Subject. did not arise out of any contract, express or implied but was rather in the nature of a penalty. Even if it was a tax, no interest could be collected until after judgment. Verdict reduced by amount of interest allowed A switching railroad which connects various trunk lines and several manufacturing plants but has no revenues outside of those received for switching services and which files with the Interstate Commerce Commission schedules showing its local freight tariff and which is chartered under the Act of April 4th, 1868, and its supplements, relating to the formation and regulation of railroad corporations and which pays to the State a gross receipt and capital stock tax, is not to be subjected to taxation for local purposes of the real estate owned by and necessary for it in the operation of its railroads... The portion of Section 508 of the School Code which reads "That the total amount of all indebtedness in any school district issuing such obligations shall not at any one time, including all such obligations, exceed 2 per cent. of the total valuation of taxable property therein," refers to such indebtedness as is within the powers of the directors to create without a vote of the electors

735

101

121

There is no authority in law to elect a trust company or a national bank as a township treasury. Where the law provides that a township treasurer shall give bond with at least two sufficient sureties it is proper under the Act of June 26th, 1895, if such bonds be executed by a company duly qualified to act as surety 223

TORTS.

See Negligence; Trespass. TRADING STAMPS.

See Injunction.

TRANSCRIPT.

See Justices of the Peace; County Court.

TRESPASS.

See also Negligence.

recover

Plaintiff sued borough to damages caused by water, in times of heavy rains, flowing over the sidewalk into plaintiff's cellar. It was alleged, that, in grading, paving and curbing the street, the side of the street opposite plaintiff's property was higher than called for by the plans, and as a consequence water accumulated because of an inadequate manhole in front of plaintiff's property. Held: If the damage was caused by improper grading, paving and curbing of the street plaintiff should have collected damages in the proceedings before the viewers, and, if the damages resulted from the insufficiency of the manhole and sewer provided by the borough authorities, there was no cause of action, and in the absence of allegations that the street and sewer were kept or maintained in a negligent manner, a non-suit Was properly entered..

534

Page.

See also New Trial; Negligence, While Section 1 of Article XXII of the Act of May 15, 1893, provides that the Act shall not apply to any mine employing less than ten persons in any one period of twentyfour hours, yet even if it has not been shown by the evidence that the mine is one in this respect to which the Act is applicable, and the case is tried throughout on the theory that the mine is one to which the Act applies, the defendant invoking the aid of the Act in an attempt to relieve itself from liability for the plaintiff's injuries by placing the responsibility on the mine foreman, for whose negligence the defendant company is not liable under the Act, the latter cannot be heard to allege after verdict that the Act is not applicable to the mine in question

At the trial of a case where the negligence charged against a defendant company is its failure to perform a statutory duty, questions relating to assumption of risk by the plaintiff do not arise.

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...

705

14

14

35

103

The defense to a suit to recover on a life insurance policy was that the insured had stated in his application that he had not been rejected by any other company. It appeared that he had made application but that he had never received the policy and had been told by the agent of the company that the latter preferred to insure him in another department, which he declined. It did not appear that the insured had been told that he was rejected. Held: That the answer did not amount to a false representation Where the question is whether an insurance policy was sent by mail. testimony that it was written and executed and mailed in the ordinary course of business is sufficient. It is not necessary to prove in detail that the letter was stamped and addressed and placed in a mail box.. 253 To entitle plaintiff to recover in a sult for negligent blasting, defendant must prove specific amounts and the exact cost in restoring the property to the same condition as before the negligent acts complained of...... Binding instructions will not be given. nor will a verdict be disturbed where the court referred to the one

366

Subject.

question in the case in the following language: "You have to pass upon a very simple question of fact, and the one question of fact is that of the transferring of this indebtedness from the Washington Tin Plate Company to J. J. O'Connor." Then again: "So you come down to this one question: Did these three men who controlled both of these corporations come together and agree that the claim of the McClure Company against the Washington Tin Plate Company should be transferred to a claim of the McClure Company against J. J. O'Connor and the Washington Tin Plate Company be released?" The court instructed the jury in an action of trespass that they must find that the condition of the manganese was the sole cause of the explosion; that plaintiff must establish by the weight of the testimony that he notified the foreman of the wet condition of the manganese, and was induced by the assurance of the foreman to return to work on the faith that dry manganese would be supplied, and that the manganese used was not reasonably safe before there could be a recovery. Verdict for plaintiff and new trial and motion n. o. v. refused.. At the trial of a suit for damages due to negligence defendant offered a paper called a release, which was not under seal and did not show a consideration, and then offered to prove, as the consideration of the paper, payment by defendant of plaintiff's medical bills. The offers were objected to on the ground that the paper was not a legal release and the payments did not constitute valid consideration for a release. The objections were sustained. Held: As a release the paper was void because it did not bear a seal and was without consideration. When the defendant at a murder trial was the only witness present and when the only defense offered was that the wife had struck defendant in the head with a poker and raised a "lump" immediately before he had slashed her with a razor inflicting the fatal wounds, it was proper for the court to comment in its charge as to where the poker was found, and that no "lump" was noticeable when defendant was arrested soon after the crime was committed.... The court held in a trial on an insurance policy that plaintiff was not required to prove dependency as of the time of issuing the certificate as the signature of the officers to the new certificate was alone sufficient evidence that all things required by the law had been done. The court

also instructed the jury that plaintiff could not recover as a stepdaughter. not coming within the class laws of the Order. Verdict for plaintiff and on motion for a new trial Held: That the instruction as to dependency was error. That while not designated as dependent, this might have been shown by evidence. That the instruction that there could be no recovery as a step-daughter was also error, and that evidence as to the relationship and plaintiff's position in the household should have been submitted to the jury. New trial granted. At the trial defendant offered to prove the facts relating to the making of a note and that the several en

to be designated under the

324

332

444

523

655

Page.

dorsers interested were accommodation endorsers. These offers were refused and binding instructions given on behalf of plaintiff, On motion for new trial, Held: That under Act of May 18, 1901, P. L. 194, Section 66, the contention of defendant could not be maintained. New trial refused..

Where the evidence in a proceeding to declare one weak-minded shows that respondent, a mian 76 years old, was normal for one of his years and environment, had managed and controlled his own affairs, saved and accumulated property, had not wasted any, and searched for and made safe investments, and was not now nor had in the past dissipated his property, there was no presumption of waste in the future, either by mental impairment or by the influence of designing persons, and he must be permitted to continue in the exercise of his natural rights without legal interference from any one...

677

769

At the trial plaintiff moved for judgment as defendant offered no testimony in support of his affidavit of defense on the ground that as the use to which the property was put had been raised in the affidavit of defense it was sufficient to put plaintiff on notice of the defense and the plaintiff having offered no evidence on this question, he was not required to offer testimony on this part or assume this burden. A juror was withdrawn and the case submitted to the court under the Act allowing such submission, Held: That under the provisions of the Act of June 4, 1901. P. L. 364, Section 5, a plea of exemption shifted the burden upon plaintiff to show that the land was not exempt.... 789 TRUSTS.

Plaintiff gave defendant a certain sum of money to pay therefrom certain funeral expenses and also to pay $10 a week to the plaintiff's daughter and the balance, if any. at plaintiff's decease was to be paid to legal representatives less any charges and expenses that the defendant might be entitled to. The defendant accepted the trust. received the money and paid out the amount stipulated. Held: That the trust was revocable at the instance of the plaintiff, but that the defendant was entitled to a reasonable time in which to make the return and was also entitled to reasonable compensation for his trouble in relation thereto...

303

433

633

644

Subject.

TRUST COMPANIES.

See Brokers.

UNDERTAKERS.

See License.

VENDOR AND VENDEE.

The right of stoppage in transit by an unpaid vendor, upon the insolvency of the vendee, exists until the goods have arrived at their destination and have passed into the possession or actual control of the vendee, either at his own warehouse or at a place which he uses as his own, though belonging to another. But when the transit is at an end and the delivery is complete, the right to retake the goods is gone....... VERDICT.

See also Ejectment; New Trial.
Where a verdict is agreed to and

entered by consent of counsel, it
will not be set aside at the in-
stance of the defendant where it
appears that the defendant had
been informed by her counsel that a
settlement on the basis of the ver-
dict was the best that could be se-
cured and to which she apparently
agreed, and when it further appears
that no more advantageous result
could be obtained for the defendant
if the case should be submitted to
a jury...

29

135

A verdict will not be disturbed where the jury passed upon the question of possession of the automobile at the time levy was made and where there was no evidence as to when or how title vested in the plaintiff. 320 VIEWERS.

Municipal

Improvements;

See also Municipalities: Streets and Roads. The Act of April 2, 1903, provides that notice of the meeting of the Board of Viewers in such cases shall be given in the manner provided by

law for the service of summons in a personal action if the parties in interest can be found in the municipality or upon an adult member residing upon the property effected by the assessment in case the owner or the reputed owner cannot be found, and to all others by publication in a newspaper or newspapers in which the notice of the said assessment was published. Held: That the posting of the notice upon the church building was not such notice as the law required Viewers were appointed to assess damages to property owners caused by the raising of a street to a new grade fixed by borough ordinance. Α property owner upon an alley which crossed the street sought to have his damages, resulting from the change of grade of the alley to correspond with the grade of the street. fixed by the Board of Viewers appointed to determine the damages to the property Owners abutting upon the street. The viewers reported he was not entitled to damages at this time because there was no change of grade of the alley. Held: That the owner of the lot abutting on the alley was entitled to have ascertained the damages which he had suffered or was likely to suffer by the change of the grade of the alley unless it should clearly 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... Under the Act of June 23, 1911, the

viewers in a municipal improve

25

34

Page

ment case should make findings of fact and conclusions of law, such as will enable the court to pass upon exceptions that may be raised and upon their failure to do So the Court will refer their report back for that purpose...

In an appeal from the Board of Viewers in assessing the damages and benefits for a street improvement, it is proper for the court to define the words "Just Compensation" as a just comparison of the advantages and disadvantages of the construction of the highway. the net damages after considering the damages and the special benefits A Board of Viewers cannot award consequential damages to a school district coterminous with a municipality for a change of grade in a street

In proceedings before viewers under the Act of June 23, 1911, to determine benefits and damages to abutting property owners for the opening of a street, where one person owns separate pieces of property abutting on the street the report should show the damage, if any, to each piece

A owned property abutting on three streets and alleys in the City of Pittsburgh. On January 26, 1912, the city council passed an ordinance to lower the grade of the streets and alleys in a certain defined district, which included the property owned by A. Certain parts of these streets were improved during 1912, but the city at that time did no actual work 'on the and streets alleys on which A's property abutted. During 1912, however, the public service corporations in lowering their pipes and lines on all these streets with interfered traffic that A's property was practically cut off from egress and ingress previous to the death of A on January 12, 1913, testate, leaving a widow, who was named executrix, and six children. The actual work of changing the grade of the streets on which A's property abutted was begun by the city in February of 1913, and not completed until several months later. Held: That damages should be awarded to the children

WAGES.

See Constitutional Law. WATER.

See also Railroads.

And where, by the oral permission, and with the assistance and encouragement, of the then owner of the land over which the stream flows and across which the 4-inch pipe line has been maintained, the 4-inch line is taken up by the railroad company and replaced at great expense with a 6-inch line running to a point farther up the stream, following which large expenditures of money are made by the railroad company in the construction of new water tanks and pen-stocks, an irrevocable parol license for the use of the water through the larger pipe line inures.

WEAK-MINDED PERSONS. See also Guardian; Costs. In a proceeding to have respondent declared a weak-minded person, the petition will be dismissed where the petitioners do not sustain, by the weight of the evidence coupled with a close observation and ex

64

65

75

207

417

137

48

Subject.

is

un

amination by the court, the alle-
the respondent
that
gations
either feeble minded, epileptic or so
mentally defective that he is
able to take care of his property,
liable to dissipate or lose it, or be-
the victim of designing per-
come
sons

When counsel fees will be permitted, guardian for weak-minded person.. WEIGHTS AND MEASURES.

The chief

the State of

Bureau

of

24, Standards for Weights and Measthe Act of July under ures, 1913, P. L. 960, may furnish the inspectors "with full specifications of tolerances and allowances to be used by them in the performance of their duties," but he has no authority to specifications issue regulations on used; regarding the type of commercial scales, weights nor have the inspectors authority to themselves with reference concern to the type of any scale, weight or measure used, and their sole duty is to ascertain whether they conform to the standard tests..... WILLS.

See also Legacy.

or measures

Descent

and Distribution;

to

Testatrix devised legacies amounting She to over $7,000, and bequeathed the her residue of her property to X. to sell as foldirected her executor and provided real estate lows: "I do not make any of the above legacies a charge upon my real estate, and do hereby relieve or purchasers from the purchaser the proper application Her perlooking to a little of the purchase money." amounted sonal estate That the legacies over $100. Held: were payable out of the proceeds of the sale of real estate, as under the terms of the will the entire estate was made personal property and the as to relieving the real provision estate was only in relief of the purchaser and to facilitate a sale.. Testator gave his estate to his wife during her life or so long as she remained a widow, and at her death or marriage part of it was to be divided between certain heirs of the In case of death or testator's son. marriage of the widow before the legatees became of age, it was to be held by the executors until the minors became of age and then to be turned over to them and in the was to be meanwhile the interest One of the used for their benefit.

heirs died, a minor, after his father, but before the death of his mother. Held: That the gift vested at

father's

tingent

upon

not his surviving

mother

Where

a petition

a

769

649

the

A will provided "I give, devise and bequeath to my executors and trusfive thousand of sum tees ($5,000) dollars, to be held in trust for my niece, Maud Pearson, said sum to be paid by my executors and trustees at their discretion, and as they may determine to be for her advantage, for her education and maintenance, or to start her in business." The legatee was about five years old at the time of the death of the testator and it is apparent from the wording that he intended to make due provision for her for in this the essentials of life and that the be construed will should light and consequently the legacy should bear interest from the date of the death of the testator. her will inter Testator provided in I give, bequeath, alia as follows: and devise to my son Francis Rea Bailey all income of my real estate, bonds, mortgages, notes, etc.. dur

Testator provided in his will: "I give to my wife, Mary M. and devise Schillo, the house in which I now to have and to hold reside her natural life." during In addition he directed that she be paid $300 a year in monthly installher maintenance ments and support" out of the rents of his other real estate, and directing that how the balance of the estate was to be distributed before as well as after the death of the wife. The wife elected to take under the will. and the questions before the court

"towards

257

337

594

were: First, whether or not testator intended that his wife should have a life estate by implication of all his real estate, other than that which he expressly gave her, and second, if not, how the accumulated rentals in the hands of the trustee were to be distributed. Held: That the wife was not entitled to more than had been given to her expressly, and that the accumulated rentals should be distributed to testator's children and grandchildren, the trustees to retain sufficient surplus for the efficient management of the estate.. Where an estate is left by a mother to a son with power to use "but it shall go direct to his children if he does not need it any more," the son could not give it away or appoint a trustee, and after his death his children are entitled to the unused balance

Where testator devised his estate to his wife for life with "power to consume so much of the principal as she may deem necessary and proper at her discretion," and directed how the unused property should be distributed after her death, naming an executor for the unused balance of the estate, this power to consume means an honest exercise of the power, and the life

597

644

tenant will not be permitted to give to others the unconsumed property devised over by the original testator 670 Where a testator bequeathed certain named stocks as a spendthrift trust for the benefit of a named legatee, and sells some of the stocks before his death, any doubt as to whether it was a specific or general legacy will be resolved in favor of a specific legacy by a reference in a later part of the will that all his stocks shall be sold of which he died possessed "not heretofore mentioned" and it will be declared to be a specific legacy

WITNESS.

See also Evidence.

It is improper to cross-examine a real estate expert as to prices of dealings upon which he relied in order to qualify him as a witness.. WORKMEN'S COMPENSATION.

The Workman's Compensation Act of 1915 is not in conflict with the treaty of the United States Government with the Government of Italy, of February 25th, 1913, in that it discriminates against allen dependent Italian widows and children not residents of the United States

737

92

297