Commonwealth vs. Lissen et al. thereof upon cause shown." Constitution, Article V, Sec. 14. The Act of May 2, 1901, P. L. 132, provides for the punishment of disorderly conduct on or near public highways and gives the justice of the peace jurisdiction to summarily try and punish the offenders under said Act of Assembly, with this proviso: "Provided, however, that the defendant or defendants within five days after such conviction may appeal to the court of quarter sessions of the county in which said justice of the peace, alderman, mayor or burgess shall reside, without special allowance therefor, upon entering into a recognizance in double the amount of costs and fine conditional for the appearance of the defendant or defendants at the next term of court of quarter sessions to answer said charge." The defendants in the case at bar were convicted before a justice and fined, whereupon they entered into a recognizance before the justice in double the amount of costs and fine that was imposed, for their appearance at the next term of this court to answer the charge. No allowance of their appeal was asked for before the same was taken. The motion now before us is by the Commonwealth to quash the appeal on the ground that the Act providing for the appeal in that part of it wherein it is provided that an appeal shall be taken without special allowance is unconstitutional. To read the constitutional provision and then to read the proviso of the Act of 1901 is all that it is necessary to do in order to convince any one that they provide for directly the opposite things. The Constitution provides for an appeal upon allowance, upon cause shown, while the proviso in the Act of 1901 provides for an appeal without special allowance therefor. If the constitutional provision was an Act of Assembly and the proviso of the Act of 1901 was a subsequent Act of Assembly and had in it the provision that "all acts inconsistent herewith are hereby repealed," there could be no doubt that the constitutional provision providing for an appeal upon allowance and upon cause shown would be repealed. This to our mind demonstrates the fact that the proviso in the Act of 1901 providing for an appeal from a summary conviction under that Act is in direct violation of the constitutional provision referred to, and therefore that the appeal taken in this case cannot be justified under the Act of 1901. Neither do we think the Act of 1905, P. L. 284, amending the Act of 1876, can stand in the face of the constitutional provision, and it also is unconstitutional in that it does not provide that an appeal shall be taken after an allowance by the court of quarter sessions, and therefore that the Act of 1905 cannot be resorted to to sustain this appeal. This being the case, the only Act left under which an appeal could be taken is the Act of April 17, 1876, which in its terms accords with the provisions in the Constitution and provides for an appeal to the court of quarter sessions in case of summary conviction before a magistrate upon allowance of the said court of quarter sessions or any judge thereof upon cause shown. We are therefore clearly of the opinion that all appeals from summary conviction must be taken under the Act of 1876 which, by reason of the Act of 1905 being unconstitutional, still remains in force unamended. And now, July 2, 1909, motion to quash the appeal herein filed came on to be heard and was argued by counsel, whereupon, upon due consideration thereof the motion is allowed and the appeal quashed at the costs of the appellants. In re Estate of Mary Rogers, Deceased. Wills Probate of-Proof-Suffciency of. The testimony of one of the two witnesses required to prove a will may be supplied if the declaration of the testatrix goes directly to the act of disposition. Where a will is legible in regard to the disposition of the testatrix' real estate an objection to its probate because of its illegibility as to their personal estate will be dismissed. A will may be good in part and bad in part, Appeal from Probate-No. 287 April Term, 1909—O. C. Allegheny Co. S. H. Huselton, for appellant. Thos. M. & Rody P. Marshall, for Thomas Rogers. HAWKINS, P. J., May 22, 1909.-The question involved in this appeal is whether or not sufficient proof of execution of the writing propounded here has been adduced to establish it as a will? The only person who claimed to have been present at the execution was Eliza Jane Burke who testified that on her way home from the butcher's she met Mary Rodgers who asked her to write a will for her; that she wished her estate divided between her friend Annie Shannon and her nephew Marty Mangan; and that thereupon tearing off part of the wrapping paper in which she was carrying meat, wrote in pencil on it this disposition, which Mary Rodgers signed with a cross and she (Mrs. Burke) signed as witness. This instrument was taken home by Mrs. Burke and put away by her for safe keeping; but was not found by her until more than a year after Mary Rodger's death, when it was submitted for probate. Besides Mrs. Burke, several witnesses were called who testified that Mary Rodgers had told them that Mrs. Burke had the only will she had ever made; and to two of these that she had divided her estate between her friend Annie Shannon and her nephew Marty Managan: It appears that she repeatedly stated that Annie had done as much toward the accumulation of the subject of disposition as she herself had. They had lived together more than twenty years, treated their earnings as common property; and had deposited what was not needed for their support in Mary's name, and bought the house in which they resided at Mary's death in the same way. Objection was made that the paper propounded was illegible and therefore not the subject of probate: Mrs. Burke admitted that she could not read the whole will; and there is difficulty in deciphering it; but by holding it up in a proper light, disposition of the real estate becomes apparent; and disposition of the personal estate may, with the aid of extrinsic evidence appear. As there was no demand made for an issue, the questions raised must be decided here. OPINION. While a will must ordinarily be proved by at least two competent witnesses, yet it is well established that circumstances may supply the lack of one witness when they go directly to the immediate act of disposition; Jones vs. Murphy, 8 W. & S., 275. Thus in Carson's Ap., 59 Pa., 493, when one of the witnesses called failed to positively identify the mark, the Court held that there were circumstances which made his testimony sufficient. So in Reynolds vs. Reynolds, 16 S. & R., 81, it was held that declarations by testator that he had made a particular will, not then present, went directly to the fact of execution. So declarations made by a father to his son that a letter of instructions to his attorney should operate as his will were sufficient, although the son never saw the will until after his father's death; and this case was cited as an authority in Rice's Estate, 173 Pa., 298. So here testatrix declarations went to the immediate act of disposition. They established the fact of disposition and the identity of the paper now offered; and supply the lack of a second witness. The objection of illegibility has no merit. A will may be good in part and bad in part; and there is at least a legible disposition of testatrix's real estate. Affidavit of Defense Reilly vs. Rodef Sholem Congregation. -Amount admitted due-Judgment. An affidavit of defense set up that plaintiff was not entitled to recover on his form of action but in the final paragraph admitted and tendered judgment for a certain amount. Held, that the plaintiff was entitled to judgment for the amount admitted, Rule for judgment for part of the claim-No. 1016 Dec. Term, 1908, C. P. No. 1, Allegheny County. Watterson & Reid, for plaintiff. Joseph Stadtfeld, for defendant. PER CURIAM, May 21, 1909.-Under the Act of July 15, 1897, Sec. 1, P. L., 276, 3 Stewart's Purdon, 3651, the court may enter judgment for the portion of the claim as to which the affidavit of defense is insufficient. Under the Act of May 31, 1893, P. L., 865 Purdon 3650, the judgment is for the amount admitted. The defendant sets up an award by the arbitrator chosen by the contract, and its affidavit is to the whole claim, in effect that this action cannot be maintained, that the only action is upon the award. Nevertheless in the last paragraph of the affidavit defendant says that it admits and tenders the sum of $34,010.78. Upon that it is entitled to protection against liens with interest and costs, architects's award and expenditures. The following calculation shows the amounts allowed and the basis of the judgment here entered. Amount of certificates Nos. 13, 14 and 15 Amount of Architect's Award for delay, Interest on same from Jan. 30, 1908, to May 21, 1909, 6 to 13, both inclusive, in affidavit of defense $50,474.46 $12,000.00 942.00 4,463.68 194.17 10,852.37 ORDER. 3,000.00-$31,452.22 $19 022.24 Now, May 21st, 1909, rule absolute as to the sum of $19,022.24 admitted of the claim by the affidavit of defense, with leave to plaintiff to proceed for the remainder. BY THE COURT. Equity -Corporations Biggert vs. Biggert Co. et al. -Profits-Right to require payment of dividends. A bill in equity by a stockholder of a corporation averring that the officers of the company refuse to make any report of the profits which the complainant alleges, on belief, have been earned and prays for an account and a declaration of dividend, will be dismissed on demurrer. In Equity Demurrer to stockholder's bill-No. 966 Second Term, 1909C. P. No. 4, Allegheny County. L. C. Barton and D. A. Phillips, for plaintiff. O'Brien & Ashley, for defendants. The bill alleged that complainant was the owner of three shares of stock of Biggert vs. Biggert Co. et al. the John D. Biggert Company which was engaged in the City of Pittsburgh in the insurance business; that the President, Secretary and General Manager had full charge of the business and books of account and that large sums of money had been earned. The prayers were for a statement of the business and a division of the profits among the stockholders as a dividend. The defendants filed the following demurrer And now, to wit, May 5, 1909, come the defendants by their attorneys, O'Brien & Ashley, and saving and reserving to themselves the right to except to all manner of errors and defects in plaintiff's bill of complaint, demur to the same and set forth the following reasons therefor: FIRST. Said bill does not show any ground of equitable jurisdiction in the court or any right to relief on the part of the plaintiff. SECOND. The averments of said bill are vague and indefinite and show no right of action of any kind of the plaintiff against defendants. THIRD. The prayer for relief does not conform in any way to the alleged equities claimed by the plaintiff. FOURTH. There is, no right in any court of equity to grant the relief prayed for in said bill. CARNAHAN, J., June 22, 1909-It is impossible to grant the relief prayed for under the averments of this bill. The demurrer is therefore sustained and the bill is dismissed. Austin vs. Dowerman Rivet & Bolt Manufacturing Co. Negligence- -Superintendent Doing work of fellow servant. A superintendent of a factory and the engineer of an engine in it were working together in repairing the engine and then proceeded to start it, but being unable to do so they exchanged places and the engineer was injured through the negligence of the superintendent. Held, that they were fellow servants at the time. Compulsory non-suit-Motion to take off judgment-No. 571 May Term, 1906-C. P. No. 3, Allegheny County. Frank C. Osburn, for plaintiff. Dalzell, Fisher, Young & Hawkins, for defendant.. EVANS, J., July 7, 1909.-This cause comes before the Court en banc on motion to take off the judgment of compulsory nonsuit. The evidence for the plaintiff disclosed the following: The plaintiff, an experienced engineer in the operation of gas engines, had been employed for three days in operating a gas engine at the works of the defendant company. At noon of the third day of his employment, the superintendent of the works stated to him that he was not satisfied with the way the engine was running, and directed the plaintiff to stop the engine and that two of them would examine it during the noon hour. The engine was stopped; the superintendent repacked the igniters, the plaintiff standing beside him while it was being done. This gas engine was known as a "Miller" gas engine, and it was started by means of a rope attached to the engine, passed over the fly wheel and fastened to a pin and the engine started by means of turning a windlass, thereby turning the fly wheel. After repacking the igniters, the plaintiff and the superintendent attempted to start the engine, the plaintiff standing at the engine and regulating the flow of air into the engine, and the superintendent went to operate the windlass and start the engine by means of the rope passed over the fly wheel. Three or four attempts were made to start the engine and they were not Austin vs. Dowerman Rivet & Bolt Manufacturing Co. successful. The plaintiff and the superintendent changed positions, the superintendent going to the engine and operating the air valves and the plaintiff operating the windlass. While the plaintiff was in the act of pulling the rope over the fly wheel and standing on a narrow flange of the bed plate of the engine, the superintendent struck the igniter with a hammer, the engine made one explosion, causing the wheel to make a half a revolution, and the plaintiff was thrown from his position and his foot crushed. The approximate cause of the accident was the negligent act of the superintendent in striking the igniter while the plaintiff was in the dangerous position of pulling the rope over the fly wheel. The superintendent of the mill, at the time he did this negligent act, was a fellow employe of the plaintiff; the two were experienced engineers; they had gone to work to examine this engine and at the time of the accident were engaged in attempting to start it. Each was doing identically the same class of work as the other. This is forcibly illustrated by the fact that just before the happening of the accident they had changed positions, the superintendent doing the work of the plaintiff and the plaintiff doing the work of the superintendent. The case is governed by the case of Miller vs. American Bridge Company, 216 Pa., 559, and Ricks vs. Flinn, 196 Pa., 263. The case of Gilbert vs. Elk Tanning Company, 221 Pa., 176, is not a parallel case to this one. The liability of the defendant company in the latter case did not depend so much upon the act of its superintendent in creating a dangerous situation as in leaving that dangerous situation when he had sufficient time to remedy it, and the liability of the defendant company would have been just the same had a common laborer removed the board from the top of the vat and the superintendent, knowing that fact, had allowed it to remain in that condition. Motion to take off the judgment of compulsory nonsuit is refused. Peterson et al. vs. Pittsburgh, McKeesport & Youghiogheny Railroad Co. Railroads Condemnation-Deed with conditions-Surrender of grant. A railroad accepted a deed for a right of way and agreed to erect a loading platform on grantor's land, and stop its trains there. Later the railroad condemned other land including a small part of the original grant for the purpose of straightening its tracks and declared its intention of abandoning the original grant. Held, on bill in equity to restrain the condemnation. That the raliroad had the right to condemn for the purpose mentioned. That having surrendered the original grant it had done all it could be required to do. In Equity-Bill for injunction to restrain condemnation and violation of contract-No. 276 April Term, 1907—C. P. No. 2 of Allegheny County. McIlvain & Murphy, for plaintiffs. Reed, Smith, Shaw & Beal, for defendants. SHAFER, J., June 22, 1909.-The bill is for an injunction to restrain the condemnation of land by the Railroad Company, and restrain the violation of the terms of an agreement as to right-of-way made between the parties. FINDINGS OF FACT. FIRST. The plaintiffs are owners in fee of a tract of land in Forward Township, Allegheny County, containing about 133 acres and lying on the Monongahela River, and were such owners in April, 1899. |