for injunction in the case of Jacob H. Ziegler v. Abraham L. Hoffman.</p> <p>Bill in equity to restrain the obstruction of a right of way. Before Landis, P. 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>Error assigned, among others, was the decree of the court.</p>

Appeal, No. 215, Oct. T., 1921, by defendant, from judgment of the Municipal Court of Philadelphia, Jan. T., 1921, No. 248, on verdict for plaintiff in case tried by the court without a jury in suit of Harry Hinsdale, trading as Philadelphia Trucking Co., v. John A. Call. Assumpsit for services rendered. Before Cassidy, J., without a jury. The facts are stated in the. opinion of the Superior Court. The court entered judgment for plaintiff in the sum of $117.

<p>Appeal, No. 240, Oct. T., 1921, by defendant, from judgment of C. P. Northumberland County, Dec. T., 1919, No. 60, dismissing appeal from the award of Workmen’s Compensation Board in the case of Dime Trust & Safe Deposit Company, Guardian of Laura Lando, v. Philadelphia & Reading Coal & Iron Company.</p> <p>Appeal from the Workmen’s Compensation Board. Before Cummings, P. J.</p> <p>The facts are stated in the following opinion filed by the court below:</p> <p>Prank Lando, an employee of the Philadelphia & Reading Coal & Iron Company, died on May 11,1917, having been instantly killed in an accident in the course of his employment for the defendant company, at its Bear Valley Colliery, near Shamokin, this county, on June 19, 1917. Annie Lando, widow of Prank Lando entered into a compensation agreement for the payment to her by the defendant of compensation for the death of her husband at the rate of forty per cent of the minimum of ten dollars per week under section 807 of the Workmen’s Compensation Act of 1915, for the period of three hundred weeks, payable semi-monthly, amounting to twelve hundred dollars; Annie Lando, widow of the said Frank Lando died on December 7,1918, having been paid compensation by the defendant company at the rate of forty per cent of ten dollars, or four dollars per week from May 11, 1917, to December 7,1918, or for 82 4-6 weeks, amounting to |328.67.</p> <p>Laura Lando, claimant in this case, is an illegitimate daughter of Rosie Lando, a daughter of Frank and Annie Lando, and was born at or near Boston, Mass., on March 18, 1907. She lived and was dependent upon her grandparents, Prank Lando and his wife, Annie Lando, from infancy and was living in their home at the time of the accidental death of Prank Lando on May 11, 1917. Laura Lando continued to live with and was dependent upon Annie Lando, widow of Frank Lando until the death of Annie Lando on December 7, 1918, since which time she has been living with and dependent upon an uncle by marriage, Staney Velence; she is without means of support other than that which is given her by Staney Yelence. Her aunt, Mrs. Staney Yelence, died shortly after the death of her grandmother, Annie Lando. Staney Yelence has since married and has a family of his own to support; Rosie Lando, mother of claimant, has been unheard of for many years, having left home after bringing Laura Lando to her grandparents and has never been heard from since.</p> <p>Frank Lando, grandfather of the claimant, raised her from infancy and at the time of his death stood in loco parentis to the claimant, Laura Lando, in whose home she was then living; after the death of Frank Lando, Laura Lando continued a member of the household of Annie Lando, widow, and was dependent upon her until the death of the said Annie Lando on December 7, 1918.</p> <p>Under the compensation agreement between the Philadelphia and Reading Coal and Iron Company and Annie Lando, widow, under the date of June 19, 1917, it does not appear that Laura Lando was a dependent of Frank Lando, the deceased employee.</p> <p>The compensation board awarded to the guardian of Laura Lando, granddaughter of Frank Lando, a compensation from December 7, 1918, to February 9, 1923, or two hundred and eighteen weeks at $2.50 per week, being twenty-five per cent of the minimum of $10 per week amounting to $545 and from February 9, 1923, to March 18, 1923, when she arrives at the age of sixteen years for 5 1-3 weeks at fifteen per cent of $10 or $1.50 per week, amounting to $8, a total of $553 and costs of suit.</p> <p>Two questions are raised by the appeal in this case:</p> <p>1. That the claim was barred by the statute of limitations.</p> <p>2. That the claimant being an illegitimate grandchild of Frank Lando, the deceased employee, did not come within the provisions of the Workmen’s Compensation Act of 1915.</p> <p>“Section 315 of the Workmen’s Compensation Act provides as follows: ‘In case of personal injnry all claims for compensation shall be forever barred, unless, within one year after the accident the parties shall have agreed upon the compensation agreed to be paid under this article; or unless, within one year after the accident one of the parties shall have filed a petition as provided in article 4 hereof.’</p> <p>“In case of death all claims for compensation shall forever be barred unless within one year after the death, one of the parties shall have agreed to compensation under this article or, unless within one year after the death one of the parties shall have filed a petition as provided in article 4 hereof. Where, however, payments of compensation have been made in such cases, said limitations shall not take effect until the expiration of one year from the time of the making of the last payment.”</p> <p>In the case of John A. Hughes v. American International Shipbuilding Corporation and Employers Liability Assurance Corporation, 270 Pa. 27, in an opinion filed February 14, 1921, by Simpson, J.: John A. Hughes, an employee of the American International Shipbuilding Corporation, having received in the course of his employment, an injury which was then supposed to be trivial, with the consent of the Workmen’s Compensation Board entered into a compensation agreement with his employer, by which it agreed to pay to him in full the injuries sustained, the sum of $10 per week for six weeks. Payments were made and receipted for up to May 13, 1918, at which time the ten weeks expired. It subsequently developed that the injury was serious, causing a total loss of the use of his left hand; whereupon, on January 13,1920, he filed a petition with the board asking a review of the compensation agreement, and that an'order be made in his favor to cover the injury actually suffered. An answer was filed, testimony taken, the petition sustained, the agreement set aside, and an appropriate order made in accordance with the facts found. Exceptions thereto, filed on appeal to the court below, were overruled by it, and judgment entered for plaintiff; whereupon the employer and its insurance carrier took an appeal to the Supreme Court.</p> <p>In this case the court said: “The only question raised is whether the petition for review, which, as above shown, was filed more than one year after the last payment, was too late because of the limitation specified in the last sentence of section 315 of the Workmen’s Compensation Law as follows:</p> <p>“ ‘In cases of personal injury, all claims for compensation shall be forever barred, unless, within one year after the accident, the parties shall have agreed upon the compensation payable under this article; or unless, within one year after the accident, one of the parties shall have filed a petition as provided in article four hereof. In cases of death all claims for compensation shall be forever barred, unless within one year after the death, the parties shall have agreed upon the compensation under this article; or unless, within one year after the death of one of the parties shall have filed a petition as provided in article four hereof. Where, however, payments of compensation have been made in any case, said limitations shall not take effect until the expiration of one year from the time of the making of the last payment.’</p> <p>“It is admitted by appellant that if the last sentence does not cover a different class of limitations from those specified in the preceding sentences, the judgment of the court below should be affirmed: and therefore it contends that this sentence should be so read as to require a petition for review of a formal agreement or order, to be filed within one year after the last payment thereunder, although the rest of the section relates only to limitations upon the date of commencing the proceeding after the accident or death.</p> <p>“Its argument to sustain this contention turns exclusively on the use of the words ‘in any case,’ and it may be admitted that if this sentence stood alone their contention would be sound. It does not stand alone, however, and we are of opinion that taking the section in its entirety (noscitur a sociis), those words refer to the limitations in ‘case’ of personal injury, and those in ‘cases’ of death, specified in the preceding parts of the section. ......It will be noticed also that when the legislature clearly intended to limit the time within which proceedings must be taken, it always stated its purpose affirmatively, whereas the sentence relied on by appellants is negative in form, thereby showing a design not to express a further limitation, but an extension of the time referred to in the preceding sentences, if and when the circumstances detailed in the last sentence should be found to exist. This is made clear by the language used. The words ‘said limitations’ in a sentence under consideration can only refer to the limitations theretofore specified, and it is ‘said limitations’ which ‘shall not take effect’ until the expiration of the time provided, and not ‘new limitations’ which shall ‘take effect.’ It follows that the only point raised must be decided adversely to appellants.”</p> <p>By section 307 of the Workmen’s Compensation Act, compensation is to be paid in case of death as follows:</p> <p>“1. To the child or children, if there be no widow, nor widower entitled to compensation, thirty per centum of wages of deceased, with ten per centum additional, for each child in excess of two, with a maximum of sixty per centum, to be paid to their guardian.</p> <p>“2. To the widow or widower, if there be no children, forty per .centum of wages.</p> <p>“3. To the widow or widower, if there be one child, fifty per centum of wages.”</p> <p>By section 307 of the Workmen’s Compensation Act, compensation is to be paid to the widow for 300 weeks and in case of children entitled to compensation, the compensation to the child is to continue until the child is sixteen years of age.</p> <p>Section 307 also provides:</p> <p>“If the compensation payable under this section to any person shall, for any cause, cease, the compensation to the remaining persons entitled thereunder shall thereafter be the same as would have been payable to them had they been the only person entitled to compensation at the time of the death of the deceased.”</p> <p>Under the above provisions of the act of assembly compensation for death is paid to the widow, if she shall survive her husband in a graduating scale from forty per cent of wages to fifty per cent of wages, depending on the survival of children under sixteen years of age and she is paid this compensation for three hundred weeks.</p> <p>A child’s individual right to compensation only exists in the absence of a dependent parent, or in cases where a dependent parent re-married during the lifetime of the compensation agreement.</p> <p>Where a dependent parent survives, the child’s right to compensation in its own capacity depends on one of two things — payment to the dependent parent of compensation for 300 weeks, or death of the dependent parent.</p> <p>Laura Lando being under sixteen years of age was not entitled to sue for compensation while she had a dependent parent living, and her right in her individual capacity, to sue in this case, started from the death of her grandmother and she having filed her claim petition within one year from that date, is clearly within her rights.</p> <p>As to the second question raised, “Workmen’s Compensation Act, paragraph 7 of section 307, provides:</p> <p>“ ‘The terms “child” and “children” shall include stepchildren and adopted children and children to whom he stood in loco parentis, if members of decedent’s household at the time of his death, and shall include posthumous children.’ ”</p> <p>The referee found as a fact that Laura Lando was raised from her infancy by Frank Lando and at the time of his death he stood in loco parentis to Laura Lando, in whose home she was living, and at such time Laura Lando was a member of the household of Frank Lando.</p> <p>In Words and Phrases, volume 43,477, the definition of when a person is “in loco parentis” towards a child is as follows:</p> <p>“The proper definition of a ‘person in loco parentis’ to a child is a person who means to put himself in the situation of a lawful father to the child, with reference to the office and duty of making provision for the child.”</p> <p>In 29 Cyc. 1670 “a person standing in loco parentis to a child is one who has put himself in the situation of a lawful parent by assuming the obligations incident to the parental relation, without going through the formalities necessary to a legal adoption. The assumption of the relation is a question of intention.”</p> <p>In Zumac et al. v. P. T. R. R. & Coke Co., 3 Department Reports 2986: “A child who was a cousin of the deceased was considered by the deceased as his own child and it was therefore entitled to compensation.”</p> <p>We believe that the referee was correct in holding that Frank Lando stood “in loco parentis” to Laura Lando, and that her claim is not barred by the statute of limitations.</p> <p>And now, to wit, May 8, 1921, the appeal is dismissed and judgment is hereby directed in favor of the guardian of Laura Lando and against the Philadelphia and Reading Coal and Iron Company in the sum of $553 and costs of suit.</p> <p>Error assigned was the order and decree of the court, quoting it.</p> <p>The claim petition was not presented within the time allowed by law for filing petition: Hedley v. Baldwin Locomotive Works, 4 Department Reports 33; Dolan v. Philadelphia & Reading Coal & Iron Co., 4 Department Reports 300.</p> <p>The Workmen’s Compensation Act of 1915 does not provide compensation for illegitimate grandchildren: Litzinger v. State Workmen’s Insurance Fund, 3 Department Reports 1655; Splitdorf Electrical Co. v. Ring (N. J. L.) 103 Atlantic 674.</p> <p>The findings of the Workmen’s Compensation Board are supported by competent evidence, and are final: Stahl v. Watson Coal Co., 268 Pa. 452.</p> <p>The one year limitation of section 315 does not apply to cases where defendant has by compensation agreement recognized its liability for compensation: Hughes v. American International Shipbuilding Corporation, 270 Pa. 27.</p>

<p>Workmen’s Compensation Act — Disappearance of employee — Last seen entering mine — Failure to establish accident — Refusal of compensation — Referee’s findings.</p> <p>On. a petition for compensation, under the Workingmen’s Compensation Act, the claimant alleged that she was entitled to compensation because of the death of a minor son, who was employed in the mine of the defendant company and was last seen in one of the gangways, going hack to look for a watch which he had lost. No evidence was produced to show that the employee was the victim of an accident, although no trace of him was found in any of the workings of the mine, after a continuous search of more than one month. It also appeared that there were seven or eight passages through which he could have gone to the surface. Under such circumstances, the 'findings of the referee, affirmed by the Workmen’s Compensation Board, that the employee was not killed during the course of his employment, were fully sustained by the evidence, and will be affirmed by the Superior Court.</p>

Appeal, No. 121, Oct. T., 1921, by defendant, from judgment of Municipal Court of Philadelphia, September Term, 1920, No. 488, in favor of plaintiff in case tried by the court without a jury in the suit of Mae Keating v. Charles S. Bockhill. Assumpsit to recover balance of proceeds of an insurance policy. Before Cassidy, J., without a jury.

Appeal, No. 120, Oct. T., 1921, from report and order of tbe Public Service Commission of the Commonwealth of Pennsylvania In re Application of the Burgess and Town Council of the Borough of Waynesboro, Pennsylvania, for a Certificate of Public Convenience evidencing the Commission’s approval of the acquisition of the plant of the Waynesboro Water Company, and of the beginning of the exercise of the right to operate said plant by supplying water to the public in the Borough…

Appeal, No. 278, Oct. T., 1921, by defendant, from judgment of Q. S. Montgomery County, Feb. Sessions, 1921, No. 34, on verdict of guilty in tbe case of Commonwealth of Pennsylvania v. James Rizzo. Indictment for felonious entry, larceny and receiving stolen goods. Before Solly, P. J. of O. C., 38th 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. 44, Oct. T., 1921, by defendant, from judgment of O. P. No. 1, Phila. Co., March T., 1917, No. 2697, on verdict for plaintiff in the case of William McKane v. City of Philadelphia. Trespass to recover damages for personal injuries. Before Patterson, J. The opinion of the Superior Court states the case. Verdict for the plaintiff in the sum of $400, and judgment thereon. Defendant appealed.

Appeal, No. 95, Oct. T., 1921, by plaintiffs, from judgment of C. P. No. 2, Phila. Co., March T., 1920, No. 4761, refusing to take off non-suit in the case of Sydney S. Morris, Cameron Macleod and Rudolph Baeuerle, copartners, trading as Baeuerle and Morris, v. John Barton Payne, Director General of Railroads, Agent. Trespass to recover damages caused by the breaking of a casting while being loaded by a common carrier.

<p>Appeal, No. 13, Oct. T., 1921, by defendant, from judgment of C. P. Schuylkill County, Sept. T., 1920, No. 78, affirming award of the Workmen’s Compensation Board in the case of Enock Bakunas v. The Philadelphia & Reading Coal & Iron Company.</p> <p>Appeal from decision of Workmen’s Compensation Board. Before Koch, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The court affirmed the award of the Workmen’s Compensation Board. Defendant appealed.</p> <p>Error assigned was the order of the court entering judgment for claimant.</p>

Appeals, Nos. 255 and 256, Oct. T., 1921, by plaintiffs, from judgment of O. P. Berks County, Dec. T., 1919, No. 38, for defendant non obstante veredicto, in tbe case of Margaret Fissell and J. H. Fissell, her husband, v. Walter D. Hines, Director General of Railroads. Trespass to recover damages for personal injuries. Before Endlich, P. J. The facts are stated in the opinion of the Superior Court.

Appeal, No. 108, April T., 1921, by defendants, from judgment of C. P. Allegheny County, Oct. T., 1920, No. 1130, making absolute rule to strike off appeal from judgment of a magistrate in the case of Elliott Keller and Frank C. Keller v. J. A. Staley and M. L. Staley. Appeal from judgment of magistrate in proceedings to recover possession of real estate under the provisions of the Act of December 14, 1863, P. L. 1128 (1864), 2 Stewart’s Purdon 2194.

Appeal, No. 8, March T., 1921, by plaintiff, from judgment of C. P. Adams County, Aug. T., 1919, No. 105, in favor of defendant, in case tried by the court without a jury in the suit of George W. Sherman v. C. A. Stoner. Replevin to recover possession of a clock. Before McPherson, P. J., without a jury. The facts are stated in the opinion of the Superior Court. The court entered judgment in favor of the defendant. Plaintiff appealed.

Appeal, No. 15, Oct. T., 1921, by defendant, from judgment of the Municipal Court of Philadelphia County, July T., 1919, No. 410, for plaintiff, in case tried by the court without a jury, in suit of Jacob Kaplan v. Director General of Railroads. Assumpsit to recover value of a box of merchandise. Before Bonniwell, J., without a jury. The facts are stated in the opinion of the Superior Court.

Appeal, No. 107, Oct. T., 1921, by respondent, from decree of O. P. No. 1, Phila. Co., Sept. T., 1919, No. 1907, granting a divorce a vinculo matrimonii in the case of Elmer E. Bortell v. May T. Bortell. Libel in divorce on the grounds of cruel and barbarous treatment and indignities to the person.

Appeal, No. 186, Oct. T., 1921, by defendants, from order of C. P. No. 1, Phila. Co., March T., 1921, No. 8355, discharging rule to strike off judgment fin the case of S. Melletz, to the use of Harris Silverman, to use of Annie Levin, v. David Kavitsky and Morris Kavitsky. Amicable action in ejectment. Before Shoemaker, J. Rule to strike off judgment. The facts are stated in the opinion of the Superior Court. The court discharged the rule. Defendants appealed.

Appeal, No. 207, Oct. T., 1921, by defendants, from judgment of C. P. Clearfield County, Dec. T., 1920, No. 206, on verdict for plaintiffs in the case of John J. Hand and Richard Hand v. J. W. Bailey and J. E. Goodwin, trading as Bailey & Goodwin. Trespass to recover for damages to automobile. Before Bell, P. J. The facts are stated in the opinion of the Superior Court. Verdict for plaintiffs in the sum of $218.30, and judgment thereon. Defendants appealed.

Appeal, No. 72, Oct. T., 1921, by defendant, from judgment of C. P. Lancaster County, Oct. T., 1917, No. 46, on verdict for plaintiff in the case of John T. Fahey,-Edgar F. Richards, J. Frank Eiley et al., copartners, trading as John T. Fahey & Co., y. C. V. Adams. Assumpsit for breach of contract. Before Landis, P. J. From the record it appeared that the defendant contracted to sell the plaintiffs three carloads of grain, which he failed to deliver.

Appeal, No. 78, Oct. T., 1921, by respondent, from decree of O. P. No. 1, Phila. Co., March T., 1915, No. 2297, granting a divorce, in the case of Gustave Illg v. Anna M. Illg. Libel in divorce. Before Patterson, J. The opinion of the Superior Court states the case. The case was referred to J. Howard Beber, Esq., as master, who recommended a decree. On exceptions to the master’s report, the court overruled the exceptions, and granted a divorce. Bespondent appealed.

<p>Appeal, No. 10, March T., 1922, by Commonwealth, from judgment of Q. S. Tioga Co., May Sessions, 1921, No. 8, quashing indictment in the case of Commonwealth of Pennsylvania v. Leonard J. Neal.</p> <p>Indictment for practicing medicine and surgery without license. Before Channell, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The court quashed the indictment because of its failure to deny that the defendant belonged to any of the excepted classes set forth in the statute. The Commonwealth appealed.</p> <p>Error assigned was the order of the court quashing the indictment.</p> <p>It appears to be well established by a great preponderance of authority that, when an exception is not stated in the enacting clause otherwise than by referring to other provisions of the statute, it need not be ‘negatived, unless necessary to a complete definition of the offense: Com. v. Hennings, 121 Mass. 47; Fleming v. People, 27 N. Y. 239; State v. Miller, 24 Con. 522; State v. Abbey, 29 Vt. 60.</p> <p>If an artificial and arbitrary crime is created, only becoming such when it is executed by persons of a particular class, the fact that the defendant is within that class must be pleaded: Sadler’s Criminal Law, p. 261, par. 213.</p>

Appeal, No. 153, Oct. T., 1921, by defendant, from judgment of C. P. No. 1, Pbila. Co., Sept. T., 1919, No. 172, for plaintiff, in the case of Laura Jayne Perry y. Southern Surety Company, a corporation. Assumpsit on a policy of insurance to recover for loss of ring alleged to have been stolen. Before Patterson, J., without a jury. The opinion of the Superior Court states the case.

Appeal, No. 127, Oct. T., 1921, by defendant, from decree of O. P. Blair County, Jan. T., 1919, No. 130, permitting amendment of tbe record of judgment for plaintiff in the case of Joseph G. Stine v. Mrs. Clara S. Herr, Administratrix of the Estate of William H. Herr, deceased. Trespass to recover damages for personal injuries. Before Baldrige, P. J. The facts are stated in the opinion of the Superior Court. Yerdict for plaintiff in the sum of $1,456 and judgment thereon.

Appeal, No. 30, Oct. T., 1921, by plaintiff, from judgment of C. P. Delaware County, Sept. T., 1918, No. 311, on verdict for defendant, in the case of Automobile Finance Company v. Catherine Sloan and George F. Shaw. Replevin to recover possession of automobile. Before Broomall, J. The facts are stated in the following opinion, filed in the court below: The defendant entered into negotiations with the Roman Automobile Company for the purchase of an automobile.

<p>Criminal law — Statutory rape — Age—Evidence—Sufficiency—> Charge of the court — Expression of opinion.</p> <p>In the trial of an indictment for statutory rape, where all the evidence in the case as to the age of the prosecutrix is to the effect that she was about thirteen years of age at the time of the alleged offense, it was not error for the trial judge in his charge to express a decided opinion upon the fact of the girl’s age.</p> <p>The burden is upon the Commonwealth to prove all the elements of the crime, but, when evidence is produced clearly establishing any fact, and the defendant, in presenting his ease, concedes or does not controvert that fact, it is not improper for the judge to say that, in his opinion, the fact is established, so long as he leaves the question of the existence of the fact to the jury.</p> <p>Criminal law — New trial — After-discovered evidence — Discretion of trial court.</p> <p>The granting or refusal of a new trial, on the ground of after-discovered evidence, is a matter involving the exercise of discretion by the trial court. Where an affidavit is offered by the defendant, as evidence of reason for a new trial, but the defendant took no depositions of the affiant, and the Commonwealth had no opportunity to cross-examine him under oath, the affidavit is an object of suspicion, and the Superior Court will not say, upon appeal, that the trial court was in error in refusing to allow a new trial.</p>

Appeal, No. 211, Oct. T., 1921, by defendant, from judgment of C. P. No. 1, Pbila. Co., Marcb T., 1921, No. 1840, on verdict for plaintiff in the case of Charles Logue v. Philadelphia Rapid Transit Company. Trespass to recover damages for personal injuries. Before Shoemaker, J. The facts are stated in the opinion of the Superior Court. Verdict for plaintiff in the sum of $500, and judgment thereon. Defendant appealed.

Appeal, No. 117, Oct. Ti, 1921, by defendant, from order of Municipal Court of Philadelphia County, Feb. T., 1921, No. 117, making absolute rule for judgment, in the case of'Benjamin Rose-man v. H. Feldenkreis, also known as Harry Feldenkreis. Assumpsit on a promissory note. The opinion of the Superior Court states the case. Rule for judgment for want of a sufficient affidavit of defense. The court made the rule absolute. Defendant appealed.

Appeal, No. 171, Oct. T., 1921, by respondent, from decree of O. P. No. 1, Phila. Co., Dec. T., 1919, No. 412, granting a divorce, in the case of Bella Perry v. Morris Perry. Libel in divorce. Before Patterson,' J. The case was referred to Thomas Boylan, Esq., as master, who recommended that a decree of divorce be granted. The opinion of the Superior Court states the case.

<p>Judgments — Buie to open — Discretion of the court — Evidence— Conflict — Credibility.</p> <p>A petition to open judgment is addressed to the equitable powers of the court, and, upon an appeal, the question is whether there has been a proper exercise of judicial discretion.</p> <p>It is the province of the court below to weigh conflicting testimony, and, in a case where the defendant’s uncorroborated story is improbable, and is flatly contradicted by the plaintiff, refusal of the court to open a judgment entered upon a judgment note will be affirmed.</p>

Appeal, No. 69, Oct. T., 1921, by defendants, from order of C. P. Lancaster Co., Nov. T., 1920, Execution Docket No. 10, discharging rule, in the case of D. L. Hamish v. F. C. Kauffman and Conrad & Rice. Petition for repossession of premises and release of goods seized under landlord’s' warrant and amicable action of ejectment. Before Hassler, J. The facts are stated in the opinion of the Superior Court.

Appeal, No. 53, Oct. T., 1921, by plaintiff, from judgment of O. P. No. 3, Pbila. Co., Sept. T., 1920, No. 1359, in favor of defendant on case stated in tbe suit of Philadelphia Company for Guaranteeing Mortgages, Trustee, v. Guaranty Realty Company. Case stated to determine the duty of a corporation to withhold tax on indebtedness under the provisions of the Act of June 17, 1913, P. L. 507, as amended by Act of July 15,1919, P. L. 955.

<p>Appeal, No. 51, April T., 1922, by Harmony Electric Company, from order of the Public Service Commission of the Commonwealth of Pennsylvania, Complaint Docket Nov 4115, in the case of Harmony Electric Company v. The Public Service Commission, and Pennsylvania Power Company, Intervening Appellee.</p> <p>Petition by Pennsylvania Power Company to the Public Service Commission asking that Harmony Electric Company be enjoined and restrained from constructing transmission line in the Borough of Ellwood City and be enjoined from furnishing service to any customer within the limitation of said borough.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The commission, under date of April 5, 1921, entered the following order:</p> <p>Now, to wit, April 5, 1921, it is ordered: That the Harmony Electric Company, respondent, forthwith cease and desist from constructing a distribution line or any additional facilities for the purpose of supplying electric current to consumers in the Borough of Ellwood City, and said respondent is hereby enjoined and restrained from furnishing light, heat or power by means of electricity in said borough.</p> <p>The above order is made without prejudice to the right of the Harmony Electric Company, respondent, to make formal application to this commission for approval of the beginning of the exercise of any alleged rights within said municipality.</p> <p>Error assigned was the order of the commission.</p> <p>The commission was without jurisdiction to restrain the appellant from furnishing service in Ellwood City because it was a corporation duly organized and existing prior to the effective date of the Public Service Company Law.</p> <p>New Castle Electric Co. v. Public Service Commission, 70 Pa. Superior Ct. 22; Pennsylvania Utilities Company v. The Public Service Commission, 69 Pa. Superior Ct. 612.</p> <p>The failure of the Public Service Commission to approve the contract between the Harmony Electric Company and the Borough of Ellwood City cannot deprive the appellant of the rights which it had which were net dependent on the contract.</p> <p>When the legislature gives a public utility the right to supply a municipality and to use the streets, provided it secures municipal consent, it means that its grant shall not be effective unless the consent of the municipality is secured : Scranton E. L. & H. Co.’s Appeal, 122 Pa. 154; Allegheny County Light Company v. Booth, 216 Pa. 564; Allegheny v. Millville, etc., Ry. Co., 159 Pa. 411; Appeal of City of Pittsburgh, 115 Pa. 4; Telephone Company v. Homer City Borough, 252 Pa. 497.</p>

Appeal, No. 31, March T., 1922, by defendant, from judgment of O. and T. Luzerne Co., Nov. Sessions, 1920, No. 55, on verdict of guilty in the case of Commonwealth of Pennsylvania v. William Pezzner. Indictment for felonious entry and larceny. Before Garman, J. The facts are stated in the opinion of the Superior Court. Verdict of guilty on which judgment of sentence was passed. Defendant appealed.

<p>Appeals, Nos. 30, 32, 33 and 34, March T., 1922, from judgment of 0. & T. Luzerne Co., Not. Sessions, 1921, No. 55, on verdict of guilty in the case of Commonwealth of Pennsylvania v. David Chermin, Benjamin Robzin, Thomas Mullin and John Callahan.</p> <p>Indictment for felonious entry and larceny. Before Garman, 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.</p> <p>Error assigned, among others, was the action of the court in allowing the cross-examination of the defendant as quoted in the opinion of the Superior Court.</p>

<p>Appeals, Nos. 281, 282, 283, 284 and 285, Oct. T., 1921, by defendants, from judgment of Q. S. Schuylkill Co., Jan. Session, 1920, No. 60, on verdict of guilty in the case of Commonwealth of Pennsylvania v. William J. Coyne, Edward Gormley, Joseph Joulwan, Aj S. Faust and John Toppy.</p> <p>Indictment for conspiracy to make false return of election and for insertion of false figures on 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 and in report of former appeal in 77 Pa. Superior Ct. 298.</p> <p>The jury returned a verdict of guilty as to the first count. Judgment and sentence was passed. Defendants appealed.</p> <p>Errors assigned were various rulings on evidence, the charge of the court and refusal to grant a new trial.</p>

<p>Appeal, No. 139, Oct. T., 1921, by plaintiffs, from judgment of C. P. No. 1, Phila. Co., Dec. T., 1920, No. 8619, on question of law raised in an affidavit of defense in tbe case of Leopold H. Teller and Emanuel Zinn, trading as L. H. Teller & Company, v. American Railway Express Company, a corporation.</p> <p>Assumpsit to recover tbe value of five packages of dress goods delivered by a common carrier in disregard of plaintiffs’ notice of stoppage in transitu. Before Shoemaker, J.</p> <p>Tbe facts are stated in tbe opinion of tbe Superior Court.</p> <p>Tbe court, in banc, entered tbe following judgment and decree:</p> <p>“Tbe questions of law raised by affidavit of defense are decided against tbe plaintiffs and tbe judgment is entered for tbe defendant.”</p> <p>Error assigned was tbe judgment of tbe court.</p> <p>Tbe plaintiff made out a prima facie case to tbe exercise of tbe right of stoppage in transitu: Pennsylvania R. R. Co. v. American Oil Works, 126 Pa. 485; Atcbeson, etc., R. Co. v. Harold, 241 U. S. 371; Adams Ex. Co. v. Croninger, 226 TJ. S. 491, 505-506; Mo. Kan. & Tex. Ry. v. Harriman, 227 U. S. 657, 671-672; Boston & Me. R. v. Hooker, 233 TJ. S. 97, 110; Atcbeson, Topeka & Sante Fe Ry. v. Robinson, 233 U. S. 173,180; Cleveland & St. L. By. v. Dettleback, 239 U. S. 588; Ga., Fla. & Ala. By. v. Blish Milling Co., 241 U. S. 190.</p>

<p>Evidence — Confidential communications — Attorney and client— Beal estate — Leases—Measure of damages.</p> <p>Communications made to an attorney for the purpose of being conveyed by him to others are not in the nature of confidential disclosures, and, therefore, are not privileged.</p> <p>It is only confidential communications between an attorney and client which are privileged. Such privilege does not extend to communications made by a litigant to his attorney for the purpose of being communicated to the adverse party, nor to communications made by an attorney to his client at the instance and request of the opposing solicitor or adverse party.</p> <p>In an action to recover damages for breach of a contract to lease real estate, it was error for the court to exclude the testimony of the plaintiff's attorney as to a message regarding the property given to him by defendant to transmit to his client. There was nothing confidential about such communication as it was made for the express purpose of telling the other party. The attorney was a competent witness to prove the message which had been given him, as the agent of his client, and that the same had been transmitted to his client, and the reply which the latter had instructed him to make thereto. He was merely the mouthpiece or means of communication between the parties, and was only called upon to testify to the matters, which each had told him for the express purpose of conveying the information to the other.</p> <p>The value of the lease, in the circumstances of this case, should have been proven by competent witnesses familiar with local conditions of the renting values of real estate in that neighborhood.</p>

Appeal, No. 47, Oct. T., 1921, by defendant, from judgment of O. P. Montgomery Co., Sept. T., 1919, No. 21, on verdict for the plaintiff in the case of Joseph N. Uhler v. Frank S. Jones. Trespass to recover damages to automobile. Before Miller, J. The facts are stated in the opinion of the Superior Court. yerdict for plaintiff for $369.51 and judgment thereon. Defendant appealed.

Appeal, No. 239, Oct. T., 1921, by plaintiff, from judgment of O. P. No. 1, Pbila. Co., June T., 1917, No. 5548, on verdict for plaintiff in the case of George O. Seward v. Pennsylvania Salt Manufacturing Company. Assumpsit for breach of contract. Before Patterson, J. The facts are stated in the opinion of the Superior Court. Verdict for plaintiff for $5 and judgment thereon. Plaintiff appealed.

<p>Appeal, No. 166, Oct. T., 1921, by defendant, from judgment of Municipal Court, Phila. Co., Dec. T., 1920, No. 626, in favor of the plaintiff, in case tried by the court without a jury, in suit of Joseph Williard v. Prudential Insurance Company of America, a corporation of the State of New Jersey.</p> <p>Assumpsit to recover proceeds of life insurance policy. Before Knowles, J., without a jury.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The court found in favor of the plaintiff in the sum of $272.55, and entered judgment thereon. Defendant appealed.</p> <p>Errors assigned were in findings for the plaintiff, refusing to find for the defendant, and refusal of motion for judgment non obstante veredicto.</p> <p>Where the insurer has not exercised the option as to payment, members of the class named cannot compel payment: Nolan v. Prudential Insurance Co., 139 App. Div. 166,123 N. Y. Supp. 688; Perretti v. Prudential Insurance Co., 49 Mise. 489; 97 N. Y. Supp. 1007; Huebner v. Met. L. Ins. Co., 146 111. App. 282; Lewis v. Metropolitan Life Ins. Co., 178 Mass. 52; Loomis v. Prudential Ins. Co., 27 District Rep. 509.</p> <p>Every fact in this case is paralleled by the facts in O’Hara v. Metropolitan Life Insurance Co., 73 Pa. Superior Ct. 434.</p>

<p>Appeal, No. 224, Oct. T., 1921, by defendant, from judgment of C. P. Scbuylkill Co., Sept. T., 1920, No. 43, on verdict for plaintiff, in the case of Walter Morris v. Schuylkill Railway Company.</p> <p>Trespass to recover damages for personal injuries. Before Koch, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff in the sum of $503.50. Defendant appealed.</p> <p>jErrors assigned were refusal to give binding instructions for the defendant, and refusal to enter judgment for defendant non obstante veredicto.</p> <p>The plaintiff could easily have avoided the accident, and judgment should have been for defendant n. o. v.: Lessig v. Reading Transit & L. Co., 270 Pa. 299; Szmigel v. D. G. of R. R., 76 Pa. Superior Ct. 230.</p> <p>One who takes chances, when he loses, cannot hold others liable for his miscalculation: Callahan v. Traction Co., 184 Pa. 425; Brown v. Traction Co., 14 Pa. Superior Ct. 596; Kraus v. Beaver Valley Traction Co., 70 Pa. Superior Ct. 161.</p> <p>A party is not bound to anticipate the want of ordinary care, or a wrongful act on the part of another: Brown v. Lyon, 31 Pa. 510.</p> <p>The failure to sound a gong or bell is evidence of negligence, which may carry the case to the jury: Raulston v. Traction Co., 13 Pa. Superior Ct. 412; Tompkins v. Scranton Traction Co., 3 Pa. Superior Ct. 576.</p> <p>When a person, without fault on his part, is placed in a position of danger or embarrassment, through the negligence of another, he will not be held guilty of contribu- • tory negligence for failure to use all possible means for his safety; the question is for the jury: Sprowls v. Morris Township, 179 Pa. 219; Cannon v. P. & B. Traction Co., 194 Pa. 159; Stover v. Pa. Railway Co., 195 Pa. 616; Shuart v. Consolidated Traction Co., 15 Pa. Superior Ct. 26.</p>

<p>Criminal law — Conspiracy to defraud — Evidence—Sufficiency.</p> <p>On the trial of an indictment for conspiracy to defraud, evidence that the defendants cooperated in an elaborate scheme to gain the confidence of a third person, and to lure him to their hotel room,. in which the police found a machine especially adapted to simulate the manufacture of paper money, with a quantity of new money and blank paper, is sufficient to support a conviction on an indictment charging conspiracy to defraud.</p> <p>Criminal law — Evidence—Baggage found in defendants room— Money-malcing machine — Expert testimony.</p> <p>It is not error in the trial upon an indictment charging conspiracy to defraud to admit as evidence traveling bags found in the hotel rooms occupied by the defendants, where one contained a, machine purporting to be used to make counterfeit money.</p> <p>A machine or device, of which the jury could have no knowledge, by a mere inspection, may properly be explained by a detective having knowledge of such machines where the dress suit case, containing the machine, is found in the possession of defendants charged with conspiracy to defraud.</p> <p>Criminal law — Charge of the court — Comment upon evidence— 'Undue emphasis — Length of comment.</p> <p>There is no rule which requires the court to measure its words so as to give the same length to the remarks applying to one side as to the other. An assignment of error, based upon the difference in the length of comment upon the evidence of the Commonwealth, and that of the defendants, is without merit where both sides were presented, and the defendants were given every chance that they were entitled to under the law.</p>

<p>Appeal, No. 138, Oct. T., 1921, by plaintiffs, from judgment of C. P. Delaware County, June T., 1919, No. 468, on verdict for defendant, in tbe case of Delaware County Trust Company, Trustee under the Last Will and Testament of Hugh McCaffery, and Marion V. McCaffery, v. Mary Keenan.</p> <p>Assumpsit to recover rent. Before Broomall, J.</p> <p>Tbe facts are stated in tbe opinion of tbe Superior Court.</p> <p>Verdict and judgment for tbe defendant. Plaintiffs appealed.</p> <p>Errors assigned were refusal to give binding instructions for plaintiff, and refusal to enter judgment for plaintiff non obstante veredicto.</p> <p>Testimony to vary tbe terms of a written instrument must show that tbe alleged agreement was made at a time contemporaneous with tbe execution of tbe paper: Phillips v. Meily, 106 Pa. 536; Volk v. Beatty, 40 Pa. Superior Ct. 628.</p> <p>There being no allegation of fraud, accident or mistake in tbe written lease, there is no occasion to receive any parol evidence to explain or alter its terms: Martin v. Berens, 67 Pa. 459; Eareckson v. Hoyt, 58 Pa. Superior Ct. 531.</p> <p>There was no corroboration of tbe testimony of tbe defendant’s witness: Hall v. Phillips, 164 Pa. 494.</p> <p>An attempt to use a written instrument in violation of an oral agreement, contemporaneous with its execution, is an attempted abuse of the writing sufficient to permit the introduction of parol evidence: Rearick v. Swinehart, 11 Pa. 233; Phillips Gas and Oil Co. v. Glass Co., 213 Pa. 183; Ex-celsion Sav. F. & L. Association v. Fox, 253 Pa. 257; O’Reilly v. Penna. R. R. Co., 263 Pa. 289; McSorley v. Allen, 36 Pa. Superior Ct. 271.</p> <p>It is not necessary to prove fraud, accident or mistake where an attempt is made to use a writing contrary to the terms of an oral agreement contemporaneous with its execution: Eareckson v. Hoyt, 58 Pa. Superior Ct. 531.</p> <p>The oral testimony, as to the parol agreement, was amply corroborated: Smith v. Harvey, 4 Pa. Superior Ct. 377; White v. Black, 14 Pa. Superior Ct. 459.</p>

<p>Appeal, No. 101, Oct. T., 1921, by defendant, from judgment of Q. S. Bradford Co., Sept. T., 1920, No. 83, confirming judgment of a magistrate in tbe case of Commonwealth of Pennsylvania v. John P. Brann.</p> <p>Appeal from summary conviction. Before Maxwell, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The court below entered the following decree:</p> <p>And now, to wit: March 5,1921, rule to quash the appeal is made absolute, and the appeal filed in this case, is hereby dismissed, and the proceedings of the justice of the peace, are hereby confirmed, at the costs of the defendant.</p> <p>Defendant appealed.</p> <p>Error assigned, was the decree of the court.</p>

Appeal, No. 110, Oct. T., 1921, by Evelyn Bickel, from decree of O. P. Blair Co., June T., 1921, No. 43, in the case of Commonwealth ex rel. Robert Bickel and Wilbur Butts v. Mrs. Evelyn Bickel, Mrs. Mary Butts and John Eckels. Action in nature of a writ of habeas corpus to determine the custody of Robert Bickel and Wilbur Butts. Before Baldrige, P. J. The facts are stated in the opinion of the Superior Court.

<p>Extradition — Constitutional law — Sufficiency of warrant.</p> <p>Under the Act of Congress of February 12, 1793, Rev. Stat. 1022, passed in furtherance of section 2, article IV, of the Constitution of the United States, relating to extraditions, it is requisite that the record disclose that a demand by the executive has been made for the party in custody as a fugitive from justice, that the demand is accompanied by a copy of an indictment or affidavit charging him with having committed a crime within the demanding state; that the copy of such indictment or affidavit was certified as authentic by the governor of the state making the demand; and that the person demanded is a fugitive from justice.</p> <p>Where the governor of the asylum state, in extradition proceedings, has ascertained the existence of facts specified in the statute, and issued his warrant for the delivery of the alleged fugitive, the latter may still sue out a writ of habeas corpus in the proper court to test the validity of the proceeding.</p> <p>Where a defendant was convicted in Ohio and sentence was suspended and he escaped into Pennsylvania and extradition was resisted on the ground that the relator committed an offense indictable there in 1917, but not indictable in Pennsylvania until made so by the Act of 1919, the court properly sustained the validity of the extradition where it appeared that the offense committed was a misdemeanor under the Act of March 13, 1903, P. L. 26.</p>

Appeal, No. 114, Oct. T., 1921, by plaintiff, from order of O. P. No. 1, Pbila. Co., March T., 1915, No. 114, directing a verdict for the defendant in the case of Rudd T. Neel v. Heralds of Liberty. Assumpsit on beneficial certificate. Before Patterson, J. The facts are stated in the opinion of the Superior Court, and in the report of a former appeal reported in 71 Pa. Superior Ct. 136. The court directed a verdict in favor of the defendant. Plaintiff appealed.

<p>Appeal, No. 227, Oct. T., 1921, by plaintiff, from order of C. P. No. 4, Phila. Co., dismissing bill in case of Eudd T. Neel v. Heralds of Liberty.</p>

Appeal, No. 232, Oct. T., 1921, by defendant, from judgment of C. P. No. 5, Pbila. Co., June T., 1920, No. 51T4, on verdict for plaintiff in tbe case of Isaac Liberman and Charles Liberman, trading as Liberman Bros, v. Mitchell Shapiro and Morris Gottlieb, now or late trading as Shapiro & Gottlieb. Assumpsit for goods sold and delivered. Before Henry, P. J., 52d Judicial District, specially presiding. The facts are stated in the opinion of the Superior Court.

Appeal, No. 185, Oct. T., 1921, by defendant, from judgment of C. P. No. 1, Phila. Co., Dec. T., 1919, No. 1714, on verdict for plaintiff, in the case of Lillian B. Marshall v. J. Franklin Roberts. Trespass to recover damages for personal injuries. Before Patterson, J. The facts are stated in the opinion of the Superior Court. Verdict and judgment for plaintiff in the sum of $625. Defendant appealed.

Appeal, No. 291, Oct. T., 1921, by plaintiff, from order of C. P. No. 2, Phila. Co., Dec. T., 1920, No. 1959, M. L. D., discharging rule for judgment for want of a sufficient affidavit of defense in the case of O. W. Ketcham v. Philip Green. Scire facias sur mechanic’s lien.' From the record it appeared that the plaintiff filed a mechanic’s lien for a balance due for building materials delivered under the provisions of a written contract, and issued a sci. fa. thereon.

<p>Evidence — Collateral issues — Relevancy—Admissibility.</p> <p>In the trial of an action of assumpsit by a receiver of a defunct partnership to recover the amount of certain checks drawn on the partnership funds, which were alleged to be forged, it was error to admit testimony that one of the partners had deposited funds to his personal account in amounts not greatly different from the amounts of the checks the day one of the checks was cashed, where there was no evidence that he forged the check in question, where the check was not produced at the trial and where the plaintiff offered no evidence as to how it was signed. Evidence of such a character raised an issue collateral to the one raised in the pleadings and its admission constituted reversible error.</p> <p>In such action it was error to admit evidence that the name of one of the partners appearing on the signature card left with the bank was forged, and in the handwriting of the other partner, where there was no evidence that the latter ever had a card in his possession or ever had any opportunity to add a name to it after it had passed into the custody of the officers of the bank.</p> <p>Practice, C. P. — Charge of court — Sufficiency.</p> <p>In an action against a bank by a receiver of a partnership to recover the amount of checks drawn on partnership funds, it was error for the court, in its charge to the jury, to refer to one of the partners as having “got into the penitentiary over this transaction,” when there was no evidence in the case that such partner had in fact been confined iñ the penitentiary or that he had ever been indicted for or convicted of the commission of a crime in relation to this transaction, or any other one that would have had any bearing on the solution of the question in hand.</p>

Appeal, No. 237, Oct. T., 1921, by defendant, from judgment of O. P. Clearfield Co., Sept. T., 1920, No. 452, on verdict for plaintiff in the case of A. G. McGinness v. Caledonia Insurance Company of Scotland. Assumpsit on policy of insurance. Before Bell, P. J. The facts are stated in the opinion of the Superior Court. Yerdict for plaintiff for $1,034 and judgment thereon. Defendant appealed.

Appeal, No. 168, Oct. T., 1921, by defendant, from order of tbe Municipal Court of Philadelphia, June T., 1920, No. 1301, requiring defendant to pay $90 per month for support of his grandchild, in the case of Commonwealth of Pennsylvania ex rel. Ruth Horwitz v. Abraham Horwitz. Petition for order to increase amount for support. Before Bartlett, J. The opinion of the Superior Court states the case.

Appeal, No. 3, March T., 1922, by defendant, from judgment of Q. S. Dauphin County, Jan. Sessions, 1921, No. 169, on verdict of guilty, in the case of Commonwealth v. Harry J. Taylor. Indictment for felonious entry and larceny. Before Hargest, P. J. The defendant was charged with having assisted other persons, separately indicted, but tried jointly with defendant, in feloniously entering a Pennsylvania Railroad car, and stealing a large quantity of cigarets therefrom.

Appeal, No. 68, April T., 1922, by the Commonwealth, from order of Q. S. Armstrong County, March Sessions, 1917, No. 44, directing verdict for defendant, in the case of Commonwealth v. Pennsylvania Eailroad Company. Indictment for maintaining a public nuisance. Before King, P. J. The facts are stated in the opinion of the Superior Court. The court directed a verdict for the defendant. Plaintiff appealed.

Appeal, No. 128, Oct. T., 1921, by defendant, from judgment of Municipal Court of Philádelphia, June T., 1920, No. 487, on finding for the plaintiff, in case tried by the court without a jury in suit of Samuel Dintenfass, trading as Tire Brokerage Company, v. American Railway Express Company. Assumpsit to recover value of goods delivered for transportation. Before Bonniwell, J., without a jury. The facts are stated in the opinion of the Superior Court.

<p>Contracts — Written contracts — Parol promises — Inducement to execution — Evidence—Case for jury.</p> <p>Where the plaintiff, seeking to recover salary, proved a written contract, which did not state the term of employment, and then introduced very definite testimony from one of the subscribing witnesses, supporting his own evidence that he was induced to enter into the written contract by a promise that the employment should last until the first of the next year, the court committed no error in submitting the case to the jury, since there was no reason to take it from them on the ground that the proof was not clear, precise and indubitable.</p>

Appeal, No. 97, Oct. T., 1921, by plaintiffs, from judgment of Municipal Court of Philadelphia, June T., 1920, No. 218, for defendants, on the whole record, in the case of Silas A. Birdsong, Thomas H. Birdsong and George F. Birdsong, trading as Birdsong Brothers, v. John Coroneos, George Coroneos and Peter Coroneos, trading as Coroneos Brothers. Assumpsit to recover value of merchandise not properly charged.

Appeals, Nos. 12 and 13, April T., 1922, by defendants, from judgment of Q. S. Allegheny Connty, Sept. Sessions, 1920, No. 371, on verdict of guilty, in the case of Commonwealth of Pennsylvania v. Charles W. Rush and A. A. Harnett. Indictment for making or drawing a check upon a bank in which the maker had insufficient funds for its payment. Before Evans, J., 47th Judicial District, specially presiding. The facts are stated in the opinion of the Superior Court.

Appeal, No. 275, Oct. T., 1921, by defendant, from judgment of the Municipal Court of Philadelphia, Aug. T., 1921, No. 799, making absolute rule for judgment for want of a sufficient affidavit of defense, and discharging rule to set aside judgment, in the case of Ben Cohn v. Estelle Post. Assumpsit for goods sold and delivered. Rule for judgment for want of sufficient affidavit of defense and rule to set aside judgment.

Appeal, No. 295, Oct. T., 1920, by defendants, from judgment of C. P. Chester Co., April T., 1918, No. 9, on verdict for plaintiff, in the case of Milton Stern, trading as Auto Transit Company, v. John Hess and wife. Replevin to recover possession of an automobile. Before Hause, J. The facts are stated in the opinion of the Superior Court. The court directed a verdict in favor of the plaintiff, and entered judgment thereon. Defendants appealed.

Appeal, No. 154, Oct. T., 1921, by Gabrielle O’Neil, from decree of O. C. Pbila. Go., Jan. T., 1921, No. 257, sustaining exceptions to adjudication in the Estate of Morgan Sweeney, deceased. Exceptions to adjudication. Before Gummey, J. The facts are stated in the opinion of the Superior Court.

Appeals, Nos. 175 and 176, by defendants, from judgments of Q. S. Phila. Co., Nov. Sessions, 1920, No. 808, on verdict of guilty, in the case of Commonwealth of Pennsylvania v. Charles E. Corcoran and Michael M. Corcoran. >, Indictment for conspiracy to steal. Before Barnett, P. J., 41st Judicial District, specially presiding. The facts are stated in the opinion of the Superior Court. Yerdict of guilty upon which judgment of sentence was passed. Defendants appealed.

<p>Appeal, No. 27, March T., 1921, by Kittanning Telephone Company, from order of the Public Service Commission, Application No. 5573, 1921, in the case of Kittanning Telephone Company v. The Public Service Commission of the Commonwealth of Pennsylvania, on appeal, and Borough of Ford City, Borough of Leechburg and J. W. Patterson et ah, intervening appellees.</p> <p>Application for permission to file a new schedule for rates.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The answer filed was in the nature of a demurrer, raising the question whether the commission had lawful authority to consider the question of rates, within three years of the former decision (77 Pa. Superior Ct. 86). The commission, therefore, took the testimony, subject to a stipulation that it would not be transcribed and filed of record unless the commission should overrule the demurrer.</p> <p>The order subsequently entered by the commission was: “Now, to wit, January 16,1922, it is ordered: that the prayer of the petition is refused, and the application is dismissed.”</p> <p>Error assigned was the order of the commission.</p> <p>The Public Service Company Law recognizes the right of appellant seeking relief from an order of the commission to go to the commission itself: Kittanning Telephone Co. v. Public Service Commission, 77 Pa. Superior Ct. 86; Coplay Cement Mfg. Co. v. Public Service Commission, 271 Pa. 58.</p> <p>There is no other way to question a confiscatory order than by presenting the question first to the commission, thus preparing the way for an appeal to the Superior Court: Fogelsville & Trexlertown E. Co. v. Pa. Power & Lt. Co., 271 Pa. 237; Lincoln Gas & El. Co. v. Lincoln, 250 U. S. 256; New Brighton Boro. v. New Brighton Water Co., 247 Pa. 232.</p> <p>The questions now raised were all raised and determined upon the former appeal, and are now res adjudicata: Peoples Water Co. v. Pittston, 241 Pa. 208; Hartranft v. Ives, 64 Pa. Superior Ct. 338.</p>

Appeal, No. 42, March T., 1922, by plaintiff, from order of C. P. Luzerne Co., July T., 1921, No. 228, discharging rule to show cause why defendant should not pay alimony pendente lite and counsel fees in the case of Mary R. Murray v. Michael J. Murray. Rule for alimony and counsel fees pendente lite. Before Woodward, J. 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.

Appeal, No. 7, March T., 1922. by defendants, from decree of C. P. Lackawanna Co., sitting in equity, No. 13, Oct. T., 1913, making an assessment on the recommendation of a receiver in the case of… Held: in the absence of anything to call the correctness of the decree in question, it must be presumed to have been well founded. If erroneous it was the privilege of the party or parties affected to .have it corrected on proper application. No such application has been made.

Appeals, Nos. 19 and 20, March T., 1922, by defendant, from judgment of C. P. Luzerne Co., March T., 1917, No. 556, on verdicts for plaintiffs in the cases of Margaret Helfrich, by her next friend and father William W. Helfrich, v. Dominick Gurnari, and William W. Helfrich v. Dominick Gurnari. Trespass to recover damages for personal injuries. Before Woodward, J. The facts are stated in the opinion of the Superior Court.

<p>Appeal, No. 299, Oct. T., 1921, by defendant, from judgment of Q. S. Delaware Co., Sept. Sessions, 1920, No. 50, on yerdict of guilty in the case of Commonwealth of Pennsylvania v. Arthur Stanley.</p> <p>Indictment for violation of section 23 of the Act of June 30, 1919, P. L. 678. Before Hannum, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Yerdict of guilty in which judgment of sentence was passed. Defendant appealed.</p> <p>Errors assigned, among others, were refusal of defendant’s motions to quash the indictment and in arrest of judgment.</p>

Appeal, No. 43, March T., 1922, by defendant, from judgment of C. P. Luzerne Co., Noy. T., 1916, No. 998, on verdict for plaintiffs in the case of John Janecek et al. v. Elmer Schaffer. Replevin to recover the possession of a pair of horses. Before Woodward, J. The facts are stated in the.opinion of the Superior Court. The jury rendered a verdict in favor of the plaintiff in the sum of $682 and judgment thereon. Defendant appealed.

<p>Appeal, No. 108, Oct. T., 1921, by defendant, from judgment of Q. S. Berks Co., March Sessions, 1920, No. 150, on verdict of guilty, in the case of Commonwealth of Pennsylvania v. I. L. Kiefer.</p> <p>Indictment for selling adulterated butter. Before Wagner, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict of guilty upon which judgment of sentence was passed. Defendant appealed.</p> <p>Errors assigned were various rulings on evidence, the order refusing a new trial, and the judgment of the court.</p> <p>The act is highly penal, and must be strictly construed: Com. v. Krickbaum, 199 Pa. 355; Com. v. Gouger, 21 Pa. Superior Ct. 217.</p> <p>The case called for expert opinion on the question of standards: Com. v. Baird, 66 Pa. Superior Ct. 275.</p>

Appeal, No. 204, Oct. T., 1921, by defendant from judgment of C. P. Chester County, April T., 1921, No. 86, on verdict for Elizabeth H. Hadley, in the case of Walter E. Hadley and Elizabeth H. Hadley v. City of Coatesville. Trespass to recover damages for personal injuries.

<p>Appeal, No. 203, Oct. T., 1921, by defendant, from judgment of C. P. Chester County, April T., 1921, No. 86, on verdict for Walter E. Hadley in the case of Walter E. Hadley and Elizabeth H. Hadley v. City of Coatesville.</p>

Appeal, No. 27, Oct. T., 1921, by defendant, from judgment of O. P. Huntingdon County, Dec. T., 1919, No. 24, on verdict for plaintiff, in the case of The Burgess and Town Council of The Borough of Huntingdon, in the County of Huntingdon, v. John D. Dorris. Scire facias sur municipal lien. Barnett, P. J., 41st Judicial District, specially presiding.

<p>Contracts — Evidence—Parol—Contemporaneous stipulation.</p> <p>Parol evidence is admissible to show that, at the execution of a written instrument, a stipulation was entered into, a condition annexed, or a verbal promise was made, on the faith of which the writing was executed.</p> <p>In an action based upon a written memorandum of sale, it was proper to admit evidence that, at the time the writing was made, it was understood between the parties that it was uncertain whether the defendant would have any cloth for sale, and the company could not bind itself to any obligation to deliver unless it happened to have a surplus above its own needs.</p> <p>Withdrawal of juror — Improper remarles of counsel — Reproof by the court — Discretion of court.</p> <p>Where counsel for plaintiff made a “slurring criticism” of a witness by calling him a “willing witness,” the trial judge was in the proper exercise of its duty in expressing disapprobation.</p> <p>An application for withdrawal of a juror on such ground is addressed to the sound judicial discretion of the court.</p> <p>Evidence — Admission or exclusion after evidence is closed — Discretion of the court.</p> <p>The admission or exclusion of additional evidence, after the testimony is closed, is a matter within the discretion of the trial court, and his action will not be reversed, unless there has been a very plain abuse of discretion.</p>

Appeal, No. 178, Oct. T,, 1921, by plaintiff, from judgment of Municipal Court of Philadelphia, May T., 1920, No. 197, in favor of defendant in case tried by the court without a jury in suit of Keystone Publishing Company v. Pennsylvania Railroad Company. Trespass to recover damages for loss of a shipment of books. Before Bartlett, J., without a jury. The facts are stated in the opinion of the Superior Court. The court found for the defendant, and entered judgment thereon.

<p>Appeal, No. 234, Oct. T., 1921, by plaintiff, from decree of O. P. No. 2, Pbila. Co., June T., 1920, No. 4556 M. L. D. striking off mechanic’s lien in the case of Barker Painting Company y. General Carbonic Company, Reputed Owner, Wilkie Carbonic Gas Company, Owner, and M. H. McCloskey, Jr., Inc., Contractor.</p> <p>Rule to strike off mechanic’s lien.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The court made absolute the rule.</p> <p>Error assigned was order of the court.</p> <p>Rush v. Able, 90 Pa. 153; Brown v. Kolb, 8 Pa. Superior Ct. 413; Bennett Lumber & Mfg. Co. v. Hartrick, 61 Pa. Superior Ct. 456.</p> <p>Crane Company v. Rogers, 60 Pa. Superior Ct. 303, 305.</p>

Appeal, No. 216, Oct. T., 1921, by defendants, from judgment of C. P. No. 5, Pbila. Co., Sept. T., 1920, No. 277, making absolute rule for judgment for want of a sufficient affidavit of defense, in tbe case of tbe Pennsylvania Railroad Co. v. Alpin J. Cameron, William B. Denegre, and Alpin W. Cameron, trading as A. J. Cameron & Co. Assumpsit to recover balance of freight charges. Before Martin, P. J. The facts are stated in the opinion of the Superior Court.

Appeal, No. 2, March T., 1922, by defendant, from judgment of C. P. Cumberland Co., Dee. T., 1920, No. 110, on verdict for plaintiff in the case of Township of North Middleton ex rel. James Machlin v. Wilson P. Weary. Action for a penalty for violation of duty as a supervisor of roads, acting as a roadmaster under section 236 of Act of July 14, 1917, P. L. 866. Before Maust, P. J. The facts are stated in the opinion of the Superior Court.

Appeal, No. 9, Oct. T., 1921, by defendant, from judgment of Municipal Court of Philadelphia, Sept. T., 1919, No. 415, in favor of plaintiff in the case tried by the court, without a jury in suit of George Krewson v. Jennie Fisher. Assumpsit for commissions for the sale of real estate. Before Cassidy, 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 $315.08. Defendant appealed.

Appeal, No. 12, March T., 1922, by plaintiff, from judgment of C. P. Cumberland Co., May T., 1920, No. 456, refusing to take off nonsuit, in the case of Grace Landis v. William Shapley, Mrs. Clara B. Stough, George R. Hykes and William M. Hykes. Assumpsit on an alleged oral contract. Before Maust, P. J. The facts are stated in the opinion of the Superior Court. The court entered a compulsory nonsuit, which it subsequently refused to take off. Plaintiff appealed.

Appeal, No. 13, March T., 1922, by defendants, from judgment of C. P. Lackawanna Co., June T., 1918, No. 87, on verdict for plaintiff, in the case of Robert L. Swartz, Trustee, v. I. Stein and J. Julius Levy. Replevin for an automobile. Before Maxey, J. The facts are stated in the opinion of the Superior Court. Verdict for plaintiff, in the sum of $172.50, the value of the car.

Appeal, No. 38, March T., 1922, by defendant, from judgment of C. P. Lackawanna Co., June T., 1921, No. 307, refusing to make absolute rule to show cause why judgment should not be stricken off, in the case of Rev. Julius Hamborsky v. Magyar Presbyterian Church. Rule to strike off judgment.

Appeal, No. 188, Oct. T., 1921, by respondent, from order of C. P. Northampton County, Feb. T., 1921, No. 828, setting aside final confirmation of report of viewers, in the case of William H. Thomas, William P. Thomas and Charles H. Wetter-man v. Borough of Hellertown. Petition to appoint viewers for opening street. Before McKeen, J. Rule to show cause why final confirmation should not be set aside. The facts are stated in the opinion of the Superior Court.

Appeal, No. 286, Oct. T., 1921, by plaintiff, from judgment of Municipal Court, Phila. Co., Aug. T., 1921, No. 537, discharging rule for judgment for want of a sufficient affidavit of defense in the case of Austin, Gorbam, Mcllvaine & Co., Inc., v. The Lincoln Chocolate & Confectionery Co., Inc. Assumpsit to recover on contract to install heating apparatus. Rule for judgment for want of a sufficient affidavit of defense. The opinion of the Superior Court states the case.

Appeal, No. 88, Oct. T., 1921, by plaintiff, from judgment of C. P. Lehigh County, June T., 1920, No. 89, for defendant, on affidavit of defense raising questions of law, in the case of Blue Valley Slate Manufacturing Company, Limited, v. Charles H, Yeager. Assumpsit, to recover money due upon contract. Before Henninger, J. The facts are stated in the opinion of the Superior Court.

Appeal, No. 87, Oct. T., 1921, by defendant, from judgment of C. P. Berks Co., May T., 1919, No. 26, for plaintiff in case tried by the court without a jury in suit of William Hammeke v. Reading National Bank. Assumpsit to recover value of collateral alleged to have been wrongfully delivered to third person. Before Endlich, P. J., without a jury. The facts are stated in the opinion of the Superior Court.

Appeal, No. 39, March T., 1922, by defendant, from judgment of C. P. Columbia County, Feb. T., 1916, No. 57, in favor of plaintiff on case stated, in suit of S. L. Knouse v. The Mutual Fire Insurance Company of Millville. Case stated in assumpsit to recover on a policy of fire insurance. Before Terry, P. J., 44th Judicial District, specially presiding. The facts are stated in the opinion of the Superior Court.

Appeal, No. 28, March T., 1922, by defendant, from judgment of C. P. Luzerne Co., May T., 1916, No. 311, on verdict for plaintiff in the case of John Cunningham v. Wilkes-Barre Railway Corn: pany. Trespass to recover damages for personal injuries. Before Harmon, P. J., 26th District, specially presiding. The facts are stated in the opinion of the Superior Court. Verdict for plaintiff for $1,000 and judgment thereon. Defendant appealed.

<p>Beal estate — Sales—Deceased vendor — ■Action for purchase money against vendee in possession — Fiduciaries Act — Jurisdiction of the orphans' court.</p> <p>Since the passage of tbe Act of June 7, 1917, P. L. 447, (Fiduciaries Act) an executor of a deceased vendor of land, under written articles of sale, may not institute an action of equitable ejectment against tbe vendee in possession, to enforce payment of tbe purchase money. His remedy is now exclusively by petition in the orphans’ court.</p> <p>The act applies to all cases where either the vendor or vendee is dead. If the vendor is dead enforcement of the contract, so far as his estate is concerned, can only mean payment to his personal representatives of the purchase money or any balance remaining due, and authorization, upon such payment, to execute and deliver a deed for the land. By the sale, as respects the vendor, the land is converted into personalty and upon his death before conveyance, becomes assets in the hands of his personal representative.</p> <p>The jurisdiction of the orphans’ court is exclusive and neither a common law court nor a chancellor has jurisdiction in such cases.</p>

<p>Appeal, No. 243, Oct. T., 1921, by defendant, from judgment of C. P. Delaware Co., Sept. T., 1917, No. 223, on verdict for plaintiff, in tbe case of Prank Williams v. Nicholas D’Amico.</p> <p>Trespass to recover damages for injuries to automobile. Before Hause, J., 15th. Judicial District, specially presiding.</p> <p>The facts are stated in the following opinion filed by the court below, discharging a rule for a new trial:</p> <p>Plaintiff recovered a verdict based on the jury’s finding that defendant negligently operated his automobile on a public highway causing it to collide with and injure plaintiff’s car.</p> <p>Plaintiff, on August 20, 1917, purchased the car from its then owner and, three days later, in company with the seller, he drove the car from the place of purchase toward his home in Philadelphia. At the time of the accident, the car was registered in the original owner’s name and being operated under his license. Plaintiff’s contention was that his car was standing on the extreme right-hand side of a public street in the Borough of Darby; that two cars, racing side by side at a speed ranging from thirty-five to forty miles an hour, approached — one being defendant’s car — and in an effort to avoid a collision with the other car, defendant collided with plaintiff’s car. Defendant insisted that, while his car struck plaintiff’s, the accident happened because of the negligent operation of the third car — that that car, in its effort to pass him, struck his car, driving it against plaintiff’s.</p> <p>The solution of the question as to who was negligently responsible for the collision was submitted to the jury and they placed the responsibility on defendant. There was ample evidence to justify this conclusion.</p> <p>In addition to a denial of any negligent act on his part, defendant contended that plaintiff could not recover in any event because the injured cár was not “registered” in the true owner’s (plaintiff’s) name at the time of the accident and, not being thus registered, it was an “outlaw” on the highway and entitled to no protection, except as against gross and wilful negligence under the authority of Chase Y. N. Y. Cent.' R. R., 208 Mass. 137.</p> <p>With us, however, this is not an open question. The injury here inflicted had no relation to the fact that plaintiff had not registered his car. “The collision occurred on a public highway; it was not the property of the defendant nor had he the right of possession of any part of it, except as that occupancy might be necessary in passing over it”: Yeager v. Winton Co., 53 Pa. Superior Ct. 202. Hence it was held, in case just cited, that defendant could not escape the consequences of the negligent operation of its car on the ground that plaintiff’s car operated at the time of the accident, by an unlicensed driver, although a license to drive is required by statute, and that conclusion wag approved and followed in MeIlhenny v. Baker, 68 Pa., Superior Ct. 385.</p> <p>The Act of July 7,1913 (P. L. 672), does provide in its 1st section, in positive terms, as defendant’s counsel urges, that “no motor vehicle shall be operated or driven upon any public street or highway, until the said motor vehicle shall have been registered with the State Highway Department of the Commonwealth” and subsequent sections require such registration in the owner’s name.</p> <p>Granting, then, that plaintiff was on the public highway in violation of these provisions, “the general principle is that the violation of a statute will not create a liability unless it is the efficient cause of the injury”— Stubbs v. Edwards, 260 Pa. 75 — and, conversely, “the great weight of authority supports the view that in cases of injury to the machine or the occupants from the negligence of third persons, the failure to obey the law with reference to registration and licensing of the machine is not a proximate cause of the injury and has no effect upon the recovery for the damages sustained”: Huddy on Automobiles, section 126, and cases cited in note 54. Massachusetts stands practically alone in treating an unregistered motor car as a trespasser when on a public highway and entitled to no protection save from wilful injuries. As has been indicated, our appellants courts have adopted a contrary view and until they see fit to reverse themselves, we must apply the law as it has been disclosed to us.</p> <p>The rule for a new trial is dismissed.</p> <p>Motion for judgment non obstante veredicto was dismissed in an opinion referring to the reasons set forth in the foregoing opinion.</p> <p>Verdict and judgment for plaintiff in the sum of ,|565.80. Defendant appealed.</p> <p>Errors assigned were refusal to give binding instructions for the defendant, and refusal to receive, as evidence of ownership, proof of the registration of plaintiff’s ear with the commissioner of highways.</p> <p>The plaintiff, being a trespasser on the highway, was guilty of contributory negligence, and cannot recover: Samuel v. Blackwell, 76 Pa. Superior Ct. 540; Krankel v. Norris, 252 Pa. 14.</p> <p>Violation of a statute does not create a liability, unless it is the efficient cause of the injury; conversely it is true that failure to obey the law as to registration has no effect upon the recovery of damages, since it is not the proximate cause of the injury: Stubbs v. Edwards, 260 Pa. 75; Yeater v. Win-ton M. C. Co., 53 Pa. Superior Ct. 202; Mcllhenny v. Baker, 63 Pa. Superior Ct. 385.</p>

<p>Appeal, No. 261, Oct. T., 1921, by respondent, from order of C. P. No. 1, Pbila. Co., Dec. T., 1920, No. 840, refusing to order that a subpoena be issued on-an alleged cross-libel, in the case of Frederick H. Starr v. Ellen E. Starr.</p> <p>Motion for a subpoena on what was designated a “cross-libel” in divorce.</p> <p>The opinion of the Superior Court states the case.</p> <p>The court refused to order that a subpoena be issued, and the respondent, who had made the motion, appealed.</p> <p>Error assigned was refusal to order that a subpoena issue.</p> <p>A divorce action is substantially a suit in equity. Therefore, consent by way of cross-bill must be proper practice: Sterl v. Sterl, 2 111. App. 223; Getz v. Getz, 14 District Reports 69; Toone v. Toone, 10 Phila. 174.</p> <p>The requirement that libellant must be a resident has no application to a cross-libellant: Jennes v. Jennes, 24 Ind. 355; English v. English, 19 Pa. Superior Ct. 586.</p>

<p>Practice, Superior Court — Assumpsit—Appeal—Case conducted 'by plaintiff in person — No error shown.</p> <p>In an action of assumpsit to recover money alleged to have been deposited with the defendant to guarantee payment of certain accounts, where the defense was a denial that such deposit had been made, and, further, an averment that, if it had, recovery would be barred by reason of the fact that the defendant had recently been discharged in bankruptcy, an appeal from verdict and judgment for defendant will be dismissed, if the record shows no reasons for which it could be sustained.</p> <p>While the paper-book in this appeal disregarded so many of the rules of the Superior Court that the appeal might well have been dismissed for that reason, the court examined the record because the appellant conducted his case in person, apparently, without the aid of counsel.</p>

Appeal, No. 293, Oct. T., 1921, by plaintiff, from judgment of Municipal Court of Philadelphia, April T., 1921, No. 421, on verdict for defendant, in the case of Benjamin- W. Sternberg v. Drexel & Co. Assumpsit to recover money paid on account of purchase of a draft. The plaintiff sued to recover $509.38, claiming that he had paid for a draft for 5,000 Kronen, Austrian money, and had been given a draft for only half that amount.

Appeal, No. 71, April T., 1922, by the Manufacturers Light & Heat Co., from order of the Public Service Commission of the Commonwealth of Pennsylvania, complaint docket Nos. 3563 and 3585, in the case of Van Lear P. Shriver et al. v. The Manufacturers Light & Heat Company. Complaint before the Public Service Commission against the schedule of rates of the Manufacturers Light & Heat Company restricting the use of gas for domestic purposes.

<p>School Code — Prosecution for failure to send child to school— Dismissal of case — Costs of prosecution — Liability of county.</p> <p>In a prosecution under section 1423 of the Aot of May 18, 1911, P. L. 309 (School Code), for failure to send a child to school, where it appeared that the defendant was discharged after a hearing, the costs cannot he placed upon the county in accordance with the provisions of the Act of September 29, 1791, 3 Smith’s Laws 37.</p> <p>Section 1429 of the School Code provides that if, at any time after the proceedings have been instituted relative to compulsory attendance, sufficient cause be shown by such defendant for noncompliance with its requirements, or if the costs of such proceedings cannot be collected from such offending person, such costs shall be paid out of the district fund upon proper voucher approved by the school directors. This act covers the whole subject of compulsory education, and under the School Code the question of the payment of costs is one in which the school district is alone concerned.</p>

<p>Public Service Company Law "Public Service Commission. Street railway companies"Order of Public Service Commission— Order based on reports of experts not offered in evidence — Bight of cross-examination.</p> <p>An order of the Public Service Commission is not reasonable or in conformity with law, if based on reports not offered in evidence made by experts who were not subject to cross-examination.</p> <p>In hearings before the commission all parties must be fully apprised of the evidence submitted, and must be given opportunity to cross-examine witnesses, to inspect documents and to offer evidence in explanation or rebuttal according to well-understood rules. In no other way can a party maintain its rights, or make its defense, or test the sufficiency of the facts to support the finding.</p>