594 LIMITATION OF ACTIONS-Continued. LUNATIC. When an insane person burns his own pressly refer to the note in suit, which was one of two of building, the loss ensuing is within the terms of a policy the defendant, held by the plaintiff, but the plaintiff of fire insurance, unless expressly excepted. (Super. Ct.) swears that the payment was on the note in suit, and Showalter v. Mutual Fire Ins. Co., 76. there is further evidence that, at a settlement between the parties, the defendant agreed to pay interest on said note and continued paying interest, until the date of the payment relied on by the plaintiff, and the defendant does not deny on the stand that the payment was made on account of the note in suit, the payment is sufficiently ap plied to said note to remove the bar of the statute of limitations. Wright v. Jordan, 219. LIQUOR LAW. A liquor license is a personal privilege, which ends with the life of the grantee. It is not assignable by him, does not go to his personal representatives and is not an asset of his estate. Grimm's Estate, 385. It is not a statutory requirement that an applicant for a license shall agree not to apply a second time. The right to make successive applications, from year to year, is without legal restriction, and rests on the ground of compliance with legal requirements, and each application should be decided, solely, with reference to the conditions existing when it is heard. (Super. Ct.) Donoghue's Appeal, 440. If there is such a compliance with statutory provisions that a license should be granted, neither an apprehension that it may become improper to grant a license a year later, nor a promise by the applicant, on a former hearing, not to make another application, can be recognized as a legal reason for refusing it. Id. There is no element of moral turpitude in the nonobservance of a promise exacted without warrant of law, nor evidence of the lack of moral character which the statute requires of an applicant for a license. Id. An applicant for a license has no absolute right to it, but a right to a hearing and decision on his application. The reasons for the decision need not be given, but, where the record shows a hearing and decision, adequate reasons will be presumed. Id. A lunatic is civilly liable for loss cccasioned by his perpetration of what, in a sane person, would be a tort or trespass, in which the wrongful or malicious intent is not an essential element. (Super. Ct.) Mutual Fire Ins. Co. v. Showalter, 80. Where a lunatic intentionally sets fire to the property of another, which is insured, the insurer, having paid the loss, may recover the amount of the same from the lunatic. Id. MANDAMUS. Two or more persons, having separate interests, seeking redress by mandamus cannot join in one and the same writ. (Super. Ct.) Com. monwealth v. Huttel, 71. Since the Act of June 8, 1893, section 4, the writ of mandamus should be prosecuted in the name of the party instituting it, as plaintiff, and not in the name of the Commonwealth, unless the object sought is to enforce a public duty, or a duty affecting a particular public interest of the State. Id. It seems that a mandamus does not lie to compel a constable, charged with the execution of a landlord's warrant, to have an appraisement made of goods, elected to be retained by the tenant under the $300 exemption law, as such a proceeding would result in manifest inconve nience. Possibly this remedy, however, would be recog nized in cases where ordinary remedies would be wholly inadequate. (Super. Ct.) Commonwealth v. Huttel, 71. MARRIED WOMEN. A married woman cannot become an accommodation endorser, guarantor or surety. (Super. Ct) Harley v. Leonard, 225. A divorce a mensa et thoro does not destroy marital lights so as to authorize a woman to enter into contracts otherwise forbidden. Id. sonal property should be sold "and the proceeds of said A married woman, by her will, directed that her per. sale after payment of debts of my husband, as agreed upon between myself and J.," should be invested, etc., held, it was immaterial whether the agreement with J were enforceable or not, as the creditors of the husband would take as beneficiaries under the will and not in any sense under the agreement, which could be looked to only as a means of identifying the objects of the testatrix's bounty and the extent thereof. Heagy's Estate, 373, The discretion committed to the License Court is not arbitrary, but judicial, discretion, controlled absolutely on some points by the provisions of the statute, such as the citizenship of the applicant and his exclusive interest in the business, on other points, such as the fitness of the applicant, the necessity of the house, it is to be exercised in accordance with the judgment of the court, upon its information in the premises, derived from the evidence together with personal observation and knowledge. Id. MASTER AND SERVANT. In order to save There is no doubt as to the power of the appellate himself from liability to his employees, an employer is court to review and revise proceedings of the License not bound to provide the safest, newest or most approved Court, and the proper mode of asserting its jurisdiction is appliances, it is sufficient if the appliances be of an ordiby bringing up the record for inspection by writ of certi-nary character and such as can with reasonable care be orari. This brings up only the record, consisting of the used without danger to the employee. Keenan v. Waters, 241. petition and order, and the appellate court, therefore, cannot examine the evidence and review the case on its merits. ld. While the reasons for granting or refusing a license are, technically, no part of the record brought up with writ of certiorari, it by no means follows that they may not be considered by the appellate court in determining whether the License Court has proceeded according to law and, if it appear that the judge has based his decision on grounds which the law does not recognize as valid, his decision may be reversed. Id. LOST DEED. Since the adoption of the present Constitution, the Supreme Court has no jurisdiction to entertain proceedings between private parties for the reproduction of a lost deed. In re Petition of Nichols, 224. An employer is not bound to instruct an employee of mature years, who claims to be experienced in the business upon which he is about to enter, although he may not be familiar with the particular machine to be used by him. Id. An employer who puts an employee to work upon a steam mangle of a kind in general use, is not liable for an accident to the employee, which occurs through the absence of a guard rail, when it appears that machines of the kind were not constructed with guard rails and could not be operated with such rails attached, although other steam mangles were made which were protected by rails. Id. A workman who is injured by a defect in machinery with which he was working, and of which defect he knew, or should have known, cannot recover damages MASTER AND SERVANT-Continued. for the injuries received. (Super. Ct.) Gropp v. Carne gie Steel Co., 405. A., a skilled workman, employed by C. Company to work upon wire rolls, the "pan" of which was in a dangerous condition, apparent to other workmen, one of whom spoke of it to a fellow employee, was injured through the bad condition of the pan: held, (1) that such a state of facts did not justify the court in charging the jury, in an action against the C. Company, that if the danger was not such as would be apparent to the plaintiff, and, not comprehending or not being bound to anticipate the danger, he worked on, when the defendant should have known that the danger was increasing, then the plaintiff might recover, (2) that the jury should have been given binding instructions for the defendant. Id. MEASURE OF DAMAGES. In an action for damages, occasioned by the construction of a sewer by a municipality, where the property continues to be used by the plaintiff, the difference between the values of the property, before and after the injury complained of took place, is not the proper measure of damages to the real estate, but the measure is the cost of repairing the injuries and restoring the property to its former condition, unless such cost would equal or exceed the value of the building; in such case, the value would be the measure of the plaintiff's damages. (Super. Ct.) Gift v. Reading, 164. The measure of damages for a partial failure of a contract in evidence is the loss, if any, which the defendant has sustained on that part of the contract work remaining uncompleted. If any considerable work remain to be done under the contract and the defendant, at or within a reasonable time, could have done, or had such remaining work done, at the contract price, cr a less sum, the defendant has sustained no damage, and the jury cannot allow any. (Super. Ct.) Shires v. O'Connor, 388. The fact that, unless completed within a certain time, the right of the plaintiff to maintain a plank road will be forfeited is a proper subject for consideration in ascertain ing the value of the franchise. West Chester and Wilmington Plank Road v. County of Chester, 561. In proceedings, under the Act of June 2, 1887, to have a turnpike road made free, the measure of damages is the value of the property to the owners at the time of taking, not the value of the mere physical turnpike, with its appurtenances, but the company's entire property rights, with the value of its franchise in connection therewith, and, in determining the question, it is proper to show precisely what was the condition, in a physical sense, of the property taken. The actual cost of the road may be a factor, but not a controlling one, in determining the value of the property. Id. MECHANICS' LIEN. The claim filed in a me. chanics' lien must specify, on its face, whether it is for original construction or for addition, alteration or repair. Wharton v. Real Estate Investment Co., 33. A lien being statutory, there is no intendment in its favor and it must show upon its face all the statutory requisites to its validity. Id. Where a lien is defective, the remedy is by demurrer, or motion to strike off, and on the hearing, if the lien is not self-sustaining, it must be stricken off. Id. While pleading to a sci. fa. sur mechanics lien is generally a waiver of defects in the claim, this is not the case if defendant has moved to strike off the claim in due time. Id. A lumping charge in a mechanics' lien, filed by a subcontractor, is incurably bad. Wharton v. Real Estate Investment Co., 33. In a sci. fa. on a lien for a boiler, feed water heater, tank and pumps, filed by a sub-contractor, it was claimed, at the trial, that the contract had been made with the MECHANICS' LIEN- Continued. owner, but the evidence only showed that the owner knew of the price of the boiler and approved of it: held, not sufficient to justify a lumping charge. Id. Where the structure of a building is so completely changed, that, in common parlance, may be properly a new building or rebuilding, it comes within the mechanics' lien law. Grable v. Helman, 466. Where the evidence shows such a change, it must be left to the jury, whether it is a new building or only an alteration of an old building. d. MERCANTILE AGENCY. The reporter of a mercantile agency is the agent of the subscribers, and not of the merchant whose affairs he investigates. (Super. Ct.) Ralph v. Fon Dersmith, 116. MINES AND MINING. There is nothing in the title of the Act of May 15, 1893, P. L. 52, that does not relate solely to its main object, to wit, providing for the lives, health, safety and welfare of persons employed in bituminous coal mines, and it is immaterial that the title proclaims that it relates to bituminous coal mines, so long as the protection of those employed in the mines is clearly set forth as the object of the act. (Super. Ct.) Commonwealth v. Jones, 424. MISREPRESENTATION. One who, without any intention to deceive, makes a mere misrepresentation, from which he derives no advantage, is not liable to one who acts upon the faith of the representation and suffers loss thereby. (Super. Ct.) Jalass v. Young, 40. Where the owner of property, occupied by a tenant, sells the same and mistakenly tells the vendee, during the negotiations and at the time of sale, that the tenant's term expires at a certain time when, in fact, it expires at an earlier date, but makes no promise to give the vendee possession and, in consequence of reliance upon the assertion of the vendor, the vendee suffers the tenant to remain on the premises after the expiration of his term, whereby he becomes tenant for an additional year and the vendee is kept out of possession for that time, the vendee has no cause of action against the vendor. Id. MORTGAGE. Where money has been loaned on a defective mortgage, for the purpose of discharging a prior and valid encumbrance, the mortgagee may be subregated to the rights of the prior encumbrancer, whom he has satisfied, there being no intervening rights. Haver. ford Loan and Building Assn. v. Fire Assn., 153. The recording of a mortgage made by husband and wife of the wife's property, the acknowledgment to which is insufficient, in not stating the separate acknowledgment of the wife, is not actual notice to a purchaser at a sheriff s sale under a subsequent mortgage, beyond inviting him to make inquiry. (Super. Ct.) Stewart v. Dampman, 227. Where a mortgage creditor agrees that the lien of his mortgage, which was not otherwise divested by an assignee's sale made under the act of February 17, 1876, P. L. 4, shall be divested by said sale, and notice of the agreement is given by the assignee at the time of the sale, the mortgagee may share in the proceeds thereof to the exclusion of a subsequent judgment creditor whose lien is divested by said sale, who is present at the sale, hears the notice given, makes no protest, participates in the bidding and files no exceptions to the return of the assignee, as by his conduct the subsequent creditor has estopped himself from assailing the terms of sale. (Super. Ct.) Assigned Estate of Love, 345. MOTORMAN. It is the duty of the motorman to be always on the alert to avoid danger, and not to allow his attention to be diverted from the track before him. (Super. Ct) Smith v. Philadelphia Traction Co., 501. MUNICIPAL ASSESSMENTS. Where owners of land through which a sewer is laid claim damages MUNICIPAL ASSESSMENTS- Continued. MUNICIPALITY-Continued. before a jury of view, even though the jury find that no ence to the use of the road. If, by the taking of the damages have been sustained and assess benefits upon the turnpike, any person using the same be injured, he must land, the provisions of the Act of April 8, 1891, do not seek reimbursement from the damages paid for the tak deny to them the right of an appeal and trial by jury. ing, or have recourse to the contracting party on its cov Pittsburgh v. Hoeveler, 8; In re Sewer on Beechwood enant. Id. Avenue, 10; Pittsburgh v. Leech, 10; Pittsburgh v. King's Heirs, 10. MUNICIPAL CLAIMS. An issue, on the trial of a scire facias sur municipal claim for paving, whether the property liened was assessed for taxation at rural or full rates must be confined to the time when the work was done, and it is the province of the jury to find and determine it. City of Philadelphia v. Gorgas, 160. In an action on a municipal claim,it is not competent for the defendant to raise questions relating to the formal details of agreement between the city and its contractors and to their execution and performance, where the acts of the municipal officers have been ratified and the work done by the contractors has been accepted. Id. MUNICIPAL IMPROVEMENT. Lands, not abutting on a street upon which a municipality has constructed a sewer, but so situated in the same water shed that they may probably, at some future time, seek connection with said sewer by lateral sewers, are not chargeable with benefits for the construction of the sewer. In re Sewer on Beechwood Avenue, 6. While a property may be benefi ed in one way and injured in another by the same improvements, and an appeal may be confined to what is specified therein, yet the city must enforce its claim for benefits against the property itself. (Super. Ct.) Hopper v. City of Pitts burgh, 527. MUNICIPALITY. The limit to which a city may go in creating or increasing its debt is two per cent., if done by municipal authority, and if a greater amount than that is required it must be made by popular vote. Pepper v. City of Philadelphia, 377. There is no authority for saying that a municipal debt may be increased to seven per centum by successive increases without a popular vote. The seven per cent. limit is a positive bar to all created or increased debt; it is interposed as a final barrier, and is in no sense a specific grant of authority to create indebtedness to that extent, either at once or by successive steps. Where a municipality adopts a stream as an open sewer, it is bound to keep open the channel of the stream and remove accumulations of filth, ashes and other materials that obstruct the flow of water and throw it, out of its banks, upon the land of the adjoining owners; and the same principle will apply to the injury inflicted by allowing offensive and injurious odors and smells to issue from polluting substances discharged into the stream from the city sewers. Owens v. City of Lancaster, 420. A municipality is not responsible for damages resulting from an error of judgment in the performance of a work clearly within its powers. Ridge Avenue Pass. Ry. Co. v. City of Philadelphia, 453. The damage to a railway company resulting from the interruption of travel on the street on which it is authorized to maintain its tracks, is not different in kind from that suffered by the general public, or by other travelers. When, therefore, a city changes the grade of a street upon which is a railway track, the company owning the track cannot recover for any loss occurring to it through the necessary interruption of travel therefrom during the progress of the work. Id. When a municipality acquires a turnpike and converts it to a public street, it takes the absolute control of the same and is not bound by any contracts between the turnpike company and any company or person with refer Where sewers are not sufficient to carry off surface drainage, the city is not liable for damages resulting therefrom, unless they have been defectively constructed or left out of repair. (Super. Ct.) Sullivan v. Pittsburgh, 542. MURDER. While the prosecution asking a conviction for murder in the first degree must "satisfy the jury of those facts and circumstances which indicate a deliberate intention to kill," yet, if sufficient time be afforded to enable the mind fully to frame the design to kill and to select the instrument or frame the plan to carry the design into execution, it is premeditated, and the law leaves the existence of a fully formed intent as a fact to be determined by the jury from all the evidence. Commonwealth v. Aiello, 267. Liability of, NATURAL GAS COMPANY. for withdrawal of heat. See TORT. (Super. Ct.) Hoehle v. Allegheny Heating Company, 553. NEGLIGENCE. Running a train in a given direction and, after detaching three cars onto a siding by a flying switch, continuing to run over and beyond a public road, and then backing over the crossing, with no brakeman at the rear of the train and without any warning, except the ringing of the bell at the other end, is negli gence on the part of those in charge of the train. Cookson v. Pittsburgh & Western Ry. Co, 101. The right of a railway company to the surface of a street covered by its tracks, is superior to that of the public. The cars have the right of way thereon over private vehicles and pedestrians, and the latter must yield to the paramount right, but this does not absolve the company from greater care cast upon it, because of the in creased speed of its cars on crowded thoroughfares. (Super. Ct) Smith v. Philadelphia Traction Co., 501. So long as a right of common user exists in the public, it is the duty of a passenger railway company to exercise such watchful care as will prevent accidents or injuries to persons, who, without negligence upon their part, may not at the moment be able to get out of the way of a passing car. Id. It is the duty of the motorman to be always on the alert to avoid danger and not to allow his attention to be diverted from the track before him. Id. A traveler, approaching a railroad crossing, is bound to stop, lcok and listen, and when he goes before a moving train, which he has ample opportunity to see, hear and avoid, he must, ordinarily, be held guilty of contributory negligence as a matter of law, but where the facts are not clear and simple, and the existence of contributory negligence, depends upon inferences to be drawn from the evidence, the question must go to the jury for deci sion. Davidson Lake Shore, Michigan & Southern Ry. Co., 97. Cookson v. Pittsburgh & Western Rỵ., Co., 101. The usual and customary place of stopping to look and listen by people using a road which crosses a railroad, cannot be held, as a matter of law, to be an improper or negligent place. The standard of negligence is what a person of ordinary prudence and carefulness would do under the same circumstances, and a general habit of the public to stop at a certain place, is persuasive evidence that that place is the right one. Cookson v. Pittsburgh & Western Ry. Co., 101. It is the duty of a bicycle rider, when approaching a railroad track, to stop, look and listen. He must dismount, or bring his wheel to such a stop as will enable NEGLIGENCE-Continued. him to look up and down the track in the manner required from a pedestrian, and failure to make such a stop is contributory negligence. Roberts v. Pennsylvania R. R. Co., 53. A bicycle rider who does not dismount, but makes what is called a "bicycler's stop," by circling around on his wheel, at a distance of from five to ten yards from the track, does not make such a stop as is contemplated by the law. Id. A person crossing a street trolley railway must look and listen to discern whether a car is approaching and, having commenced to cross at night, after seeing a car a square away, cannot recover for injuries resulting from a collision with his wagon occasioned by the uninterrupted speed of the car. (Super. Ct.) Smith v. Electric Traction Co., 486. In an action for injuries received from a street railway car, it is immaterial whether the bell of the car was rung or not, if it appear that the car was in plain sight of one who was looking toward it. Nugent v. Traction Co, 243. Where the evidence shows that plaintiff stepped upon the track and was immediately struck by a moving car that came in the direction in which he said he looked, it is proper to give binding instruc ions against him. Id. In the streets of a crowded city, it is not sufficient for a pedestrian to stop upon one side of a busy street, upon which is a railway, and then, seeing an opening, to cross without further attention to the traffic of the street or the dangers to be encountered. Id. It is the legal duty of every person walking on the streets and sidewalks of cities and towns to use reasonable care for his own safety, and to avoid open and apparent danger. Lumis v. Pailadelphia Traction Co., 326. In order to recover damages for a bodily injury, it must have been inflicted or caused by the negligence of the defendant; or the act or negligence of its employees must have been the proximate cause of the injury. (Super. Ct.) Boatwright v. Chester & Media Electric R. W. Co., 330. A railroad company is not responsible for noises made and the waving of flags by passengers on its cars, whereby the plaintiff's horse is caused to take fright, with the consequence of bodily injury to the plaintiff. Id. Evidence that an electric car was moving at a rate of speed faster than usual and did not slow up, or ring the bell on approaching a cross street, which was not a usual stopping place, and, after passing that street, struck a child, who came suddenly on the track, will not justify the court in leaving to the jury to find whether or not there was negligence in the movement of the car, especially where, after the child came on the track, the car was stopped in about its own length. Kline v. Electric Traction Co., 337. It is not negligence per se to have gasoline about a building. Donahue v. Kelly, 203. While a customer in a restaurant was waiting for change, a flame was noticed by a waiter in a recess, caused by a lighted match falling upon the floor in the gasoline which was flowing from a defective lamp. Efforts were made by the waiters to put out the flame The customer waited several minutes for the change, not knowing what had happened. Without warning him, a waiter picked up the lamp and threw it towards the door, where it exploded, striking the customer and severely hurting him: held (1), the proximate cause of the injury to the customer was the result of the throwing of the lamp, and not any negligence of the waiters in endeavoring to extinguish the flames in the recess; (2) the throwing of the lamp, under the circumstances, by the waiter NEGLIGENCE-Continued. was an act of self-preservation, and a non-suit was properly entered. Id. One who, in a sudden eme gency, acts according to his best judgment, or who, because of want of time to form judgment, omits to act in the most judicious manner, is not chargeable with negligence. Id. a fective sidewalk, the question is not merely whether the In an action to recover for an injury, caused by a desidewalk was defective, but whether the defects in it were noticeable by all passersby. (Super. Ct.) McCloskey v. Dubois Borough, 214. Where a trustee, without relinquishing his own judg ment or supervision, permits his son, who has a good reputation, to have active management of a trust estate, which involves access to its securities, and the son, by means of a stock certificate, one of said securities, and a forged power of attorney, procures the corporation whose stock is represented by the certificate to transfer the stock, cancel the certificate and issue a new one, the trustee has not, as between himself and the corporation, been guilty of such negligence that the loss should fall on him rather than on the corporation, on the principle that where one of two innocent parties enables fraud to be committed he, rather than the other, should bear the loss. Pennsylvania Co. v. Franklin Fire Ins. Co., 145. The failure to cover the joists and girders of a building in the course of erection, as required by the Act of May 11, 1893, P. L. 41, is not negligence per se. Mack v. Wright, 163. Where an attorney represents both mortgagor and mortgagee in a transaction, although by common custom, and as a condition of the loan, the mortgagor pays his compensation and costs of the transaction, he must be regarded as in the employ of the mortgagee, and, therefore, permitting to remain unsatisfied e cumbrances which would be liens prior to the mortgage, which it is expressly stipulated by the mortgagee is to be a first encumbrance, is sufficient to render the attorney liable in damages to the mortgagee. Lawall v. Groman, 197. Whether careless indifference of servants of a railway company in failing to shut off steam, which had thrown a team of horses into fright and injured the driver, should be imputed as negligence to the company is a question proper for the jury, and it is not error for the court to charge "if the people managing the car ought to have seen it, [the fright of the horses], an i did see it, and should have stopped their car as prudent men, but went on and failed to stop it, thus causing the consequence which resulted, then they would be liable." Hanlon v. Turnpike Road Company, 520. Where a railroad, operated by steam, becomes the lessee of a part of a roadway of a turnpike company, the juxtaposition of the two methods of travel in the same line continuously between two points under the one corporation must be distinguished from the ordinary case of à traveler on the highway, wholly independent of a steam railway, which he only occasionally approaches. Id. As the Act of June 13, 1836, P. I.. 551, does not authorize the township to remove or prevent the erection of structures built upon lands, beyond the bounds of the highway, for the prosecution of a legitimate business, it is not responsible for injuries caused by the construction or operation of such structure. Haines v Barclay Township, 564. A turnpike company which, after repairing its road, has piled planks in a proper way outside of the roadway, cannot, when they have been left there for reasonable time only, be held responsible for an accident occurring through their displacement, unless it is shown that they were displaced by the company, or by some one connected with it, or that the company had notice of the dis NEGLIGENCE-Continued. A non-resident alien has no right, under the Act of Obligation of master as to machinery. See MASTER AND NEW TRIAL. That the verdict was against the NON-ABUTTING OWNERS. See SEWER NON-USER. See WAY. Twibill v. L. & S. St. R. NOTICE. In an action by a father for a balance due on A notice to quit at the end of the term on a day named The recording of a mortgage made by husband and Knowledge of a passenger that a railroad company has One who knows that a company has provided a proper OFFICIAL BOND-Continued. An obligation in the official bond of a school district OFFICIAL STENOGRAPHER. The certifi ORDINANCE. The fact that a way is created, by An ordinance of a municipality, which requires every "OR" IN SENSE OF "AND." See WILL. ORPHANS' COURT. The Common Pleas has Such an issue involves an A report of viewers, appointed to assess the damages Under plea of payment. See PRACTICE. (C. P.) Mer- ORPHANS' COURT PRACTICE The Or PARTNERSHIP. Where realty is held as partner- |