Argyle vs. Borough of North Braddock, contractor did, by way of raising the alley, as what he did was undoubtedly done with the borough's acquiescence. His remedy therefor is a view. It was held in the case of New Brighton vs. Piersol, 107 Pa., 280, that if the grade of a street is legally established and the work is actually begun upon the ground, the damages belong to the owner at the time of the commencing of the work, and that the damages cannot be split up. It is further obvious that the statute of limitations begins to run from the commencement of the work, and if the borough should fail to finish raising the grade of the alley more than six years it would seem that the exceptant's claim would be barred. We are therefore of opinion that the exceptions must be sustained and the report returned to the viewers, with directions to ascertain the damages which will be suffered, or likely to be suffered, by the change of grade of the alley, unless it shall appear that what was done by way of filling up the alley was not done by the borough or with its sanction, but was the unauthorized act of the contractor. Vaughan vs. Magee. Personal injuries-Suit for-Plaintiff's statement--Damages claimed-Reference to at trial-Error. In the trial of a case to recover damages for personal injury it is reversible error for counsel for the plaintiff to refer to the amount of damages laid in the statement. The law permits no estimate to be given by either party to the jury, even under oath, of the money amount of such damages and to get such estimate before the jury by indirect methods is a reprehensible practice. This is the rule of the United States courts in this state as well as the rule in the state courts. Upon the trial of such an action, counsel for the plaintiff, while cross-examining the defendant, called the latter's attention to the sum of money claimed in the plaintiff's statement. Defendant's counsel thereupon moved that a juror be withdrawn and the case continued, which the court refused. The court in the charge sought to have the jury disregard the statement. A verdict having been rendered in favor of the plaintiff it was Held that the reference to the claim in the plaintiff's statement was reversible error and a new trial must be granted. In Error to the District Court of the United States for the Eastern District of Pennsylvania. No. 1846 October Term, 1914. U. S. Circuit Court of Appeals, Third Circuit. Ruby R. Vale, for plaintiff in error. John W. Brock, Jr., and John C. Robinson, for defendant in error. Before Buffington, McPherson and Woolley, Circuit Judges. BUFFINGTON, J., December 31, 1914.--In the court below, Miss Mary Magee, the plaintiff, a citizen of New York, brought suit against Ira Vaughan, a citizen of Pennsylvania, to recover damages for injuries sustained by her through his alleged negligence. Such alleged negligence consisted in an automobile, for which it was contended Vaughan was responsible, striking a carriage in which Miss Magee was riding. The jury found a verdict for the plaintiff and judgment having been entered for the damages found, defendant sued out this writ. After careful consideration of the case, we are of opinion there was a mistrial below and the judgment must be reversed. We regret this controversy could not have ended with this trial, but the question here involved reaches beyond the present case and parties, and affects the proper trial of that large and growing number of cases for personal injuries now finding their way to federal courts. In the ordinary suit on a bond, note, contract or account, the amount in suit can be stated, goes in evidence and affords the jury a money basis Vaughan vs. Magee. on which the rights of the parties can be determined. In damage cases there is no fixed sum in controversy. The amount of damages a party recovers is ascertained by the jury from evidence regularly offered and admitted by the court of such pertinent facts as will enable the jury to itself fix the money value of the injury sustained. While among those facts may, at times, be certain definite amounts in the way of medical, surgical, nursing expenses and other items capable of exact fixation, yet when it comes to determining the amount of the damages to be awarded, this is the province of the jury alone, and of a jury uninfluenced by the figures or estimates of any other person as to the amount thereof. The law therefore permits no estimate to be given by either party to the jury, even under oath, of the money amount of such damages, and to get the same character of estimates before a jury by indirect methods is a reprehensible practice. Whatever may be the practice in other jurisdictions, the courts of Pennsylvania have been stern and unyielding in that regard. Wherever a court, in its charge, or counsel, in addressing a jury, have brought to a jury's notice that a plaintiff claimed a fixed sum for damages, it has been adjudged a mistrial: Carothers vs. Pittsburgh Railways Co., 229 Pa. St., 560; Reese vs. Hershey, 163 Pa. St.. 253; Quinn vs. Phila. Rapid Transit Co., 224 Pa. St., 162; Dougherty vs. Pittsburgh Railways Co., 213 Pa. St., 346; and Hollinger vs. York Railway Co., 225 Pa. St., 419. The Bar of the State has loyally supported this view, and this seems a fitting case for this court to emphasize and restate as applicable to the Federal Courts of this Circuit, the ruling of those cases. Without detailing the facts in the present case, it suffices to say plaintiff's counsel, while cross examining defendant, called express attention to the fact of the sum of money claimed in the plaintiff's statement— a sum, we may add, much in excess of any damage shown by the proofs to have been sustained. Thereupon the defendant's counsel asked that a juror be withdrawn and the case continued. The court ruled out the obectionable reference, but refused to continue the case, which refusal was duly excepted to. Thereupon plaintiff's counsel repeated the objectionable statement. It is due to the counsel, who was not a member of the Pennsylvania Bar, to here note his statement that he did not know of the Fennsylvania rule, that he did not at once grasp the significance of the court's ruling, and that he had no intention of violating such ruling by repeating the objectionable statement. It is also due the court to say that the trial judge in his charge earnestly sought to have the jury disregard the statement. We will not enter into a speculative analysis of what effect the statement and its repetition to the jury had. It suffices to say the jury improperly had before it substantial statements of matters which were not only not in evidence, but which on no principle of law could have been admitted in evidence. The possibility of the verdicts of juries being based on that which is not evidence goes to the very foundation of that fair and impartial trial for which courts exist. Whether the objectionable statements did or did not influence the jury in this particular case is not the test, for this court cannot permit any such practice to obtain even a foothold in this Circuit. If the enforcement of this rule necessitates retrial, such result can be avoided by the observance by counsel, when practicing in the courts of Pennsylvania, whether Federal or State, of this wholesome practice, which has long obtained in this Commonwealth. The judgment below is reversed and the case remanded for retrial. George vs. Gans, Trustee in Bankruptcy. Bankrupts estate-Real estate-Claim of title by wife-Common Pleas-Jurisdiction-Remedy at law. A contest over the title to real estate between a trustee in bankruptcy, under the National Bankruptcy Act of July 1, 1898, and the wife of the bankrupt, who alleges rightful ownership and title to the real estate, which had been deeded by her to her husband nearly a year prior to the adjudication of his bankruptcy, where the wife asserts the deed made by her to her husband to be null and void because she was compelled to execute and acknowledge it by the coercion, force, intimidation, and threats of her husband, who afterwards deserted her, is to be determined in the court of common pleas of the county in which the real estate is situated, and not in the Federal courts. In such a case the jurisdiction of the state court is not affected by the fact that leave to sue the trustee in bankruptcy was not obtained from the Federal court, because the bankruptcy statute itself fully authorizes independent actions against trustees in bankruptcy in other courts than those by which trustees in bankruptcy are appointed. In a case of this character the remedy at law is not full, complete and adequate. Motion to have question of jurisdiction determined in limine. In equity, No. 699. C. P. Fayette County. John Duggan, Jr., and Sterling, Higbee & Matthews, for plaintiff. VAN SWEARINGEN, J., Noveniber 24, 1914 —There is a motion before the court to determine in limine whether or not we have jurisdiction of this proceeding. In the eleventh paragraph of the answer to plaintiff's bill the defendant avers that "the Court of Common Pleas of Fayette County, Pennsylvania, does not have jurisdiction of the matters set forth in plaintiff's bill, but that the jurisdiction to hear and determine the questions therein raised is in the Federal Court." The plaintiff by her bill seeks to have declared null and void a deed made by herself to her husband, Andy George, under date of February 24, 1912, for certain real estate in Dunbar, in this county, which deed, she alleges, she was compelled to execute and acknowledge by the coercion, force, intimidation and threats of her said husband, who since has deserted her, wherefore she alleges that the rightful ownership and title to said real estate remained in her and did not pass by virtue of said deed to her husband. On January 31, 1913, Andy George was adjudicated a bankrupt by the District Court of the United States for the Western District of Pennsylvania, and later William I.. Gans was elected trustee of the bankrupt estate. It will be noticed that the deed, on the validity of which must be determined eventually the ownership of this property, was executed nearly a year prior to the adjudication of the bankruptcy of plaintiff's husband By section 70 of the National Bankruptcy Act of July 1, 1898, it is provided that the trustee of the estate of a bankrupt shall be vested by operation of law, as of the date of the adjudication, with the title of the bankrupt's property. By section 23 (a) of the act it is provided that, "The United States Circuit Courts shall have jurisdiction of all controversies at law and in equity, as distinguished from proceedings in bankruptcy, between trustees, as such, and adverse claimants, concerning the property acquired or claimed by the trustees. in the same manner and to the same extent only as though bankruptcy proceedings had not been instituted and such controversies had been between the bankrupts and such adverse claimants." In speaking of the bankruptcy act, it was said by the Supreme Court of the United States, in an opinion by Mr. Chief Justice Fuller, in Babbitt vs. Dutcher, 216 UJ. S., 102, 54 Law. Ed., 402 There are two classes of George vs. Gans, Trustee in Bankruptcy. cases arising under the Act of 1898, and controlled by different principles. The first class is where there is a claim of adverse title to the property of the bankrupt, based upon a transfer antedating the bankruptcy. The other class is where there is no claim of adverse title based on any transfer prior to the bankruptcy, but where the property is in the physical possession of a third party, or of an agent of the bankrupt, or of an officer of a bankrupt corporation, who refuses to deliver it to the trustee in bankruptcy. In the former class of cases a plenary action must be brought, either at law or in equity, by the trustee, in which the adverse claim of title can be tried and adjudicated. In the latter class it is not necessary to bring a plenary suit, but the bankruptcy court may act summarily, and may make an order in a summary proceeding for the delivery of the property to the trustee, without the formality of a formal litigation. The former class alls within the ruling which holds that such a suit may be brought only in a court which would have had iurisdiction of a suit by the bankrupt against the adverse claimant, except where the defendant consents to be sued elsewhere. In the latter class of cases a plenary suit is not necessary, but the case falls within the rule which held that the bankruptcy court could act summarily." Inasmuch as the bankruptcy act provides that the United States Circuit Courts shall have jurisdiction of controversies at law and in equity, as distinguished from proceedings in bankruptcy, between trustees, as such, and adverse claimants, in the same manner and to the same extent only as though bankruptcy proceedings had not been instituted and such controversies had been between the bankrupts and such adverse claimants, and the Supreme Court of the United States has held that where there is a claim of adverse title to property of the bankrupt based upon a transfer entedating the bankruptcy the matter must be tried and adjudicated in a plenary action in a court which would have had jurisdiction of a suit by the bankrupt against the adverse claimant, it is clear that the present controversy can be maintained in this court only. Nothing appears in the record which would give a Federal Court jurisdiction. On the contrary the record shows that a Federal Court would be without jurisdiction. The ciaim here is one of adverse title to the property based upon an alleged illegal transfer antedating the bankruptcy. Under the ruling of the Supreme Court of the United States, in the case cited, it makes no difference who is in possession of the property now or who was in possession of it at the time of the adjudication of the bankruptcy. The controversy is not one growing out of the administration of the bankrupt estate, but is a proceeding to determine whether certain property actually belongs to the estate of the bankrupt or to other parties. Since the passage of the present bankruptcy act the circuit courts of the United States have been abolished by the thirteenth chapter of the Judicial Code of the United States, approved March 3, 1911, which became effective on January 1, 1912, which confers on the district courts of the United States all powers and jurisdiction formerly exercised by the circuit courts, but that in no way affects the present case. We have examined the cases cited by counsel for the defendant, and if any of them be understood to be in conflict with the above decision of the Supreme Court of the United States they must give way to the superior authority of that court. The defendant objects to the jurisdiction of this court on the ground that leave to sue the trustee in bankruptcy was not obtained from the Federal Court, citing the general rule relative to actions against receivers, laid down in 34 Cyc.. 411, which reads: "Property in the hands of a receiver being in the custody of the court, it is held that the receiver is not amenable to suit in respect of such property in any court except that of which he is George vs. Gans, Trustee in Bankruptcy. an officer, and, while the decisions are conflicting, the broad general rule established by the weight of authority is that a receiver appointed by judicial authority cannot, in the absence of a statute to the contrary, be subjected to suit without the leave of the court whose officer he is, granted in the case in which he was appointed, and that a right asserted against a receiver, to property rightfully in his hands, where the right to sue in an independent action is not given by statute, must be worked out either in the action in which the receiver was appointed, or in an independent action brought only upon leave of the court by which the appointment was made." If it should be conceded that otherwise that rule would be applicable to trustees in bankruptcy, it is not applicable in a case like the one now before us, because the bankruptcy statute itself, by the express wording of the section above quoted, and under the construction placed on that act by the Supreme Court of the United States, in the case cited, fully authorizes independent actions against trustees in bankruptcy, in cases like this, in other courts than those by which trustees in bankruptcy are appointed, and of which they are officers, which are the district courts of the United States, sitting especially as courts of bankruptcy, and not otherwise. It is alleged in defendant's answer that this court does not have jurisdiction to determine the questions raised by the plaintiff's bill, because the plaintiff has a full, complete and adequate remedy at law. That contention has not been pressed seriously, is without merit, and need not be discussed. And now, November 24, 1914, for the reasons given in the opinion herewith filed, it is adjudged in limine that this court has jurisdiction of the issues involved in this case. Caven vs. Schack et al. Judgment Opening-Varying terms of written contract-Evidence. Upon a petition to open a judgment confessed under a power of attorney in a lease, the question at issue was whether the lessor had verbally promised to make certain repairs, and the testimony consisted solely of contradictory statements upon the part of the plaintiff and defendant. Held, that the judgment should not be opened. Petition to open judgment. D. S. B. No. 547 July Term, 1914. C. P. Allegheny County. M. H. Stevenson, for plaintiff. A. M. Lee, for defendants. FORD, J., September 29, 1914.-This is a rule to open a judgment confessed by virtue of a warrant of attorney contained in a lease. ---- The lease is dated February 1913, for premises No. 3606 Fifth Avenue, Pittsburgh, is for the term of 26 months commencing the first day of March, 1913, for the total rent of $1,725, payable $62.50 on March 1, 1913 and a like and equal sum monthly in advance up to and including April 1, 1914, and the sum of $70.84 on the first day of May, 1914, and a like and equal sum monthly in advance thereafter during the term, together with the water rent assessed on the premises. The petition filed by the defendants praying that the judgment be opened avers: (a) That they were persuaded by the plaintiff to enter into the lease upon the verbal promise and agreement that plaintiff would pay one-half of the rent for the months of March and April for the premises then occupied by the defendants and that defendants were to pay but one-half of the rent, |