WALLING, J. On October 27, 1913, Francis O'Hanlon, the plaintiff, then seven years of age, was struck and injured by one of defendant's electric street cars on Greenfield avenue, Pittsburgh. The accident happened in front of a school building at which plaintiff was a pupil, and under such circumstances as admittedly rendered the question of defendant's liability one for the jury, who awarded plaintiff $10,000. The father's case is not before this court.

[1] The only question raised by the appeal is as to the amount of the verdict, and whether the court below abused its discretion in refusing to grant a new trial on account thereof. Plaintiff was struck by the fender, dragged a short distance, and then fell under the car so that his left leg was crushed, requiring amputation above the knee, and four months later, by reason of gangrene, a second amputation, leaving a stump just of sufficient length to attach thereto an artificial limb, so he can walk but with a limp. Plaintiff sustained other minor injuries, and at first suffered from shock. He was in the hospital five months and kept from school nearly a year. His health was good beforethe accident. For some time the injuries were very painful, and plaintiff will, of course, during the remainder of his life be subjected to more or less inconvenience, and his earning power will to some extent be permanently impaired. The trial judge submitted the question of damages to the jury in a very careful and conservative charge; and after deliberation the motion for a new trial was refused, and judgment entered upon the verdict.

uniform value upon the loss of a leg or other specific personal injury; and hence it is a matter for the jury, subject to the control of the trial court. It would require extraordinary circumstances to justify an appellate court in laying its hands upon a verdict in such case.

The assignments of error are overruled, and the judgment is affirmed.

(256 Pa. 370)

PALMER et al. v. UPLIFT PUB. CO. (Supreme Court of Pennsylvania. Jan. 29, 1917.)

SALES 354(3)—ACTION FOR PRICE—AFFIDAVIT OF DEFENSE-SUFFICIENCY.

and delivered, an affidavit of defense averring In an action for the price of goods sold that the goods were defectively manufactured, and not according to representation, and that they were improperly packed, and were useless because delayed in delivery, and that on delivery the buyer promptly notified the seller of such facts, that an attempt to dispose of the goods at the seller's request was not successful, and that the buyer notified the seller to remove them and made tender of them which the seller refused, was sufficient.

[Ed. Note. For other cases, see Sales, Cent Dig. §§ 1007-1012.]

Appeal from Court of Common Pleas, Phil adelphia County.

Assumpsit for goods sold and delivered by Dean Palmer and Arthur Russell Richards, copartners, trading as Palmer & Richards, From a judgment discharging a rule for against the Uplift Publishing Company. judgment for want of a sufficient affidavit of defense, plaintiffs appeal. Affirmed.

From the record it appeared that plaintiffs entered into a contract with defendant to de

[3] Plaintiff being so immature when injured as to be without earning capacity did not deprive him of the right to recover for such loss of earnings as the jury found from all the facts and circumstances he would, after reaching his majority, sustain as a result of the accident. Fedorawicz v. Citizens' Electric Illuminating Co., 246 Pa. 141, 92 Atl. 124; Kierkowsky v. Connell, 253 Pa. 566, 98 Atl. 766; Campbell v. Philadelphia, 252 Pa. 387, 97 Atl. 456. In addition to which, there was the element of pain, suffering, and inconvenience, which in a case of this nature is peculiarly one for the consideration of the jury. The law does not set a

Painting Method," consisting of military figures and flags. The contract provided that the first 250 sets were to be delivered "between the 15th and 25th of September, 1914. Remainder as per arrangement after printing order is placed." The price per set was 25 cents. The statement of claim averred that on October 23, 1914, plaintiff delivered 14,750 sets to the defendant, and defendant thereupon became indebted to the plaintiff for the same in the sum of $3,687.50. Plaintiff further averred that on or about October 23d, at the special instance and request of the defendant, the plaintiff sold and delivered to the defendant 10,000 extra flags, at $7 per thousand, and 6,000 extra flags at $5 per thousand, and the defendant thereby became indebted to the plaintiff in the further sum of $100, and that the defendant was entitled to a certain credit of $60. The statement asserted a total claim of $3,377.50.

The affidavit of defense and supplemental affidavits in substance averred: (1) That while the contract under which the goods were sold required the first delivery of 250 sets to be made before September 25, 1914,

the first delivery was not made until October 23, 1914, and that 14,750 sets were then delivered instead of 250 sets required for the first delivery; (2) that on October 9, 1914, defendant verbally notified plaintiff that the goods would be useless if delivered late; (3) that defendant admitted purchasing on October 23, 1914, 10,000 extra flags, at $5 per thousand, but not at $7 per thousand, as averred in the statement, and another lot of 6,000 extra flags at $5 per thousand, but did not agree to pay more than $5 per thousand for either of the extra lots; (4) that when the goods arrived they were broken as the result of improper packing; (5) that they were defectively printed, so that the register of the color plates was imperfect, presenting an obvious imperfection, and rendering the sale of the articles impossible; (6) that the goods as delivered were not according to sample; (7) that defendant promptly notified plaintiff of the condition of the goods and that they were not as represented, and refused to accept them, and asked what disposition of the shipments should be made; (8) that at the request of the defendant plaintiff attempted to dispose of the goods, but was unable to do so; (9) that thereafter defendant notified plaintiff to remove the goods, and made formal tender and offered to return same; (10) that such tender was rejected and refused by the plaintiff; and (11) defendant further set up a counterclaim for the loss resulting from the alleged breach of the contract on the part of the plaintiff.

The lower court discharged plaintiffs' rule for judgment for want of a sufficient affidavit of defense. Plaintiffs appealed.

Argued before MESTREZAT, POTTER, STEWART, MOSCHZISKER, and FRAZER,

Appeal from Superior Court.

Exceptions by Alexander L. Crawford, to adjudication in the estate of Alexander L Crawford, deceased. From a decree of the Superior Court (62 Pa. Super. Ct. 329), affirming a decree of the orphans' court, dismissing the exceptions, exceptant appeals. Affirmed. Argued before BROWN, C. J., and MESTREZAT, POTTER, STEWART, and FRAZER, JJ.

Franklin Spencer Edmonds and Howard Schell Baker, both of Philadelphia, for appellant. James F. Hagen and Wm. Henry Snyder, both of Philadelphia, for appellee.

PER CURIAM. Part of the lawful expense incurred in the execution of any trust is the sum paid by the trustee to a surety company for becoming surety on the bond, which he is required to give by law or by order of court. Act June 24, 1895 (P. L. 248); Clark's Estate, 195 Pa. 520, 46 Atl. 127, 48 L. R. A. 587. The general rule is that the income, and not the principal, of a trust fund must bear the expense of administering. Spangler's Estate, 21 Pa. 335; Butterbaugh's Appeal, 98 Pa. 351.

There is nothing in the case before us to take it out of this rule, and the decree of the Superior Court is affirmed, at appellant's costs.

(256 Pa. 526)

COMMONWEALTH v. LACIE

(Supreme Court of Pennsylvania. Feb. 19, 1917.) 1. HOMICIDE 22(1) "MURDER IN FIRST DEGREE"-DEADLY WEAPON.

One taking the life of another with a deadly weapon and with a manifest design to use it up

on such other after sufficient time to deliberate and to form a conscious intent to kill, and without any sufficient reason or extenuation, is guilty of murder in the first degree.

[Ed. Note.-For other cases, see Homicide, Cent. Dig. §§ 35, 36.

For other definitions, see Words and Phrases, First and Second Series, Murder in First Degree.]

2. CRIMINAL LAW 763, 764(9) - INSTRUCTIONS WEIGHT OF EVIDENCE.

In a trial for murder, where the jury were properly instructed as to what constituted murder in the first degree, murder in the second degree, and voluntary manslaughter, and told that, if they convicted, they should fix the degree, and where the jury could not infer that the presumption of law was the prisoner was guilty of murder in the first degree, a conviction in that degree will not be disturbed.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 1731, 1736.]

Appeal from Court of Oyer and Terminer, Cambria County.

John Lacie was convicted of murder in the first degree, and he appeals. Affirmed.

Errors assigned herein were as follows: First. The trial judge erred in that part of his charge to the jury in which he said: "You may infer malice from the character of the weapon used, and the intent to kill from the weapon and

the manner of using it. Where a man uses a deadly weapon and aims it at a vital part of the body, the law presumes that he intended the rational consequences of his act. That is to say, if a man points a deadly weapon at a vital part of a man's body and fires a shot from that weapon, the law presumes that he intends the result of his act which was apparent and known to him to be the natural result; that is, an intent to

kill."

Second. The trial judge erred in that part of his charge to the jury in which he said: "In passing upon this question bear in mind what we have said to you as to the elements necessary to make out murder in the first degree, murder of the second degree, and voluntary manslaughter. Review the evidence and call to your minds the circumstances of the killing and the manner in which it was done and every element which would throw light upon it or in any way aid you in determining whether or not this was a willful and deliberate killing; that is to say, whether or not this defendant fired the shot with a fully formed purpose of killing Luther Qualls. As we have said to you, the presumption of law is that one who points a deadly weapon at a vital part of the human body and fires a shot is presumed to know the consequences of his act. Now, is there anything in the evidence in this case which meets that proposition? While it is true that the burden is always upon the commonwealth to make out its contention and every element necessary to sustain its contention, and that any doubt which may fairly arise out of the evidence inures to the benefit of the defendant and results in the failure of the commonwealth to establish that particular feature of its case, at the same time it is your duty to take cognizance of the natural legal presumptions of both law and of fact in order that you may arrive at a proper verdict. When we speak of reasonable doubt in criminal cases, we mean a doubt which fairly arises out of the evidence in the case: Not a mere conjured doubt; not one that would naturally rise in your minds to aid you in avoiding a disagreeable duty; but it should be such a doubt as fairly strikes a conscious mind and clouds the judgment. If there is such a doubt in this case as to the guilt of the defendant, or as to any element contended for by the commonwealth, it inures to the benefit of the defendant, and either works a reduction of the offense or his acquittal, as you apply it to the facts before you."

Third. The trial judge erred in that part of his charge to the jury in which he said: "The shooting in this case is not denied, and the fact that the shooting resulted in the death of Luther Qualls is conceded. While the question of degree is for you, as well as the question of guilt or innocence, yet, under the evidence and under the argument made by counsel for the commonwealth, as well as for the defense, it is apparent that the question you will have to struggle with is the degree of the guilt, as the homicide is not denied. The question of what degree this defendant should be convicted is the question that the law requires you to determine in your verdict."

for, in Commonwealth v. Drum, 58 Pa. 9, it was said:

"He who uses upon the body of another, at it upon him, a deadly weapon, as an axe, a gun, some vital part, with a manifest intention to use a pistol, must, in the absence of a knife, or qualifying facts be presumed to know that his blow is likely to kill and, knowing this, must be presumed to intend the death which is the probable and ordinary consequence of such an act. He who so uses a deadly weapon without a sufficient cause of provocation must be presumed to do it wickedly, or from a bad heart. Therefore he who take the life of another with a deady weapon, and with a manifest design thus to use it upon him, with sufficient time to deliberate, and fully to form the conscious purpose of killing, and without any sufficient reason or cause of extenuation, is guilty of murder in the first degree."

[2] The jury were distinctly and properly instructed, in the general charge, as to what constitutes murder of the first degree, murder of the second degree, and voluntary manslaughter, and they were twice told that the duty was upon them of fixing the degree of the prisoner's guilt, if they should convict him. In the answers to points these instruc tions were repeated, and nothing is to be found in any portion of the charge from which the jury could have inferred that the law's presumption was that the prisoner's guilt was that of first degree. Commonwealth v. Greene, 227 Pa. 86, 75 Atl. 1024, 136 Am. St. Rep. 867, is therefore without application.

The three assignments of error are overruled, the judgment is affirmed, and the record remitted for the purpose of execution.

LYNN v. LYNN.

(256 Pa. 563)

(Supreme Court of Pennsylvania. Feb. 26, 1917.)

1. APPEAL AND Error

PEALABLE CAUSE.

78(1)-Orders ApDISCHARGING RULE TO SHOW

An order of the common pleas court discharging a rule to show cause why goods replevined should not be impounded under Act April 14, 1905 (P. L. 163), is final as to the custody of the goods, and the Supreme Court will take jurisdiction of an appeal therefrom.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 426, 470, 472.] 2. REPLEVIN 44-HOUSEHOLD GOODS-OR. DER TO IMPOUND-STATUTE "SHALL."

Frank Bryson Wood, of Barnesboro, for appellant. D. P. Weimer, of Johnstown, for the Commonwealth.

PER CURIAM. [1] Appellant's three assignments of error are to portions of the court's charge to the jury. What is complained of by the first is free from error;

[Ed. Note. For other cases, see Replevin, Cent. Dig. §§ 174, 175.

For other definitions, see Words and Phrases, First and Second Series, Shall.]

Appeal from Court of Common Pleas, Philadelphia County.

Replevin to recover household goods by Jacob H. Lynn against Alberta H. Lynn.

(116 Me. 212)

In re MCCLUSKEY et al.

1917.)

1. EXECUTORS AND ADMINISTRATORS 35(17) -DECISION ON PETITION FOR REMOVAL OF ADMINISTRATOR-"MOTION"-RES JUDICATA. A petition to remove an administrator, being in the nature of an interlocutory proceeding not finally disposing of the case, is but a motion in writing to which the doctrine of res judicata does not in strictness apply, and may be renewed even upon the same state of facts by leave of the court, which may be inferred from a hearing renewed upon the same grounds. [Ed. Note. For other cases, see Executors and Administrators, Cent. Dig. § 257. For other definitions, see Words and Phrases, First and Second Series, Motion.] 2. EXECUTORS AND ADMINISTRATORS -REMOVAL-EXTENT OF REVIEW.

35(19)

Upon appeal from a decree removing an administrator for failure to bring suit to set aside an alleged fraudulent conveyance of de ceased, it is not necessary to determine that the conveyance was without consideration or with fraudulent intent, as the most that the probate court could be called upon to determine was that there was reasonable ground to so believe.

[Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. § 259.]

3. EVIDENCE 207(1)—ADMISSIONS-DISCLOSURE OF ADMINISTRATOR-EMBEZZLEMENT of FUNDS.

The disclosure made before the judge of probate upon citation as provided in Rev. St. 1903, c. 66, § 70, relating to proceedings in case of embezzlement of estates of deceased persons, is competent evidence in a proceeding for removal of an administrator on the ground of refusal to test validity of a conveyance made by deceased to his wife.

[Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 707, 709.]

4. EXECUTORS AND ADMINISTRATORS

35(14)

REMOVAL-ALLEGATION OF INSOLVENCY. Under Rev. St. 1903, c. 68, § 2, providing that "when an estate is not sufficient to pay more than such expenses, and claims of the first four classes, the administrator is exonerated from payment of any claim of the fifth class, without making a representation of insolvency," where the inventory of the estate showed no assets, representation of insolvency was unnecessary in a proceeding by a creditor for removal of an administrator.

7. EXECUTORS AND ADMINISTRATORS ~35(14) -REMOVAL-CONDITIONS PRECEDENT-FILING OF CLAIM.

Although Rev. St. 1903, c. 89, § 14, makes the filing or presentation of a claim by a creditor within 18 months after notice of appointment of administrator a prerequisite to suit against the administrator, a petition by a creditor for removal of an administrator filed after presentation of claim is sufficient, although the request to test validity of an alleged fraudulent conveyance, refusal of which is the alleged ground for removal, was made before filing of claim.

and Administrators, Cent. Dig. § 253.] [Ed. Note.-For other cases, see Executors

8. EXECUTORS AND ADMINISTRATORS -REMOVAL-EXTENT OF REVIEW.

35(19)

In an appeal from a decree for creditor removing an administrator for failure to test the validity of an alleged fraudulent conveyance by deceased; whether creditor's claim is barred by the statute of limitations is not for decision, as it will arise only when a new administrator has in his hands estate alleged to have been fraudulently conveyed.

[Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. § 259.]

Appeal from Supreme Judicial Court, Washington County, at Law.

Petition by William G. Spinney for removal of Martin C. McCluskey, administrator. Decree for petitioner, and administrator named and others appeal. Affirmed.

Argued before SAVAGE, C. J., and CORNISH, BIRD, HALEY and HANSON, JJ.

C. B. & E. C. Donworth, of Machias, for appellants. Leonard A. Pierce and W. S. Lewin, both of Houlton, for appellee.

[Ed. Note. For other cases, see Executors and Administrators, Cent. Dig. § 253.] 5. EXECUTORS AND ADMINISTRATORS VIOLATION of Duty.

Where a written request was made to administrator to institute proceedings to set aside an alleged fraudulent conveyance and a bond tendered him as security against loss or costs, refusal to act was a violation of a legal duty. [Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. § 309.] 6. EXECUTORS AND ADMINISTRATORS DISQUALIFICATION.

Under Rev. St. 1903, c. 66, § 23, providing that "when any executor or administrator, joint or sole, becomes insane or otherwise unsuitable to perform the trust, refuses or neglects to do so, or mismanages the estate," he may be removed, in administrator interested, as a possible heir, in having the wife of deceased retain land al