See also Divorce; Return; Service. Where the record in a divorce proceeding shows that the subpoena was served upon the respondent, a resident of another State, on the same date on which it was issued, some explanation ought to be offered as to why respondent appeared so conveniently to overcome the presumption of collusion....... 678 SUNDAY.

The Act of June 20, 1883, P. L. 136, applies to the seventy-two hour period fixed by Section 1 of the Act of April 14, 1905, P. L. 163, and under it Sunday would be excluded from the computation in replevin.. 697

Page.

validity of which no doubts may be suggested, but one as to which there is no reasonable doubt in law or in fact.......

TITLE INSURANCE.

a

See also Damages; Trespass. The settlement certificate, issued by a title company, authorized by its charter to insure titles to real estate, cannot be held or treated as an insurance policy upon which plaintiff in an action of trespass would have the right to recover, in that the title company could not be held as an insurer under the settlement certificate furnished an attorney

545

774

See also Bonds; Municipalities; Elections; Highways; Viewers. Commissioners of townships of the first class have the power to create sewer districts and to apportion the cost of construction of sewers on the properties benefited thereby, and to prescribe the manner in which charges shall be assessed on properties and municipal liens can be filed or an annual tax levied under the Act of February 25, 1905, P. L. 22.. 113 Supervisors of a township have no authority to require a corporation with the rights of eminent domain to agree to furnish free gas for street lights as a condition precedent to the laying of a pipe line along the township roads, and a bill to restrain the company from tearing up its pipe line and discontinuing the service will be dismissed

......

Any act on the part of the supervisors of a township which tends to narrow a public road, or to render its use for its entire width by the public dangerous or impossible is ultra vires..

In removing the petitioners complaint need not be made to the Commissioner of Health of the Commonwealth, as that official has the authority, with or without the consent or co-operation of the township commissioners, to enter upon and administer the health laws, and. this discretion does not conflict with or deprive the chairman of the township commissioners of the right to remove the members of the board at his pleasure....

A board of commissioners of a first class township, organized under the Act of April 28, 1899, P. L. 104, has the power without the assent of the electors, to incur an indebtedness not exceeding two per cent. of the assessed valuation, and as security for that indebtedness can issue negotiable bonds,' bearing five per cent. interest, and this debt can be incurred for public improvements or the liquidation of claims reduced to judgment, as well as to purchase a site and erect a building for township purposes Under the Act of March 18, 1903, P. L. 28, the Court can only make an order nunc pro tune in a proceeding to lay out a township road upon good cause shown, which cause must appear of record. It is only where the viewers or juries of view are unable to report from any good

150

348

435

445

Subject.

and sufficient reason that the Court may, in its discretion, either before or after the expiration of the time fixed, extend the time for filing such report After proper notice has been given by township authorities of their intention to make a contract for public have been bids purposes and ceived in writing, it is within the discretion of the township authorlthe contract to the ties to award

re

lowest bidder using good faith in such selection

TRADE MARK.

See Injunction; Equity.

TRESPASS.

See also Damages; Negligence; Automobiles; Certiorari; Justice of the Peace.

It is permissible, at the trial of an action in trespass for personal injuries, for plaintiff as a measure of damages for earning power, to introduce evidence of wages paid in the neighborhood for services similar to wages those rendered by plaintiff, though received had never she such; she having done the cooking the injury in a hotel and restaurant kept by her husband prior to complained of, and at the time of the accident, she was not only doing part of the cooking but also managing a boarding house...

A capias will not

as

652

793

TRIAL.

In an

an

on

recover lie to debt fraudulently contracted or for damages in trespass where the alle

are that

of the

entered into through

gations of the affiant

contract was

false representations fendant

a

de

80

Inability to state exactly what it cost to repair the damage to a coal mine caused is not a ground for non-sult, and

it would have been error for the court to

binding

fendant

instructions

palpable

have given

for the

de

171

A statement of claim in an action of
trespass which is not verified by an
affidavit, and is not endorsed with
will be
a notice to file an affidavit of de-
15 days.
fense within

stricken off on motion in that it does
not comply with the Act of
14, 1915, P. L. 483..

May

223

In an action of trespass, where the - court ruled that there could be no recovery by the "next

friend"

his own behalf, the

on "next friend"

was

witness

to

a incompetent as testify to anything whereby by his admissions the rights of the infant would be prejudiced.

action

466

when de

of trespass, fendant fails to file an affidavit of defense, the case shall be deemed at issue and be placed on the trial list, but by his failure to file an affidavit admits the of defense,

defendant

allegations as to agency, ownership and possession averred in plaintiff's statement

of trespass to recover an action damages against a title company for the encumbrance report failure to of a sewer, the undisputed evidence showed that the defendant was not guilty of any negligence in the performance of its duty as an examiner; that in the regular course of examination no indices would disclose to a careful examiner the existence to of the sewer in question. On that directed was the jury ground

a

Under a deed of trust, where there principal is a life estate, the trustee takes the estate funds of until the death of the life tenant, any of these and if it pays receipts to the remaindermen as inbefore that time, it is the come trustee's mistake, as the remaindermen are not entitled to income until income and after the death of the life tenant.. 479 what As to what corpus in a trust estate where an illegal corporation is dissolved corporaby an order of Court and its stock to subsidiary distributed what tions, if the stock of the subsidiary represented companies capital, or capital and profits actime this to the cumulated prior If. trust came into existence, it is still capital, and therefore corpus. however, the stock in part represents what was capital at the date since that of the inception of the trust, and in income accruing between inpart divided period, it is

was

in the proper

ratio; but if the stock has been paid 802 for out of the earnings accumulated since the inception of the trust, it is creating a income a will, provision in trust to continue 10 years, that the trustees "manage

therefrom

and control the in manner folsame, and pay out the net income arising lowing," and then defining how this income shall be expended, and at the end of the trust the estate was to be divided into 17 shares and distributed, does not offend the statute against accumulations

815

In

See Descent and Distribution; Accounts; Audit; Penalties; Taxes; Corporations.

Trust companies incorporated under the general incorporation Act of 1874, and its supplements, may lawfully maintain sub-offices or subagencies for the restricted purpose of receiving and paying out moneys, providing a full report of the operations is made to the principal place of business at the close of each day, the assets transferred to the main office and the liabilities reported; but trust companies may not maintain branch offices in the strict sense of the term for the transaction of their general business. Under the provisions of the Act of June 13, 1907, P. L. 640, trust companies are liable to a penalty of 50 per cent. when they file a proper report for the purpose of taxation as to capital stock. surplus and undivided profits, and receive from the Auditor General a copy of the account settled, but fail to pay the tax thus assessed on the value of its shares within 40 days...

TRUSTEE.

ex

See also Banks; Wills; Descent and Distribution; Account; Audit; Equity. A trustee is liable for the full amount of the property devised to the decedent for life in cash, which necessarily carries with it any interest that may be due, and the distributees of the life tenant must receive any unpaid income in the trustee's account at its distribution, and the administrator of the life tenant is not chargeable therewith.. Where testator creates a trust and directs that one-third of the income be paid to his widow, she may elect to take one-third of the personalty in kind, and a commission of two per cent. will be allowed the ecutors on the value of the estate that passes to her; but the trust remains as to the children, and only one commission will be allowed where one party is executor and trustee, but the court may allow a greater amount than if there were but a single appointment... Where decedent's unimpeached papers and records show that for 50 years he managed and charged himself with and made himself liable for the separate estate of his wife, who had died 24 years prior to his death, his estate will be required to pay to the administrator of his wife's estate, the amount with interest of which his wife died seized, and the questions of stale claims, presumption of payment and statute of limitations would not be a bar, as he was her trustee.... Where trustees fail to state properly a triennial account as required by the Act of May 3, 1909, P. L. 391, it must be re-formed and re-stated to comply with the law..

USURY.

See Judgments.

UNITED STATES ARMY.

See Constitutional Law.

.....

UNITED STATES DISTRICT COURT.
See Jurisdiction: Federal Court.
Where a girl 16 years old was found
not to be incorrigible or guilty of

118

129

369

802

Page.

having violated any law of the Commonwealth, or of the ordinance of any city, borough or township, but the Juvenile Court ordered, "That the said child be detained in detention rooms for mental examination," the District Court of the United States will sustain a demurrer to such an order and release the child as it is not within the jurisdiction of the Juvenile Court to make such an order..

See also Malicious Prosecution; Negligence; Trespass; New Trial; Trial; Replevin; Judgments; Slander. Reduction of amount of

damages

where verdict is excessive will be made or new trial granted... While the trial judge is the thirteenth juror, he is not warranted in setting aside a verdict in favor of the plaintiff in an action for personal injuries on the ground that the verdict was excessive unless it appears that there was some mistake, partiality or prejudice. In a proper case he should not hesitate to set it aside..

In a sult against an endorser on 8 promissory note, where the material facts are not disputed, it becomes a question of law for the Court, and if no legal valid defense is set up. a verdict will be directed for plaintiff In an

action for damages for personal injuries, where the verdict, in the opinion of the judge, is excessive, the Court should grant a new trial rather than undertake to assess damages. If the damages awarded by the jury for alleged personal injuries are 80 excessive as to indicate that prejudice rather than reason controlled the jury, a new trial should be granted, the trial judge being unable to determine how far the jury may have been controlled by prejudice in passing upon the question of alleged negligence

A verdict of $3,750 in favor of the plaintiff, where it appears that the injury complained of caused no real loss in future earning power, and he showed no expenses paid out for medical attendance от otherwise, and there was only a loss of one month's wages, is excessive, and a new trial will be granted unless a stipulation is filed accepting stated amount in full satisfaction of his claim... Where on in replevin, a landlord's warrant, it appeared that the defendant was bailee of the plaintiff

247

201

580

16

359

375

628

684

of a quantity of household furniture upon the premises, a verdict for the landlord was properly found in that the constable acted properly under the warrant as the goods were property of the tenant and not of a stranger......

VETERINARY PHYSICIANS. Under the Act of May 5, 1915, P. L. 248, the State Board of Veterinary Medical Examiners need not pass on each case of violation of the law, but may appoint an agent and give such agent general authority to become prosecutor for violations of the Act, and also authority to collect fines and penalities recovered for violation thereof.....

VIEWERS.

Improvements;

re-es

See also Municipal Highways; Appeals. A municipality presented a petition for and had viewers appointed to ascertain the benefits and assess the damages occasioned by a municipal improvement involving the tablishment of the grade of 17 connecting streets and alleys. A lessee of one of the properties abutting on the improvement took out a rule to show cause why the order appointing viewers should not be revoked in that the Court had no jurisdiction or authority in law, on a single improvement, to appoint one Board of Viewers on 17 various highways.

Held, That the Act of May 16th, 1891, P. L. 75, under which the improvement was made, did not prohibit such a petition. Rule discharged

Defendant having failed to avail himself of the right to be heard by the viewers cannot be allowed to delay or defeat collection of the assessment merely because of alleged errors and having failed to indicate the extent of the alleged excess charge except in general terms, thus attempts to open the door to endless litigation whereby the end sought to be attained by the Legislature would be defeated... Where a defective plan is attached to the viewers' report and the city requests that the report be not filed in Court until a correct plan has been prepared, the Court will not refer the report back to the viewers when the city failed to take prompt action, and the defects can be remedied by the owners agreeing to execute deeds containing proper descriptions by metes and bounds of the land condemned..

A board of viewers held a view and took testimony on the theory that the improvement related to one side of the street only. On exceptions to their schedule, the viewers reconsidered their first ruling and viewed the street as a whole.

Held, That the report should be referred back to the viewers and the proceeding should proceed de novo, as the borough and property owners had a right to the benefit of such a view... A petition for an appeal from an award of viewers for a street improvement will be dismissed which does not show that the property of petitioner has been taken, injured or destroyed, or that petitioner has been assessed benefits to pay damages for property taken, injured or destroyed Exceptions to a report of viewers will be dismissed where property owner does not allege that the filed exceptions before the viewers sought to have the viewers' report amended

Page.

535

The Act of April 2, 1903, P. L. 124, prescribes the form of statement accompanying an appeal from an award of viewers and its provisions are mandatory, so that a statement which does not aver that the benefits assessed were to pay for property "taken, injured or destroyed" is fatally defective and cannot be amended after the expiration of 30 days, and a rule to strike off such an appeal will be made absolute.. 493 The Court will dismiss a petition for the appointment of viewers where there is no averment, either in the petition or answer, that any property was taken, injured or destroyed, nor any claim presented for damages or benefits, and it plainly appears that the cost of the improvement was the expense incurred in grading, paving and curbing a street under the Act of May 12, 1911, P. L. 288.. Irregularities as to appointment of viewers and their want of authority and other questions of law should be raised by filing exceptions to the viewers' report in Court, and not by an appeal. The time fixed by daw for filing exceptions is within 30 days after confirmation nisi of the viewers' report.. 636 Where viewers appointed to lay out a township road and report at the next term, and after the report had been filed long after the time required by law, and no exceptions were filed thereto, and later a petition was presented for the appointment of other viewers and four terms passed before the reviewers filed a report, an exception to this report that the record did not show that written notice of presenting the petition for the appointment of the reviewers had been given to the supervisors of the townships through which the road was laid out, will be sustained and the report set aside in that it did not comply with the provisions of the Act of March 29, 1905, P. L. 69 652 In an appeal from a report of viewers for damages incident to the opening a street, plaintiff must prove title before damages can be recovered, and until this is done, testimony as to the value of the property taken will be excluded.. A Board of Viewers can award damages for change of grade in the construction of a State highway under the Act of May 31, 1911, P. L. 468, as the phrase "change of existing lines and location" from which damage would likely" result, evidently intends thereby to provide for compensation for an injury excluded under the more rigid language of the Act of June 8, 1907, P. L. 505....

of

WARRANT.

See also Judgments; Bills and Notes; Landlord and Tenant.

A motion to take off a compulsory non-sult will be refused where plaintiff sought to recover damages in an action of trespass in the nature of deceit for alleged fraudulent representations made by defendants in entering into a written lease with plaintiff. This lease contained & warrant authorizing a confession of

661

733

judgment. Judgment having been entered by confession on the lease for the same subject matter and between the same parties was conclusive against plaintiff's right to recover

WARRANTY.

See also Sale; Principal and Surety; Judgments.

In an action to recover on an insurance policy of a beneficial association, where the defense is that the insured made false answers to certain questions in the application, it is a question of fact for the jury whether the insured had made a false representation or warranty that was material to the risk, and the Court erred when it gave binding instructions in favor of the defendant. New trial granted.. Representations that the plano in good condition did not amount to a warranty, especially when the ballee was familiar with the instrument and it was open for inspection, and there was nothing in the written contract to compel the bailor to tune or keep up the piano at his own expense...

WATER AND WATER COURSES.

See also Injunction;
ships.

was

Equity; Town

The owner of the surface is liable in damages for turning the course of a stream and other surface water so that it will flow into a coal mine, thereby interfering with the mining operations, and whether there was an actual trespass is a fact for the jury Where two coal mines, in different veins of coal, are located vertically one above the other, the owners of the upper mine will be restrained by injunction from drilling a hole through the intervening strata between their mine and the lower mine for the purpose of carrying accumulations of water out of the upper mine into the lower one in order to get rid of it..

Exceptions were filed to the widow's appraisement by two children of decedent. It appeared that the deceased lived with his wife until 1911, when articles of separation were duly executed between himself and his wife. After the agreement of separation, decedent went to Nevada, where he remained less than a year, and obtained a divorce in that State from his wife, who remained at their former domicile in Pennsylvania. Decedent returned to Pennsylvania and married claimant in 1914. He died subsequently and the second wife claimed the widow's exemption.

271

210

392

171

WIDOW'S ELECTION.

Page.

See also Descent and Distribution; Audit.

Under the Act of April 21, 1911, P. L. 79, no payment to the widow, whether in the nature of income or otherwise, should be decreed until her election to take or not to take under her husband's will has been filed of record, and it is questionable whether an account can be confirmed and a decree made until this is done...

The election of a widow to take against her husband's will ends a trust as to her, and the payment of the whole estate is accelerated, but the trust continues if it is provided for the benefit of others, and her election will not terminate the trust as to others, when that trust is lawful

WIDOW'S EXEMPTION. Exceptions were filed to the widow's appraisement by two children of decedent. It appeared that the deceased lived with his wife until 1911, when articles of separation were duly executed between himself and his wife. After the agreement of separation, decedent went to Nevada, where he remained less than a year, and obtained a divorce in that State from his wife, who remained at their former domicile in Pennsylvania. Decedent returned to Pennsylvania and married claimant in 1914. He died subsequently and the second wife claimed the widow's exemption.

495

815

Held: That the first wife, having waived the right, even if legally entitled to the exemption, was barred by her agreement of separation; that the divorce obtained in Nevada was invalid, as the Court of that State was without jurisdiction, 80 that claimant was not the widow of decedent, and that the children were entitled to the whole estate........ 401

Held: That the first wife, having waived the right, even if legally entitled to the exemption, was barred by her agreement of separation; that the divorce obtained in Nevada was invalid, as the Court of that State was without jurisdiction, so that claimant was not the widow of decedent, and that the children were entitled to the whole estate.. 401

Dis

See also Trustee; Descent and tribution; Legacy; Devisavit Vel

Non; Partition; Ejectment. Testator died without issue and in his will appointed a trustee with directions to pay his widow a stated sum during her life and pay the residue to his two sisters during their lives. The widow elected to take against the will. The accountant was charged with testator's interest in the oil and gas leases, and on audit the question arose whether the leases were to be distributed as realty or personalty.

Held: That the lease

was only

a grant of so much oil as may be produced from the leased premises, and as title did not vest until it had been severed from the realty, it was personalty and the widow was entitled to one-half the inventoried value of the leases as well as one-half of the income since testator's death

The fact that testator directed that his estate be distributed by trustees under the intestate law does not mean that testator died intestate as to all of his estate not specifically bequeathed, but it does mean that the residue is devised and bequeathed to those on whom the law casts the inheritance

36

129