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Tilghman C. J. If William Steele was not a competent witness, it must be, either because he was interested at thq time the action was commenced, or because he was interested at the time he was offered as a witness, or because he was a party to the suit, or because it is against the principles of sound policy to admit him. All the objections which have been urged in the argument, may be reduced to one of these four heads. 1. The reason that interest renders a witness incompetent, is, that it may be supposed to have an influence on his mind, at the time that he gives his testimony. That is the time therefore to which we are to look. If the deposition of a witness is taken, while he is interested, and he becomes disinterested before the trial, the deposition cannot be read. On the other hand, if a witness comes to the bar interested, and devests himself at the bar of his interest, by a release, he is a good witness. So far therefore as an objection arises from interest, it is of no consequence what Steele’s situation was at the commencement of the action. 2. Whether he was interested at the time he gave his testimony, is a matter of fact. It appears to me that he was not, because the suit was at that time carried on by the assignees for the use of his creditors, who paid all the costs, and he had devested himself of all advantage, which might possibly arise to him from any surplus of his estate, by a release. . v 3. It is insisted on by the defendants as a peremptory rule of law, that the plaintiff in the action cannot be a witness. Such a rule has not been proved. It is true indeed, that no instance has been shewn of the plaintiff’s being received as a witness in an action at late in England. The fact is, that in almost every instance, the plaintiff is interested either in the subject of the suit, or in the costs, and therefore the con. elusion may have been drawn without sufficient reflection, ^ that in no case can he be a witness. The reason of the law is the life of the law. Now what good reason is there, why a man’s testimony should be excluded, merely because his name is placed on the record as a party to a suit, in which he has no manner of interest/The reason for admitting such evidence is much stronger here than in England. In this state we have no court of Chancery, and therefore the assignee of a chose in action is compelled to bring his action in the name of the assignor; whereas in England he may file a bill in equity, in his own name, and thus in some instances obviate the objection arising from thq assignor being plaintiff on the record, in case he wants to make use of his testimony. Our courts take notice of the equitable owner, although the suit is not brought in his name. In the case of M'Cullum v. Coxe Dall. 139., the plaintiff, who had assigned the cause of action to another person, wanted to discontinue, but the court would not permit him. It is the experience of every day, that the assignee brings an action in the name of the assignor, without consulting or even letting him know of it; and in such case, we consider the assignor as out of the question, and should issue an attachment for' costs against the person for whose' use the suit is brought, in case of a judgment for the defendant. We have direct authority in our own courts against the rule, that the plaintiff cannot be a, witness. In M'Ewen v. Gibbs, 4 Dall. 137., it was decided, that the plaintiff being a bankrupt, who had obtained his certificate, and released his interest in the surplus, might be a witness. It does not appear by the report of this case, whether the plaintiff became a bankrupt before or after the action was brought; but I can see no good reason for a distinction between these cases, provided the interest arising from.liability to costs is removed in the latter case. And indeed we are not without authority, when the bankruptcy takes place after the commencement of the action; for that was the very point determined by president Biddle in M'Clenachan v. Scott, 2 Dall. 172. note. It has been observed by Mr. Rawle, that president Biddle made a distinction between an assignment in case of bankruptcy, and a voluntary assignment. What ground there is for such a distinction, may more properly be considered under the fourth head, the supposed impolicy of admitting this kind of evidence. 4. When we talk of altering the law of evidence from motives of policy, it approaches so near to the language of legislation, that to authorize it, the policy must be manifest, and the mischief to be avoided, great. The general rule is, that every person not infamous or interested, is a competent witness. To this there have been exceptions, perhaps as ancient as the rule. Husband and wife shall not testify for or against each other. An attorney at law shall not betray the confidence of his client. There is another exception, the birth of modern times, introduced no doubt from motives of policy. A man shall not be permitted to destroy by his own. testimony, a negotiable instrument to which he has given credit by his signature. But this last exception has not been carried without great opposition from very high authority. Indeed so fluctuating have been the opinions of judges in England, that the point can hardly be considered, as yet established in that country, although with us it is fixed. Now the difference on this question, did not arise from any difference of opinion concerning the policy of supporting the credit of commercial paper, but on the right of the court to alter the law of evidence on the ground of policy. Let us now consider the danger, which it is said, will arise from admitting the testimony in the case before the court. It is supposed that bad men will transfer their rights of action to third persons, in order to open the way for their own testimony. This objection applies equally to assignments made before or after the commencement of the action, and it applies also, to cases over which the court has no control, suclj as sales of rights to land, and assignments of bonds under our act of assembly, in both which cases, the vendors may undoubtedly be witnesses, if they are devested of all interest. It will be remembered too, that before the witness is admitted, he must satisfy the court, that he has been guilty of no collusion; that he has devested himself of every particle of interest; that he is neither to gain nor lose by the event of the suit; and to these points he must answer upon oath. If he really is entirely disinterested, I see no great danger from the circumstance of his having been once interested. And after all the jury will judge of his credibility. How can the case before us, be distinguished from that of a certificated bankrupt? It is said, that the assignment of the bankrupt was compelled by law, because in the eye of the law he was criminal. The fact is, that nineteen commissions in twenty are sued out at the request of the bankrupt. But if it be objected that this is not the supposition of the law, I .ask whether a man’s having acted criminally is a recommendation of his evidence. I take it, that the true reason of the bankrupt’s being received as a witness, is, that he has no longer any interest in the thing in controversy; and this reason applies equally to voluntary assignments. Where a mail assigns all Jhis property for the benefit of all his creditors, there is in general no reason to suspect collusion; but where he assigns a particular thing to an individual, (especially pending the action) and then comes forward to make out the case by his own testimony, he should be watched narrowly. 'In all such cases, the court will admit or reject the testimony, according to their conviction of the assignment being a bona fide transaction or not. In the case before us, there was no suspicion of fraud. I am therefore satisfied, that the evidence was properly admitted. Ye ates J. Upon the point reserved in this case, it has been urged by the defendants’ counsel, that William Steele ought not to have been admitted as a witness; not only on -the ground of mere interest, but on-the principles of sound extended policy. The general rule is, that a party shall not be sworn in his own cause. He is interested in the event, and is therefore excluded. But a nominal plaintiff can only be rejected, on the ground of his liability to costs. The court will take judicial notice, who are the real parties, as in the case of M'Cullum v. Coxe, 1 Dall. 139., and an executor may be sworn in a cause relating to the will, where he is not a residuary legatee, because he is merely a trustee. Gilb. Law Evid. 120. The cases on this head were very fully examined jn the cause of John Field and John Bernard for the use of Oxley & Hancock v. James Biddle esq., tried in bank, April term 1792. It is reported in 2 Dali. 171., but I have a fuller note of the court’s opinion on the point of evidence. There the court expressed themselves thus: “We feel a strong repugnance against the testimony offered; our present inclina- “ tion is against the receiving of Field as a witness. We “ know of no case in the books, or by our practice, where a “ plaintiff has been admitted a witness to substantiate his de- “ mand to a jury. This point was much contested in an ac- “ tion of covenant tried at Tork Nisi Prius in May 1791, be- “ tween the executors of Andrew Cochran plaintiffs, and the “ executors of William Cochran defendants. There James “ MiKissom, one of the plaintiffs, was offered as a witness, “ and it appeared that he had no part of the residue devised “ to him by the testator, and the plaintiffs offered to lodge “ the costs in court; but he was rejected. The plaintiffs here “ might have assigned the bond to Oxley and Hancock, if “ they chose it, and thereby made either of themselves wit- “ nesses. As they have not done so, the present matter “ stands precisely in the same situation, as a factor selling “ goods for his principal, and bringing a suit for the “ money in his own name, where he is repelled from “ giving testimony. But if the suit had been brought in the “name of his constituent, the factor would be acompentent “ witness, though he got Is. in the pound commissions on “ the sale. 1 Atky. 248., 3 Wil. 40. However, if the plaintiffs’ “ counsel are willing to run the risk, we will not prevent “ Mr. Field from giving his testimony; but if he is admitted, “ and a verdict should pass for the plaintiffs, and upon a more “ full consideration we shall retain our present opinion, a “ new trial will be awarded without costs.” Mr. Field was accordingly admitted as a witness; but the jury having found a verdict for the defendant, the question was not again stirred. That case was dissimilar in one striking particular, from the one now before the court. Field was the agent of merchants beyond sea. If he, or some friend in his behalf, had lodged the costs of the action with the prothonotary of this court, a verdict for the plaintiffs would necessarily have effected a return of the money paid; and consequently Mr. Field was immediately interested in the event of the suit. But here the assignees of William and James Steele paid the full costs out of their own pockets, and whether a verdict passed for the plaintiffs or defendants, they could neither gain nor lose in a pecuniary' point of view. I cannot conceive the smallest scintilla of interest in William Steele. It is true the action was at first instituted to March term 1805 for the benefit of the partners; but they had become insolvent, and within three months afterwards, had assigned over all their ■property real and personal for the benefit of their creditors in general pro rata. Their creditors executed releases to them in November following, and previous to the offer of the testimony', they' had released to their assignees all moneys which might be recovered under this policy of insurance. After the execution of the assignment in June 1805, they had no longer any control over this action; it was wholly in the option of their assignees, whether they would proceed in the suit, or desist therefrom. On the score of sound policy, I cannot distinguish between a voluntary assignment to creditors in general in cases of insolvency, and the compulsory assignment produced by the statutes of bankruptcy. A certificated bankrupt may be a Witness in England upon releasing the fund. Peake’s Evid. 168. And the same point has been determined in this state, in several cases, where the costs have been paid, or security given for them. It is much to be wished, that more frequent instances would occur of early fair and honorable surrenders of the property of unfortunate merchants, who have failed in trade from a variety' of causes, to which mercantile enterprises are naturally subjected. If we had a court of equity, either party according to the cases cited by the plaintiffs, might have compelled Steele to make a full disclosure upon oath, of all the circumstances attending this transaction. It is no solid objection to assert, that by introducing the original party as a witness, a door is thrown open to fraudulent practices, wherein a secret interest might be secured to the failing debtor. The same observation is applicable to a vendor of lands, who conveys without covenants of warranty; or where there are such covenants, on the vendee executing a release at the bar; and yet in such cases, it is matter of daily practice to admit such witnesses to be sworn. Besides, there can be no doubt, that where a voluntary assignment was made to appear clearly to the court to be collusive, they would in terpose and reject the witness; and where there occurred any difficulty as to the fact, they would instruct the jury to pay no regard to the testimony of the witness, if they were satisfied, that the assignment was merely colourable, with an intention to defraud creditors. The jury must necessarily judge of his credit. Upon the whole matter I am of opinion, that the testimony of William Steele was properly admitted to go to the jury, and that judgment be entered for the plaintiffs. Brackenridge J. At the time the point was reserved by me, I could see no satisfactory reason why the witness should not be heard; and I am now perfectly satisfied that he was competent. Judgment for plaintiffs.

The opinion of the court was delivered by Tilghman, C. J. (After stating the case.) It has been so often decided, that it is now settled law, that parol evidence may be give to show, from what passed at the time of the execution of a writing, that it was executed by one party, in consequence of the fraudulent conduct or false representations of the other. It is ob* jected that no adjudged ease goes so far as the present; because, here, the evidence is in total destruction of the defendant’s obligation. But the principle is the same, whether the obligation be de^ stroyed in whole, or in part. In either case, it is broken in upon, The destruction of a written instrument, by parol evidence, may seem dangerous, and in fact it is so. But the community would be in a still worse condition, if it were established as an inflexible rule, that when a man’s hand was once got to an instrument, no matter by what means, the door should be shut against all inquiry. The encouragement to fraudulent villainy would be so great, under such a system, that the consequences might be intolerable. The defendant does not deny, that he executed these notes, or allege that he was ignorant of their contents; but declares, that he would not have executed them, but for the assurance of the plaintiff, that the having two names was no more than matter of form, and that he should not be looked to as payer. To be sure, it is a strange story, and one that the jury should have heard with great caution. A great deal would depend on their opinion of the defendant as a man of intelligence, and of the plaintiff as a man of integrity. But the question is not, what weight ought to have been given to the evidence, but whether the jury should have been permitted to hear it. And I confess I do not see how it could have been keptfrom them without undoing what has been done in the courts of Pennsylvania for the last fifty years, and without saying, that when a man has put his hand to a paper, he shall not be permitted to allege that he was induced to do it by fraud or artifice. I am therefore of opb nion that the evidence was properly admitted, and the judgment should be affirmed. Duncan, J. gave no opinion, not having heard the argument. .Judgment affirmed,

The opinion of the court was delivered by Gibson, J. The question here turns on the right of creditors and legatees, to follow assets that have been collusively parted with by an executor; which .involves a course of inquiry somewhat different from that which has been pursued by the counsel. This right is n’ever claimed on the supposed existence of a lien. Neither can it be claimed at law; for the executor is the owner of the legal title to the goods, and may dispose of 'them'by any spe'cies of voluntary alienations by which he may dispose of his own. The remedy is invariably in equity; where it is afforded on the ground that the executor, although complete owner of the legal title, is quasi, a trustee for creditors and legatees, whether pecuniary, specific, or residuary; each of which classes, notwithstanding what was'thought of it in the earlier cases on the subject, is intitled to equal relief. Here the defendant stands in the situation of a st«ek=(l holder, who might compel the plaintiffs and the creditors and legatees, to interplead, provided we had a Court of Equity to entertain a bill for that purpose; or the creditors and legatees might file their bill against the present plaintiffs directly; and there is, there fore, no doubt, that the merits might be tried between them, in the shape in which the defence was offered at the trial. The ground of relief, as I have said, is, that the executor has the legal title to the goods, in some respects, only as the trustee; and equity, therefore, will follow them into the hands of any one who is not a purchaser for valuable consideration; or who having paid a valuable consideration, has been guilty of fraud and collusion, with the executor. This is, in effect, to declare such person a trustee for those who have the beneficiary interest. Although there is no doubt of the general principle as stated, there is some inconsistency of decision as to what constitutes fraud and collusion. In two of the earliest cases on the subject, Ewer v. Corbel, and Burting v. Stonard, 2 P. Wms. 148, 149, it was held, that if the executor sell a term which the testator has specifically devised, the purchaser shall hold it, unless he was apprized that there were no debts, or that they could be paid without breaking in on this specific legacy; or unless he has purchased at an undervalue. Notice of these facts, is notice that the executor is abusing his trust, by wantonly defeating the provisions of the will; and,this, therefore, is a case of collusion. In Nugent v. Gifford, 1 Atk. 143, the executor assigned over a mortgage term inpayment of his own debts; and this was held good' against the daughters of the testator, who were creditors under a marriage settlement. The same principle was asserted in Jacomb v. Harwood, 2 Ves. 265, and in Meade v. Lord Orrery, Ib. 235: but it was ruled differently in Crane v. Drake, 2 Vern. 616, the authority of which, is certainly strengthened by the reversal of- Humble v. Bill, in the House of Lords, 2 Vern. 444; notwithstanding what Lord Hardwick says of these two cases in Meade v. Lord Orrery. Indeed, my mind is not prepared implicitly to acquiesce in the decision by that Chancellor, of any of the cases that came before him. A purchaser from an executor, is not bound to see to the application of the purchase money; and the assignment of a chattle in payment of an antecedent debt is an assignment for valuable consideration: so far I agree. But the executor is not, even at law, the owner of the goods, to every intent; he has only a qualified property in them, insomuch, that he cannot bequeath them, nor can they be levied for his debt, even by his own permission; whereas, they may be levied in the first instance for the debt of the testator, when those of the executor could not: which clearly shows a distinction. In Chancery,' however, the executors interest is purely fiduciary; and the law exacts from the dealing with him, with full knowledge of his representative character, the most perfect good faith. s Now, the assets are a fund i» his hands, not for the payment of his own debts, but the debts of the testator, and the legacies bequeathed in the' will; and where the assignee knows at the time,that he is receiving his debt out of a fund which is not the property of the person paying, but which is appropriated to the payment of other debts, that alone is a circumstance of suspicion, that ought to put him on inquiry as to the propriety of the transaction. An executor may, in some cases, with strict propriety, convert the assets to his own use, as where he has paid debts of the testator to the value, with his own money; but where the assignee finds him in the first instance, applying the assets out of the ordinary course of administration, it may bear on argument, whether he does not take upon himself the risk of the executors right to apply them, or of his ability to replace them if they were improperly withdrawn from the fund: and later cases have, I think, gone this length. It is no answer to say, that the executor may sell the goods, and pay his debt with the price: if the creditor knew that the payment made under these circumstances would prejudice the creditors or legatees, he would be a party to the devastavit, and liable to refund; for money, where it has been received mala fide, may be followed as readily as a chattle. But in Tanner v. Ivi0e, 2 Vern. 469, Lord Hard-wicks seems to doubt the firmness of the ground on which he had before stood, and to wish to be understood as having decided those cases, not on general principles, but on their peculiar circumstances. It may be supposed, however, that his doctrine derives force from the analogy between the particular case of which I have been speaking, and that of a note drawn by a partner, in the name of the firm, for the separate debt of such partner, antecedently contracted; With respect to which, it has been held, in the last case on the subject, Ridley v. Taylor, 13 East. 175, that the fact of the creditor having known at the time, that the name of the firm was used for the partner’s private benefit, is not sufficient, per se, to invalidate the transaction. With respect to this, it is enough to say, that the law had all along been held differently in England; as it is still held so in Pennsylvania, Neto York, and I believe, in most, if not all, of the other states: so that the authority to be derived from this source is againstLord Hardwicke’s doctrine, instead of being in favour of it. The cases which I have cited on the subject of an executor’s power over the assets, are the principal ones that were decided befoire the American revolution; and notwithstanding the discrepancy that is found in them, as to what circumstances constitute fraud or collusion, in contemplation of law,-they undoubtedly concur in proving the general principle as I have stated it. The later cases have gone much further in circumscribing the executor’s authority over the assets; and, with great propriety, very far to overrule Lord Hard-wick’s decisions, that an assignee of the assets, for his own debt, cannot be disturbed, except on specific evidence of actual and positive collusion. That, however, is not the point on which the case before us turns: a more material inquiry will be made in regard to the difference between an assignment in payment of an antecedent debt, and a pledge, as a security for it. In regard of a pledge, there is a decisive difference between the pawning of a security for an antecedent debt, and the pawning of it for money, advanced at the time. As to the first, ail the cases agree, that the interest of the pawnee is defeasible by creditors or legatees: and as to the second, the validity of the contract depends on all those considerations that would' affect an absolute sale under like circumstances; that is, where it appears the pawnee knew that the money was obtained for purposes foreign to the executor’s duty, the transaction is to be considered as collusive. Then to come to the facts of the case before us.,- The note on which suit is brought, was indorsed to the executors in blank, for goods purchased from them, which were part of the assets, and the note itself, was, consequently, assets in their hands. The executor who had this note in possession, was indebted to the plaintiff on his own promissory note, to nearly the same amount; and after his note had become due, made an arrangement with the plaintiff, by which, it was taken up, and a new note, at five months, substituted in its stead, and the note on which suit is brought, was handed over with the blank indorsement of the payee, as collateral security for the payment of this debt, the other executor being no party to the transaction, and the plaintiff being entirely ignorant of the circumstances under which the note in question came to the hands of the executor. On this naked statement of facts, it will be seen, that collusion is altogether out of the case, and that the question is, whether the plaintiff is to be considered as a holder for value. If the note had been delivered to him in discharge of the debt, there would be no difficulty in saying, in the absence of collusion, that taking it in the usual course of business, as an equivalent for a debt which is given up, would be a purchase of it for valuable consideration. But as it appears on the bill of exceptions, that it was given in pledge for securing an antecedent debt, which was not discharged, but suffered to remain, and as it does not appear that money was advanced, or any act done, that would in law be a present consideration, the case presented, was against the plaintiff. The evidence, therefore, prima facie, made out a defence; although it might, I apprehend, have still been shown on the other side, that the plaintiff had a right to recover, provided he had been able to prove, that time was given in consideration of obtaining the note in question, as security for the debt, and that in consequence, the debt was lost. The giving of time would be a present, and a valuable consideration, and a pledge on these terms would be the same as a pledge for money paid down. There is nothing in the commercial nature of the security, to vary the nature of the transaction. Where the holder of a note or bill has paid* value for it, he is in privity with the first holder. Collins v. Marten, 1 Bos. & P. 651. There is a difference too, between a note regularly negotiated, which always supposes a con sideration, and a note placed like the present, in the hands of a creditor, merely as a security, which in this respect, stands exactly as it would if it were a bond; that is, as a mere pledge, subject in the hands of the holder to every equity that could be set up against it, in the hands of the person from whom he obtained it. Roberts et al, Executors of Horseman v. Eden, Bos. & P. 398. #In this respect, equity and the commercial law perfectly agree, both being founded on principles of reason as well as convenience. The question then is, whether the plaintiff is a holder for value; and as the case stands on the bill of exceptions, the evidence went directly to prove, that he was not. At all events, an inquiry into the whole transaction was proper, and there is no rule of commercial law which forbids it: the evidence, therefore, should have been admitted. Judgment reversed, and a venire facias de novo awarded.

Per Curiam. The judge stated the law of the case at a breath. “ If the plaintiff,” said he, “ held under the defendant, as tenant at will, at' the time of the alleged trespass, he cannot recover for breaking and entering his close, but is entitled to recover damages under his declaration for any trespass proved to have been done to his personal property.” Now, as the defendant’s lease had expired by its own limitation, there could be no doubt that he was a tenant at will, though he had not received notice to quit— that point was put at rest in Duncan v. Blashford, 2 Serg. & Rawle 480—and the landlord might forcibly dispossess him on the instant, by night or by day, and for motives of mere caprice; with this limitation, only, that he should use no greater force than might be necessary, and do no wanton damage. A tenant at will is bound to remove his property, on request, without regard to his convenience, and to find a place for it as he may. It was not pretended that the plaintiff had not held over; and the jury were properly directed that he was entitled to damages, only for" any injury he had suffered from unnecessary violence to his property. Judgment affirmed.

Opinion by Mr. Justice Mestrezat, This is an action of trespass to recover damages for injuries sustained by the plaintiff by being struck by the defendant’s automobile as he was alighting from a street car at Red Raven, Allegheny County. The learned court below necessarily conceded the negligence of the defendant, but held that the plaintiff was guilty of contributory negligence and entered a nonsuit which it subsequently refused to take off. The plaintiff has appealed. The legislature recognizing the danger to persons using the highways of the State by reckless and incompetent chauffeurs operating automobiles has attempted to protect the people against such danger by appropriate legislation. The necessity for these enactments appears by the preamble to the Act of April 23, 1903, P. L. 268, which declares that it is of the utmost importance to the rights of the people of this Commonwealth that the public highways of the cities, boroughs, coun ties and townships of the Commonwealth should be. as free as practicable from the reckless use of dangerous motor-vehicles. This statute was followed by the Act of April 19, 1905, P. L. 217, which was repealed and supplied by the Act of April 27, 1909, P. L. 265. This act, amended by the Act of June 1, 1911, P. L. 545, was intended to be and is a complete and comprehensive system regulating the use of motor vehicles on the public highways of the Commonwealth. It declares what rights on the highways of the State the operator of the vehicle shall have and regulates the speed of the machine. It requires that such vehicles shall be registered, shall be provided with brakes and signal devices, shall carry numbered tags and lights which shall be displayed, and provides a penalty of not less than ten dollars nor more than twenty-five dollars for a violation of any of the provisions of the act, and declares the conviction for a second offense to be a misdemeanor punishable by a fine or imprisonment. The fourteenth section of the Act of April 27, 1909, P. L. 265, provides, inter alia, as follows: “No person shall operate a motor-vehicle on the public highways of this State recklessly, or at a rate of speed greater than is reasonable and proper, having regard to the width, traffic, and use of the highway, or so as to endanger property or the life or limb of any person; ......When a motor-vehicle meets or overtakes a street passenger car which has stopped for the purpose of taking on or discharging passengers, the motor-vehicle shall not pass said car, on the side on which passengers get on or off, until the car has started and any passengers who have alighted shall have gotten safely to the side of the road.” Edward Gf. Lewis, the plaintiff, was about sixty years of age at the time of the accident, and his hearing was defective. On the afternoon of June 1,1912, he boarded a trolley car at Tarentum to go to Red Raven, Allegheny County. When the car stopped at Red Raven for the purpose of taking on and discharging passengers, the plaintiff proceeded to leave it by the front door, ahead of the other passengers. While he was alighting or after he had alighted from the car and was crossing the street to the sidewalk he was struck by an automobile driven by the defendant and was seriously injured. The machine came from the opposite direction to that in which the street car was going, and was running from eighteen to thirty-five miles an hour. It will be observed that the defendant in violation of the statute passed the street car after it had stopped and on the side on which passengers were getting off. It is clear, therefore, that the defendant was guilty of negligence which resulted in the plaintiff’s injuries. ‘ Aside from the act of assembly, it was a reckless and negligent act of the defendant in driving his machine at such speed and so close to the street car when the passengers were alighting and would necessarily proceed to cross the street to the sidewalk. His conduct was clearly a violation of duty which made him responsible for any resultant injury. He not only disregarded a plain duty which he owed to the twelve or fifteen passengers alighting from the street car, but violated the positive command of. a statute which required him not to pass the street car while it was at rest. He, therefore, not only failed to observe a plain duty imposed by the civil law, but was also an offender against a criminal statute of the Commonwealth. The court was manifestly correct in conceding that the defendant’s conduct resulting in the plaintiff’s injuries was actionable negligence. We do not agree with the learned judge of the court below that the testimony justified him in declaring the plaintiff guilty of negligence as a matter of law. In determining the question of the contributory negligence of the plaintiff, there are certain well settled principles which must be applied to the evidence submitted on the trial of the cause. On a motion to take off a nonsuit we held, speaking through Mr. Justice Sterrett, in Bucklin v. Davidson, 155 Pa. 362, 366: “We have repeatedly held that, in testing the correctness of a refusal to take off a judgment of nonsuit, the plaintiff is entitled to the benefit of every fact and inference of fact which might have been found by the jury or drawn by them from the testimony before them; and it is immaterial that the evidence tending to sustain plaintiff’s claim may be very slight, provided it amounts to more than a mere scintilla. If there is any evidence which alone would justify an inference of the disputed facts on which his right to recover depends, it must, according to the well settled rule, be submitted to the jury. It is their exclusive province to pass upon the credibility of the witnesses, weigh the evidence and ascertain the facts.” It is no defense for one who injures another by his negligent act, that the injured party did not anticipate the wrongdoer would not observe ordinary care, the failure of which resulted in the accident. The failure to anticipate negligence which results in injury is not negligence and will not defeat an action for the injury sustained. A party is not bound to guard against the want of ordinary care on the part of another; he has a right to presume that ordinary care will be used to protect him and his property from injury: Brown v. Lynn, 31 Pa. 510. Reeves v. The Delaware, Lackawanna and Western Railroad Company, 30 Pa. 454, was an action against a railroad company to recover damages for killing the plaintiff’s cattle. Mr. Justice Woodwakd speaking for the court says, inter alia, (p. 463) : “From the course of observation in respect to the conduct of the plaintiff, the jury might well infer that he was bound to anticipate and provide against the high rate of speed with which the train approached the crossing. Nothing could be more erroneous. If that rate of speed was, under all circumstances, imprudent and unreasonable, the plaintiff was not only not bound to anticipate it, but he had no right to presume that the company would violate their rule of duty ......The question for the jury was, whether the plain tiff was guilty of negligence in these, the necessary and legal conditions of the case, — not whether he was guilty of negligence for failing to guard against illegal and unauthorized conduct of the defendants, such as the learned judge seemed to think might be fairly imputed to them.” The same rule prevails in other jurisdictions. A person lawfully in a public highway may rely upon the exercise of reasonable care by drivers of vehicles to avoid injury, and the failure to anticipate the omission of such care does not render him negligent: Deputy v. Kimmel (W. Va.), 51 L. R. A. (N. S.) 989; Hennessey v. Taylor, 189 Mass. 583. Liebrecht v. Crandall, 110 Minn. 454, was an action to recover damages for injuries received by the plaintiff by being struck by an automobile as he stepped from a street car. In sustaining a verdict for plaintiff, the court said, inter alia: “While it is true that he did not, as he stepped from the car, look in the direction from which the automobile was approaching, following the car, this is not alone sufficient to charge him, as a matter of law, with contributory negligence. His attention at the moment was directed toward alighting from the car in safety, and he was not required .to anticipate the negligence of the defendant in driving his automobile at a reckless rate of speed upon him.” There is no imperative rule of law, says the court in Hennessey v. Taylor, 189 Mass. 583, which has been called to our attention generally requiring a pedestrian when lawfully using the public ways to be continuously looking or listening to ascertain if auto-cars are approaching, under the penalty that upon failing to do so, if he is injured, his negligence must be conclusively presumed. The plaintiff testified that when the street car stopped at Red Raven he walked to the front platform, looked to see if anything was coming, saw an automobile one hundred or two hundred feet away and two men on the other side of the track, and stepped off the car and was struck by the automobile. One of plaintiff’s witnesses testified that the automobile was probably thirty feet away when the plaintiff stepped from the car, and was running at a rapid rate of speed. The learned court below held that this evidence, with the further testimony by the mortorman that he warned the plaintiff of the approaching automobile when he was about to step from the car, and that of the conductor who the court erroneously thought called to the plaintiff just as the latter was stepping from the car, was sufficient to convict the plaintiff of contributory negligence preventing a recovery in the action. A party may not step immediately in front of a rapidly moving automobile with notice that it is approaching no more than he can do so in front of a rapidly moving locomotive, and hold another for the consequence of his rash act. A man using a public highway or crossing a railway track must use reasonable care by the exercise of his senses to prevent his own injury, and if he fail to do so the consequences must fall upon him, although the negligent act of another caused his injuries. In the case in hand, the learned court not only failed to observe the reciprocal duties and rights of the parties at the place the accident occurred, but overlooked part of the material evidence in the case. When the car had stopped and the plaintiff was about to alight he saw the defendant’s automobile approaching the car from the opposite direction at an estimated distance of one hundred to two hundred feet. The law which the defendant knew or must be presumed to have known prevented him passing the street car on the side on which the passengers were alighting until they had “gotten safely to the side of the road.” The plaintiff also knew this to be the statutory duty of the defendant and could rely on its performance and descend the steps to the ground, which he did. He was there struck by the machine after he had taken one, two or three steps from the street car in the direction of the sidewalk. The defendant passed the car within possibly two feet and not more than six feet and conced edly was guilty of gross negligence, but wherein was the plaintiff negligent? This must be answered by determining his duty under the circumstances and what he did. He was required to exercise reasonable care in leaving the street car and proceeding across the street to the sidewalk, but he was not required to disregard other precautions for his safety and continue looking toward the direction from which the automobile was approaching, as it was from one hundred to two hundred feet distant when he saw it, and, therefore, had a right to rely upon the assumption that the driver of the machine would obey the command of the statute and not attempt to pass the street car while it was at rest. Acting upon that assumption under the circumstances is not an evidential fact of contributory negligence. The evidence shows that there was ample room on the opposite side of the street car for the automobile to pass, and where it could have passed without violating the statute. When the plaintiff saw the machine approaching as he was about to alight from the street car, he could assume that if it continued it would not do so in violation of the statute by passing the car on the side on which passengers were alighting, but would pass on the opposite side, which the driver clearly had the right to do. The plaintiff was alighting from the front platform, and at any time after he saw the machine, two hundred feet distant, until it was within ten feet of him, it could have changed its course and passed on the opposite side of the street car. Besides looking in the direction of the automobile, the plaintiff had other important duties to perform to protect himself from danger. While descending the steps he had necessarily to give his attention to them and to the place on the ground on which he was to alight. An equally imperative duty as he was leaving the car and moving across the street required the plaintiff to look to the rear of the car for approaching automobiles and other vehicles. Had he disregarded this duty and been struck by a horse-drawn vehicle and injured, his negligence would have prevented a recovery. The evidence tends to show he was performing this duty when he was struck by the defendant’s machine. He testified: “Q. — And. you kept looking at it as you got off? A. — I looked to the rear of the car. I seen some men crossing the track there.” Two passengers had crossed to the sidewalk before the plaintiff was struck by the machine. The plaintiff, therefore, did not knowingly step in front of a rapidly moving car, and did not see the car immediately before it struck him. He was at that time looking to the rear of the car, which was a part of his duty under the circumstances, to see that no vehicle was approaching from that direction. Of course, if he saw the machine approaching at a high rate of speed, he was not justified in stepping in front of it but, on the other hand, if he was looking in the opposite direction for an approaching vehicle as he was required to do, he could act on the assumption that the driver of the automobile would obey the law by stopping until the street car was again in motion, and he would not be negligent in proceeding across the street. This is clearly the effect of the authorities, and is manifestly supported by sound legál principles. The court is in error in saying in its opinion that the conductor called to the plaintiff as he was leaving the car. The conductor was on the rear platform and did not know of the approach of the automobile until it “dashed past.” The learned judge says that the motorman warned the plaintiff of the approaching automobile, but he manifestly forgot that there was no evidence that the plaintiff heard the motorman, and he also overlooked the important fact that the plaintiff is deaf, and the probabilities, therefore, are that he did not hear the warning if it was given. It is apparent, we think, that the plaintiff’s negligence could only be determined by the jury. Conceding that while he was on the platform, the plaintiff saw the automobile approaching at a distance of two hundred feet, was he justified in assuming as he stepped from the car that the driver would stop the ma chine or pass on the other side of the car, and permit him to cross the street to the sidewalk? Was the plaintiff looking in the direction from which the machine was coming at the time he was struck, or was he looking in the opposite direction to protect himself from a vehicle probably approaching from that direction? He is corroborated by other testimony when he says he saw two men across the street when he looked at the rear of the car, and that fact may have led him to believe that he could alight and cross the street in safety. In determining the question of the plaintiff’s negligence, an important fact to be considered is that he was on a part of the highway where he had the right to be and was simply exercising that right when he was struck by the defendant’s machine, when it was where the law declared it had no right to be, and the defendant in operating it at that place was violating a criminal law of the Commonwealth. If, as all the authorities hold, the plaintiff was not required to anticipate that the defendant would violate the statute but could rest on the presumption that he would obey its provisions and not attempt to pass the car on the side on which it was receiving and discharging passengers, the evidence submitted on the question of the plaintiff’s contributory negligence was clearly for the jury and not for the court. What we have said ■is based on what the jury might have found from the evidence. They may find differently but it is clearly their province to pass on the negligence of the defendant and the contributory negligence of the plaintiff. The judgment is reversed with a procedendo.

Opinion by Mr. Justice Mestrezat, Josqph McCall, Jr., one of the defendants, being the owner of a house and lot at 6300 Butler street, Pittsburgh, agreed to sell the premises to James W. Murray, the other defendant, by a contract in writing dated April 30, 1912, for $3,950, and received $150 as part of the purchase-price, the remainder to be paid on September 1.1912, when the deed was to be delivered. Murray took possession of the premises and by a written agreement, dated June 3, 1912, between himself and O’Kane, the plaintiff, the latter agreed to provide all materials and perform all the work for remodeling the building on the premises which the'former had purchased from McCall. The balance of the purchase-money for the property was not paid to McCall, as provided in the contract between him and Murray, and on October 30, 1912, McCall leased the property to Murray at a rental of $50 per month, with an option to purchase it for $3,000. The work on the building was completed by the plaintiff in September, 1912, and in November of that year he filed a mechanic’s claim against “James W. Murray and Joseph McCall, Jr., owners or reputed owners and contractors.”. An affidavit was filed that a written notice, signed by the plaintiff and directed to Murray and McCall, as owners or reputed owners, of the filing of the mechanic’s lien was served on October 6, 1912, on McCall “by leaving a true and attested copy thereof at his dwelling house at Madison avenue, Bellevue, Allegheny Co., Pa., with an adult member of his family and making known the contents thereof”; and that service of the notice was accepted by Murray’s attorneys on December 3.1912. A scire facias was issued on the claim to which affidavits of defense were filed by Murray and McCall. In his affidavit of defense, Murray avers that he has a defense to the whole of the plaintiff’s claim and denies that he “was served with notice of the filing of the claim within one'month after the filing thereof, nor is there an affidavit of service thereof as required by the act of assembly relating to the filing of mechanics’ liens and regulating the same, and avers that more than thirty days have elapsed since the filing of said mechanic’s lien upon which a sci. fa. was issued.” McCall, in his affidavit, averred that he had a defense to the whole of the plaintiff’s claim and set forth, inter alia, his agreement to sell the property to Murray, that Murray immediately took possession, under the agreement, and entered into the contract with plaintiff for the remodeling of the premises, denied that Murray in making the contract acted as if he were the owner of the legal title to the property, averred that the plaintiff entered into the contract and made the improvements to the property with full knowledge of the interest which Murray had in the property and that the legal title to the property was in McCall as security for the unpaid purchase-money, and that the plaintiff knew McCall was not in any way. a party to the contract and his interest in the property would not be subject to a lien for the work done and materials furnished to Murray on the contract. The replication of O’Kane, filed to McCall’s affidavit of defense, admitted that he knew of the contract of sale between Murray and McCall, and averred that McCall asked the plaintiff to hurry the work so that Murray could start the saloon business and pay the balance of the purchase-money, that Murray was an actual “owner” of an interest in the property within the meaning of Section 1, of the Act of June 4, 1901, and that while McCall did not sign the building contract his acquiescence in and partial supervising of the improvements made him a party thereto in law and equity. On the trial of the cause, the court gave binding instructions for McCall, holding that the lien as to McCall’s interest was void; and the jury returned a verdict against Murray for the full amount of the plaintiff’s claim. The court sustained a motion by Murray for judgment non obstante veredicto on the ground that the acceptance of notice by his attorneys of the filing of the lien was not a service of the notice as required by the act of assembly, and that the filing of a copy of the notice of filing the lien with an endorsement of the ac ceptance of service by the owner’s attorneys was not a compliance with the requirement of the statute. The plaintiff has taken this appeal, and alleges that the court erred in directing a verdict for McCall and in entering judgment non obstante veredicto in favor of Murray. The plaintiff, appellant, has filed four assignments of error. The first two allege error in excluding testimony offered by plaintiff to establish McCall’s liability, the third, in directing a verdict for McCall, and the fourth, in entering judgment for Murray. The plaintiff contends that McCall is liable because he was the owner of the real estate within contemplation of Section 4, of the Act of June 4, 1901, P. L. 431, which imposes liability upon an owner of real estate who shall knowingly suffer or permit any person, acting as if he were the owner, to make a contract for which a claim can be filed, without objecting thereto at the time. It is further claimed on the part of the plaintiff that McCall and Murray conspired together to improve their property and prevent O’Kane’s recovery against the legal owner, and that the testimony offered by the plaintiff and excluded by the court tended to show a conspiracy to defraud the plaintiff. We do not agree with the plaintiff’s position, and think that- the court correctly ruled the case on the trial by directing a verdict for the defendant, McCall. The Mechanics’ Lien Act of 1901 permits a-contractor to file a lien against the owner in fee or one having any estate or interest in the property who, by contract or agreement, express or implied, contracts for the erection of the structure or other improvement, and provides that the claim shall bind only the interest of the party named as owner of the property at the time of the contract, or subsequently acquired by him. Unless, therefore, a claimant brings himself within Section 4 of the act, the lien attaches only to the interest or estate in the premises of the person for whom the building is erected: Weaver v. Sheeler, 118 Pa. 634; Weaver v. Sheeler, 124 Pa. 473, and a sale obtained on a judgment tbereon will pass only such estate or interest of the person erecting the building. The equitable owner of real estate cannot by his contract, under the Act of 1901, bind the holder of the legal title or Ms interest in the real estate for work done or materials furnished for a building erected on the premises. He could bind Ms own estate or interest in the land under prior legislation: Keller v. Denmead & Son, 68 Pa. 449, but that was the limit of his power since the Act of April 28, 1840, P. L. 467, to encumber the property by a mechanic’s lien. The plaintiff’s contention that McCall was an owner of the property in question within the purview of the fourth section of the Act of 1901 is without merit under the facts of this case. It is conceded that prior to the time Murray entered into the contract with the plaintiff for the improvement of the real estate that McCall had contracted in writing with Murray to convey to him, and that Murray was in possession of it under the agreement. The plaintiff admitted in Ms replication to McCall’s affidavit of defense and also testified on the trial, that prior to the beginning of the improvements he knew of the contract of sale between Murray and McCall. McCall, therefore, held the legal title while Murray, who was in possession, had an equitable interest in the property. The contract for the improvement of the property was made by Murray, as the written agreement discloses, and McCall was not a party to it. The mechanics’ lien law authorized the filing of a lien against Murray’s interest for any sum due for work done and materials furnished under the contract. It is, therefore, difficult to see how, under these facts, the fourth section of the Act of June 4, 1901, can apply. Murray, and not McCall, was the “owner” Avithin contemplation of the mechanics’ lien law. Murray had the right to improve the property, and it was expected he would do so when the purchase was made, as it was to be remodeled for saloon purposes. He had possession and McCall could not in terfere with that possession or with any improvements he desired to make. The property belonged to Murray subject only to the payment of the balance of the purchase-money on or before the following September when he would become the holder of the legal title. In the meantime, he was the owner and in possession with the right to contract to improve and subject his interest to ,a lien for such improvement. We do not think the •fourth section of the Act of 1901 covers the case. In view of the uncontroverted facts in the case, therefore, the testimony, which is the subject of the first and second assignments of error, whs properly excluded. There is nothing in the case to warrant the contention of the plaintiff that there was any conspiracy on the part of McCall and Murray to defraud the plaintiff. The testimony, if admitted, would not have been sufficient to sustain his contention, under the facts of the case, of which the plaintiff admits he had full knowledge at the time he agreed with Murray to make the improvements. He knew the exact condition of the title, that McCall held the legal title, and that Murray had only an equitable interest under the contract previously entered into between the parties, and that his written agreement to furnish the labor and materials for improving the property was signed by Murray alone. He was, therefore, as fully cognizant of all the facts, relating to the improvement, as was either Murray or McCall. There was no deception or fraud practiced upon him, and the excluded testimony, as appears by the offer, would not have disclosed any fraud had it been admitted. The fact that McCall visited the premises frequently, inquired about the progress of the work, urged the contractor to proceed as rapidly with it as possible, and that he discussed with the contractor the changes to be made, merely disclosed the interest which McCall took in the improvement of the property, and not any fraudulent purpose on his part to mislead the plaintiff as to how the title was held or who had contracted with him for making the improvements. McCall bad unquestionably an interest in having tbe property improved and that as speedily as possible. He bad sold it to Murray for $3,950, and bad received a payment thereon of only $150. Tbe balance of tbe purchase-money was to be paid on or before tbe following September with tbe right to tbe owner to anticipate any of tbe other payments. McCall was anxious'that tbe improvements be completed so that tbe saloon could be opened and these payments be made. Tbe facts merely disclose tbe interest that McCall took in tbe early completion of tbe improvements. Binding instructions for McCall were properly given by tbe court on tbe trial of tbe cause. Section 21, of tbe Act of 1901, requires tbe claimant within one month after tbe filing of tbe claim to serve a notice upon tbe owner of tbe fact of tbe filing of tbe same, and to file of record in tbe proceedings an affidavit, setting forth tbe fact and manner of such service. This section also provides that a failure to serve tbe notice and file tbe affidavit within the specified time shall be sufficient ground for striking off tbe claim. Tbe notice of tbe filing of tbe claim was not given to Murray, but service of tbe notice was accepted by bis attorneys. Tbe plaintiff contends that a substantial conformance with this section of tbe statute is all that is required, and that the section will not be construed to be mandatory unless it would be inequitable to allow tbe lien to remain. This contention entirely overlooks tbe well established rules applicable to the interpretation of mechanics’ liens. Tbe language of tbe provision is clearly mandatory and if tbe claimant fails to serve tbe notice and file tbe required affidavit, within one month after tbe filing of tbe claim, it is ground for striking off tbe claim. A compliance with tbe provision is a prerequisite to tbe validity of tbe lien, and tbe failure to observe it invalidates tbe lien. Tbe purpose of the' provision is apparent. It is to protect tbe owner by furnishing him an opportunity while tbe facts are accessible to ascertain if the claim is correct, if the labor and materials were furnished as set forth in the lien, and if the claim has been properly and legally entered so as to bind his real estate. In a large building operation there may be many parties entitled to file claims, and it is important to the OAvner that the several claimants give him the notice required by the statute. The manifest importance of the provision clearly shows that the legislature intended it should be mandatory, and the failure to comply with it should invalidate the lien. The right to file a mechanic’s lien, as has been uniformly held by all the courts, is of statutory origin. No such right existed at common law. It is class legislation and, therefore, must be strictly construed. If a party desires to avail himself of it, he must comply strictly with the provisions of the statute conferring the right. Nothing is presumed in favor of the lien: Schively v. Radell, 227 Pa. 434, 443. When the act of assembly directs specifically that a particular thing shall be done in order to establish a claim, substantial conformity will not answer; there must be a compliance Avith the requirement: Westmoreland Guarantee Bldg. & Loan Assn. v. Connor, 216 Pa. 543, 549. The notice directed to be given by this section of the statute is equally as important as the notice of an intention to file the lien required by Section 8 of the act, and in the recent case of Merritt v. Poli, 231 Pa. 611, 617, we held that “service of this notice must be made in the manner prescribed by the statute, and failure to do so defeats the right to recover upon the claim filed.” Where service of the scire facias on the claim and to revive the judgment on the claim cannot be made personally, the act provides specifically the manner in which it may be otherwise made. The statute is explicit as to service of notice on the owner arid directs that Avithin the statutory period notice shall be given him, and that an affidavit shall be filed of record setting forth the fact and manner of service of the notice. The penalty for failing to observe the command of the statute is, as the act provides, avoiding or striking off the lien and thereby depriving the claimant of the special provision made by the act for enforcing the claim. The act might have provided that notice be given the owner, his agent or attorney, or that notice might be served upon the owner by leaving a copy at his residence, or that service of notice might be accepted by his agent or attorney, as provided in serving the scire facias, but the only department of the government, having the authority to enact the legislation, has not seen proper to make such provision for service of the notice to the owner of property encumbered by the lien, and that is conclusive as to our right to determine that the notice shall be given otherwise than is specifically directed in the statute. We can have no concern with the wisdom or propriety of this or any other provision of the statute; that is solely for the legislative department of the government. Analogous provisions in statutes of other states authorizing the filing of mechanic’s claims have received a like construction: Street Lumber Co. v. Sullivan, 201 Mass. 484; Gross v. Butler, 72 Ga. 187; Conway & Co. v. Crook, 66 Md. 292; Peck v. Hinds, 68 Ill. App. 391; Ryan v. Kelly, 9 Mo. App. 396; Hannah & Lay Mercantile Co. v. Mosser, 105 Mich. 18. We are of opinion that Section 21, of the Act of 1901, is mandatory, and that the acceptance of notice of the filing of the lien by Murray’s attorneys was not a compliance with the provision contained in the section, and, therefore, the learned court below was right in entering judgment in his favor non obstante veredicto. The judgment is affirmed.

The judgment of the Supreme Court was entered, Per. Curiam. The exercise of jurisdiction upon rules to open judgments entered on warrants of attorney, has always been held to be within the ■ sound discretion of the courts. The Act of April 4th 1877, Pamph. L. 53, which provides for an appeal to this court, has not changed the law in that respect. It provides only that the decision “ shall be reviewed by appeal in like manner and proceedings as equity cases are now appealed.” It is a mistake to suppose that the court cannot judge of the weight of the evidence .and the .credibility of witnesses, bui must in every case, where there is a conflict of testimony, send the case to a jury. In equity cases, these questions may be determined by the chancellor, and on appeal his decision is reviewed. We are to determine in all such appeals whether the discretion of the court below has been rightly exercised. We think the decision on the rule in this case, is fully sustained by the opinion of the learned president. Order affirmed, appeal dismissed at the cost of the appellant and record remitted.

Opinion by Mr. Justice Simpson, The records of these two cases disclose more mistakes by counsel and errors by the court, than usually appear in judicial proceedings, — the errors probably resulting from the court’s desire to straighten out the mistakes of counsel, and to expedite the determination of suits which he believed should not have been begun. Happily the appeals are sufficiently alike to enable us to dispose of them in a single opinion. In the first case, speaking generally and tersely, plaintiff sought to recover, under one statement of claim, for money loaned to defendant; for salary and boarding bills due by him to her; for use and occupation of a property, to the possession of which she was entitled; for personal property of hers wrongfully taken and converted by the defendant to his own use; for personal property of hers obtained from her and her brother by duress and coercion, after a false arrest and imprisonment, and threats to continue the restraint unless the property was delivered to defendant; and for the value of two mortgages she was compelled to satisfy under the same duress and coercion. This epitome demonstrates that there was an improper joinder of causes of action (Kinney v. Harrison Manufacturing & Boiler Co., 22 Pa. Superior Ct. 601, 603), but, as defendant did not object, the error was waived: Parry v. First National Bank of Lansford, 270 Pa. 556. In answer to the statement, defendant filed two papers, both on the same day: (1) a plea in abatement, alleging the pendency of another suit for the same causes of action; this was improper, as such pleas are expressly abolished by section 3 of the Practice Act of May 14,1915, P. L. 483; and (2) an affidavit of defense and plea in bar, in which he presented issues of fact as well as of law, the latter being based on the allegation that the same causes of action had already been, or could have been, heard and disposed of, in the trial of a previous suit between the same parties, in the same court. Joining the two kinds of defenses was a procedural mistake; only the legal issues should have been advanced in the first instance: Jackson v. Myers, 260 Pa. 488. The averments of fact, out of which the ques tion of res ad judicata were attempted to be preliminarily raised, was entirely new matter, the statement of claim containing nothing on the subject; defendant nevertheless ordered the case down for a hearing of this question, and the court below, being of opinion it could take judicial notice of the record of the prior case, and also that it was res adjudicata of nearly all the items set forth in the statement, entered judgment for defendant as to them, — without giving plaintiff any opportunity to deny the existence and conclusive effect of the record referred to, — but left the present case open for a trial of the balance of the claims. This judgment.was clearly erroneous. Prior to the Practice and Procedure Acts no such course could have been taken, no matter how or from what source the court acquired the knowledge which was supposed to be sufficient to defeat the claim. At that time, plaintiff had the right to deny the existence of such a record, and have the issue thus raised tried before a jury in due course. Those statutes did not alter the substance of this practice; they only specified a different method for raising the issue. They did not give the court power to import into the record of a particular case, for the purpose of entering a summary judgment, anything the parties do not agree shall be placed in it: Bovaird v. Barrett, 78 Pa. Superior Ct. 68. Where an affidavit of defense raises questions of law it is but a statutory demurrer (Hutchinson Baking Co. v. Marvel, 270 Pa. 378, 381), upon the hearing of which the only point to be decided is whether or not, on the facts averred in the statement, it clearly appears, as a question of law, that plaintiff is not entitled to recover: Rhodes v. Terheyden, 272 Pa. 397. Any demurrer, not founded upon averments of the statement, is a speaking demurrer, which from the earliest days has been held to be bad (Brownsword v. Edwards, 2 Ves. 243, 345), and is still so held: Wright v. Weber, 17 Pa. Superior Ct. 451, by Eioe, P. J. At all times the true rule has been, and still is, that “Courts, including those of probate, cannot in one case take judicial notice of their own records in another and different case, even though the trial judge in fact knows or remembers the contents thereof” (23 Corpus Juris 113), except, perhaps, in a few rare instances having no relevancy here. Hence, the only way to dispose of the question of res adjudicata, when the facts are not admitted, is at the trial of the case, when, upon a consideration of the record of the prior judgment offered in evidence, and of any extrinsic evidence which may be produced in order to show exactly what questions were raised and adjudicated in that proceeding (Hartman v. Pittsburgh Incline Plane Co., 23 Pa. Superior Ct. 360; Singer v. Pilton, 282 Pa. 243), the court, aided by the jury, if there is a material dispute, will then determine whether or not there can be a recovery in the new action. It would seem as if the mistakes and errors above detailed, should have been more than sufficient for any one proceeding, but, like all habits, this one seems to have persisted. With the record in the shape outlined above, plaintiff took the present appeal. As the case was not finally disposed of in the court below, the appeal was premature, because the judgment was interlocutory: Frank P. Miller Paper Co. v. Keystone Coal & Coke Co., 275 Pa. 40. No motion to quash was made, however, and though we could, of our own motion, quash the appeal for this reason, we shall not do so, since both parties will be benefited by our now reversing the judgment (as we have the right to do: Summers v. Kramer, 271 Pa. 189), instead of awaiting the determination of the issues raised as to the other items of the claim, and deciding this matter on a second appeal. In advance of printing the record plaintiff filed in the court below the following notice: “Because of their irrelevancy to the questions involved, appellant will omit from the printed record, the following: All writs, sum mons, notices, and acceptances of service, motions and record to case No. 208, October Term, 1920, [it being the prior suit set np in the final pleading of defendant], ......consent will be presumed if no objections are made within ten days from the date hereof.” This was an unnecessary proceeding, the record referred to being the only thing of any possible value in the consideration of the appeal. Under Eule 45 of this court, neither “writs, summons, notices, acceptances of service, motions,” nor any other such papers, are to be printed, unless some question regarding them is raised by an assignment of error. So far as the record of the prior case is concerned, appellant, at his peril, had to determine whether or not it should be printed on the appeal. Not recognizing this, but apparently considering that the notice called upon him to act, appellee objected and brought the matter to the attention of the court below; it, alleging an authority in Eule 55, directed that the record of the prior case should be printed. Eule 55 has no relevancy whatever; it refers only to the elimination of inapplicable evidence taken on the trial of the case which is appealed. Lest it should be supposed the matter had been overlooked, we overrule appellee’s objection that the assignment of error, which quotes the judgment, is defective, in that it does not show the exception which was in fact taken to the judgment. No motion to quash was made; the oversight is one regarding which an amendment is always allowed, on request; and hence we will treat the case as if a request had been made and allowed and the assignment amended accordingly. In the second case, which was by the same plaintiff, against the same defendant and two others, the statement of claim was substantially like that above summarized, except that the items as to which the court below refused to enter final judgment were not included, and it did contain a claim for damages for slander. In this suit the court below entered a final judgment for. defendants. In all other respects, so far as regards pleadings, practice, mistakes and errors, the history of the one accords with that of the other. In each case the judgment of the court below is reversed and a procedendo awarded.

Opinion by Mr. Justice Sadler, The School District of the Borough of Wilkinsburg acquired a tract of land containing 12 acres, as appears by the proceedings before the board of viewers, hereinafter referred to, from one Turner and wife, as a site for a school building and lawful purposes in connection therewith. Such structure was erected, and a playground, athletic field and recreation park provided for the use of the scholars attending. The entire plot was known as Turner Field, so named in honor of the parents of the grantors. By the School Code (May 18, 1911, P. L. 309, 347), the necessity for the purchase of land, and the determination of the purposes to which it should be devoted, was lodged with the directors of the school district, who are authorized to construct not only the building itself, but provide also for adjoining grounds to be used for play and recreation. The extent of the holding is for the board to pass upon, though property secured and devoted to other than educational or allied uses must be treated as separate from that set apart for school activities. Through this land ran an open stream, which carried off surface water from it and adjoining territory. The Borough of Wilkinsburg determined to cover this natural watercourse, and empty all the surface water from the region adjoining into an outlet on a near-by highway. By the Borough Act of 1915 (May 14th, P. L. 312, article XII, chapter YI), followed in the provisions controlling here by the Code of 1927, passed after this proceeding was instituted, certain powers were granted to the municipality. The section referred to authorized the creation of sanitary sewers to carry away filth, and, by article XVI of the same act, the right was granted to enter upon lands and enclose watercourses and confine storm waters. The first plan contemplated a sewer, and the second a control of surface drainage. The class of the construction provided for is important in determining the right to assess for benefits, as attempted here. Though the distinction between sewers and mere ditches and drains was held unimportant in Strohl v. Ephrata Boro., 178 Pa. 50, where an injunction was asked by a private owner to restrain a municipal improvement proposed under the Act of May 16, 1891, P. L. 75, it was because, in both cases, the property owner was bound, under that legislation, to pay the cost. It is, however, material here, since a school district cannot be assessed for benefits accruing from work done, except for that arising from the building of a “sewer or sewer connection.” If the work undertaken was merely the enclosure of a stream, or the making of provision for the removal of surface water to another point, then no such claim can be sustained. Property of municipal subdivisions of the State cannot be assessed unless some statute expressly so provides, and no exemption law is needed to relieve lands held for public purposes from such charges: Erie Co. v. City of Erie, 113 Pa. 360; Robb v. Phila., 25 Pa. Superior Ct. 343; Reading v. Berks Co., 22 Pa. Superior Ct. 373. Though unnecessary to effect this end, the School Code of 1911 did expressly exempt all property of the districts used for schools, recreation, or other purposes. It is chargeable with costs incurred by another municipal corporation on its behalf, where the claim is not the equivalent of a tax, as in the case of furnishing water for use from municipal waterworks: Bedford v. Schnably, 89 Pa. Superior Ct. 486. Here, we are dealing with an assessment for construction done under authority granted the borough. “Statutes imposing assessments for local improvements are enacted in the exercise of the taxing power of the legislature. They, therefore, notwithstanding the generality of the enumeration of the property affected, do not apply or relate to property held or used for public purposes by the State or any of its political subdivisions”: Pittsburgh v. Sterrett Subdistrict School, 204 Pa. 635, 643; Erie v. Erie School Dist., 17 Pa. Superior Ct. 33. This rule is generally recognized in other jurisdictions: Note, 36 A. L. R. 1540. To justify a municipal claim in such instances, express statutory authority must be shown. There is no presumption of an intention to permit such charge, but a clear direction to this effect must appear: Pittsburgh v. Sterrett Subdistrict School, supra; Com. v. P. R. T. Co., 287 Pa. 70. The borough contends that this power has been given by the Act of 1923 (May 16th, P. L. 207), which permits assessments for “sewers and sewer connections,” and it is necessary to determine whether the work here provided for was of the character defined in the statute. It will be noticed that the resolution of council provided only “for a culvert to cover creek bed, Laketon Road and Turner Street with connection on Marie Street,” and the report of the viewers assessing benefits so describes it. No suggestion is. made in the borough enactment, upon which the proceeding was based, that a sewer was to be constructed, and this is first heard of in the municipal claim filed, which says the construction was of a “sewer or culvert to completely enclose a portion of Nine Mile Run.” The court, in the opinion later filed, called it a “culvert or sewer,” which became a part of the “surface sewer system of the borough,” and counsel, in this argument, call it a part of the “street sewerage system.” There is no suggestion that it was a sanitary sewer. The borough had the power to enter land and erect culverts, and, also, if it saw fit, build sanitary sewers. These separate kinds of work are permitted by distinct clauses of the Borough Act, and are also recog nized as different classes of improvement in the first section of the Act of 1923, defining municipal claims, upon which the borough depends to sustain the present claim, but the fifth section gave the light to assess school districts for sewers only, and not culverts, and, in the absence of express legislation conferring this power, no such tax can be sustained. “In the common sense of the term [a sewer] means a large, and, generally, though not always, underground passage or conduit for fluid and feculent matter, from a house or houses to some other locality, and usually the place of discharge. Other courts have defined a seiver to be a closed or covered waterway for conveying and discharging filth, refuse and foul matter, liquid or solid, while ditches are drains which are, or may be, open and so arranged as to take away surface water”: Durham v. Eno Cotton Mills, 57 S. E. 465, 144 N. C. 705; 11 L. R. A. (n. s.) 1163, 1166; State Board of Health v. Jersey City, 55 N. J. Eq. 116, 35 Atl. 835. “Formerly, the word sewer was used to indicate a fresh water trench, compassed on both sides with a bank......[but] the term sewer cannot be construed to mean the same as drainage”: Wetmore v. Fiske, 15 R. I. 354, 5 Atl. 375, 378. “[The] secondary meaning [of the word sewage] is derived from the usual character of the contents of a sewer, and, as used in that sense, the word signifies the refuse and foul matter, solid or liquid, which is so carried off”: Morgan v. City of Danbury, 67 Conn. 484, 35 Atl. 499, 500. It must be kept in mind that the right to assess the school district rests on express statutory authority. The Act of 1923 gives the right to enter land to construct culverts, drains, ditches and sewers, but it is only in the latter case that power is granted to assess benefits. There is good reason for this distinction, since, in the latter case, the borough will necessarily undergo expense in disposing of the waste matter poured therein. Though ditches, drains and sewers were treated as one and the same, as already noticed, in Strohl v. Ephrata Boro., supra, yet there the property benefited was private and subject to benefits for work connected with any of the operations mentioned. In the present case, the school district is liable only where expressly charged by the statute, which is to be strictly construed, and is limited to the building of “sewers and sewer connections.” Where a similar question arose in Ohio, it was said, “Each [kind of improvement mentioned] has a common, ordinarily accepted meaning of its own, and legislation by the council of a municipal corporation for the improvement of a street by paving, and providing for the construction of the necessary drains as an incident thereto, is not broad or comprehensive enough to clothe the city with jurisdiction to construct a sanitary sewer thereunder”: Albrecht v. Cincinnati, 104 Ohio 266, 135 N. E. 541, 543; Lichtenwalter v. Akron, 158 N. E. 651. The Act of 1923 authorized assessment benefits only under certain specified circumstances. The borough could enter lands to enclose a culvert, as the resolution of council here provided, or it could do likewise to construct a sanitary sewer or connections, but it was only in the latter case that section 5 gave the right to file a claim against the school district for benefits. In the present proceeding, the borough directed solely the closing of the watercourse and its connection with an outlet for the storm water collected. Viewers were appointed to assess benefits for this purpose alone, and charged the district with $10,800. A municipal claim was filed for this amount,, and a scire facias issued thereon. The school authorities referred the matter of its liability to the solicitor for advice as to the proper action required, but no affidavit of defense was filed, with the result that judgment was entered by default on January 9, 1929. The claim of record showed an attempt to assess for benefits from a construction not a “sewer and sewer connection,” within the strict meaning of these terms, — the only case in which such a charge could legally be made. Thereafter, an affidavit of defense, rais ing this question of law, was interposed, and a petition presented to set aside the judgment. After answer, this application was refused by the court on the ground of delay on part of the municipality in asserting its rights, and also because the entire 12 acres were not used for school purposes. As to the latter objection, it may be observed that the whole tract had been set apart by the directors for recreation purposes in connection with the building erected on the land, and its action in doing so was permitted by the School Code, and constituted a matter for the exercise of discretion of the board. The complaint as to the pleadings rests on the failure to file an affidavit of defense until after judgment had been entered on the scire facias. The contention is made that this is required even in the case of the school district, since the General Act of 1923, regulating procedure in the enforcement of municipal liens, makes no express exception in this respect where a claim is against a municipality, as is true in actions of assumpsit and trespass by section 12 of the Act of March 10, 1921, P. L. 16, amending a like clause in the Practice Act of May 3, 1917, P. L. 149, which provided that municipalities shall not be required to file such pleading. It is insisted that this legislation does not apply to actions other than those named, and, therefore, not to a proceeding on a municipal claim under the Act of 1923, which repeals inconsistent legislation. Since 1858 (Act April 21st, P. L. 385, section 8) it has been the policy of the law not to require municipal corporations to answer in any case, for it was then enacted that all laws requiring otherwise be repealed. Though the Act of 1923 in turn repeals legislation in conflict with its general terms, it may be said that such general statute without negative words, though containing a clause repealing all laws inconsistent therewith, cannot operate to set aside a previous statute which is particular, even though the provisions of the one are different from the other: Com. v. P. & E. R. R., 164 Pa. 252. It is against reason to sup pose that the legislature, in framing a general system for the collection of municipal claims throughout the State, intended to repeal an act passed to meet special circumstances, or having a special object in view: Brown v. County Commissioners, 21 Pa. 37; Endlich on Interpretation of Statutes, pages 223, 303. The purpose of the Act of 1923 was to provide a general scheme for assessing benefits and collecting the amounts from the land itself, where improvements authorized .have been undertaken. Though no express words relieved the municipal corporation, named as liable to the charge imposed, from filing an affidavit of defense, as required of the private owner, it is not clear that there was a purpose to abrogate the long established statutory rule that no such duty was imposed upon it. Whether this conclusion be drawn or not, it is evident, from an examination of the claim here filed, that it was based on the benefit to the school district arising from the construction of a culvert. No act of assembly warrants the assessment, and, in the absence of express statutory imposition of liability, no charge could be lawfully made against it. Even though a judgment has been entered, as here, if the face of the record shows the same to be baseless, the court should strike it off: Constable v. Andrews, 297 Pa. 285; Kolf v. Lieberman, 282 Pa. 479; Bryn Mawr Nat. Bank v. James, 152 Pa. 364; Jordan v. Kirschner, 94 Pa. Superior Ct. 252; Stevenson v. Virtue, 13 Pa. Superior Ct. 103. If unauthorized and void, this may be done at any time, since the doctrine of laches is not to be applied under such circumstances: Romberger v. Romberger, 290 Pa. 454. In the present case, the claim, upon which the judgment is founded, shows an attempted assessment of school property for benefits due to the “constructing of a sewer or culvert to confine and completely enclose Nine Mile Run,” and no power to file a municipal lien for the benefits resulting has been granted by any statute. Even if it was the duty of the school district to file an affidavit of defense where a municipal lien was filed, yet the judgment entered must be stricken off when its purpose is to assert a claim for benefits without express legislative authority. The order of the court below is reversed, and it is directed that the judgment be stricken from the record, at the cost of the appellee.

The opinion of the court was delivered, January 3d 1870, by Sharswood, J. — As the rule is well expressed'by an approved elementary writer, — “ the quality of the alleged libel as it stands on the record, either simply or as explained by averments and innuendoes, is purely a question of law for the consideration of the court:” 2 Starkie on Slander and Libel 281. That this was the law in England, both1 in civil and criminal proceedings, up to 1792, was maintained so rigidly that nothing was submitted to the jury in such cases but the fact of publication and the truth of the innuendos: Rex v. Woodfall, 5 Burr. 2661; The King v. The Dean of St. Asaph, 3 T. R. 428, note; The King v. Withers, 3 T. R. 428. In consequence of these decisions the statute of 82 Geo. 3, c. 60, commonly known as Mr. Fox’s Act, was passed. This statute is confined in terms to trials of indictments or informations, when an issue or issues are joined between the king and the defendant or defendants on the plea of not guilty pleaded, in which case it declared and enacted that the jury may give a general verdict of guilty or not guilty upon the whole matter put in issue, and should not be required or directed to find the defendant guilty merely on proof of the publication, and of the sense ascribed to the same in the indictment or information. By the second section it was provided “that on every such trial the court or judge, before whom such indictment or information shall be tried, shall, according to their or his discretion, give their or his opinion and direction to the jury on the matter in issue between the king and the defendant or defendants, in like manner as' in other criminal cases.” It has never been pretended that this statute had any application to civil actions: Levi v. Milne, 4 Bingh. 195; and its obvious intention was merely to restore to juries their common-law right to give a general verdict in cases of libel, just as in other criminal cases, of which they had been unconstitutionally deprived. Hence the law was carefully made declaratory. The seventh section of the ninth article of the Constitution of Pennsylvania has expressed the same constitutional doctrine and incorporated it with the Declaration of Rights. “In all indictments for libels the jury shall have a right to determine the law and the facts, under the direction of the court, as in other cases.” There can be no doubt that both in criminal and civil cases the court may express to the jury their opinion as to whether the publication is libellous. The difference is, that in criminal cases they are not bound to do so, and if they do, their opinion is not binding on the jury, who may give a general verdict in opposition to it, and if that verdict is for the defendant, a new trial cannot be granted against his consent. As our declaration of rights succinctly expresses it, the jury have the right to determine the law and the facts in indictments for libel as in other cases. But in civil cases the court is bound to instruct the jury as to whether the publication is libellous, supposing the innuendoes to be true, and if that instruction is disregarded, the verdict will be set aside as contrary to law. In England the courts have recently disregarded, to some extent, this plain distinction between criminal and civil proceedings. It appears to be put upon the ground that Mr. Fox’s Act, though limited in terms to indictments and informations, was declaratory of the law in all cases of libel; upon what principle of construction, however, it is not very easy to understand. It is there the approved practice for the judge in civil actions, after explaining to the jury the legal definition of a libel, to leave to them the question whether the publication upon which the action is founded falls within that definition: Folkard’s Starkie 202; Baylis v. Lawrence, 11 Ad. & Ell. 920; Parmiter v. Coupland, 6 M. & W. 105; Campbell v. Spottiswoode, 3 B. & S. 781; Cox v. Lee, 4 Exch. Law Rep. 284. These cases were followed in Shattuck v. Allen, 4 Gray 540. Yet it is clearly held that a verdict for the defendant upon that issue will be set aside and a new trial granted: Hakewell v. Ingram, 28 Eng. Law & Eq. Rep. 413. “ Though in criminal proceedings for libel,” said Jervis, C. J., “there may be no review, in civil matters there are cases in which verdicts for the defendant are set aside upon the ground that the matter was a libel, though the jury found it was not.” This must be conceded to be an anomaly; and it will be best to avoid a practice which leads to such a result. The law, indeed, may be considered as settled in this state by long practice, never questioned, but incidentally confirmed in McCorkle v. Binns, 5 Binn. 340, and Hays v. Brierly, 4 Watts 392. It was held in the case last cited that where words of a dubious import are used the plaintiff has a right to aver their meaning by innuendo, and the truth of such innuendo is for the jury. In New York, since the recent English cases, the question has been ably discussed and fully considered in Snyder «. Andrews, 6 Barb. 43; Green v. Telfair, 20 Barb. 11; Hunt v. Bennett, 19 N. Y. 173, and the law established on its old foundations. A libel may be defined to be any malicious publication,’written, printed or painted, which, by word or signs, tends to expose a man to ridicule, contempt, hatred or degradation of character: 1 Am. Lead. Cases 109; McCorkle v. Binns, 5 Binn. 340. The publication set forth in the declaration in this case, and given in evidence, was unquestionably a gross libel. Its language is clear and unambiguous, and it may be doubted whether, taken altogether, it needed any innuendo to point it to the plaintiff. Such innuendoes are given, however, and we must consider their truth to have been found by the jury. Its avowed purpose was to hold up the plaintiff below to public scorn and condemnation, as guilty of a crime carrying in its train household ruin and the wreck of domestic happiness. It denounced the act imputed to him as one characterized by the most shameless treachery and hypocrisy. No words could have been used more directly calculated to excite against him public hatred, or to degrade his character. Had the publication been confined to the petition filed in the Court of Common Pleas for a divorce, it might have been considered as privileged, and the plaintiff held bound to prove express malice: Curry v. Walter, 1 Bos. & Pul. 523; McLaughlin v. McMakin, Bright. Rep. 132; Nuff v. Bennett, 4 Sanf. 120. But the comments which accompanied it deprived it of its privilege. It has been held to be libellous to publish a highly colored account of judicial proceedings mixed with the party’s own observations and conclusions : Stiles v. Nokes, 7 East 493; Lewis v. Clement, 3 Barn. & Ald. 702. In such a case the general principle is, that if the publication, considered either by itself or in connection with extrinsic facts, be defamatory, malice is an inference of law, which the jury are bound to find according to the direction of the court: 2 Starkie on Slander and Libel 322. “ I take it to be a general rule,” said Abbott, C. J., in Duncan v. Thwaites, 3 B. & C. 556, “that an act unlawful in itself and injurious to another is considered, both in law and reason, to be done malo animo ; and this is all that is meant by a charge of malice in a declaration of this sort, which is introduced rather to exclude the supposition that the publication may have been on some innocent occasion, than for any other purpose.” These considerations dispose of the third and fourth assignments of error, and the first and second not being secundum regulam, must be treated as none. Judgment affirmed. Bead, J., dissented.

Mr. Justice Williams delivered the opinion of the court, February 1st.1875. This case was here on a former writ of error, and was reversed for the admission of irrelevant and improper evidence: 22 P. F. Smith 27. It now comes before us, after a second trial in the court below, for the correction of alleged errors in refusing to charge as requested, and in the instruction given to the jury. The action was brought by the widow and children of George fi. Weber, who was killed at a public crossing of the defendant’s road, by a passing train, to recover damages for his death. It was unquestionably the decedent’s duty, as the court below in effect charged the jury, to stop and look and listen for approaching trains, before attempting to cross the track of defendant’s road; and if he failed to observe this precaution, his failure was not merely evidence of negligence, it was negligence in itself. But it does not follow that he omitted his duty in this respect, because he was killed by a passing train. Nor was it incumbent on the plaintiffs, in order to recover damages for his death, to show affirmatively that, before attempting to cross the track, he did stop and look and listen. The common-law presumption is, that every one does his duty until the contrary is proved; and, in the absence of all evidence on the subject, the presumption is, that the decedent observed the precautions which the law prescribes, before he attempted to cross the defendants’ road. It is true, that when the plaintiff’s own evidence discloses contributory negligence, there can be no recovery; but if it does not, the burden is on the defendants to disprove care; and in such case the question of negligence is for the jury. Does, then, the plaintiffs’ evidence show that the decedent was guilty of contributory negligence in not stopping to look and listen for the train by which he was killed ? If so, the court should have given a binding direction to the jury to find for the defendants. But, in the absence of such evidence, it would have been error for the court to withdraw the case from the jury, and determine, as matter of law, that he was guilty of negligence, which contributed to his death. Whether, then, the court should have aflirmed the defendants’ second point without qualification, depends upon the character of the evidence of which it was predicated. If] as suggested in the point, the uncontradicted evidence in the case shows that the decedent did not stop before driving on the track, then he omitted a plain and positive duty, and the court should have declared its omission negligence, as a matter of law. But if there was no direct and positive evidence, showing that he did not stop before driving on the track, then the learned judge was clearly right in refusing to withdraw the case from the jury, and in saying, as he did, “ We cannot' affirm this point, but say again, that the first presumption of law is, that he did stop, look and listen. But this presumption will give way to the actual truth, that he did not do so. And we say again, that if the evidence satisfies you that had Weber stopped, looked and listened, he would not have been injured, then he was guilty of negligence, and you should find for the defendants, even should you find that the engineer gave no warning of the approach of the train.” It is apparent, from the answer and from the whole tenor of the charge, that if the court erred in not giving the instruction prayed for, the error arose from a mistaken view of the evidence, and not from misapprehension of the law. Does the nncontradicted evidence in the case show that the decedent did not stop before driving on the track ? We have looked through the record and have not been able to discover any direct and positive evidence that such was the fact. The decedent was returning in a baker’s wagon from Marysville, where he had been to supply his customers with bread, and was seen by the plaintiffs’ witnesses, who were at work on the railroad, about twelve hundred feet east of the crossing where he was killed. He stopped and sold them some cakes, and then drove on. One of the witnesses, Alfred Ensminger, in answer to the question, “ What was the next thing that attracted your attention after the baker started on his way westward ?” said : “Well, after a young man had bought the cakes from him, Alfred Priesler, we started right away to work again: I was working with my face eastward, stooping down, tamping a tie, and I heard a sharp whistle; I turned around and looked up the road, and I saw the engine strike the wagon and horse.” The other witness,?. Deitz, said: “I bought some cakes from him, me and Priesler. After the purchase of the cakes, we went back to work again, and he started on.” In reply to the question, “ Where did you next see him ?” he said: “ Well I heard a whistle ; I looked up ; says I, ‘ there goes the laker,’ we just call him the baker. This whistle was just as the baker was driving on, as near as I can tell. The train and the baker were approaching each other at that time; I did not know that the train was coming until I looked up; I did not hear any but the one whistle. In answer to the question put to him on cross-examination, “ Was the horse close to the rail when you saw him ?” he said: “ I could not say that positively, because I was scared; I could not say how close he was ; I could see the horse though.” On behalf of the defendants, Samuel H. Free, the engineer of* the train, testified as follows : “When we got to the end of the stone wall, or near about there, I believe the whistling-post stands near the end, I blew the whistle four blasts for the next crossing below. About half way from that (the whistling-post) to the crossing below, I saw the horse coming out on the road towards the track ; I blew the whistle again some four or five blasts, sharp and quick ; and a very short time after that the horse and wagon stopped on the track ; as soon as they stopped, I pulled the patent brake, and reversed the engine; the engine was in that position until it struck the wagon; I suppose the horse’s head was within a few feet of the track when I first saw it; when I first saw the ho.rse I was about half way from the whistling-post to the crossing, as near as I can tell; when I struck Weber the horse stood with his hind feet just across the north rail of the south track, as near as I can tell; Weber was sitting in the wagon, not quite in the middle of the wagon, a little nearer to the front than the middle ; when I got close enough to him, I saw he had hold of the lines, pulling hack, as though he was trying to back the horse; I think the two front wheels stood near about the north rail of the south track ; the shafts stood the same as a horse backing or trying to back, standing up along side of his neck.” Henry Robinson, the fireman, testified : “ My attention was called first as I was sweeping off the foot-board, by an alarm-whistle; I looked on my side and saw the horse; I saw a man seated in the wagon near the middle, as near as I could tell by the appearance; the horse was stopped; it appeared to me that he was trying to back the horse off the road, as the shafts were up alongside of the horse’s neck, and the wagon had run on him; he remained in that position until we struck him.” This is the substance of the testimony on the subject, and so far from showing that the decedent did not stop to look and listen before driving on the track, it shows conclusively that there was no direct and positive evidence on the subject, one way or the other. No human eye saw him from the time he sold the cakes to Deitz and Priesler until the alarm-whistle sounded, when he was seen driving upon the track, his horse’s head within a few feet of it, and the engine not more than six hundred and twenty feet from the crossing where the collision took place. Whether he stopped, or not, before driving on the track, is matter of mere inference or conjecture, and cannot with certainty be known. On the one hand is the presumption that he stopped to look and listen. He was well acquainted with the crossing, having been accustomed to drive over it every day, and must have known the time at which the regular trains passed. He had the highest motive to take the necessary precaution to insure his safety, and the presumption is that he did. On the other hand, it may be inferred from the circumstances, that if he had stopped to look and listen he would have seen or heard the approaching train. But whether he stopped, or not, it was the province of the jury to determine as a question of fact, and not a matter of law, for the decision of the court. The evidence from which the decedent’s negligence may be inferred, is not só clear and convincing in this case as in The Hanover Railroad Co. v. Coyle, 5 P. F. Smith 396, and The Pennsylvania Railroad Co. v. Goodman, 12 Id. 329, in both of which it was held, notwithstanding our dissatisfaction - with the verdicts, that the question was rightly left to the jury. Manifestly the court could not have given the instruction prayed for, without invading the province of the jury, and running counter to the whole current of our decisions in cases of negligence. If, then, there was no error in refusing to affirm the defendants’ second point, did the court err in saying to the jury in answer to it, that if the evidence satisfies you that had Weber stopped, looked and listened, he would not have been injured, then he was guilty of negligence, and you should find for the defendant. Whether he stopped, or not, was, in the absence of any direct and positive evi dence on the subject, a matter of inference from all the circumstances of the case, and what was the reasonable and proper inference was for the determination of the jury. What possible harm then could the instruction complained of do the defendants ? On the contrary, what stronger argument could have been made to the jury to show that he did not stop, for if they believed that he would not have been killed if he had stopped to look and listen, then the natural and pregnant inference would be that he did not stop ; and if so, he was guilty of contributory negligence, and the plaintiffs were not entitled to recover. Nor was there error in charging that if the evidence shows negligence on the part of Weber in approaching and crossing the track of defendants’ road, and no negligence on the part of the company, then the blame and fault would be Weber’s own, and the law will not permit the plaintiffs to recover. This instruction was clearly right, and it could not, as contended, have misled the jury by leading them to believe that they could not find a verdict for the defendants unless they found that the company was not guilty of negligence, although they should find that Weber was, for in the very next breath the court told the jury that if the evidence shows that both Weber and the company were guilty of negligence or carelessness in crossing the track, so that both parties were to blame for the accident, the plaintiffs cannot recover. The very able and earnest argument of the counsel for the plaintiffs in error has failed to convince us that the evidence in this case shows such contributory negligence on the part of the decedent as made it the duty of the court to declare it such as matter of law, or that there was any error in the instructions given to the jury. On the contrary, we are satisfied, upon a review of the whole record, that the case was well tried by the learned judge, and that his charge contains a clear and correct statement of the law arising upon the evidence. If the jury erred in their finding, it was from no failure on his part, to draw their attention to the true attitude of the case under the evidence, and to that view of it which tended to show contributory negligence on the part of the decedent. The court could not have gone further, without trenching on the province of the jury, whose duty it was to determine, under all the circumstances of the case, whether or not he was guilty of contributory negligence. Judgment affirmed.

Opinion by Mb. Justice Mestbezat, Dannemiller & Company, the plaintiffs, are importers and roasters of coffee, having their place of business at Canton, in the state of Ohio. Allen Kirkpatrick & Company, the defendants, are wholesale grocers and carry on their business in the city of Pittsburg, in the state of Pennsylvania. By an agreement dated January 17,1896, the defendants were given the exclusive right to sell in certain parts of western Pennsylvania a brand of coffee prepared by the plaintiffs and known as “ Cordova ” coffee. The agreement was to continue in force for one year and as much longer thereafter as was satisfactory to both parties. The plaintiffs, with certain exceptions, were to sell no coffee within the designated territory. In consideration of having the exclusive right to sell the “ Cordova ” coffee in the territory named in the agreement, the defendants agreed to give this brand of coffee preference in sales made by them to all other coffees. The fifth paragraph of said agreement is as follows: “ The said Dannemiller & Company do hereby agree to bill ‘ Cordova ’ coffee at the same price f. o. b. Pittsburg as Arbuckles & Company or Woolson Spice Company with same terms of rebate and cash discount. In the event of advance or decline in price of same, it is agreed that upon all stock unsold in possession of said Allen Kirkpatrick & Company that they credit or charge the same to the account of said Dannemiller & Company; in short, the said Dannemiller & Company guarantee the price on all unsold coffee by having the advantage of receiving credit on any advance in price on unsold stock.” During the years 1896,1897 and 1898 the plaintiffs shipped to the defendants numerous carloads of “ Cordova ” coffee. On March 18,1898, the defendants ordered a carload of coffee from the plaintiffs, and it was shipped on March 21,1898, from Canton via the Cleveland, Canton & Southern Railroad and the Baltimore & Ohio Railroad. It was consigned to the defendants at Pittsburg. On the day of the shipment the plaintiffs sent to the defendants an invoice of the coffee, accompanied by a bill of lading for the same in which the defendants were named as consignee. The invoice and bill of lading were shortly thereafter received by the defendants, who retained the bill of lading until April 25, 1898, when they returned it to the plaintiffs. All the invoices of coffee shipped by the plaintiffs to the defendants under the agreement between the parties, contained the following: “ All goods delivered to' the carriers in good order. Claims for damage thereafter, or breakage, must be made against the transportation company delivering the goods.” The carload of coffee shipped by the plaintiffs on March 21, 1898, was lost in transit and never reached its destination. The defendants having declined to pay for it this action was instituted to recover its value. On the trial of the cause the defendants set up three grounds of defense: (1) That there was no delivery in Pittsburg, as required by the agreement; (2) that the agreement was one of agency, and there could be no recovery without showing the receipt of the coffee by the defendants; and (8) “ because a sale at Canton by plaintiffs to defendants at Pittsburg, evidenced by the bill of lading alone, the plaintiffs cannot recover.” The learned trial judge directed a verdict for the plaintiffs, but reserved the question whether there was any evidence which entitled the plaintiffs to recover. Subsequently a judgment non obstante veredicto was directed to be entered for the defendants. The court in the opinion filed, entering this judgment, held that the only question in the case was whether there was a delivery of the coffee to defendants; that this question must be determined by the terms of the contract which, it was claimed, were not in dispute, and that the plaintiffs’ right to recover depends upon the meaning of that part of the agreement which reads “ Bill ‘ Cordova ’ coffee at same price f. o. b. Pittsburg as Arbuckles & Company or Woolson Spice Company.” Having construed the contract to require a delivery of the coffee at Pittsburg, the court held that at the time it was lost in transit the title was in the plaintiffs, and hence the defendants were not liable in this action. It will be conceded that if there was no delivery of the coffee to the defendants the loss of the goods must fall upon the plaintiffs, who still retained the title. If a vendor agrees to deliver at a certain place, the property is at his risk until it is so delivered: Sneathen v. Grubbs, 88 Pa. 147; McNeal v. Braun, 53 N. J. L. 617; Taylor v. Cole, 111 Mass. 363. But we cannot agree with the learned trial judge that the terms of the written agreement in this case determined conclusively the place of delivery, and that it was the duty of the court to withdraw the question from the jury. The language of the contract relied upon for such an interpretation is the following, part of which is quoted in the opinion of the court just cited: “ The said Dannemiller & Company do hereby agree to bill ‘ Cordova ’ coffee at the same price f. o. b. Pittsburg as Arbuckles & Compaby Or Woolson Spice Company, with the same terms of rebate and cash discount.” It was upon the construction of this clause that the learned judge decided that the contract required the plaintiffs to deliver the coffee to the defendants at Pittsburg. It is apparent, however, that this language of itself does not sustain the interpretation given it. It requires the plaintiffs to “bill” the coffee at the same price and on the same terms as competing firms in the city of Pittsburg. To “ bill ” coffee f. o. b. Pittsburg is not synonymous with the expression to “ deliver ” coffee f. o. b. Pittsburg. The language used in the agreement implied that the cost of the coffee at Pittsburg, including the expense of placing it there, should not exceed the price of coffee sold by firms competing with the plaintiffs at Pittsburg. It was also some evidence, though not conclusive that the coffee was to be delivered to the purchasers at Pittsburg : Neimeyer Lumber Co. v. Burlington & M. R. R. Co., 54 Neb. 321, and cases there cited. The question of delivery of the coffee was under the facts disclosed on the trial, one of fact for the jury. It is well set- tied that in the absence of an agreement to the contrary, when a vendor sells goods to a vendee residing at a distance, a delivery of the goods to a carrier for transportation is a delivery to the purchaser. And especially is this true when a bill of lading naming the purchaser as consignee is transmitted to and received by the purchaser. The delivery to the carrier vests the title to the property in the purchaser, and the risks of transportation must be assumed by him: Schmertz v. Dwyer, 58 Pa. 335; Phila. etc., R. R. Co. v. Wireman, 88 Pa. 265; Bacharach & Co. v. Chester Freight Line, 133 Pa. 414; Putnam v. Tillotson, 13 Metc. 517. This rule, however, does not obtain where the' parties have otherwise stipulated in their agreement. If it is the intention of the parties,'and it so appears from the contract, that delivery is to take place at the destination of the property, and that the title is to remain in the consignor until that time, then delivery to the carrier does not divest the title of the vendor to the property, nor pass it to the purchaser, until it reaches its destination, and the hazards of transportation are at the risk of the consignor. It, therefore, becomes a question in cases of this character as to where the delivery of the goods is to be made and when the title is to pass to the purchaser. If the facts are not in dispute it is a question of law for the court, but if the evidence is conflicting the question must be determined by a jury: Neimeyer Lumber Co. v. Burlington & M. R. R. Co., supra; McLaughlin v. Marston, 78 Wis. 670 ; Merchants’ Nat. Bank v. Bangs, 102 Mass. 291; Gibbons v. Robinson, 63 Mich. 146; Alabama G. S. R. Co. v. Mt. Vernon Co., 84 Ala. In the light of these principles let us examine the case in hand. The appellees maintain and the court so held that the terms of the contract were not in dispute, and that the proper construction of it required the plaintiffs to deliver the coffee at Pittsburg. As suggested above, to sustain this construction the court must read the clause referred to as !! deliver” instead of “ bill ” the coffee f. o. b. Pittsburg. But the court cannot do tbis under the facts of the case. In the absence of this contract the delivery to the carrier was a delivery to the defendants at Canton, Ohio. It, therefore, required clear and explicit language in the contract to warrant the court in holding that such was not the intention of the parties. While, as we have said, the prepayment of freight may be evidence of an intention to deliver the goods to the buyer at his place of business, yet the court is not justified in determining the question from that fact alone to the exclusion of the other testimony in the case. In support of the contention that the delivery of the goods to the carrier was a delivery to the defendants, the plaintiffs refer to the fact that they agreed to “ bill ” and not to “ deliver ” the goods, freight prepaid, to the defendants at Pittsburg; that all invoices of coffee shipped during the period covered by the contract contained a notice that claims for damage to the goods must be made against the transportation company, and that the defendants received these invoices without objection; that certain communications from defendants to plaintiffs and memoranda placed on the invoice of the carload of coffee, showed that the defendants regarded the coffee as belonging to them at the time it was lost. In further support of their claim as to place of delivery, the plaintiffs introduced parol testimony to show that the defendants had designated the carrier by which the coffee was to be shipped and that the plaintiffs were not to deliver the coffee at Pittsburg. While maintaining that the contract itself shows that the plaintiffs were to deliver the coffee at Pittsburg, the defendants claim that the other testimony in the case also sustains this position. They contend that the evidence shows that at the time the agreement was entered into both parties knew that a price f. o. b. Pittsburg meant a delivery at Pittsburg, and that they dealt with each other with this understanding. It is apparent from the contention of the parties and from the testimony in the case that the question of the place of delivery of the coffee is one of fact to be determined by a jury. The 'written contract is not the only evidence on this point. If it were, and its terms were explicit, the court could determine the question without the aid of a jury. The learned judge seems to think that the case at bar is identical with Miller v. Seaman, 176 Pa. 291, and that the initial letters f. o. b. were interpreted in that case as meaning a delivery of the goods at the designated place. But an examination of the case and of the opinion of the court below shows that the case was ruled against the plaintiff on the ground that the contract was an executory one, that the title to the lumber was in the vendor when it was lost, and that no title could pass to the vendee until the lumber had been inspected and measured or estimated. This could not be done, as the lumber in controversy had been swept away by a flood from the yard in which it was piled at the time of the agreement to sell. This court affirmed the judgment. The decision of the case did not require a construction of the provision “ shipping account f. o. b. Williamsport.” It is contended further on behalf of the defendants that there can be no recovery here for the reason that the agreement between the parties is one of agency. If this were true the position would be tenable. This defense was not considered by the learned trial judge, his ruling in favor of the defendants being based solely on the ground that, the agreement required a delivery of the coffee at Pittsburg. As the view we take of the case requires it in any event to be sent back for another trial, we do not deem it necessary or proper to express an opinion on this branch of the defense under the testimony submitted on the trial. The assignment of error is sustained, the judgment is reversed, and a venire facias de novo is awarded.

Opinion by Mr. Justice Brown, Joseph Wolf, the appellee, appealed to the Superior Court from the refusal of the court of common pleas of Fayette county to open six judgments that had been entered against him by Jasper Augustine, the appellant. By a stipulation filed the six appeals were heard together. The Superior Court affirmed the order as to one of the judgments and reversed as to the other five, reinstating the rules to open and making them absolute: Augustine v. Wolf, 29 Pa. Superior Ct. 336. The applications to open the judgments were disposed of by the court below on the petitions of the defendant, the answers of the plaintiff and depositions taken by each side. On the appeal to the Superior Court no exception was taken by Wolf to the material facts stated by the court below in the opinion discharging the rules; and there is no complaint of them here. The six judgments were entered against the defendant on March 6,1894. About the same time and to the same term ten other judgments were entered against him in favor of the same plaintiff. On January 11, 1895, Wolf filed a bill in equity in the court of common pleas of Fayette county, alleging that Augustine had been guilty of fraud upon him in transactions covering a period of many months, and the said ten judgments were selected and specifically set forth as those against which he had a defense. None of the six judgments under consideration were complained of in the bill, though they had been entered more than ten months before it was filed. The complaint of Wolf as to the judgments entered against him by Augustine was confined to the other ten. In 1899 a writ of scire facias was issued upon each of the six judgments before us. To each writ an affidavit of defense was filed, in which Wolf alleged that the judgment was involved in the equity proceedings, which were still pending and undecided. No other defense was set up. About two months after the decree in the equity court was affirmed by this court, Wolf filed supplemental affidavits of defense in the suits brought to revive the judgments, in which he alleged that he had intended to include them in the equity proceedings, and was advised and believed that they were covered by the general finding of the referee, that he did not know whether he had executed the notes or not and could not say until he saw them. On February 25,1902, almost three years after the proceedings to revive the judgment had been instituted and more than eighteen months after the final decree in the equity proceedings had been entered, the petitions were presented to the court below, asking that the judgments be opened. In these petitions Wolf again declared that he did not know whether he had signed the notes upon which the judgments were entered, and that, if he did sign them, they were without consideration and had been obtained by fraud. To these petitions full, complete and responsive answers were filed. Testimony was taken on behalf of the petitioner and respondent, and although after former inspection of the notes the petitioner had sworn he could not say whether or not he had signed them, in his testimony taken in support of his rules he denied the signatures to all but one and called four experts who agreed with him. Augustine swore that he had seen Wolf sign each note and explained in detail the consideration entering into each. He also called four expert witnesses in handwriting, who, in most positive terms, pronounced genuine the signatures to the five notes attacked as forgeries. With these facts found by the court below and unquestioned by Wolf on his appeals to the Superior Court, the orders refusing to open the judgments entered on notes alleged to be forgeries were reversed. The only question before the Superior Court was whether the court below had rightly exercised its discretion, and this is the only question before us, to be now determined as if Wolf’s appeals had been here in the first instance. In the opinion of the Superior Court it is stated that “ the defendant should be allowed a trial where he has shown by á preponderance of evidence sufficient to sustain a verdict in his favor, that he has a just defense.” No such preponderance in favor of the defendant appears in the present case, and his counsel did not attempt, either before us or in the Superior Court, to call attention to it. On the contrary, as to the charge of forgery, upon which allegation the five judgments were directed to be opened by the Superior Court, the court below said: “ The allegation of forgery, if promptly made and supported, would be all sufficient to warrant the opening of these judgments. In the present case, however, it is scarcely hinted at until the time came for taking testimony in support of the rules to show cause. The petitioner, Wolf, after an inspection of the notes, stated under oath that he did not know whether or not he signed them. Afterwards he swears that five of the signatures are forgeries, and called four experts to support his statement. Augustine denied that the signatures were forged, swore that he saw Wolf sign each and every of these notes, and stated specifically for what each and every note was given. In addition to his own testimony he called an equal number of experts in handwriting, who positively declared their belief in the genuineness of the disputed signatures. . . . The defense set up by Wolf, including the allegations contained in his petitions for opening these judgments is so weakened in our judgment, by a consideration of the course pursued by him throughout this long continued litigation, that at most his hope could only arise to a mere chance with a jury, for which alone, courts will refuse to grant new trials and should refuse to open judgment. The ordinary juror would not likely give much weight to a defense which was not made when opportunity therefor offered nearly ten years ago, neither is it likely he would be impressed by the allegation of forgery which the petitioner seemingly could not determine without the aid of an expert. For our part, we fail to discover any forgery, or any necessity for it when we consider the petitioner’s own statement that he signed without question any note or paper which Augustine presented.” A further statement by the Superior Court is: “ Ordinarily it is for the judge who heard the evidence to pass upon the question, even where forgery is charged, as ‘There is no inflexible rule which compels the court to open the judgment: ’ Shannon v. Castner, 21 Pa. Superior Ct. 294. It remains an equitable proceeding to bo decided by a chancellor, and a jury if necessary. While a judgment should not be opened upon the defendant’s oath when contradicted by the oath of the plaintiff, ‘ yet where there are corroborative circumstances or circumstances from which inferences may be drawn corroborating the defendant, it is proper to open the judgment, and refer the question to a jury: ’ Cloud v. Markle, 186 Pa. 614.” The oath of this defendant was not only contradicted by that of the plaintiff, but the circumstances were corroborative of the latter rather than of the former. That the legal discretion of the court below was not improperly exercised is clear and, if it was not so exercised, its orders refusing to open the judgments must be affirmed. On an application to open a judgment it is proper for the .court below to weigh the evidence and to decide according to the preponderance thereof, and we will not reverse for the exercise of a sound discretion: Wernet’s Appeal, 91 Pa. 319. “An application to open a judgment entered on warrant of attorney or on a judgment note is addressed to the equitable powers of the court below, and upon an appeal to the Supreme Court, under the Act of April 4, 1877, P. L. 53, the question is whether the court below rightly exercised its discretion on the evidence. It is a mistake to suppose that the court to which the application is made, cannot judge of the weight of the evidence and the credibility of the witnesses but in every case where there is a conflict of testimony, must send the ease to a jury: Jenkintown National Bank’s Appeal, 124 Pa. 337. Applying these well-settled principles to the case at bar we cannot convict the court of error in refusing to open the judgment: ” Blauvelt v. Kemon, 196 Pa. 128. The order of the Superior Court is reversed and the order of the court below in refusing to open the judgments Nos. 4, 5, 7, 9 and 11 to June Term, 1894, is affirmed in each case at the cost of the appellee.

Opinion by Mr. Justice Bell, Was the defendant, the driver of the alleged getaway car, properly convicted of first degree murder? On the evening of May 19, 1950, at approximately 9:15 p.m., Chapasco and Pearson went to the Safe Food Market in Bristol Township for the purpose of committing a robbery, lurked behind a building, and being discovered, seized the owner and two employees of the market, lined them up along the wall of the building, struck and knocked them to the ground. Pearson shot and killed Sklar while he was lying on the ground; Chapasco misfired and dropped his gun. They ran from the scene to the front of the building on Bristol Pike, jumped into Chapasco’s car, which was driven by the defendant who lived in and was familiar with that neighborhood, and he drove them with his lights out, rapidly away toward Philadelphia. Prior to the holdup, he had been seen frequently in the vicinity of the market. The evidence of the defendant’s participation in the robbery and subsequent murder was entirely circumstantial and consisted of the following evidence which defendant contends is inadequate to convict him of first degree murder or of any criminal offense. Irrespective of defendant’s evidence (in this case he did not take the witness stand), “[ajftera plea or verdict of guilty, ‘we accept as true all of the Commonwealth’s evidence upon which, if believed, the jury could have properly based its verdict: Com. v. Blanchard, 345 Pa. 289, 296, 26 A. 2d 303, 306. . . .’ Commonwealth v. Logan, 361 Pa. 186, 192 supra [and numerous cases cited therein]”: Com. v. Phillips, 372 Pa. 223, 227, 93 A. 2d 455. Pearson and Chapasco were convicted of first degree murder. After being informed that Pearson had confessed, defendant, a few hours later, wrote out in longhand the following statement in the police station. There is no contention that the statement was not volunarily made. It read as follows: “friday evening 19th of May Sept. 8th 1950 “I John Lowry do write this Statement of my own free will. One week before this happened Martie & Harry came to my place of employment and asked me if the Supermarket in Croyden had any money. 1 told them to get out of here before I call the cops. Then they left in a Hudson Sedan. The following Friday nite around 8.30 P.M. I were driving home from my place of employment and In Croydon Pa. I meet These two men, Harry & Martin. They told me they were looking for some one and asked me if I would drive them around town. So I drove them up State Rd. & over Cedar Ave. to Bristol Pike. Then Harry told me to turn in this Street. I believe it is Hillcrest ave we drove down there to Newportville Rd, there he told me to turn to the left when we get to Clover Ave he said left here when we got to Glover Ave about 100 yards from the corner he said (‘Harry’) park here and we will walk up to the corner. [Where the market was located.] I sat there for about 20 minutes then I drove up to the intersection. The first thing I knew they Harry & Martie came running acrost the Pike and jumped into the car and Harry said get going we just had a fight. I still don’t know what they had done. I drove the ear to city line and I left them there. Later on that nite I heard they shot a man. I didn’t know what to do. I had no knowledge that they were planing to hold up anyone I went home. The police arrested me, And they made no promisee to me. I write this of my own free will. John Lowry.” It is evident from the statement that defendant knew that the reason Chapasco and Pearson asked him if the Super-market in Croydon had any money was because they wanted to rob the place, otherwise he would not have said if they did not get out he would call the cops. Notwithstanding this, one week after that conversation Pearson and Chapasco just happened to drive past defendant who was motoring home in his car. They asked him (so he said) to drive them to a point about 100 yards from the Super-market which a week earlier they had indicated they wanted to rob, and to park there while they walked to the corner where the Super-market was. Defendant waited for about 20 minutes and then, without any explanation or reason, he just drove up to the intersection across from the Super-market on the corner of Bristol Pike, and Pearson and Chapasco just happened to come running across the Pike and jumped into the car and told him to go ahead quick as they had just had a fight. Defendant would have the jury and this Court believe that he did not know what his companions had done or had intended to do, and he never found out until later that evening. This implausible story is rendered more implausible by the fact that defendant turned out the lights when he started to pick them up, and with lights out drove the car rapidly away from the scene of the murder. Those are not the actions of an innocent man. After he left the car and his companions at the outskirts of Philadelphia, defendant forty-five minutes later returned to the scene of the crime and went into a diner directly across from the Super-market. In the diner the defendant talked to a waitress, rubbed his eyes, told her he had been in bed and had come down to see what was causing the excitement. This statement was untrue in the light of his written statement, and the jury could justifiably have believed that it was merely an attempt to divert suspicion, or to establish a possible alibi. The waitress told defendant that the men would get caught, whereupon he asked her whether she had seen them. After she said no, he asked her whether anybody saw them and recognized them. Moreover, when another waitress (perhaps imprudently) said that she had seen the car, defendant told his waitress, “You are a smart girl, Pat, to keep your mouth shut.” Defendant’s contention that his were the actions and conduct of an innocent man who had no knowledge that his companions had planned and were about to engage in the commission of a robbery and their subsequent precipitous flight was merely because they had had a fight unduly strains our credulity. However, the question still remains whether the Commonwealth’s evidence is adequate to prove beyond a reasonable doubt that defendant was a participant in the planned robbery and hence guilty of murder in the first degree. Where a killing occurs in the course of a robbery, all who participate in the robbery including the driver of the get-away car are equally guilty of murder in the first degree even though some one other than the defendant fired the fatal shot. Com. v. Robb, 284 Pa. 99, 130 A. 302; Com. v. Moyer and Com. v. Byron, 357 Pa. 181, 53 A. 2d 736; Com. v. Hough, 358 Pa. 247, 56 A. 2d 84; Com. v. Almeida, 362 Pa. 596, 68 A. 2nd 595; Com. v. Thomas, 357 Pa. 68, 53 A. 2d 112; Blackstone, Book 4, pages 192, 193. In Com v. Thomas, 357 Pa., supra, at page 72, the law is thus stated: “We said in Commonwealth v. Strantz, 328 Pa. 33, 195 A. 75: ‘One is an aider and abettor in the- commission of any crime, i.e.,. he has “joined in its commission” if he was an active partner in the intent which was the crime’s basic-' element. .... “The least degree of concert or collusion between parties to an illegal transaction makes the act of one the act of. all.” . . . when two Or more persons conspire or combine, with one another to'commit any unlawful ¿ct, each is Criminally responsible for the acts of his associate or confederate committed in the furtherance of thecbmmoh: design. In the contemplation of law the'act of one is the act of all’.” It is wéll established that the commission of or participation in a crime may be proved by circumstantial evidence: Com. v. Wentzel, 360 Pa. 137, 61 A. 2d 309; Com. v. Homeyer, 373 Pa. 150, 94 A. 2d 743; Com. v. Thomas, 357 Pa., supra; Com. v. Palermo, 368 Pa. 28, 31, 81 A. 2d 540; Com. v. Karmendi, 328 Pa. 321, 333, 195 A. 62. In Com. v. Robb, 284 Pa. 99, 130 A. 302, the defendant was indicted and convicted of murder. He was a lookout and had nothing to do with the burglary or the murder. The Court said: “If defendants ‘combine'to commit a felony or make an assault, and, in carrying out the common purpose, another is killed, the one who enters into the .combination but does not personally commit the wrongful act is equally responsible for the homicide with the one who' directly causes it’: Com. v. Micuso, 273 Pa. 474, 478. ‘It is not necessary, however, to prove that the party actually aided in the commission of the offense; if he watched for his companions, in order to prevent surprise, or remained at a convenient distance in order to. favor their escape,- if necessary, or was in such a situation as to be able readily to come to their. assistance, the knowledge of which was calculated to give additional confidence to his companions, in contemplation of law he was aiding and abetting’: Weston v. Com., 111 Pa. 251, 263; Com. v. Biddle, [200 Pa. 640].” We may aptly repeat the following quotation from Com. v. McBurney, 155 Pa. Superior Ct. 143, 148, 38 A. 2d 400: “From all these facts and circumstances, and the inferences which naturally, indeed inevitably, flowed from them, the jury was . . . warranted in finding appellant guilty. The verdict is sustained by the rule: ‘When a crime charged is sought to be sustained wholly by circumstantial evidence the circumstances proved should be such as reasonably and naturally to justify an inference of the guilt of the accused, and should be of such volume and quality as to overcome the presumption of innocence and satisfy the jury of the accused’s guilt beyond a reasonable doubt.’ ” Furthermore, the law is clearly established that the making of false or contradictory statements by the accused with the intent to divert suspicion or to mislead the police, or to establish an alibi or innocence is indicatory of guilt. Com. v. Homeyer, 373 Pa. 150, 158, 159, 94 A. 2d 743; Com. v. Jones, 341 Pa. 541, 549, 19 A. 2d 389; Com. v. Spardute, 278 Pa. 37, 43, 122 A. 161; Com. v. Jones, 297 Pa. 326, 333, 146 A. 905. Defendant contends that the Trial Judge erred because he did not charge the jury that it had to believe all or none of defendant’s written statement. That is not the law. A jury may believe all or part or none of the statements or confessions or testimony of the accused, or, indeed, of any witness; and the sole requirement as to defendant’s statement or confession or testimony is that the part of it which is believed, together with other evidence must be sufficient in law to justify the jury’s verdict. Com. v. Phillips, 372 Pa., supra; Com. v. Logan, 361 Pa. 186, 191, 63 A. 2d 28. We have read the evidence and find it sufficient in law to justify the jury’s verdict. We shall consider, however, and dispose of several other contentions of the defendant. Defendant further contends that the indictment was defective because it did not allege that the killing was committed in the perpetration of a robbery. The indictment charged that Pearson, Chapasco and Lowry with force and arms upon the body of one Sklar . . . feloniously and wilfully and with malice aforethought, did make an assault on the said Sklar, and then and there feloniously, wilfully and of their malice aforethought did kill and murder . . . Defendant, according to his written statement, discovered the night of the murder that his companions had shot and billed Sklar; and unquestionably knew the killing for which he was indicted. Moreover, the Act of March 31, 1860, P. L. 427, Sec. 20, 19 P. S. 351, provides: “In any indictment for murder or manslaughter, it shall not be necessary to set forth the manner in which, or the means by which the death of the deceased was caused, but it shall be sufficient in every indictment for murder, to charge that defendant did feloniously, wilfully, and of his malice aforethought, kill and murder the deceased; . . .” The statutory law is clear, the decisional law is likewise clear that as stated in Com. v. Bruno, 316 Pa. 394, 399, 175 A. 518: “Where murder is committed in the perpetration of a felony, the perpetration of such felony need not be set forth in the indictment: Com. v. Flanagan, 7 W. & S. 415; People v. Wilt, 170 Cal. 104; State v. Juliano, 138 Atl. (N.J.) 575. . . “Since, therefore, the indictment properly charged defendant with murder in unmistakable terms, the Com monwealth was free to establish that the crime had been committed in any manner which it could support with evidence.” We find no merit in this contention of defendant. Defendant also contends that it was improper, and reversible error to allow in evidence proof of defendant’s prior criminal record when the District Attorney did not ask or intend to ask for death. The District Attorney believed the defendant was the ringleader in the crime, but he did not know until all the evidence was presented whether he could or would ask the jury to impose the penalty of death. In any event the law is clear that the jury could have disregarded any recommendation which the District Attorney or even the Court made, since they and they alone have the right and power to determine the crime, the degree of the crime, and the penalty of death or life imprisonment: Penal Code of 1939, Sec. 701, Act of June 24, 1939, P. L. 872. While many Judges, including the writer of this opinion, believe that a record of prior crimes should not be admissible even under the theory of aiding the jury in fixing the penalty as permitted by the Act of May 14, 1925, P. L. 759 and its successor, The Penal Code of 1939, supra, this Court has repeatedly held such records to be admissible for the limited purpose of aiding the jury in determining the penalty if they find a defendant guilty of murder in the first degree: Com. v. Simmons, 361 Pa. 391, 401, 65 A. 2d 353; Com. v. Williams, 307 Pa. 134, 160 A. 602; Com. v. Holley, 358 Pa. 296, 56 A. 2d 546; Com. v. De Pofi, 362 Pa. 229, 66 A. 2d 649. Even where the District Attorney asks only life imprisonment it is for the reasons hereinbefore set forth, not reversible érror to admit defendant’s prior record under the. proper, charge o,f the Court, limiting its purpose and scope as heretofore set forth. Cf. Com. v. Simmons, 361 Pa., supra. We have examined all the evidence in this case as well as the charge Of the Court and find no reversible error. The judgment and sentence of the Court of Oyer and Terminer are affirmed. ■

Opinion by Me. Justice Chidsey, This action in trespass was instituted in August, 1949 by the plaintiffs, Clara Stevens and Mike Stevens, her husband, against Reading Street Railway Company to recover damages for personal injuries sustained by Clara Stevens when alighting from the defendant company’s bus. The Railway Company joined the City of Reading as an additional defendant alleging that the City was solely or jointly liable to the plaintiffs. The City of Reading answered and then moved for judgment on the pleadings averring that the plaintiffs had not complied with the Act of July 1,1937, P. L. 2547, 53 PS §2774, requiring the plaintiffs to give written notice to the City of their claim within six months from the date of its origin. This motion was denied by the court below in an opinion holding that the City was properly joined as an additional defendant for the purpose of conveniently determining in one suit the right of the Railway Company, if found liable for plaintiffs’ damages, to obtain contribution from the City as a joint tortfeasor, but that the City could not be held solely liable for plaintiff’s injuries. The case was tried before a jury in May, 1951, when, after the plaintiffs had completed their testimony on the question of negligence, the court entered compulsory nonsuits in favor of both defendants. Thereafter, an application to take off the nonsuits was granted and the case was retried in April, 1954. The jury returned verdicts of $134.00 for Mike Stevens and $2,900.00 for Clara Stevens, against both defendants. Defendants filed motions for new trial and for judgment non obstante veredicto and the court en banc, one judge dissenting, entered judgments n.o.v. in favor of both defendants. From these judgments plaintiffs appeal. Since this is an appeal from the entry of judgment n.o.v., we will consider the testimony together with all reasonable inferences therefrom in the light most favorable to the plaintiffs: Stewart v. Pittsburgh Railways Company, 379 Pa. 260, 108 A. 2d 767. Accordingly, the facts may be stated as follows: On the morning of December 11, 1948, a clear, dry day, the plaintiffs were passengers for hire on a bus owned and operated by the defendant, Reading Street Railway Company, a common carrier. The bus was traveling in a southerly direction on North Fifth Street, approaching the intersection of Fifth and Washington Streets in the City of Reading, where the plaintiffs and other passengers intended to alight. The bus regularly stopped on the west cartway of Fifth Street flush with the west curb and with the front of the bus about even with the north line of the north crosswalk over Fifth Street. On the day of the accident, however, defendant’s bus stopped a considerable distance north of its regular stopping place, at an angle, with its front end approximately one and one-half feet away from the west curb and the rear end five or six feet from the curb. The wife-plaintiff was approximately in the middle of' a line of fifteen or sixteen persons who got off the bus at this point. The bottom step at the exit door which was located toward the rear of the bus, was fourteen and a half inches from the surface of the roadway. Mrs. Stevens, in alighting, stepped off this bottom step with her right foot first, and then her left foot went into a hole seventeen inches long, a foot wide and about six inches deep, throwing her to the ground. Part of the hole was under the bus and part extended out beyond the south side of the exit steps. When Mrs. Stevens stepped down to the road surface, two passengers were standing to her left at the exit door which prevented her from seeing the hole. Another woman passenger who preceded the wife-plaintiff from the bus, fell at the same hole, but Mrs. Stevens did not witness this incident, and did not know how it occurred. Mrs. Stevens never saw the hole until she fell and did not know of its existence. The hole had existed continuously for a period of approximately six weeks prior to the accident. After the wife-plaintiff fell, and while being assisted to her feet, the operator of defendant’s bus said to her: “I am sorry, it is my fault, I stopped at the wrong place.” The bus operator had driven a bus over the same route for four consecutive months prior to the accident, five days a week. North Fifth Street at the time and place of the accident was designated as a State highway under Section 2 of the Act of June 22, 1931, P. L. 720, 36 PS §103. The first question to be decided is whether plaintiffs’ evidence was sufficient to enable the jury to find negligence on the part of the defendant Railway Company. The law is clear that a common carrier for hire owes a duty to its passengers not only to exercise the highest degree of care and diligence in carrying them to their destination, but also must exercise reasonable diligence to give passengers a safe place to alight and pass out of danger: Harris v. DeFelice, 379 Pa. 469, 109 A. 2d 174; O’Malley v. Laurel Line Bus Co., 311 Pa. 251, 166 A. 868; Brown v. Beaver Valley Motor Coach Company et al., 365 Pa. 578, 76 A. 2d 403. In O’Malley v. Laurel Line Bus Co., snpra, p. 255, the rule is clearly stated that “. . . If the person in charge of a car used for the carriage of passengers for hire, knowingly permits one of them to get off the vehicle at a dangerous place, which is not the usual stopping place, and the dangerous character of which the passenger could not see and did not know, the carrier will be liable for the resulting injuries, if any, to the passenger: McCollum v. Pitts. Rys. Co. (No. 1), 51 Pa. Superior Ct. 637, . . .”. We are of the opinion that the present case is governed by the above stated rule of law. Here the hole in question had existed for at least six weeks prior to the accident. The hole was a large one, being approximately one and a half feet long, a foot wide and six inches deep. During the entire six weeks that the hole was continuously in existence, it was directly in the route of defendant’s bus operator in approaching the regular bus stop. From this evidence the jury could reasonably infer that defendant’s employe knew or should have known of the existence of the hole and of the apparent danger to passengers if they Avere to alight at this point. In addition the Avife-plaintiff testified that the operator of defendant’s bus said to her immediately after the accident: “I am sorry, it is my fault, I stopped at the wrong place.” No objection was made at the trial to the admission of this statement into evidence. Accordingly defendant’s complaint in this Court that the evidence was improperly introduced because it was hearsay and not a spontaneous utterance sufficient to come within the res gestae exception, is without merit since no objection was interposed. Where inadmissible evidence, including hearsay, is admitted without objection arid is relevant and material to tlie fact in issue, it is to be given its natural probative effect as if it were in law admissible: Poluski v. Glen Alden Coal Co., 286 Pa. 473, 133 A. 819; Harrah v. Montour Railroad Company, 321 Pa. 526, 184 A. 666. It is undisputed that the regular stop for the bus on the day of the accident was on the west cartway of Fifth Street, flush with the west curb and with the front of the bus about even with the north line of the north crosswalk over Fifth Street; nor is there any evidence that this was not a perfectly safe place for the defendant’s bus to have stopped. Instead of stopping at the regular bus stop, however, defendant’s bus stopped a considerable distance north of its regular stopping place, and in such a manner that the hole in question extended underneath and directly beside the exit door from which Mrs. Stevens alighted. In Gourlay et ux. v. Phila. R. T. Co., 100 Pa. Superior Ct. 419, plaintiff stepped from defendant’s street car, which had not stopped at the regular stopping place, into a hole in the street which she had not seen, although she used reasonable care in alighting. It was there held that the question of defendant’s negligence was for the jury even in the absence of evidence as to how long the hole in the street had been there or that the defendant’s employes knew of its being there. In Gerlach et ux. v. City of Philadelphia et al., 103 Pa. Superior Ct. 401, 157 A. 212, plaintiff stepped from defendant’s street car into a trench which she did not see and which was known to exist by those in charge of the car. There was a safe place to discharge passengers a short distance from the place where the car stopped. The question of the transit company’s negligence was held to be a matter for the jury. In Brown v. Beaver Valley Motor Coach Company et al., supra, in holding that the matter of defendant bus company’s negligence was properly left for the jury, this Court said at pages 581, 582: . . While it is true that common carriers are not liable for injuries resulting from ordinary defects in the street (Perret v. George, 286 Pa. 221, 133 A. 228), they must exercise reasonable diligence to give passengers a safe place to alight and pass out of danger: . . . This the Bus Company failed to do. The driver of the bus knew that plaintiff would have to reach the sidewalk. He also knew or should have known that at the place where he stopped the bus the mounds of earth and the unevenness of the ground would make this a hazardous venture. By discharging plaintiff in a place of obvious danger, the driver failed to exercise the degree of care which the law requires. . .”. In McCollum v. Pittsburgh Railways Company (No. 1), 51 Pa. Superior Ct. 637, a case frequently cited by this Court, where plaintiff alighted from defendant’s car at a place which was not a regular stopping place and which was in close proximity to a pile of stones onto which passengers would naturally step in getting off the car, it was held that the jury might well find a case of negligence, since defendant’s employes had seen the stone pile and plaintiff had not. The cases relied on by the defendant Reading Street Railway Company are distinguishable on their facts. In Carroll v. Pittsburgh, 368 Pa. 436, 84 A. 2d 505, the plaintiff stepped from defendant Pittsburgh Railways Company’s trolley car which was stopped at the regular stopping place, into a hole which she described as being about three inches deep and larger than a dinner plate. This Court held that the question of negligence on the part of the defendant railway company was not for the jury, stating at p. 444 that “. . . it would be unjust and impracticable to hold street railway companies liable to passengers alighting from their cars on busy city streets, where, especially in the case of asphalt pavings, there are frequently holes, depressions and worn out places of various dimensions which may remain for considerable periods of time until repairs are made by the public officials who alone are responsible for the maintenance of the highway in good order and repair. . Attention was called to the fact that many holes existed at the particular intersection where the trolley car regularly stopped, “. . . and holes no doubt existed at many other intersections, so that ... it would have been practically impossible for it to stop its cars at the various streets along the route which it traversed.” However, this situation is not present in the instant case since rather than stopping at the normal stopping place, the operator of defendant’s bus elected to stop a considerable distance therefrom and in such a manner that the hole was underneath and directly beside the exit door. It was also pointed out in the Carroll case at p. 440 that “. . . there are authorities to the effect that where a passenger is mistakenly led to alight at an extremely dangerous place which is not the usual stopping place the carrier may be held liable for any injuries which the passenger thereby sustains. [Citing cases] But in the present instance the car stopped at a regular stopping place at the intersection of two city streets, . . .”. While the cases referred to in the foregoing statement are properly characterized as holding that there is liability where the bus stops at an extremely dangerous point for alighting between intersections, the holding in these cases does not preclude a finding of liability where the condition, although not extremely dangerous, is of such character as may be reasonably foreseen as a hazard that could produce injury: Restatement, Torts, §284. Here the hole in the street was sufficiently dangerous to cause the fall of two alighting passengers. The question is whether a reasonably prudent person in the position of the bus opera tor, chargeable with knowledge of the condition which existed, exercised the care required under the circumstances, and this was a question for the jury. Unquestionably the hazard was created by the stopping of the bus at other than the regular stopping place so that the exit steps were over the hole in the street which caused the accident. Aside from the fact that in the Carroll ease the depression in the street created a much less dangerous hazard than in the instant case, the reasonableness of the bus operator’s action there must be considered in the light of the necessity of discharging passengers at street intersections; the risk was not of such magnitude as to outweigh the utility of the act. See Restatement, Torts, §291. Hoffman v. Philadelphia Transportation Co., 369 Pa. 212, 85 A. 2d 144, may also be distinguished on its facts. There the defendant’s bus stopped at its regular stopping place, although some six to eight feet from the curb, and plaintiff, while alighting, stepped into a hole about two feet long, eight or ten inches wide and two to three inches deep. This Court, in sustaining the lower court’s action granting binding instructions for the defendant, pointed out that no evidence was presented by the plaintiff as to the length of time the hole existed, or that the bus operator knew of its existence. In the present case there was evidence from which the jury could find that the hole was continuously in existence for six weeks, and that the bus driver had knowledge of it.' The present case is different from those where the passenger, after successfully stepping from the street car or bus, is then injured by stepping into a hole h> cated between the car and the curb. Such was the case in Perret et ux. v. George et al., Receivers, 286 Pa. 221, 133 A. 228. The case of Thompson v. Philadelphia et al., 129 Pa. Superior Ct. 174, 195 A. 174, is distinguish able in that as in the Carroll case, supra, the defendant transit company’s trolley car had stopped at its regular stopping place. MacDonald et ux. v. Philadelphia Rural Transit Company, 147 Pa. Superior Ct. 220, 24 A. 2d 37, is also not in point since, as stated at p. 224, “. . . there was no evidence that the operator of defendant’s bus had knowledge of the existing defect, or had any reason to suspect its presence, or knowingly permitted wife plaintiff to get off at a dangerous place. . .”. As to the question of contributory negligence on the part of the wife-plaintiff, the defendant railway company maintains that Mrs. Stevens was negligent as a matter of law on the ground that had she waited a moment, the passengers blocking her view would have moved, and she would have then seen the hole and not fallen. We cannot nor could the court below agree with this contention which would hold the plaintiff to a higher standard of care than is ordinarily exercised by a person in alighting from a bus under similar circumstances. The wife-plaintiff was in the approximate middle of a line of passengers who were alighting from the bus. Under the conditions present, she could not be held negligent as a matter of law: Thompson v. Philadelphia et al., supra. Mulford et ux. v. Phila. Rapid Transit Co. et al., 310 Pa. 521, 165 A. 837, is inapplicable on its facts since there the plaintiff was the last passenger to alight from the trolley car and fell after taking a couple of' steps away from the car. Fordyce et ux. v. White Star Bus Lines, 304 Pa. 106, 155 A. 98, clearly is not in point since in that' case there was no evidence of any defect in the street, and plaintiff, by stepping off the bus step in the night expecting to step oh the curb, blindly trusted a dangerous situation. Turning to the question of the liability of the defendant City of Beadihg, we aré in agreement with the majority opinion of the lower court that it is in no way responsible. It is not disputed that Nortli Fifth Street at the place where the accident occurred is a State highway, having been designated such by Section 2 of the Act of June 22,1931, P. L. 720, as amended by Section 1 of the Act of June 25,1937, P. L. 2320, 36 PS §103. The only question then to be decided is as to the responsibility of the defendant City for the repair and maintenance of this part of the State Highway System, which requires consideration of the applicable statutes. Section 1 of the Act of June 22, 1931, P. L. 720, 36 PS §102, under Section 2 of which North Fifth Street originally became a State highway, provides, inter alia, that those streets taken over by the Commonwealth are “. . . to be maintained, constructed, reconstructed and resurfaced at the expense of the Commonwealth upon the terms and conditions and subject to the limitations hereinafter provided.” Section 522 of the Act of June 1, 1945, P. L. 1242, 36 PS §670-522, known as the State Highway Law, states that “After the streets designated as State highways shall have been taken over by the Commonwealth, they shall be maintained, constructed, reconstructed and resurfaced by the department at the expense of the Commonwealth, . . . Maintenance shall not include snow removal or street cleaning, and shall be limited to the portion of the street between existing curb lines available to vehicular traffic. . .”. Section 525 of the State Highway Law provides that no opening can be made in any State highway until a permit is obtained from the highway department or from the City if the City is authorized in writing to act for the department. Section 526 states that before the commencement of any work authorized by Section 522, the City, on proper notice from the Secretary of Highways, must establish and maintain an adequate detour until the work is finished. Section 407 of the Act, 36 PS §670-407 provides: “For the purpose of uniform, efficient, and economic maintenance and repair of the State highways, the department shall purchase all necessary material, and shall appoint and employ all necessary labor or repirmen, who shall at all times in the year keep the State highways free from holes, ruts, sticks, loose stones, or other impediments of any kind, which tend to interfere with free and easy travel, or which if permitted to exist might tend to the deterioration, injury, or destruction of the highway.” The effect of these provisions was to place the control and responsibility for repair and maintenance of North Fifth Street, the scene of the accident, upon the Commonwealth. Since the Commonwealth, by statute, has relieved the City of the obligation to repair the hole, the City cannot be guilty of negligence since there must be a duty and a breach of that duty to produce a right of action. In Brunacci et al. v. Plains Township, 315 Pa. 391, 173 A. 329, plaintiff fell into an open water drain on a street which originally had been a township road, later a county road, and eventually taken over by the Commonwealth as a State highway under the Sproul Act of May 31, 1911, P. L. 468, which has since been repealed. The Sproul Act provided that the roads taken over in the State Highway System should thereafter be constructed, improved and maintained by the State Highway Department at the expense of the Commonwealth. In.affirming the lower court’s action of entering a compulsory nonsuit against the plaintiffs, we held that the township was not liable unless there was- legislation compelling repair and maintenance of the road in question, stating at p. 394: : . When the State took over the highways under the Sproul Act, it provided that they should.be. constructed,'.improved and maintained by the state highway department, at the sole .expense of the 'Commonwealth, and that they were, to be under the' exclusive jurisdiction of the state highway- depart ment. The effect of such comprehensive language was unquestionably to relieve the county, which had theretofore relieved the township of all liability for damages for an injury.” In Heinlein, Exrx. v. Allegheny County, 374 Pa. 496, 98 A. 2d 36, where the decedent was killed through the improper maintenance of a bridge, we held that the responsibility for repairing the bridge was on the Commonwealth, since it was part of a State highway, and that therefore the county could not be found negligent in failing to repair it. The case of McCracken v. Curwensville Borough, 309 Pa. 98, 163 A. 217, relied on by the appellants, is not in point since there the Commonwealth assumed only the right to improve or reconstruct the highway at the expense of the Commonwealth. We held in the Mc-Cracken case that Section 20 of the then applicable Sproul Act of 1911, providing that the Commonwealth shall keep the State highways free from ruts, holes, sticks, loose stones and the like, when considered with Section 10 thereof, applied only to State highways outside of the cities, boroughs and incorporated towns. Section 407 of the State Highway Law of 1945 and its related sections contain no such limitation. Although not alleged in any of the plaintiffs’ pleadings, and not argued in the lower court, appellants suggest that the hole here constituted a nuisance and that the City was obligated to abate this nuisance either by repairing it or by notifying the Commonwealth of its existence. It is a sufficient answer that our cases hold that no liability can be imposed on the City unless there is legislation compelling repair and maintenance: See Brunacci et al. v. Plains Township; Heinlein, Exrx. v. Allegheny County, supra. Appellant also argues that since under Section 521 of the State Highway Law, 36 PS §670-521, the City is obligated to “regulate traffic” and “police” a State high way within a city, then the city has a concurrent duty with the State to repair. The answer to this is that the word “police” is used in the statute in its ordinary and well defined meaning of maintaining law and order, and does not refer to repair and maintenance which are expressly placed upon the Commonwealth. It is our opinion that the Legislature has placed the sole obligation to repair the street in question upon the Commonwealth thereby relieving the City of responsibility. The judgment is affirmed as to the defendant City of Reading; it is reversed as to the defendant Reading Street Railway Company and the record remanded for disposition of the Railway Company’s extant motion for new trial and appropriate proceedings thereafter consistent with this opinion. Subsequent to this opinion, the lower court signed an order dated May 8, 1951 allowing the case to proceed directly against the City on the ground of direct liability to the plaintiffs. Counsel for the City objects to this order here on the ground that testimony was not taken and the requirement in the Act of 1937, supra, that a reasonable excuse for failure to give the required six months’ notice to the City must be shown, was not met. Our decision makes determination of this question unnecessary.

Opinion by Mr. Justice Eagen, This matter involves two appeals in separate actions, arising out of an automobile accident, which were consolidated for the purpose of trial in the court below. The first case presented in the lower court was that of the Stouts against Donald Lee Enfield. Plaintiffs put in their case. Defendant (the additional defendant, as such, has no interest in this appeal) moved for a compulsory nonsuit and, it being denied, rested without presenting any evidence. Thereupon, defendant moved for a directed verdict. It, too, was denied. Whereupon, the taMng of testimony in the case of the Enfields against the Stouts commenced. The jury returned a verdict for the plaintiffs in the first suit and a verdict for the defendants in the second. At this juncture counsel for Donald Lee Enfield, defendant in the first suit, moved for a judgment non obstante veredicto. This motion was denied and judgment entered upon the jury’s verdict. Counsel for the Enfields, plaintiffs in the second suit, moved for a new trial. This was denied and judgment entered upon the verdict. These appeals followed. On May 13, 1958, at approximately 10:15 p.m., a dark but clear night, a Pontiac convertible, travelling westwardly on Legislative Route #55058 in Somerset Township, came into violent collision with a Dodge truck which wus proceeding southwardly along Pleasant Hills Road (a “side road”) at its intersection with the aforesaid Legislative Route. A stop sign, erected on the northwest corner of the square, controlled traffic moving in the direction of the truck. At these corners the terrain is generally level, the only exception being a “dip” in the east-west through road. The westernmost lip of this depression is three hundred feet east of the intersection in question and visibility from this point into the intersection is unobscured. A car, while in this declivity, is momentarily cut off from a view of the corners in question and, likewise, is hidden from the sight of motorists stopped at or about the stop sign above referred to. This pitch in the road excepted, a view from the northwest section of the corners to the east of three-tenths of a mile is unimpaired. The driver of the truck, Donald Stout, brought his vehicle to a complete halt in obedience to the stop sign. His father, James, was a passenger. Frances E. Stout, mother and wife respectively of the driver and occupant, was the owner of the truck. The father alighted from the vehicle to adjust chain binders which kept a load of timbers fastened to the flat bed of the trailer section. He stood in front of the truck and looked up and down the road. He then hopped onto the running board on the passenger’s side, again looked up and down the through road and, seeing nothing coming, told his son, “Go ahead and pour the oil to her; the road is clear both ways.” The son then looked both ways, himself, :and, seeing nothing coming, started into the intersection. He shifted from “low” into “second.” Suddenly and when the truck had travelled approximately only ten feet, there was a terrific “explosion.” They did not know what had hit them. They never saw the Pontiac car. The truck was damaged, the two occupants injured. The Pontiac was practically demolished and all three occupants hurt. The truck, following the impact, came to a stop approximately ten feet from the estimated point of contact and faced westwardly on the northernmost lane of the through road. The car was thrown twenty feet into the southwest corner of the intersection and straddled a culvert there located. Lumber was strewn all over the road. The accident occurred in the northwest quadrant of the intersection. The testimony of the two Stouts, together with that of a passerby, establishes that the lights of the truck were on at the time in question. There is some evidence indicating that young Stout blinked his headlamps, i.e., put them on “low beam,” before entering the intersection. The testimony in support of the Enfields’ claim is substantially as follows. The car, operated by Donald Lee Enfield, in which his brother, Ronald Enfield, and Dale E. Maust were passengers, was travelling in a westerly direction at a speed of approximately forty-five miles per hour, with its headlights in operation. When the car came out of the dip, described above, and had arrived at the leveling-off part of the road and reached a point, estimated to be approximately one hundred feet from the intersection, the truck was observed for the first time, pulling into the intersection. The operator applied his brakes but before the automobile could come to . a stop, it ran into the truck. These facts were testified to by Ronald Enfield, a passenger. The operator of the automobile and the other guest were seriously injured, and testified that they had no recollection of what happened immediately before or after the collision. The jury verdict favored the Stouts and, specifically, found Donald Enfield guilty of negligence and Donald L. Stout free from negligence. In support of the motion for judgment n.o.v., it is argued that there is no evidence to support a finding of negligence on the part of Donald Enfield and also that the testimony convicts the Stouts of contributory negligence as a matter of law. Wc cannot agree. It appears to us that these were questions for the jury. For many years under the law of Pennsylvania it has been the rule that the driver of an automobile on a public highway must be alert to have it under such control that he can stop it within the “assured clear distance ahead.” This requires that the driver operate his automobile at such a rate of speed and in such a manner that he can always stop it within the distance that he can clearly see: Metro v. Long Transportation Company, 387 Pa. 354, 127 A. 2d 716 (1956). By this is meant the range of the driver’s vision which, of course, in darkness is the scope of his headlights: Weibel v. Ferguson, 342 Pa. 113, 19 A. 2d 357 (1941). In this case, when the Enfield car came out of the dip, there were approximately three hundred feet separating it and the Stout truck, then at the intersection. Whether or not the operator, Donald Enfield, saw it at that moment the record does not disclose. The passenger, Eonald Enfield, did not see it until the Enfield car was approximately one hundred feet way, and apparently the brakes were not applied until or after this moment. This, apparently, was too short a distance within which to bring the Enfield car to a stop or to give the operator sufficient opportunity to avoid the collision. The question naturally arises: was the En- field ear under proper control? The above circumstance, coupled with the testimony of the Stouts that they saw no lights of any automobile approaching on this highway (in effect saying that the Enfield car was travelling without lights burning) made the question of negligence on the part of Donald Enfield one of fact for the determination of the jury. While the driver of an automobile on a through highway may properly assume that one approaching that highway on a stop street will perform his legal duty to stop and yield the right-of-way (Rowles v. Evanuik, 350 Pa. 64, 38 A. 2d 255 (1944)), still the right-of-way on a through highway is a qualified one and the driver of an automobile thereon must take such precautions in regard to the control and speed of his car and keeping an alert lookout for cars approaching the intersection as a reasonably prudent man solicitous of his own safety would take: Martin v. Hoffman et al., 365 Pa. 364, 75 A. 2d 529 (1950). It is also argued that Donald Stout did not continue to look as he drove the truck out into the intersection. This, of course, would constitute negligence (Papkin v. Helfand and Katz, 346 Pa. 485, 31 A. 2d 112 (1943)), but a close examination of this witness’s testimony does not warrant such a conclusion and we must keep in mind that the collision occurred almost immediately after the instant the truck started into the intersection. Declaring an individual guilty of contributory negligence as a matter of law should be done only where the conclusion is inescapable: Kurtz v. Philadelphia Transportation Company, 394 Pa. 324, 147 A. 2d 347 (1959). In support of the motion for a new trial, counsel for appellants contend that the trial judge erred in his charge to the jury by submitting issues which were not substantiated by the evidence and inadequately instructing in other respects. It is strenuously argued that the trial court erred in submitting to the jury the question of the operation of the Enfields’ car 'without lights, particularly in view of the fact that one of Stouts’ own witnesses (Codding-ton) testified that he passed the Enfield car at a point approximately six hundred feet from the point of the accident and that, at that moment, the lights on this car were in operation. James E. Stout testified that when he looked for approaching traffic on the through highway, he did not see any automobile lights thereon and that if there had been any he would have seen them. Donald Stout testified that, immediately before starting the truck into the intersection, he looked both ways and didn’t see any lights of an approaching automobile. This is not as counsel contend negative testimony amounting to a mere scintilla as a matter of law. Such testimony is positive in character and substance and its strength, or probative weight, Avas for the jury. In determining whether testimony is negative or positive in nature, all of the attending circumstances must be considered, such as the opportunity of seeing, the occasion for looking, the alertness of the witness and whether all the existing circumstances tended to shoAV that if the thing in question had happened the witness probably would have seen it: Ferruzza v. Pittsburgh, 394 Pa. 70, 145 A. 2d 706 (1958) ; Kindt v. Reading Company, 352 Pa. 419, 43 A. 2d 145 (1945). As to alleged inadequacies in the court’s instructions, an examination of the record discloses that only a general exception to the charge was entered of record and,. Avhen asked by the court if any further instructions Avere desired, counsel remained silent and made no such requests. It is fundamental that litigants Avill not be permitted to take a chance on the verdict and then, as by afterthought, take advantage of alleged errors in the charge Avhick they had previous oppor tunity to have corrected: Lyons v. Wargo, 386 Pa. 482, 126 A. 2d 411 (1956). It is also established beyond argument that where only a general exception is taken to the charge, appellate review of error in the charge is limited to basic and fundamental error, which misled the jury to a party litigant’s prejudice: Harman v. Chambers, 358 Pa. 516, 57 A. 2d 842 (1948) ; Omek v. Pittsburgh, 387 Pa. 128, 126 A. 2d 425 (1956). We have carefully studied the charge of the court and find nothing that could be fixed in this category. In addition, an examination of the record also discloses that the alleged assignments of error were not raised in the court below. The motion for a new tidal contained only the usual four formal reasons and none of the alleged errors in the charge of the court were even mentioned. Permission Avas granted to file additional reasons after transcription of the record but none Avere entered of record. It is axiomatic that a reason for a new trial not assigned as error in the court beloAv may not be raised and Avill not be considered for the first time on appeal: Risbon v. Cottom, 387 Pa. 155, 127 A. 2d 101 (1956) ; McCann v. Hedin, 377 Pa. 508, 105 A. 2d 594 (1954) ; Keane v. Philadelphia, 360 Pa. 384, 61 A. 2d 834 (1948). The judgments entered in the court below are affirmed,

Opinion by Mr. Chief Justice Jones, These appeals involve a question as to the power of the Pennsylvania State Senate to adopt a resolution at a regular session in an even-numbered year creating a committee of its members for the purpose of making certain specified investigations unrelated to either revenue or appropriations. The 1960 Session of the Pennsylvania Legislature has not yet adjourned sine die but is in recess and is scheduled to reconvene on October 12, 1960. After the House of Representatives had recessed on June 17, 1960, the Senate adopted a resolution providing for the appointment of a committee of five of its members for the purpose of conducting an investigation into alleged election law frauds in Philadelphia and the conduct of the district attorney of Philadelphia County in respect of such putative offenses. The resolution empowered the committee to hold hearings, take testimony and subpoena witnesses and records; it also required the committee to report its findings and recommendations to the Senate as soon as possible for remedial legislation or other appropriate action. The members of tbe committee were duly appointed by tbe president pro tempore of tbe Senate, as contemplated by tbe resolution, and are tbe defendants in tbe present suit. Tbe same day that tbe members of tbe committee convened in Philadelphia for tbe purpose of their appointment and began examining witnesses (viz., August 23, 1960), tbe plaintiff, a taxpayer and resident of Philadelphia, filed bis complaint in this case in a court of common pleas of Philadelphia County seeking to restrain tbe members of tbe committee from taking any action, as authorized by tbe resolution, and to enjoin tbe members of tbe committee from making any expenditures of funds of tbe Commonwealth of Pennsylvania. Tbe court granted a rule on tbe defendant committee members to show cause why a preliminary injunction should not issue, returnable August 29, 1980. On August 26, 1960, the defendants, represented by tbe Attorney General, filed preliminary objections to the complaint, asserting that the Court of Common Pleas of Philadelphia County was without jurisdiction to restrain the defendants from performing any official act, either in their capacity as State officers or as the representatives of an instrumentality of the State, and that jurisdiction of the complaint was exclusively in the Court of Common Pleas of Dauphin County. The defendants also demurred to the complaint on the ground that it did not allege a cause of action cognizable in equity; that the resolution constituting the committee was in accordance with and under the authority of the Pennsylvania Constitution; and that the committee has full constitutional authority to hold hearings and perform all the duties and functions prescribed by the resolution. Argument was had in the matter on August 31, 1960, before the court below which, on September 12, 1960, filed an opinion and accompanying order overruling defendants’ preliminary objections and enjoining the defendants preliminarily from performing the ^duties imposed upon them by the resolution. The order gave the defendants twenty days within which to answer the complaint on the merits. The Attorney General forthwith appealed the order to this court on September 13, 1960, and contemporaneously petitioned for advancement of the argument. With notice to counsel for the plaintiff, we entered an order on the same day listing the appeal for argument in Pittsburgh on September 26, 1960, which has been had. The defendants’ preliminary objection that the suit could be brought only in the Court of Common Pleas of Dauphin County is well taken and must be sustained, not, however, because the Court of Common Pleas of Philadelphia lacked jurisdiction, either of subject matter or person, but because the venue of the controversy is exclusively in Dauphin County. Jurisdiction of subject matter relates to the competency of a court to hear and determine controversies of the general nature of the matter involved, which, in this instance, is a suit in equity for an injunction to enjoin and restrain acts allegedly contrary to law. Jurisdiction of the person is ordinarily acquired by service upon him of the court’s process within the territorial limits of its authority. Venue is the right of a party sued to have the action brought and heard in a particular judicial district. Jurisdiction of subject matter can never attach nor be acquired by consent or waiver of the parties, while venue may always be waived. Section 13 of the Act of June 16, 1836, P. L. 784, 17 PS §281, conferred general equity jurisdiction on all of the courts of common pleas of the Commonwealth, as follows: “The several courts of common pleas shall have the jurisdiction and powers of a court of chancery ... in such . . . cases as the said courts have heretofore possessed such jurisdiction and powers under the Constitution and laws of this commonwealth.” This jurisdiction unquestionably embraces the power of every court of common pleas of the Commonwealth to prevent or restrain “the coihmission or continuance of acts contrary to law, and prejudicial to the interest of the community, or the rights of individuals.” See Zerbe Township School District v. Thomas, 353 Pa. 162, 168, 44 A. 2d 566, and cases there cited. However, Equity Buie 1503(c) of the Pennsylvania Buies of Civil Procedure prescribes that “An action against the head of an executive or administrative department, a departmental administrative board or commission or an independent administrative board or commission, or an officer or instrumentality of the Commonwealth may be brought in and only in Dauphin County.” This Rule was adopted and promulgated by virtue of the authority conferred upon this Court by Section 1 of the Act of June 21, 1937, P. L. 19S2, as amended, 17 P.S §61, which, in presently material part, provides that, “. . . the Supreme Court of Pennsylvania shall have the power to prescribe by general rule the forms of actions, process, writs, pleadings, and motions, and the practice and procedure in civil actions at law and in equity for the courts of common pleas . . . Provided, That such rules . . . shall neither abridge, enlarge, nor modify the substantive rights of any litigant nor the jurisdiction of any of the said courts . . .” (Emphasis supplied). It is plain enough, therefore, that what Rule 1503(c) prescribes is the venue of actions of the type therein referred to, and is not a limitation or a restriction upon the equity jurisdiction of the courts of the Commonwealth outside of Dauphin County. Manifestly, if the holding were to be otherwise, the rule would automatically be invalidated as an excessive exercise of our rule-making power under the Act of 1937, supra. Thus, venue, unlike jurisdiction, being a matter of procedure, and not substance, is within the competency of the Procedural Rule’s prescription. “Essentially venue is an incidence of procedure. It is part of that body of law which bounds and delineates the forum and the manner and mode of enforcing a litigant’s rights. It is distinguishable from and is not within the field of law, known as substantive, which recognizes, creates and defines rights and liabilities and causes of action.”: Hadlich v. American Mail Line, 82 F. Supp. 562, 563 (1949). The Act of May 26, 1931, P. L. 191, 12 PS §§101-105, upon which the plaintiff relies, was suspended absolutely by the Rules of Civil Procedure and is with out bearing upon the meaning and intent of Rule 1503(c). The Act of 1931 was made applicable to a “State officer” which the Act defined, in Section 1, as “the head of any administrative department or the chief executive officer of any independent administrative board or commission of the Commonwealth.” Rule 1503(c) contains no such limitation and provides that “An action against ... an officer or instrumentality of the Commonwealth may be brought in and only in Dauphin County.” There appears to be no rational ground for differentiating between members of the legislative, executive and judicial branches of government in order to determine who is included in the definition of “officers ... of the Commonwealth.” A State Senator has been held to be such an officer (see Commonwealth v. Clark, 123 Pa. Superior Ct. 277, 294, 187 Atl. 237) and legislative committees are instrumentalities of the Commonwealth, within the meaning of Rule 1503(c). A court’s determination that the venue of an action lies within its judicial district, being interlocutory, is not of itself appealable. However, the question of venue is present here on the defendants’ appeal from the preliminary injunction entered against them. Section 1 of the Act of February 14, 1866, P. L. 28, 12 PS §1101, expressly makes the granting of a preliminary injunction appealable. On such an appeal, we look only to see if there were any apparently reasonable grounds for the action of the court below and, ordinarily, will not further consider the merits of the case or pass upon the reasons for or against such action unless it is plain that no such grounds existed or that the rules of law relied on are palpably wrong or clearly inapplicable: Lindenfelser v. Lindenfelser, 385 Pa. 342, 343-344, 123 A. 2d 626. It is apparent that no reasonable grounds exist for the action of the court below, since it erroneously interpreted the law pertaining to the venue of the action. So much suffices for the vacation of the decree entered by the court below and the dismissal of the plaintiffs complaint and, if only private litigants were concerned, we would proceed no further. But, this is a public matter and, if the disposition of these appeals were to be confined to our decision on the procedural issue of venue alone, the important substantive questions raised and fully argued before us by counsel for the plaintiff and by the Attorney General representing the appellant committee members, could immediately be relitigated in the Court of Common Pleas of Dauphin County, whose final decree would then be appealable to this court and we would again have before us with consequential delay the same fundamental problems. In that situation, and inasmuch as an early final decision on the merits by this court would appear to be in the public interest, we shall now consider and pass upon the substantive questions raised on these appeals, as well as the scope of the resolution which the record brings before us. Article II, Section 4, of the Pennsylvania Constitution provides that “At regular sessions convening in even-numbered years the General Assembly shall not enact any laws, except laws raising revenue and laws making appropriations.” The court below concluded that the Senate resolution here involved is an unconstitutional attempt by the Senate to enact a law. With that conclusion we cannot agree. Article II, Section 4, restricts the type of “laws” that may be enacted by the legislature at a regular session in an even-numbered year. It has no reference to, nor does it limit, any power of either House of the General Assembly except in respect of the enactment of laws. For example, this constitutional provision does not, as counsel for the plaintiff concedes, restrict the power of the Senate to approve appointments made by the Governor. Neither does it limit the right of the legislature to authorize committee investigations for any proper purpose. The right to investigate in order to acquire factual knowledge concerning particular subjects which will, or may, aid the legislators in their efforts to determine if, or in what manner, they should exercise their powers, is an inherent right of a legislative body, ancillary to, but distinct from, such powers. It is immaterial that laws drafted as a result of the legislative investigation can not be passed at the session at which the committee was constituted. Moreover, the differences between laws and resolutions are fundamental. A law is a bill that has been passed by a majority of the members of both Houses of the General Assembly and has either been signed by the Governor or has not been acted upon by him within the time prescribed by the Constitution after its passage by the legislature, or if it has been vetoed by the Governor, has again been passed by both Houses with an approving vote of at least two-thirds of the members of each House. Resolutions, on the other hand, may be adopted by either one, or both, of the Houses of the General Assembly and do not require the Governor’s signature or approval to validate them and are not subject to veto by the Governor. In Scudder v. Smith, 331 Pa. 165, 170, 200 Atl. 601, this court, in pointing out the difference between a law and a resolution, said: “Section 1 of Article III of the Constitution provides: ‘No law shall be passed except by Bill, and no Bill shall he so altered or amended on its passage through either House as to change its original purpose.’ In the Southwark Bank v. The Commonwealth, 26 Pa. 446, 450, this court said: ‘A bill is the draft or form of an act presented to the legislature, but not enacted. An “act” is the appropriate term for it after it has been acted on by, and passed, the legislature. It is then something more than a draft or form. It has a legal existence as “an act” of the legislative body, because it becomes a law, without further action from any other branch of the government, if the executive takes no measures to prevent it.’ A ‘Bill’ has been defined to be ‘a form or draft of a law presented to a legislature for enactment’: Webster’s New International Dictionary. A ‘Joint Resolution’ has been defined by the same authority to be ‘A resolution adopted jointly by the two branches of a legislative body.’ A ‘resolution’ by the same authority has been defined as ‘A formal expression of the opinion or will of an official body or a public assembly, adopted by vote; as a legislative resolution.’ When the Constitution provided that ‘no law shall be passed except by bill,’ it meant by ‘a form or draft of a law submitted to the legislature for enactment’; it did not recognize a mere ‘formal expression of opinion’ as adequate to the creation of a law.” The difference between a law and a legislative resolution is plain enough; and, it is only “laws” that come within the Constitutional restriction of Article II, Section 4. We accordingly hold that the Senate resolution involved in this case is not a “law” within the purview of Article II, Section 4, of the Pennsylvania Constitution, and that the adoption of the resolution at the 1960 regular session was not thereby prohibited. The clause in the Senate resolution which assumes to direct the committee members to investigate “into the actions of the District Attorney of Philadelphia County with respect [to charges of alleged election frauds in that county]” is beyond the constitutional power of the State Senate to authorize. And, it is not only within the unquestionable province, but is the bounden duty, of the judiciary to so declare when occasion requires. As already mentioned, the justification for a legislative investigation, whether conducted by one or both of the houses of the General Assembly, is the ascertainment of facts and other relevant information to aid the members of the legislative bodies in formulating, drafting and enacting remedial or other beneficial laws. Such is the predominant legally permissible purpose of a legislative investigative committee. There are, however, several ancillary purposes. For instance, the Senate may properly, as it sometimes does, constitute a committee of its members to investigate the qualifications of gubernatorial appointees whose confirmation requires Senate approval. The House may also investigate the conduct of any governmental official in furtherance of a possible exercise of its constitutional jurisdiction to institute impeachment proceedings. Article VI, Section 1, of the Pennsylvania Constitution expressly provides that “The House of Bepresentatives shall have the sole power of impeachment.” And, in this same connection, Section 2 of Article VI provides that “All impeachments shall be tried by the Senate ... [and] no person shall be convicted without the concurrence of two-thirds of the members present.” Thus, the members of the Senate actually sit in judgment on the truth or falsity of impeachment charges. It Avould not only be unthinkable but an unconstitutional denial of procedural due process for the Senate to investigate into the conduct of an official and then sit in judgment on his guilt or innocence of impeachment charges arising out of the investigation. Moreover, the legislature could, not constitutionally enact any law to suspend or remove from office or otherwise punish in any way the district attorney of any county even if an investigation should happen to reveal that the particular district attorney was in some manner derelict in his duty. A district attorney is a constitutional officer, elected by the people of the county which he serves (Article XIY, Sections 1 and 2 of the Pennsylvania Constitution) and, for any misfeasance or malfeasance in the discharge of his public duties, the criminal law, with its penal sanctions, provides the appropriate procedure for an adjudication of his guilt or innocence. Since the Senate is without constitutional power to investigate the conduct of a particular district attorney, the proposed investigation of the district attorney of Philadelphia County, pursuant to the resolution here involved, if carried out, would not only serve no useful purpose but would do violence to the principles of our constitutional form of government. There is no such thing in this country as “parliamentary sovereignty.” And, legislative investigations must be kept strictly within their proper bounds if the orderly and long-established processes of our coordinate branches of government are to be maintained. While we do not approve the decree of the court below, as our order of reversal evidences, we wish to make it clear, in view of the illy considered, or at least unthinking, criticisms lately leveled at the court below for its decision in this very case, that the lower court’s action was not a “judicial impertinence” but was within its judicial authority. Decree vacated and complaint dismissed; the parties to pay their respective costs. The resolution in full reads as follows: “Resolved, That the President Pro Tempore of the Senate appoint five members of the Senate who shall constitute a committee to investigate into the charges of election frauds in Philadelphia, and also investigate into the actions of the District Attorney of Philadelphia with respect thereto, and be it further “Resolved, That the committee shall also investigate similar charges in any other county in which a district attorney has failed or refused to take action or has appeared to have acted in a negligent manner and the Chairman of the Committee has received written notice or complaint of such charges; and be it further “Resolved, That the committee may hold hearings, take testimony and make its investigations at such places as it shall deem necessary within this Commonwealth. It may issue subpoenas under the hand and seal of its chairman, commanding any person to appear before it and to answer questions touching matters prop erly being inquired into by tbe committee and to produce such books, papers, records and documents as the committee deems necessary. Such subpoenas may be served upon any person and shall have the force and effect of subpoenas issued out of the courts of this Commonwealth. Any person who wilfully neglects or refuses to testify before the committee or to produce any books, papers, records or documents shall be subject to the penalties provided by the laws of the Commonwealth in such cases. Each member of the committee shall have power to administer oaths and affirmations to witnesses axipearing before the committee; and be it further “Resolved, That the committee report its findings, together with its recommendations, for remedial legislation or other appropriate action as soon as possible.” The Act of 1931 is basically a venue statute. In dealing with such statutes, in cases where the differentiation of “venue” and “jurisdiction” was not material to the decision, courts have at times inappropriately used the terms interchangeably. See, e.g., Merner v. Department of Highways, 375 Pa. 609, 101 A. 2d 759.

BARBIERI, Senior Judge. Barry E. Williams (Claimant) petitions for review of the order of the Workmen’s Compensation Appeal Board (Board) which affirmed the referee’s decision granting Montgomery Ward’s (Employer) petition to terminate compensation benefits pursuant to The Workmen's Compensation Act (Act). Issues presented for review pertain to whether the termination of Claimant’s compensation benefits as of July 15, 1982 was supported by substantial competent evidence. We affirm. Claimant, a tractor-trailer driver, sustained a work-related back injury on October 28, 1981 when he slipped and fell while unloading a truck. Compensation benefits were paid pursuant to a Notice of Compensation Payable from December 8, 1981 until Employer ceased payments on July 15, 1982. Employer’s termination petition followed on September 27, 1982 and was based upon a physician’s affidavit of recovery dated September 13, 1982. Therein, Employer alleged that Claimant’s disability had ceased as of July 15, 1982. After several hearings, including a special supersedeas hearing , the referee accepted as credible the testimony of Employer’s expert witness, Dr. Manee Suwan, and granted Employer’s termination petition on the ground that Claimant’s work-related disability ceased as of July 15, 1982. On appeal, the Board affirmed the referee’s decision, whereupon Claimant petitioned this Court for review. Claimant initially challenges whether Employer sustained its burden of proving that all of his work-related disability ceased as of July 15, 1982. Claimant contends that Dr. Suwan’s testimony establishes that he had not fully recovered from his work-related disability until September 13, 1982. In support, Claimant asserts that Dr. Suwan implicitly admitted that he had not fully recovered from his work-related disability as of July 1982 since she continued to prescribe anti-inflammatory medication to him; and that Dr. Suwan’s opinion regarding his ability to return to work in July 1982 was not rendered within a reasonable degree of medical certainty nor did she state whether he was fully recovered as of that time. Dr. Suwan testified in relevant part on direct examination as follows: A: I saw Mr. Williams, again, July 8, 1982. Q: What were your findings at that time, Doctor? A: The physical examination revealed lumbosacral motion is not restricted. Straight leg raising is negative. Deep tendon reflex are normal. Gait is unremarkable. Q: At that time, Doctor, did you feel Mr. Williams needed additional physical therapy? A: I recommended that physical therapy be discontinued and suggested that he take Motrin four times a day as needed when his back pain is increased. Q: Did you anticipate seeing Mr. Williams after this date? A: I stated: ‘He will be discharged from our care.’ Q: Did you have an opinion at that time as to whether or not Mr. Williams could return to his occupation? A: I stated he may return to regular work a week from today—from July 8. Q: You next saw Mr. Williams on September 13, 1982; is that correct? A: Yes. Q: Doctor, ... do you have any opinion within a reasonable degree of medical certainty as to whether or not, as of September 13, 1982, Mr. Williams was fully recovered from his injury of October 1981? A: In my opinion, when I examined him on September 13, ’82, I feel he was fully recovered. Dr. Suwan’s April 27, 1983 Deposition, pp. 8-10, 12. This testimony establishes that Dr. Suwan did not instruct Claimant to regularly take the prescribed anti-inflammatory medication for his pain. Rather, she prescribed the medication on an “as needed” basis with Claimant as sole judge of his pain, if any, and its severity. Mere reluctance by a physician to discount a claimant’s unconfirmed subjective complaints is not tantamount to an implicit admission that the claimant is not fully recovered from a work-related disability. Not every statement made by a physician need be expressed with absolute certainty and without reservation. See Philadelphia College of Osteopathic Medicine v. Workmen’s Compensation Appeal Board (Lucas), 77 Pa.Commonwealth Ct. 202, 465 A.2d 132 (1983). Nor is Dr. Suwan’s opinion that Claimant could return to regular work on July 15, 1982 rendered incompetent by her acknowledgment that Claimant may actually suffer pain inasmuch as her opinion was supported by her unequivocal medical findings. See McCarter v. Workmen’s Compensation Appeal Board (Boeing Vertol Co.), 94 Pa.Commonwealth Ct. 261, 503 A.2d 990 (1986). Moreover, Dr. Suwan did not impose any restrictions upon Claimant’s ability to return to work on July 15, 1982, and, in fact, discontinued his physical therapy and discharged him after the July 8, 1982 medical examination. Similarly, Dr. Suwan’s omission of the phrases, “within a reasonable degree of medical certainty” and “fully recovered”, in testifying as to her opinion of Claimant’s condition on July 8, 1982 does not render her testimony incompetent, although such omissions could affect the weight of the testimony. Medical experts are not required to apply legal standards to the facts contained in their testimony. See Bernardini v. Workmen’s Compensation Appeal Board (Italian Marble Mosaic Co.), 97 Pa.Commonwealth Ct. 514, 510 A.2d 382 (1986). After providing a foundation, medical experts need only testify that they believe or think that the facts exist. See Philadelphia College of Osteopathic Medicine. A medical opinion unequivocally rendered is thus sufficient without resort to “magic words”. See Sheetz v. Workmen’s Compensation Appeal Board (Firestone Tire & Rubber Co.), 104 Pa.Commonwealth Ct. 411, 522 A.2d 146 (1987). Here, Dr. Suwan’s opinion was clearly unequivocal as were her medical findings upon which it was founded. Moreover, Dr. Suwan’s affidavit of recovery certified that Claimant had fully recovered from his October 1981 work-related injury and was able to resume, without limitation, his previous occupation of truck driver on July 15, 1982. Accordingly, the omissions in Dr. Suwan’s testimony do not render her testimony incompetent nor the referee’s determination unsupported by substantial competent evidence. Claimant’s final challenge is based upon an alleged due process violation. Claimant argues that his due process rights were violated by Employer’s unilateral cessation of compensation benefits on July 15, 1982, thus enti tling him to benefits from July 15, 1982 to August 22, 1984, the date of the referee’s special supersedeas decision. Claimant alternatively argues that he should have received benefits from July 15, 1982 to September 13, 1982, the effective date of the referee’s special supersedeas. Unfortunately, Claimant’s failure to raise these issues on appeal to the Board effected a waiver of the right to do so on review to this Court. Pa.R.A.P. 1551; Dehus v. Unemployment Compensation Board of Review, 118 Pa.Commonwealth Ct. 344, 545 A.2d 434 (1988) (denial of due process is a waivable issue); Gallick v. Workmen’s Compensation Appeal Board (Department of Environmental Resources, Bureau of Human Resources Mgmt.), 108 Pa.Commonwealth Ct. 617, 530 A.2d 945 (1987). Because the referee’s decision is supported by substantial competent evidence and no error of law was committed, the order of the Board must be affirmed. ORDER AND NOW, this 4th day of August, 1989, the order of the Workmen’s Compensation Appeal Board is affirmed. . Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1031. . The automatic supersedeas provision of Section 413 of the Act, 77 P.S. § 774, then in effect entitled Employer to cease paying benefits as of July 15, 1982 pending the referee’s disposition of Employer’s termination petition. Section 413 provided in pertinent part that: The filing of a petition to terminate ... a notice of compensation payable ... shall operate as a supersedeas, and shall suspend the payment of compensation ..., in whole or to such extent as the facts alleged in the petition would, if proved, require only when ... the petition alleges that the employe has fully recovered and is accompanied by an affidavit of a physician on a form prescribed by the department to that effect which is based upon an examination made within fifteen days of the filing of the petition____ . The special supersedeas hearing was scheduled by the referee after the United States District Court for the Eastern District of Pennsylvania declared that the automatic supersedeas provision of Section 413 of the Act violated the Fourteenth Amendment due process rights of workmen’s compensation claimants. Remedial measures included, inter alia, that special supersedeas hearings be conducted for claimants whose claims had not yet been finally adjudicated by a referee and whose benefits had automatically ceased when their employers filed petitions to terminate which alleged that the claimants had fully recovered and were accompanied by physicians’ affidavits of recovery. Baksalary v. Smith, 579 F.Supp. 218 (E.D.Pa.1984) (unconstitutionality of Section 413 of the Act) and Baksalary v. Smith, 591 F.Supp. 1279 (E.D.Pa.1984) (remedial measures), appeals dismissed sub nom. Allstate Insurance Co. v. Baksalary, 469 U.S. 1146, 105 S.Ct. 890, 83 L.Ed.2d 906 (1985). Subsequent to this hearing, the referee issued a special supersedeas decision with interlocutory order granting Employer a supersedeas as of September 13, 1982. . This Court’s scope of review is limited to determining whether necessary findings of fact were supported by substantial evidence, an error of law was committed, or constitutional rights were violated. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704; Russell v. Workmen’s Compensation Appeal Board (Volkswagen of America), 121 Pa.Commonwealth Ct. 436, 550 A.2d 1364 (1988). Moreover, where an employer seeks to terminate compensation benefits, as here, the burden of proving that all work-related disability has ceased is upon the employer. Bigler v. Workmen’s Compensation Appeal Board (Bristol Township), 96 Pa. Commonwealth Ct. 642, 508 A.2d 635 (1986), petition for allowance of appeal denied, 516 Pa. 619, 531 A.2d 1120 (1987). . We note, nonetheless, that Claimant would not have been entitled to compensation benefits from July 15, 1982 to August 22, 1984 since Employer's cessation of payments was justified under the automatic supersedeas provision of Section 413 of the Act which was then in effect. However, Claimant would have been entitled to compensation benefits from July 15, 1982 to September 13, 1982 on the basis of the referee’s special supersedeas ruling, despite the referee’s ultimate decision to terminate Claimant’s benefits as of July 15, 1982. After the referee’s final adjudication, Employer, as a self-insurer, would then have been compelled to seek reimbursement of the benefits paid to Claimant during this period from the Workmen’s Compensation Supersedeas Fund. Section 443 of the Act, added by Section 3 of the Act of February 8, 1972, P.L. 25, as amended, 77 P.S. § 999. Had Employer been so compelled, it would have been unable to recoup its loss because reimbursement under Section 443 extends only from the filing date of the request for supersedeas and Employer’s petition to terminate benefits was not filed until September 27, 1982. Department of Labor and Industry v. Workmen’s Compensation Appeal Board, 34 Pa.Commonwealth Ct. 265, 383 A.2d 261 (1978). . Other arguments advanced by Claimant are without merit. Claimant suggests that the referee’s reliance upon Dr. Suwan’s testimony over that of his medical witness was prompted by bias since the referee had decided this case before all of the evidence was offered as indicated by his special supersedeas ruling. Determinations as to the weight and credibility of conflicting testimony are for the referee whose findings will not be disturbed on review where, as here, they are supported by substantial evidence. Gabriel v. Workmen’s Compensation Appeal Board (No. 1 Contracting Corp.), 102 Pa.Commonwealth Ct. 470, 518 A.2d 895 (1986); American Refrigerator Equipment Co. v. Workmen’s Compensation Appeal Board, 31 Pa.Commonwealth Ct. 590, 377 A.2d 1007 (1977). Claimant also asserts that this Court should require referees to state their reasons on the record for disregarding a treating physician’s opinion. It is fruitless to require referees to set forth such reasons where, as here, there is conflicting testimony. Once a referee selects one physician’s testimony over that of another physician and his or her selection constitutes substantial competent evidence to support the conclusion reached, our limited scope of review prevents us from disturbing the referee's determination since resolution of conflicting testimony is for the referee. Moreover, although treating physicians may be preferred as witnesses in workmen’s compensation cases, the fact that a medical witness was not the claimant's treating physician relates only to the weight, and not to the competency, of his or her testimony, which is, again, a determination for the referee. See Workmen’s Compensation Appeal Board v. Czepurnyj, 20 Pa.Commonwealth Ct. 305, 340 A.2d 915 (1975).

The opinion of thtCourt was delivered by Huston, J. he defendants here were plaintiffs below, and brought this ejectment for one undivided half of a tract of land containing two hundred acres. At the trial, the plaintiffs claimed one-sixt.h part of the land ; and for so much they had a verdict and judgment. . , Both parties assumed that the whole tract was, atone time, the property of Samuel S. Galbraith. By his first wife he had two sons, Bartram and James. James died in 1823, unmarried and without issue. After the death of his first wife, Samuel married Juliet Buchanan, who died, leaving one daughter, Juliet. Samuel married again, but had no issue by his third wife, and died about 1810, leaving Bartram and James, his children by his first wife, and a daughter, Juliet, by his second wife: she is now married to a Dr William Lei per. About 1814, Bartram went to study the practice of physic under Dr Abraham Carpenter. I shall state in the order of time the title of the defendant below, who showed a bond dated 4lh February 1820, for 2600 dollars, conditioned for the payment of 1300 dollars on 4th April then next, with interest, and a warrant to confess judgment. This was entered upon the 12th April 1823, as of the preceding January term. On (he 4th of February 1825, this was revived by an amicable scire facias. Dr Bartram Galbraith married a Miss Reigart, who died, leaving no issue. He then married Rebecca Simon, who survived him, and who, together with her present husband, James Cameron, are plaintiffs in this cause. Dr Bartram Galbraith and his’wife, with very many others along the Susquehanna, fell sick in the autumn of 1826. His wife-was removed to Lancaster, to her father’s. After her departure, he sent for a justice of the peace, who, by his direction, wrote his will. He was then able to sit up, and to walk through the house. The will was as follows: “In the name of God, amen. I, Bartram Galbraith, of the town of Bainbridge, in the county of Lancaster, considering the uncertainty of this mortal life, and being of sound mind and memory (blessed be God for the same), do make and constitute this my last will and testament, in manner and form following, to wit. First, it is my will, and I do order and direct, that after my decease my funeral expenses be defrayed, and all my legal debts be liquidated, and for that purpose I do authorise and direct my survivors to sell and dispose of all my real and personal estate, for the purposes above-mentioned; and the surplus, should there any íemain, I do give and bequeath unto my dear wife Rebecca. I do also give and bequeath unto my dear wife the watch I carry. Item, I give and bequeath unto my sister Juliet the portrait of my brother James. I publish and declare this, and none other, to be my'last will and testament. In witness whereof I have hereunto set my hand and seal, this 3d day of October, A. D. 1826. Bartram Galbraith, [l.s.] “Signed and sealed in presence of Robert H. Jones.” Soon after this, Dr Galbraith also set out to go to Lancaster, but only reached his brother William’s house, at Mountjoy, where he died in a day or two after. I may here stale that it was alleged that his wife, being sick at her father’s in Lancaster, did not know or hear of this will until since her second marriage; it was found in a drawer of a desk, among other papers, and immediately proved, and this suit, brought. After the revival of the judgment, in 1825, Dr Carpenter issued one or more writs of fieri facias, which, being found erroneous, from some mistake between the district court and common pleas, were not executed. On the 6th of December 1826, letters of administration were granted to the widow,Rebecca Galbraith, and DrWilliam Thompson, in the usual form; and a bond, with sureties, in the form prescribed by law, in which was the usual clause, that if a will should be found and proved, they would deliver up the said letters of administration. The defendants then gave in evidence an agreement by these administrators to enter ah amicable scire facias on the judgment of Dr Carpenter, against them, as administrators of B. Galbraith, and to give judgment for 1948 dollars 62 cents. This was filed in the prothonotary’s office May 15th, 1827, and the scire facias and judgment thereon the same day. A fieri facias issued on this judgment, No. 10, of August 1827. The return was, “I have seized and taken in execution the within described property, late the estate of Dr Bartram Galbraith deceased, which remains, &c.” The only description of the property was in the inquisition annexed tothe writ, which found, “that the rents, issues and profits of the undivided half part, of a tract of land containing one hundred and eighty acres, more or less, with a log house, &c. (describing the improvements and local situation), late of the estate of Dr Bartram Galbraith deceased, in the same writ named, were not of a clear yearly value,” &c. The defendants further showed a venditioni exponas, and a sale by the sheriff of Lancaster county on the I9ih of November 1827 to James Buchanan, Esq. for 505 dollars, and a sheriff’s deed to Mr Buchanan, and adeed poll indorsed thereon, by which he transferred the property to Dr Carpenter for the same price; both recorded. Dr Carpenter has been in possession since that time. According to the testimony, Dr Carpenter had, as guardian of Juliet while she was a minor, and as agent for the heirs in some suits, been in possession of the whole of this farm from about 1815. On the 14th of July 1835, the above will of Bartram Galbraith was proved before the register of Lancaster county by Robert H. Jones, the subscribing witness, and by John Smith, who was ac quainted with Dr Bartram Galbraith, and often saw him write, and who swore the signature was the handwriting of said Dr Bartram Galbraith ; and his sanity was proved at that period by the above persons, and by the person who drew the will; and on the 22d oí August 1835, the register granted letters testamentary to the widow and devisee, and her husband, who were plaintiffs in the cause below. To all this testimony and the probate of the will and letters testamentary, bills of exception were taken. In this court the argument seemed to be against the effect of what had been done, rather than to the evidence of what had been done. In other words, that there was no executor appointed by this will, and that letters of administration with the will, ought to have been granted. Our acts of assembly have not designated what shall amount, in a will, to making any person executor of that will; their provisions are precise,in most cases, where a person or persons are designated executors, and renounce or remove out of the state, or die. What shall amount to appointing or' designating an executor is left as it was; all authorities agree that the word executor is not necessary. That an executor may be appointed expressly or constructively by committing to his charge those duties which it is the province of an executor to perform, or by conferring those rights which belong to the office, or by any other means by which the intention of the testator to invest him with that character, may be inferred: as if. a testator direct that A shall have his property, after paying his debts; so, when after giving various legacies he directed that his debts and legacies being paid, his wife should have the residue, if she gave security for the performance ofi the will, Toller 35. (These last words savour more of an administration than of an executorship, and she must have been more clearly entitled to be executor if they bad not been added.) So far as the cases cited, or our researches have gone, the above, from Toller, is a fair synopsis of the law, as found from Swinburne to Williams on Executors; the one among the earliest, and the other among the latest writers on the subject. There may be cases in which it may be not very clear what was the intention of the testator, and perhaps this may be one of those cases. It might have been decided that letters of administration, with the will annexed, were proper. The officer granted letters testamentary. This court has not decided which would have been most proper, nor have we discussed that question; because by section fifth of the act of 15th March 1832, Stroud’s Pur don 857, every register qualified to act as aforesaid, shall have jurisdiction within the county for which he shall have been appointed, of the probate of wills and testaments, of the grant-ting letters testamentary and of administration, of passing and filing the accounts of executors, administrators, guardians, &c.; and by section seventeen of the same law, it is directed that ah original wills, &c., &c. shall be recorded, &c., and the copies of such wills and probates under the seals of the courts or offices where the same may have been, or shall be so taken or granted respectively (except copies or probates of such wills as shall appear to have been annulled, disproved or revoked), shall be adjudged, and are hereby enacted to be matter of record, and good evidence to prove the gift or devise thereby made. Section thirty-one says ; from all official aets of the register appeals may be taken to the register’s court, at any time within three years: and sections thirty-nine to forty-two, inclusive, direct proceedings (here, and from the register’s court give an appeal to the supreme court. independently of the general rule that the decisions of a court of exclusive jurisdiction are conclusive, until reversed, on all matters within such jurisdiction, it would seem that these express provisions of our act of assembly compel the admission of this will and probate, and letters testamentary in every court of the state. They are enacted to be matter of record, and good evidence to prove the gift or devise thereby made. It was said if this probate was not within the jurisdiction of the register, it was utterly void, and should have been rejected ; but this was not, and could not be seriously pressed. There is no allegation that the will was not duly proved, and before the register, and he alone had jurisdiction to grant letters testanientary, or of administration with (he will annexed : if he mistook, an appeal was the remedy. But it is said, if this last had been the case, security must, have been given, and thus the creditors would be free from danger of loss. If there was really any one seriously afraid in this particular, and will make oath of it, he can soon have the security spoken of. Another point somewhat urged by the counsel of the defendant below was, that Dr Carpenter, by. his levy and sale of “ the undivided half part of a tract of land,” &c., could hold the whole interest of the defendant, if it should turn out to be two-thirds, or three-fourths, or the whole of the tract; and not a few cases were cited, or rather the dicta in those cases; but in not. one of them was the point now in consideration in the view of the court. It was a matter about which lawyers and laymen talked for years, whether a sale on execution by a sheriff passed the land to a purchaser clear of prior liens; and what was said at the sale by the sheriff, and sometimes what was said by the bystanders, was offered in evidence to show what the rights of the purchaser were; and the court said those rights depended on the law, and not on the sheriff, or cryer, or bystanders, unless in very particular cases. Sometimes the quantity was not accurately stated in the levy, and the question was, what would pass under the words “more or less,” or under those words accompanied by the designation that it was a tract of land in the oGcqpation of the defendant, and as defendant had notice of the levy, inquisition and sale, if he did not apply to have the quantity corrected, if it was too small, did the purchaser take the wl}qle fqrm, though containing more acres than the deed 1 Jn Streeper and Fisher the levy was on a ground rent, issuing out of a lot particularly designated; the sheriff’s deed, by a mistake of the scrivener, conveyed the lot instead of the ground rent. The decision was that it, depended on the levy, not on the deed; and in delivering the opinion, the judge uttered some dicta, that the interest levied on, or any less interest which defendant had, would pass to the purchaser under a levy and sale; but expressly said, “I do not say that a greater interest than that levied on, would not pass.” The act of 21st March 1806 provides, that not less than a whole farm or tract, if all owned and occupied by one person, shall be levied on ; and the spirit of this act would direct that if a man owned the whole, or certain aliquot parts, the plaintiff would be bound to levy on (he whole interest. Certainly, if either the plaintiff or the defendant, at any time before the acknowledgement of the sheriff’s deed, should make known that this law had been violated, by levying on part of a tract, or, where the defendants had an undivided interest, by levying on less than that interest, the executions would be all set, aside, or, perhaps, in some cases, the terms of the levy'’ corrected and a new sale ordered. These proceedings would be decided on according to circumstances and consent of parties. But after a sale and deed acknowledged, as in this case, and long acquiescence, I am not aware that it has been, or can be decided, that a levy and sale contrary to the directions of this act woud be void, unless procured by fraud or misrepresentation of the plaintiff, or purchaser, or both. If, however, this act can have any effect in such a case, it cannot be in favour of a plaintiff purchaser. The act was made to protect defendants in executions, and prevent their lands from being taken from them in small parcels, when the rents and profits of the whole would have paid the debts in seven years. . It is not intended to give even the individual opinion of the judge, as to the effect of thislaw on the title of the purchaser at sheriff’s sale, further than that, in this case, the levy and sale does not vest in Dr Carpenter more than one undivided half part of the tract. Another objection was, that where land is devised to be sold to pay debts, or divided among several, or the price to be paid to one, it is considered, to all intents, as money ; and many British, and some of our own authorities, were cited. Without entering into all the questions which occur under this rule, in different circumstances, we are of opinion it has no application in the case before us. A creditor of a decedent, who gets possession of property belonging to the estate in any other way than by purchase from the executor, or purchase under process of law, is as much a trespasser as any stranger. A person, then, having no right, gets into possession ; the executor has by common law, and by our act of 1800, express authority to bring ejectment to obtain possession, in order that he may sell, and apply the money according to the directions in the will; or he may convey at private sale, and the purchaser may support ejectment; if there is any objection to such private sale, it is for those interested to investigate and contest it; not for a trespasser, who has got into possession without right. Not a little was said as to whether the plaintiff below was claim? ing as executrix or devisee. They styled themselves neither execu? tors or devisees, and it was not necessary that they should. In a case where a person, who has no other right than an executor, is plaintiff in ejectment, and dies before the cause is ended, there may be a conve? nience in his being styled executor. By our present law his executor will not be executor of the first testator; and as the person next in interest is to be substituted as plaintiff, there may be difficulty in de* ciding who is next in interest, where the deceased plaintiff had stated that he sued out the writ in the character of executor. The'Vecord, in case of recovery, will also show for whose benefit the recovery was; but it has never been held necesáary that the style of executor should be added ; nor has it, to my knowledge, been contended in this state that it was necessary to state that the plaintiff brought ejectment as executor, except in one case, before Judge Shippen, at a circuit court in Lycoming, in which R. Tunis was plaintiff, and claimed as executor of Roberts, but was not so styled on the record, The judge at once said, if plaintiff showed a right in himself, it was never necessary to state in the writ, or title of the writ, the nature of that right. I think in the middle counties it has never been discussed since, and seldom has the plaintiff been stated to sue as executor, In one case I knew of a long contest between the heirs of the executor and of the first testator, who should be substituted under the act of 1807, upon the death of the plaintiff; and for this cause I would ad? vise counsel who bring ejectments for executors, to state it so on the record. It is no part of this cause to state or decide what effect any sta« tute of limitation or lapse of time, since the death of Dr R. Galbraith, may have on the claims of his creditors ; if that is disputable, it will be decided when it occurs. The judge very properly avoided de-, ciding the question raised by the defendant below, as to executor and devisee, and as to the effect on the rights of creditors, whether in one or the other character. It was enough to settle in this cause thaj one-sixth of this farm, which was vested in Dr Galbraith at his death, remained undisposed of, and that under his will, the plaintiffs had it right to recover possession of that undivided sixth. It has been conceded, on both sides, that either Dr Carpenter did not know that Juliet was only a sister of the half blood to James and Bertram, or that he did not know that the law in this case gave all to the full brother; and that the widow of Bartram was under the same misapprehension. There is not any thing to which the docrine of estoppel can apply. Dr Carpenter had been in possession of tlffa property, as guardian and agent of the family, ten years ; it is not surmised that the widow gave in the levy,- or was consulted about it, The one-sixth, now in dispute, is not embraced in that levy or sale; the present plaintiff did nothing, in the whole matter of sale, except not to object. I can see nothing like estoppel of record, or in pais, as to them. If indeed it were proved that the widow gave in the levy, it might be otherwise. As little effect has the fact that she administered before she knew of the will, or her own rights. Our act of assembly contemplates such a case, and makes provision that the acts of the administrator shall be good until the will is discovered; and his authority ceases when the will is proved. Judgment affirmed.

OPINION BY GANTMAN, J.: ¶ 1 Appellant, James P. Arnold, appeals from the judgment entered in the Susquehanna County Court of Common Pleas in favor of Appellees, David L. Hart and Ann B. Hart, in his action for breach of contract and related claims. Appellant asks us to determine whether the trial court erred when it denied him any relief on his breach of contract claim on the ground of mutual mistake of fact, and when it dismissed his claims for fraud, punitive damages, and counsel fees. We hold that the court erred when it excused Appellees from contractual liability on the ground of mutual mistake of fact. We further hold that the court properly dismissed Appellant’s fraud and punitive damages claims. Finally, we remand the matter for further proceedings regarding damages on Appellant’s breach of contract claim and his claim for counsel fees. Accordingly, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion. ¶ 2 The relevant facts and procedural history of this case are as follows. In 1986, Appellees initiated efforts to obtain approval to construct, operate, and maintain a dam on their property. The purpose of the dam was to create a lake by impounding water from a branch of Pettis Creek in Bridgewater Township, Susquehanna County, Pennsylvania. ¶ 3 Appellees obtained a permit from the Pennsylvania Department of Environmental Regulation (“DER”) to construct the impoundment. The DER permit also required approval from the Army Corps of Engineers (“ACE”). The DER permit was valid until December 31, 1988. The ACE permit was also valid for only two years, but ACE did not communicate this fact to Appellees until 1990. ¶ 4 After a site inspection of Appellees’ property in May 1990, ACE informed Ap-pellees that their 1986 ACE Permit had expired on August 29, 1988. Further, Ace informed Appellees their project involved work beyond that permitted under nationwide authorization, and Appellees would have to apply for an individualized permit in accordance with current regulations. Appellees took the position that their 1986 ACE permit was still valid. Nevertheless, Appellees applied for an individualized permit to create the impoundment. In July 1990, ACE notified Appellees that their application was incomplete in many respects. Further, ACE told Appellees that, prior to any approval, certain wetland impact studies had to be performed. Despite their ongoing dispute with ACE over the validity of the 1986 permit, Appellees expressed their intention to continue work on the dam in October 1990. In November 1990, a public notice and comment period was held, which gave rise to certain environmental issues ACE believed needed to be addressed before the dam could be finished and impoundment of the lake could begin. For the first time, ACE began to consider a reduction in the size of the impoundment to meet negative comments from various environmental agencies, particularly with respect to the degradation of surrounding wetlands. ACE told Appellees to complete their reapplication and to submit alternative plans for a smaller impoundment. Appellees did not comply. ¶ 5 In December 1991, ACE informed Appellees that their incomplete application was deemed withdrawn due to them inaction and their failure to submit alternative plans for a smaller impoundment. Appel-lees’ immediate response was to reiterate that their ACE permit was still valid, a position Appellees continued to maintain through 1993. ¶ 6 In February 1993, Appellees entered into an agreement with Appellant, where by the parties agreed that Appellant would transfer 55 acres of real property to Ap-pellees in exchange for $125,000.00 and Appellees’ promise to create a 20.8 acre lake by constructing a dam of sufficient size and strength to allow for flaring out the proposed impoundment on Appellant’s land as contemplated by the parties. Ap-pellees agreed to undertake the costs and responsibility for construction of a dam, on land owed by them and for obtaining all approvals required by government agencies. (See Agreement for the Sale of Real Estate, attached as Exhibit A to Appellees’ Original Complaint against Appellant, filed 9/1/95, ¶¶ 4, 5; R.R. at lla-17a). ¶ 7 By virtue of their agreement, the parties intended to create lakefront acreage on their adjacent properties with a reciprocal easement. The area and depth of the lake were essential to the parties’ agreement, because (1) a smaller lake would not reach the intended shoreline and (2) the depth of the lake was essential to the type of recreational water activities that could be enjoyed by potential consumers of the lakefront property (such as swimming, fishing, and recreational boating). (See Trial Court Opinion, filed July 11, 2002, at 1). Closing occurred on April 2, 1993. Pursuant to the parties’ agreement, at closing, $25,000.00 of the sale price was put in an interest-bearing escrow account and earmarked for the construction of the dam. “The intent of the parties was to have lakefront property on their adjacent real property by virtue of a Reciprocal Easement Agreement.” (Id.) ¶ 8 Later that month Appellant contacted ACE to determine the status of Appel-lees’ permit. ACE informed Appellant that Appellees had taken no action on then' reapplication for a permit and it had been deemed withdrawn. On May 15, 1993, Appellant reiterated to Appellees in writing that the $25,000.00 held in escrow was to be used only for construction of a dam for a 20.8 acre lake. Subsequently, Appellees informed Appellant by letter that he needed to move certain power lines on his property to facilitate completion of the project. ¶ 9 In June 1993, Appellant again contacted ACE. ACE informed Appellant that Appellees’ project was not authorized, and if construction were actually taking place, then the ACE enforcement division would have to get involved. Over the course of the next few months, ACE sent several cease-and-desist letters to Appel-lees concerning the construction of the im-poundment and the status of their permit. A letter ACE sent to Appellees in July 1993 not only reissued earlier warnings but also stated a meeting would be scheduled between ACE and Appellees to discuss ACE’s position regarding the permit and the impoundment. ¶ 10 In September 1993, Appellees and their attorney met with representatives of ACE and the U.S. Attorney’s Office. The U.S. Attorney informed Appellees that he was considering an injunction to prevent completion of the project. Following their meeting, Appellees agreed not to complete the project until the permit process was concluded. At that time, Appellees also agreed to consider other project options to avoid degradation of wetlands, namely a reduction in the size of the impoundment. After the meeting, Appellees filed a new permit application for a 12.4 acre impoundment at 1500.57 feet. Appellant was not consulted about this reduction in size. ACE held another notice and comment period in November 1993 for an impoundment of only 12.4 acres. ¶ 11 In January 1994, ACE offered Ap-pellees two options, neither of which was sufficient to satisfy the original agreement between the parties. In June 1994, ACE issued a permit for a 12.4 acre impound ment at 1500.57 feet. Appellees constructed a dam utilizing Appellant’s funds and created a 12.4 acre impoundment. ¶ 12 Nevertheless, between June and November 1994, Appellees’ counsel continued to send letters to Appellant stating that Appellant’s failure to move certain utility poles was the sole obstacle to the construction of the 20.8 acre lake as contemplated by the parties’ agreement. In November 1994, Appellees’ attorney sent another letter to Appellant regarding removal of the utility poles so that the im-poundment as originally contemplated could be created. A month later Appel-lees’ attorney threatened legal action if Appellant did not move the designated utility poles. ¶ 13 Appellees finally sued Appellant on September 1, 1995, alleging claims for breach of contract (based on Appellant’s failure to move certain utility poles), fraud (based on Appellant’s promise to move the utility poles), punitive damages, damages for “inconvenience and aggravation,” and counsel fees. In Count I (Breach of Contract), Appellees averred the parties had entered into an agreement for the creation of an “approximately twenty acre. im-poundment of water, on land owned by the parties;” Appellees further averred, “[Ap-pellees] agreed to undertake the costs and responsibility for construction of a dam, on land owned by [Appellees] and of obtaining all approvals required by government agencies.” (Appellees’ Complaint, filed 9/1/95, ¶¶ 4-5; R.R. at 2a-3a). ¶ 14 Appellant filed preliminary objections. Following briefing and oral argument, the court sustained Appellant’s preliminary objections to the extent that Appellees’ claims for attorney fees, damages for “inconvenience and aggravation,” and punitive damages were stricken. Ap-pellees were allowed to proceed on their remaining claim for breach of contract and special damages. The court’s order was dated January 23, 1996 and filed on January 24, 1996. ¶ 15 Appellant duly filed an answer to the remaining counts of the complaint, with new matter and counterclaims. Appellant’s counterclaims alleged breach of contract, diminished value of his land as a result of Appellees’ creation of a significantly smaller 12-acre impoundment, fraud, ejectment, monetary losses (including those Appellant incurred as a result of having already moved some of the utility poles), counsel fees and costs. ¶ 16 Appellees filed their answer with new matter to Appellant’s counterclaims on February 27, 1996. Curiously, Appel-lees denied that the parties had ever contemplated an impoundment of any specific size or that Appellees had unilaterally downsized the impoundment. Instead, Ap-pellees maintained the agreement contemplated that the actual area of the impoundment would depend on what ACE would ultimately allow. Appellees further contended the only obstacle to construction of the impoundment as agreed was Appellant’s failure to relocate the utility lines. ¶ 17 Appellant filed a reply to Appellees’ new matter, denying any contractual duty to relocate utility lines. By agreement of the parties, on May 13, 1996, Appellant filed an amended answer with new matter and counterclaim to include additional money damages, without any change to the theory of his original counterclaims. Throughout the remainder of 1996 and into 1997, discovery ensued. The matter was continued indefinitely in 1997, due in part to Appellees’ bankruptcy filing. The bankruptcy proceedings were resolved on January 22,1999. ¶ 18 In August 2000, the court notified the parties of its intent to discontinue the matter due to lack of significant docket activity. By order dated November 6, 2000, and filed November 8, 2000, the case was relisted for trial. Trial was eventually scheduled for October 22, 2001. ¶ 19 On October 12, 2001, the parties deposed Dr. Thomas G. Pluto, Ph.D., a biologist and employee of ACE. In his deposition, Dr. Pluto stated that rerouting the utility poles was irrelevant to the size of the impoundment. Following this deposition, Appellees withdrew their complaint against Appellant on October 16, 2001. Appellant’s counterclaims, however, proceeded on two non-consecutive days of trial, after which the parties filed post-trial briefs. 1120 By order dated July 9, 2002 and filed July 11, 2002, the court granted Appellant relief on his ejectment claim and ordered Appellees to remove the fence placed on Appellant’s property within 60 days. The court further ordered Appel-lees to pay Appellant the sum of $25,000.00 from the escrow account, plus interest from 5/13/93, for the unauthorized use of the escrow funds. With the exception of the ejectment action and the unauthorized use of the escrow money, the court ruled that all other expenses and damages Appellant alleged were the result of a mutual mistake; and, the parties were to bear their own expenses and damages, including legal fees. ¶ 21 On July 22, 2002, Appellees timely filed post-verdict motions requesting relief from the court’s order directing them to pay Appellant $25,000.00 plus interest for the unauthorized use of the escrow funds. Appellant also timely filed post-verdict motions requesting relief on his claims of breach of contract, fraudulent inducement, fraud, punitive damages, and attorney’s fees and costs. On May 12, 2003, the trial court filed its opinion and order dated May 6, 2003, granting Appel-lees’ motion for post-verdict relief and vacating that part of the court’s July 2002 order in which the court ordered Appellees to pay Appellant the $25,000.00 held in escrow plus interest since 1993. The court further denied Appellant’s motion for post-verdict relief. On June 11, 2003, Appellant filed his notice of appeal. By order dated June 17, 2003, and filed on June 19, 2003, the trial court ordered Appellant to file a Rule 1925(b) concise statement of matters complained of on appeal. Appellant filed his Rule 1925(b) statement on June 27, 2003. ¶ 22 The following time line summarizes the parties’ significant activities and interactions, upon which this case is based: 1986 ACE issues Appellees a nationwide permit for construction of an im-poundment. DER issues Appellees a permit for construction of a 20.8 acre impoundment of water. 1990 May^ — ACE informs Appellees that their nationwide permit has expired and they will have to reapply for an individual permit in accordance with the new regulations; Appellees contest the status of their permit as “expired.” June — Appellees submit re-application for permit for a 20.8 acre impoundment at 1505 feet. November — Initial public notice for the impoundment raises concerns about the possible degradation of surrounding wetlands. 1990-91 ACE asks Appellees to complete their re-application for a permit and to submit alternative plans for a smaller impoundment. 1991 December — ACE informs Appel-lees their re-application is deemed withdrawn due to their inaction and failure to submit plans for a smaller impoundment. Appellees continue to contest the expiration of their original permit. 1992 Appellees continue to contest in writing the status of their ACE permit as expired, and proceed as if the permit is valid. 1993 February — Appellees and Appellant enter into an agreement for the sale of land and the construction of a dam and impoundment of approximately 25 acres. April 2, 1993 — Parties enter into a reciprocal easement agreement for the water impoundment as contemplated in the parties’ February 1993 agreement of sale. April — Appellant inquires about the status of Appellees’ permit and ACE informs him Appellees’ re-application has been deemed withdrawn. May 15, 1993 — -Appellant informs Ap-pellees in writing that the $25,000.00 held in escrow can be used only for construction of a dam for a 20.8 acre lake. May — Appellees inform Appellant he must move certain power lines so construction can be completed. June — Appellant again contacts ACE and is informed that Appellees’ project has not been authorized; if construction is occurring, ACE will have to get involved. June — ACE sends a letter to Appel-lees reminding them that ACE considers their re-application for a permit withdrawn and their project is not authorized. June — ACE sends a letter to Appel-lees requesting the name of their contractor and prohibiting further work on the project. July — ACE sends a letter to Appel-lees as a follow-up to the June letter, informing Appellees a meeting would be scheduled to discuss ACE’s position on the project. September — Appellees and their attorney meet with representatives of ACE and the U.S. Attorney’s Office, who informs Appellees they are considering an injunction to prevent continuation/completion of the project. September — Following a meeting with ACE representatives and the U.S. Attorney, Appellees agree to halt the project until the permit process is settled/completed and promise to consider other project options to avoid wetlands degradation. November — ACE posts a public notice for an impoundment of 12.4 acres. 1994 January — ACE offers Appellees two options, neither of which is sufficient to satisfy the original agreement between the parties. June — ACE issues a permit for construction of a 12.4 acre impoundment at 1500.57 feet. June — Appellees’ attorney sends a letter to Appellant indicating Appellant’s failure to. remove certain utility poles prevents completion of the project. June-November — Appellees’ counsel sends additional letters to Appellant stating Appellant’s failure to move certain utility poles is the only obstacle to the construction of the impoundment as contemplated by the parties’ agreement. November — Appellees’ attorney sends Appellant a letter indicating that if Appellant has utility poles moved, the impoundment would be completed as contemplated. December — Appellees’ attorney warns Appellant of possible legal action against him if Appellant does not move the utility poles as requested. 1995 May — Appellees send a personal letter to Appellant demanding that he move certain utility poles pursuant to the parties’ sale agreement. September 1, 1995 — Appellees sue Appellant alleging breach of contract (based on Appellant’s failure to move certain utility poles) and fraud (based on Appellant’s promise to move the utility poles); claims for punitive damages, damages for “inconvenience and aggravation,” and counsel fees. Appellant files preliminary objections to Appellees’ complaint. Preliminary objections are litigated, sustained in part and overruled in part. 1996 Appellant timely files answer to Appellees’ complaint, with new matter and counterclaims. 1997 May — Appellant files amended counterclaims for damages, again alleging breach of contract, diminished value of his land as a result of the smaller 12-acre impoundment, fraud, ejectment, monetary losses (including those Appellant incurred as a result of having already moved some of the utility poles), counsel fees and costs. 1997-2001 Discovery, motions, and other pre-trial matters proceed; additional delay caused by Appellees’ bankruptcy filing, which is concluded in 1999. 2001 October 12, 2001 — The parties take the trial deposition of Dr. Thomas G. Pluto, Ph.D., of ACE, who states that the rerouting of the utility poles is irrelevant to the size of the im-poundment. October 16, 2001 — Appellees file a praecipe to discontinue their action against Appellant; Appellant’s counterclaims proceed. October 22, 2001 — First day of bench trial on Appellant’s counterclaims. 2002 February 15, 2002 — Second day of bench trial on Appellant’s counterclaims. April 1, 2002 — Appellees file post-trial brief. April 12, 2002, Appellant files reply brief. July 11, 2002 — Trial court files opinion and order dated July 9, 2002, granting relief on Appellant’s ejectment claim and ordering Appellees to remove the fence placed on Appellant’s property within 60 days; the court further orders Appellees to pay Appellant the sum of $25,000.00 from the escrow account, plus interest from 5/13/93; with the exception of the ejectment action and the unauthorized use of the escrow money, the court rules all other expenses and damages alleged are the result of a mutual mistake and orders the parties to bear their own expenses and damages, including legal fees. July 22, 2002 — Appellees timely file post-verdict motions requesting relief from the court’s order directing them to pay $25,000.00 plus interest to Appellant for the unauthorized use of the escrow funds. August 1, 2002 — Appellant timely files post-verdict motions requesting relief on his claims of breach of contract, fraudulent inducement, fraud, punitive damages, and attorney’s fees and costs. 2003 May 12, 2003 — Trial court files its opinion and order, dated May 6, 2003, granting Appellees’ motion for post-verdict relief and vacating that part of the court’s July 2002 order in which the court ordered Appellees to pay Appellant $25,000.00 plus interest; the court further denies Appellant’s motion for post-verdict relief. June 11, 2003 — Appellant files his notice of appeal. June 19, 2003 — By order dated June 17, 2003, the trial court orders Appellant to file a Rule 1925(b) concise statement of matters complained of on appeal. June 27, 2003 — Appellant files his Rule 1925(b) statement. August 19, 2003 — judgment is entered. ¶23 On appeal, Appellant raises eight issues for our review: WHETHER THE [TRIAL] COURT ABUSED ITS DISCRETION IN FINDING THAT [APPELLEES] HAD NOT BREACHED THE CONTRACTUAL RELATIONSHIP BETWEEN THE PARTIES RELATING TO THE CONSTRUCTION OF AN IMPOUNDMENT OF WATER WHERE THE RECORD CLEARLY DEMONSTRATED THAT (1) THE SIZE OF THE IMPOUNDMENT WAS ESSENTIAL TO THE AGREEMENT, (2) THE PARTIES CONTEMPLATED AND AGREED UPON THE CONSTRUCTION OF A 20.8 ACRE IMPOUNDMENT, (3) THE FINAL IMPOUNDMENT WAS NEARLY 50% OF THE SIZE CONTEMPLATED, (4) [APPELLANT] INFORMED [APPELLEES] THAT HE WOULD NOT AUTHORIZE THE USE OF ANY OF HIS FUNDS FOR AN IMPOUNDMENT SMALLER THAN 20 ACRES, AND (5) [APPELLEES] DISREGARDED THE DIRECTIONS OF [APPELLANT] AND BUILT A SMALLER IM-POUNDMENT [THAN] THAT AGREED UPON BY THE PARTIES? WHETHER THE [TRIAL] COURT ABUSED ITS DISCRETION IN FINDING A MUTUAL MISTAKE BETWEEN THE PARTIES AS TO THE SIZE OF THE IMPOUNDMENT WHERE (1) PRIOR TO THE AGREEMENT, [APPELLEES] UNDERSTOOD THAT THEY COULD NOT CONSTRUCT A 20.8 ACRE IM-POUNDMENT, (2) [APPELLEES] ENTERED INTO AN AGREEMENT WITH [APPELLANT] FOR A 20.8 ACRE IMPOUNDMENT WITHOUT NOTIFYING [APPELLANT] THAT SUCH AN IMPOUNDMENT COULD NOT BE CREATED, AND (3) THERE IS NO EVIDENCE THAT [APPELLANT] UNDERSTOOD THAT A 20.8 ACRE IMPOUNDMENT WOULD NOT BE CREATED? WHETHER THE [TRIAL] COURT ABUSED ITS DISCRETION WHEN IT CONCLUDED THAT [APPEL-LEES] WERE ENTITLED TO $25,000 OF ESCROW FUNDS FROM [APPELLANT] WHERE (1) [APPEL-LEES] MISLED [APPELLANT] AS TO THE SIZE OF THE IMPOUNDMENT, (2) THE PARTIES HAD AGREED UPON A 20.8 ACRE IM-POUNDMENT, (3) [APPELLANT] NOTIFIED [APPELLEES] THAT HIS MONIES WERE NOT TO BE USED TO CONSTRUCT AN IMPOUNDMENT SMALLER THAN 20.8 ACRES, (4) [APPELLEES] IGNORED THE SPECIFIC INSTRUCTIONS OF [APPELLANT] AND IGNORED THE AGREEMENT BETWEEN THE PARTIES BY CONSTRUCTING AN IM-POUNDMENT SUBSTANTIALLY SMALLER THAN 20.8 ACRES, AND (5) [APPELLEES] CONTINUED TO MISLEAD AND MISREPRESENT TO [APPELLANT] THAT THE SIZE OF THE IMPOUNDMENT RESULTED FROM [APPELLANT’S] FAILURE TO MOVE CERTAIN UTILITY POLES, DESPITE [APPELLEES] UNDERSTANDING THAT THE MOVEMENT OF THE UTILITY POLES WOULD NOT RESULT IN A LARGER IMPOUNDMENT OF WATER? WHETHER THE [TRIAL] COURT ABUSED ITS DISCRETION IN FINDING THAT A SUBSTANTIALLY SMALLER IMPOUNDMENT OF WATER SATISFIED THE PARTIES’ WRITTEN AGREEMENT TO CONSTRUCT A 20.8 ACRE IMPOUNDMENT WHERE THERE WAS NO WRITTEN MODIFICATION OF THE PARTIES’ AGREEMENT TO ALLOW FOR THE CONSTRUCTION OF A SMALLER IMPOUNDMENT? WHETHER THE [TRIAL] COURT ABUSED ITS DISCRETION BY NOT FINDING, BY IMPLICATION, THAT [APPELLEES] HAD ENGAGED IN FRAUDULENT CONDUCT TO INDUCE [APPELLANT] TO ENTER INTO THE CONTRACT TO CONSTRUCT A 20.8 ACRE IMPOUNDMENT WHERE (1) PRIOR TO THE AGREEMENT, [APPELLEES] UNDERSTOOD THAT THEY COULD NOT CONSTRUCT A 20.8 ACRE IM-POUNDMENT, (2) [APPELLEES] ENTERED INTO AN AGREEMENT WITH [APPELLANT] FOR A 20.8 ACRE IMPOUNDMENT WITHOUT NOTIFYING [APPELLANT] THAT SUCH AN IMPOUNDMENT COULD NOT BE CREATED, (3) [APPEL-LEES] UNDERSTOOD THAT THE SIZE OF THE IMPOUNDMENT WAS ESSENTIAL TO THE AGREEMENT, AND (4) [APPELLEES] KNOWINGLY AND INTENTIONALLY MADE MISREPRESENTATIONS TO [APPELLANT] THAT A 20.8 ACRE IM-POUNDMENT WAS ASSURED IN ORDER TO INDUCE [APPELLANT] TO ENTER INTO THE CONTRACTUAL AGREEMENT? WHETHER THE [TRIAL] COURT ABUSED ITS DISCRETION IN CONCLUDING THAT [APPELLANT] HAD FAILED TO PROVE HIS FRAUD CLAIM WHERE THE EVIDENCE CLEARLY DEMONSTRATED THAT (1) [APPELLEES] HAD A SIGNIFICANT PRIOR HISTORY WITH [ACE] AND UNDERSTOOD PRIOR TO THE AGREEMENT THAT [APPELLEES] WOULD NOT BE PERMITTED TO CONSTRUCT A 20.8 ACRE IMPOUNDMENT, (2) THE SIZE OF THE IMPOUNDMENT WAS ESSENTIAL TO THE AGREEMENT, (3) [APPELLEES] MISREPRESENTED INFORMATION TO [APPELLANT] IN ORDER TO INDUCE HIM INTO ENTERING THE AGREEMENT, NAMELY THAT A 20.8 ACRE IMPOUNDMENT WOULD BE REALIZED, (4) [APPELLEES] NEVER INFORMED [APPELLANT] THAT A 20.8 ACRE IMPOUNDMENT WOULD NOT BE PERMITTED, AND (5) [APPELLANT] RELIED UPON [APPEL-LEES’] REPRESENTATIONS IN ENTERING INTO THE AGREEMENT FOR CONSTRUCTION OF A 20.8 ACRE IMPOUNDMENT? WHETHER THE [TRIAL] COURT ABUSED ITS DISCRETION IN FAILING TO ASSESS PUNITIVE DAMAGES AGAINST [APPELLEES] WHERE (1) [APPELLEES] FRAUDULENTLY INDUCED [APPELLANT] TO ENTER INTO AN AGREEMENT FOR THE CONSTRUCTION OF A 20.8 ACRE IMPOUNDMENT, (2) [AP-PELLEES] UNDERSTOOD THAT THEY WOULD NOT BE PERMITTED TO CONSTRUCT A 20.8 ACRE IMPOUNDMENT, (3) [APPELLEES] NEVER DISCLOSED THESE FACTS TO [APPELLANT], AND (4) [APPEL-LEES] INITIATED FRIVOLOUS LITIGATION AGAINST [APPELLANT] SUGGESTING THAT THE SMALLER IMPOUNDMENT RESULTED FROM [APPELLANT’S] FAILURE TO MOVE UTILITY POLES, AS OPPOSED TO [APPEL-LEES] UNDERSTANDING PRIOR TO THE AGREEMENT THAT A 20.8 ACRE IMPOUNDMENT WOULD NOT BE ALLOWED? WHETHER THE [TRIAL] COURT ABUSED ITS DISCRETION IN FAILING TO ORDER [APPELLEES] TO PAY [APPELLANT’S] COUNSEL FEES WHERE (1) [APPELLEES] FALSELY ASSERTED IN THEIR PLEADINGS THAT THE SIZE OF THE IMPOUNDMENT RESULTED FROM [APPELLANT’S] FAILURE TO MOVE CERTAIN UTILITY POLES, (2) [APPELLEES’] COUNSEL IN THE LITIGATION AGAINST [APPELLANT] WAS INVOLVED IN THE NEGOTIATIONS OVER THE SIZE OF THE IMPOUNDMENT AND UNDERSTOOD THAT THE SIZE OF THE IMPOUNDMENT WAS NOT RELATED TO THE MOVEMENT OF UTILITY POLES, (3) [APPELLEES] AND THEIR COUNSEL ATTEMPTED TO DECEIVE THE COURT AS TO THE BASIS FOR THE SMALLER IMPOUNDMENT AND ATTEMPTED TO FINANCIALLY BENEFIT FROM THAT DECEPTION, AND (4) PRIOR TO THE LITIGATION [APPELLEES] AND THEIR COUNSEL KNEW THAT [ACE] WOULD NOT ALLOW ANY INCREASE IN THE SIZE OF THE IMPOUNDMENT? (Appellant’s Brief at 5-7). ¶ 24 The relevant standard of review of a court’s decision in a non-jury trial is as follows: [We are] limited to a determination of whether the findings of the trial court are supported by competent evidence and whether the trial court committed error in the application of law. Findings of the trial judge in a non-jury case must be given the same weight and effect on appeal as a verdict of a jury and will not be disturbed on appeal absent error of law or abuse of discretion. When this Court reviews the findings of the trial judge, the evidence is viewed in the light most favorable to the victorious party below and all evidence and proper inferences favorable to that party must be taken as true and all unfavorable inferences rejected. Croyle v. Dellape, 832 A.2d 466, 470 (Pa.Super.2003) (citing Behar v. Frazier, 724 A.2d 943, 946 (Pa.Super.1999)). The court’s findings are especially binding on appeal, where they are based upon the credibility of the witnesses, “unless it appears that the court abused its discretion or that the court’s findings lack evidentia-ry support or that the court capriciously disbelieved the evidence.” Fudula v. Keystone Wire & Iron Works, Inc., 283 Pa.Super. 502, 424 A.2d 921, 927 (1981). Judicial discretion requires action in conformity with law on facts and circumstances before the trial court after hearing and consideration. Consequently, the court abuses its discretion if, in resolving the issue for decision, it misapplies the law or exercises its discretion in a manner lacking reason. Miller v. Sacred Heart Hosp., 753 A.2d 829, 832 (Pa.Super.2000) (internal citations omitted). “To the extent that the trial court’s findings are predicated on errors of law, we review the court’s findings de novo.” John B. Conomos, Inc. v. Sun Co., Inc. (R & M), 831 A.2d 696, 704 (Pa.Super.2003), appeal denied, 577 Pa. 697, 845 A.2d 818 (2004). ¶25 In his first four issues, Appellant claims the parties entered into a contract for the construction of a 20.8 acre im-poundment of water; the size of the im-poundment was an essential term of the contract; Appellant conveyed 55 acres of real property to Appellees in exchange for $125,000.00; Appellant contributed $25,000.00 of the purchase price to the construction costs of the dam; and, Appel-lees agreed to construct a 20.8 acre im-poundment at 1505 feet. Appellant avers Appellees breached the parties’ contract when they unilaterally decided to reduce the size of the lake significantly, without telling Appellant about the change in plans. Appellant insists he should have been informed of the substantial change in plans to determine whether he wanted to proceed with the reduced impoundment. Appellant maintains Appellees failed to tell him that they could not obtain the permit from ACE for a 20.8 acre impoundment. Instead, Appellees used $25,000.00 of Appellant’s funds, without his authorization or waiver, to construct a dam without a permit and an impoundment that was considerably smaller than agreed, to Appel-lees’ primary benefit and to Appellant’s measurable detriment. As a result of the breach, Appellant claims he incurred the following damages: Wetland Studies/Contour Maps $ 15,000.00 Cost of Dam $ 25,000.00 Lost Property Value of five (5) Lakefront lots $175,000.00 Total $215,000.00 (Appellant’s Brief at 30-31). Appellant also claims he incurred legal expenses in defending against Appellees’ lawsuit as well as maintaining his counterclaims against Appellees. Appellant concludes the proper remedy in this case is to affirm the contract and remand for a determination on his breach of contract damages. ¶ 26 Appellant further submits the record does not support the trial court’s decision to avoid the contract on the ground of mutual mistake of fact. Appellant insists Appellees knew, when they entered into their agreement with Appellant, that their permit to construct a 20.8 acre impoundment was no longer valid, but they failed to inform Appellant regarding the true status of their permit. Appellees knew their permit had expired. They also knew they could not construct a 20.8 acre im-poundment under existing circumstances. Appellees had this information but Appellant did not. Therefore, Appellant reasons, Appellees cannot claim mutual mis take of fact as a defense to the formation of the contract. Moreover, to the extent the court concluded the parties were mutually mistaken such that the contract was canceled, Appellant submits the court erred in failing to return the parties to their original position, as if there had been no contract. As such, Appellant claims he should get his land back as well as the $25,000.00 escrow fund used for the construction of the dam, and he should return the purchase price of the land -to Appel-lees. Appellant concludes the court erred in avoiding the contract based upon mutual mistake; in the alternative, the court failed to provide the appropriate remedy under that circumstance. ¶ 27 Additionally, Appellant asserts Ap-pellees wrongfully used the $25,000.00 in escrow to construct a dam without a permit to create a smaller impoundment, over his strict instructions to the contrary. Appellant concludes the court abused its discretion when it (1) ignored record evidence that Appellant had unequivocally conveyed his position on the project to Appellees and (2) failed to award $25,000.00 plus interest to Appellant. ¶28 Appellant further argues the parties’ agreement contained an integration clause that stated the agreement could not be altered except in writing and by mutual consent of the parties. The contemplated impoundment of 20.8 acres was not created, and the parties did not enter into any written agreement to modify the terms of the original contract to accommodate a smaller impoundment. As a result of their unilateral modification, Appellees created a substantially smaller lake that primarily benefited them to Appellant’s detriment. Appellees’ conduct constituted a material breach of the parties’ contract. Appellant submits the trial court abused its discretion when it found the smaller impoundment satisfied the parties’ original agreement. For all of the foregoing reasons, Appellant concludes the court erred and abused its discretion when it denied him any relief on his breach of contract claim, and its decision must be reversed and the matter remanded for a determination of damages. We agree. ¶ 29 To successfully maintain a cause of action for breach of contract the plaintiff must establish: (1) the existence of a contract, including its essential terms, (2) a breach of a duty imposed by the contract, and (3) resultant damages. Gorski v. Smith, 812 A.2d 683 (Pa.Super.2002), appeal denied, 579 Pa. 692, 856 A.2d 834 (2004) (citing Corestates Bank, N.A. v. Cutillo, 723 A.2d 1053, 1058 (Pa.Super.1999)). The fundamental rule in interpreting the meaning of a contract is to ascertain and give effect to the intent of the contracting parties. The intent of the parties to a written agreement is to be regarded as being embodied in the writing itself. The whole instrument must be taken together in arriving at contractual intent. Courts do not assume that a contract’s language was chosen carelessly, nor do they assume that the parties were ignorant of the meaning of the language they employed. When a writing is clear and unequivocal, its meaning must be determined by its contents alone. Murphy v. Duquesne University Of The Holy Ghost, 565 Pa. 571, 591, 777 A.2d 418, 429 (2001) (internal citations and quotation marks omitted). “In ascertaining the intent of the parties to a contract, it is their outward and objective manifestations of assent, as opposed to their undisclosed and subjective intentions, that matter.” Espenshade v. Espenshade, 729 A.2d 1239, 1243 (Pa.Super.1999). Further, “specific, express written language is not necessary for a particular contractual intent to exist in an agreement. Rather, it is common for the intent of contracting parties to be inherent in the totality of their contract.” Murphy, supra at 596, 777 A.2d at 432. “In the absence of an express provision, the law will imply an agreement by the parties to a contract to do and perform those things that according to reason and justice they should do in order to carry out the purpose for which the contract was made and to refrain from doing anything that would destroy or injure the other party’s right to receive the fruits of the contract.” Slater v. Pearle Vision Center, Inc., 376 Pa.Super. 580, 546 A.2d 676, 679 (1988) (describing what is known as “doctrine of necessary implication”). “The meaning of an unambiguous written instrument presents a question of law for resolution by the court.” Murphy, supra at 591, 777 A.2d at 430. ¶ 30 Pennsylvania courts regularly employ the Restatement (Second) of Contracts when resolving contract disputes. See Felix v. Giuseppe Kitchens & Baths, Inc., 848 A.2d 943 (Pa.Super.2004). The doctrine of mutual mistake of fact serves as a defense to the formation of a contract and occurs when the parties to the contract have “an erroneous belief as to a basic assumption of the contract at the time of formation which will have a material effect on the agreed exchange as to either party.” Bianchi v. Bianchi, 859 A.2d 511, 516 n. 3 (Pa.Super.2004). “A mutual mistake occurs when the written instrument fails to... set forth the ‘true’ agreement” of the parties. Daddona v. Thorpe, 749 A.2d 475, 487 (Pa.Super.2000), appeal denied, 563 Pa. 702, 761 A.2d 550 (2000). “[T]he language of the instrument should be interpreted in the light of the subject matter, the apparent object or purpose of the parties and the conditions existing when it was executed.” Id. (internal quotation marks and citation omitted) ¶ 31 The Restatement (Second) of Contracts § 152 provides: § 152. When Mistake Of Both Parties Makes A Contract Voidable (1) Where a mistake of both parties at the time a contract was made as to a basic assumption on which the contract was made has a material effect on the agreed exchange of performances, the contract is voidable by the adversely affected party unless he bears the risk of the mistake under the rule stated in § 154. (2) In determining whether the mistake has a material effect on the agreed exchange of performances, account is taken of any relief by way of reformation, restitution, or otherwise. Restatement (Second) of Contracts § 152 (1981). Under this section, [T]he contract is voidable by the adversely affected party if three conditions are met. First, the mistake must relate to a “basic assumption on which the contract was made.” Second, the party seeking avoidance must show that the mistake has a material effect on the agreed exchange of performances. Third, the mistake must not be one as to which the party seeking relief bears the risk. The parol evidence rule does not preclude the use of prior or contemporaneous agreements or negotiations to establish that the parties were mistaken. However, since mistakes are the exception rather than the rule, the trier of the facts should examine the evidence with particular care when a party attempts to avoid liability by proving mistake. The rule stated in this Section is subject to that in § 157 on fault of the party seeking relief. It is also subject to the rules on exercise of the power of avoidance stated in §§ 378-85. Id. Comment: a. Rationale (emphasis added). See also Loyal Christian Ben. Ass’n v. Bender, 342 Pa.Super. 614, 493 A.2d 760, 762 (1985) (stating “If this tripartite test is met, the injured party may acquire reformation of the contract or... avoid the contractual obligations”). ¶ 32 A contract entered into under a mutual misconception as to an essential element of fact may be rescinded or reformed upon the discovery of the mistake if (1) the misconception entered into the contemplation of both parties as a condition of assent, and (2) the parties can be placed in their former position regarding the subject matter of the contract. Gocek v. Gocek, 417 Pa.Super. 406, 612 A.2d 1004, 1006 (1992). In other words, mutual mistake occurs when a fact in existence at the time of the formation of the contract, but unknown to both parties, will materially affect the parties’ performance of the contract. Loyal Christian Ben. Ass’n, supra. ¶ 33 Section 154 of the Restatement (Second) of Contracts provides: § 154. When A Party Bears The Risk Of A Mistake A party bears the risk of a mistake when (a) the risk is allocated to him by agreement of the parties, or (b) he is aware, at the time the contract is made, that he has only limited knowledge with respect to the facts to which the mistake relates but treats his limited knowledge as sufficient, or (c) the risk is allocated to him by the court on the ground that it is reasonable in the circumstances to do so. Restatement (Second) of Contracts § 154 (1981). “The rule stated in this Section determines whether a party bears the risk of a mistake for purposes of [Sections] 152 and 153.” Id. Comment: a. Rationale. “Even though a mistaken party does not bear the risk of a mistake, he may be barred from avoidance if the mistake was the result of his failure to act in good faith and in accordance with reasonable standards of fair dealing.” Id. A contract [made under] a mutual mistake as to an essential fact which formed the inducement to it, may be rescinded on discovery of the mistake, if the parties [can be] placed in their former position with reference to the subject-matter of it. Ehrenzeller v. Chubb, 171 Pa.Super. 460, 90 A.2d 286, 287 (1952). ¶ 34 Additionally, Pennsylvania law recognizes the doctrine of frustration of contractual purpose or “impracticability of performance” as a valid defense to performance under a contract. Alvino v. Carraccio, 400 Pa. 477, 482, 162 A.2d 358, 361 (1960); Ellwood City Forge Corp. v. Fort Worth Heat Treating Co., Inc., 431 Pa.Super. 240, 636 A.2d 219, 222 (1994). The Restatement (Second) of Contracts § 261 provides: § 261. Discharge By Supervening Impracticability Where, after a contract is made, a party’s performance is made impracticable without his fault by the occurrence of an event the non-occurrence of which was a basic assumption on which the contract was made, his duty to render that performance is discharged, unless the language or the circumstances indicate the contrary. Restatement (Second) of Contracts § 261 (1981). Additionally, Section 264 of the Restatement (Second) of Contracts states: § 264. Prevention By Governmental Regulation Or Order If the performance of a duty is made impracticable by having to comply with a domestic or foreign governmental regulation or order, that regulation or order is an event the nonoccurrence of which was a basic assumption on which the contract was made. Restatement (Second) of Contracts § 264 (1981). Our Supreme Court has explained: When people enter into a contract which is dependent for the possibility of its performance on the continual availability of a specific thing, and that availability comes to an end by reason of circumstances beyond the control of the parties, the contract is prima facie regarded as dissolved. ... A court can and ought to examine the contract and the circumstances in which it was made, not of course to vary, but only to explain it, in order to see whether or not, from the nature of it the parties must have made their bargain on the footing that a particular thing or state of things would continue to exist. And if they must have done so, then a term to that effect will be implied, though it be not expressed in the contract. Greek Catholic Congregation of Borough of Olyphant v. Plummer, 338 Pa. 373, 382, 12 A.2d 435, 439 (1940) (internal citations and quotation marks omitted). ¶ 35 Once impracticability of performance or frustration of purpose occurs, “it is up to the parties to waive the difficulties or seek to terminate the agreement.” Ellwood, supra at 223. If a party proceeds under the original contract, despite the impracticability that would otherwise justify his non-performance, and is then unable to perform as previously agreed, he can be liable for damages. Restatement (Second) of Contracts § 261 (1981). On the other hand, a party who has already performed under a contract, which is dissolved on the ground of supervening impracticability, is generally allowed a claim for restitution to the extent his performance has benefited the other party. Restatement (Second) of Contracts § 272 Comment: b. Relief including restitution. “In a proper case recovery may go beyond mere restitution and include elements of reliance by the claimant, even though they have not benefited the other party.” Id. (referencing Section 377 of Restatement (Second) of Contracts). Under the proper circumstances, “If both parties have rendered some performance, each is entitled to restitution against the other.” Restatement (Second) of Contracts § 377. ¶ 36 In the instant case, the parties’ February 1993 agreement provided that Appellees would buy and Appellant would sell approximately 55 acres of unimproved land from Appellant’s property, which was comprised of 107 acres in Susquehanna County. The “Earl Lorah Plan” attached to the agreement, specifically incorporated by reference and made a part thereof, allots on the drawing approximately 25 acres to an impoundment of water. Consideration for the sale was set forth in the agreement as follows: 3. TERMS: The consideration for the 55 acres shall depend, in part, upon the completion of a dam for the impoundment of water: a. The consideration for the 55 acres shall be $99,000.00 (NINETY-NINE THOUSAND DOLLARS) [$100,000.00 LESS $1,000.00 PAID TO Seller on June 1, 1990] plus construction of a dam upon Buyers’ land for the impound ment of water pursuant to the Earl Lorah Plan, sheet 4 (of five sheets) of said plan is attached hereto as Exhibit “B” and incorporated herein by reference. b. The consideration for the 55 acres shall be $125,000.00 (ONE-HUNDRED-TWENTY-FIVE-THOUSAND DOLLARS) if Buyers do not complete construction of the said dam within six months of obtaining all approvals required by any government agencies. c. At settlement, Buyers shall pay Sellers $99,000.00 (NINETY-NINE-THOUSAND DOLLARS). d. At settlement, Buyers shall place $25,000.00 (TWENTY-FIVE THOUSAND DOLLARS) in escrow, in an interest bearing account, with County National Bank, Montrose, Pennsylvania or an alternate banking institution of Buyers choice. e. The said $25,000.00, together with all accrued interest, shall be released to Seller if Buyers fail to complete construction of the dam not later than six months from the date of the last required approval by any governmental agency. f. In the event that any government agency denied any approval required for Buyers to construct the dam, the $25,000.00 shall not be released to Seller until Buyers have exhausted all remedies to defeat denial. Said remedy period not to extend beyond July 31, 1995. g. The said $25,000.00, together with all accrued interest, shall be released to Buyers upon the completion of the construction of the dam and upon final inspection and approval of John Chernesky, Supervisor for Dams and Waterways for the Department of Environmental Resources. (Agreement for the Sale of Real Estate, February 1993, at 1-3; R.R. at lla-13a) (emphasis added). The Agreement further provided: 8. CONSTRUCTION OF DAM: a. The dam is to be constructed on the Buyers’ property and shall be of sufficient size and strength to allow for flaring out the proposed impounded water on Seller’s land as contemplated by the parties. 11. BINDING AGREEMENT: It is the intent of the parties to be legally bound by the terms of this agreement. This Agreement along with those documents incorporated by reference are to survive settlement. (Id. at 5-7; R.R. at 15a-17a) (emphasis added). ¶ 37 With respect to Appellant’s breach of contract claim, the trial court reasoned Appellant did not produce enough evidence to prove Appellees breached the parties’ agreement, because “The Agreement does not provide any remedy for [Appellees’] and [Appellant’s] mistaken belief that their Agreement, and not [ACE] would be the final authority on the size of the impoundment.” See Trial Court Opinion at 9. This conclusion is not supported by the evidence of record or Appellees’ own admissions in their pleadings. To the contrary, the record makes clear that the parties’ agreement was for an impoundment of approximately 20.8 acres. The agreement was specifically contingent on ACE approval and Appel-lees’ ability to obtain the proper permits for the dam and the impoundment, as described in the “Earl Lorah Plan” that was incorporated into the parties’ agreement by reference. Appellees also admitted in their original pleading that the parties intended a 20.8 acre impoundment and that Appellees bore the responsibility for obtaining the proper permits to construct that impoundment. The record further demonstrates Appellees knew for several years before the agreement that the permits they had were in dispute. Appellees simply did not follow through in resolving the ACE permit dispute in a manner favorable to the agreement. Despite the court’s credibility determination that Ap-pellees did not know definitively about the finality of the permits before they entered into the agreement with Appellant, we conclude Appellees bore the risk that their beliefs were incorrect and cannot use their own mistake to escape their contractual obligations to Appellant. Therefore, the court erred as a matter of law when it excused Appellees on the basis of mutual mistake of fact. See Loyal Christian Ben. Ass’n, supra. ¶ 38 The court’s conclusion, that ACE would be the final authority on the size of the impoundment, is more in the nature of “frustration of purpose,” not “mutual mistake of fact.” In September 1993, Appellees’ performance was made impracticable by having to comply with a governmental regulation, the non-occurrence of which was a basic assumption on which the contract was made. See Restatement (Second) of Contracts § 264 (1981). This occurrence constituted a valid defense to performance under the parties’ agreement. See Alvino, supra. It was then up to Appellees to obtain Appellant’s waiver or to seek to terminate the contract, before Appellees moved forward with construction of a smaller lake. See Ellwood, supra. Appellees did not even inform Appellant of the changed circumstances. Instead, Appellees unilaterally decided to create a substantially smaller impoundment to their considerable benefit and Appellant’s obvious detriment. Therefore, Appellees must bear the consequences of their unilateral decision. Ap-pellees proceeded under the parties’ original contract, despite the impracticability that would have otherwise justified their non-performance, and were unable to perform as previously agreed. Thus, Appel-lees can be liable for damages. See Restatement (Second) of Contracts § 261 (1981). ¶ 39 On the other hand, Appellant had already performed under the parties’ agreement and should be allowed a claim for restitution to the extent his performance has benefited Appellees. See Restatement (Second) of Contracts § 272 Comment: b. Relief including restitution. Thus, Appellant is entitled to damages in the form of restitution to the extent his performance prior to Appellees’ breach benefited Appellees, and his damages may go beyond mere restitution to include losses stemming from Appellant’s reliance on the contract, even if those losses did not directly benefit Appellees (for example, the loss in property value of Appellant’s lakefront lots as a result of construction of the smaller lake). See generally Restatement (Second) of Contracts § 272 (1981). ¶ 40 Moreover, Appellant’s May 15, 1993 letter, informing Appellees they were to use his money to build a dam only in connection with the construction of a 20.8 acre impoundment as agreed to by the parties, did not constitute an attempted modification of the parties’ original agreement. A careful review of the terms of the parties’ agreement demonstrates the dam was to be completed only for 20+ acre impoundment of water. (See Agreement for the Sale of Real Estate, February 1993; R.R. at lla-16a.) The parties’ agreement did not authorize Appellees to build a dam large enough to support the intended impoundment, separate and apart from or regardless of the eventual size of the impoundment. The written agreement makes clear that the construction of the dam was integrally related to and authorized for only the size of the intended im-poundment. Appellant’s May 1993 letter merely reiterated the parties’ agreement. Accordingly, we respectfully reverse the court’s decision in favor of Appellees on the ground of mutual mistake and remand this matter to the trial court for a full determination of Appellant’s damages, because the trial court made no findings as to damages. See generally Birth Center v. St. Paul Companies, Inc., 567 Pa. 386, 787 A.2d 376 (2001) (stating purpose of damages in contract actions is to return parties to position they would have been in but for breach); Harman v. Chambers, 358 Pa. 516, 57 A.2d 842 (1948) (stating, “Generally speaking, the measure of damages applicable in a case of breach of contract is that the aggrieved party should be placed as nearly as possible in the same position he would have occupied had there been no breach. In other words, he is entitled to be reimbursed for the money actually paid out and for all reasonable and proper expenses incurred on the faith of the contract.”); Reformed Church of Ascension v. Theodore Hooven & Sons, Inc., 764 A.2d 1106 (Pa.Super.2000) (stating, “The policy behind contract law is to protect the parties’ expectation interests by putting the aggrieved party in as good a position as he would have been had the contract been performed.”). ¶ 41 In issues five, six and seven, Appellant maintains Appellees engaged in fraudulent conduct to induce Appellant to enter into the parties’ agreement. Specifically, Appellant contends Appellees knew or should have known they could not fulfill their part of the contract but nevertheless intentionally misled him to believe they could. Appellant argues Appellees were privy to certain information, before the agreement was signed, regarding the probability that they could not create a 20.8 acre impoundment and that ACE was requesting plans for a scaled-down project. Appellant claims Appellees did nothing to resolve ACE’s reservations before they initiated the agreement with Appellant. Instead, Appellees affirmatively represented to Appellant there would be no problem getting ACE approval for construction of the 20.8 acre lake. Appellant argues Ap-pellees withheld this information for the specific purpose of inducing Appellant to enter into the parties’ agreement and sell them 55 acres of prime realty at a reduced price. Appellant asserts he would not have entered into the parties’ contract but for Appellees’ “fraudulent representations” that they had a valid permit from ACE. Appellant asserts the record irrefutably demonstrates Appellees committed fraud in the inducement. ¶ 42 Further, Appellant directs our attention to instances of Appellees’ alleged “wanton” conduct following the formation of the parties’ contract. For example, Appellant complains Appellees proceeded to construct a dam without a valid permit; used his funds to construct a smaller im-poundment to benefit their property, including the land acquired from Appellant, without regard to Appellant’s rights under the contract or the devaluation of his property; and instituted a frivolous lawsuit against Appellant for breach of contract upon the false premise that they would have completed the project as called for in the parties’ agreement, but for Appellant’s failure to move certain utility poles. Essentially, Appellant asserts Appellees committed fraud in the performance of the contract. Appellant concludes the trial court’s decision must be reversed and the matter remanded for a determination of damages on his fraud claims. Appellant also alleges Appellees’ conduct was so egregious as to support his claim for punitive damages. Appellant maintains the court erred in dismissing this claim as well. We disagree with Appellant’s contentions. ¶ 43 Appellant’s fraudulent inducement and fraudulent performance claims implicate the following principles. In general, courts are cautious about permitting tort recovery based on contractual breaches. In keeping with this principle, this Court has recognized the “gist of the action” doctrine, which operates to preclude a plaintiff from re-casting ordinary breach of contract claims into tort claims. The conceptual distinction between a breach of contract claim and a tort claim has been explained as follows: Although they derive from a common origin, distinct differences between civil actions for tort and contractual breach have been developed at common law. Tort actions lie for breaches of duties imposed by law as a matter of social policy, while contract actions lie only for breaches of duties imposed by mutual consensus agreements between particular individuals.... To permit a promisee to sue his promisor in tort for breaches of contract inter se would erode the usual rules of contractual recovery and inject confusion into our well-settled forms of actions. However, a breach of contract may give rise to an actionable tort where the wrong ascribed to the defendant is the gist of the action, the contract being collateral. The important difference between contract and tort claims is that the latter he from the breach of duties imposed as a matter of social policy while the former he from the breach of duties imposed by mutual consensus. In other words, a claim should be limited to a contract claim when the parties’ obligations are defined by the terms of the contracts, and not by the larger social policies embodied by the law of torts. Pittsburgh Const. Co. v. Griffith, 834 A.2d 572, 581-82 (Pa.Super.2003), appeal denied, 578 Pa. 701, 852 A.2d 313 (2004) (quoting eToll, Inc. v. Elias/Savion Advertising, Inc., 811 A.2d 10, 14 (Pa.Super.2002)) (internal citations omitted) (emphasis added). “Gist” is a term of art in common law pleading that refers to “the essential ground” or object of the action in point of law, without which there would be no cause of action. The “gist of the action” test.. .is a general test concerned with the “essential ground,” foundation, or material part of an entire “formal complaint” or lawsuit. Id. at 15 (internal citations omitted). [Pjersuasive authority interpreting Pennsylvania law has restated the gist of the action doctrine in a number of similar ways. These courts have held that the doctrine bars tort claims: (1) arising solely from a contract between the parties; (2) where the duties allegedly breached were created and grounded in the contract itself; (3) where the liability stems from a contract; or (4) where the tort claim essentially duplicates a breach of contract claim or the success of which is wholly dependent on the terms of a contract. Id. at 19 (internal quotation marks omitted). Where fraud claims are intertwined with breach of contract claims and the duties allegedly breached are created and grounded in the contract itself, the gist of the action is breach of contract. Id. at 18. Thus, claims of fraud in the performance of a contract are generally barred under the gist of the action doctrine. Id. at 17. ¶44 Likewise, fraud-in-the-inducement claims are commonly barred if the contract at issue is fully integrated. Blumenstock, supra. The rationale for this rule of law is “that a party cannot justifiably rely upon prior oral representations” and then sign a contract containing terms that refute the alleged prior oral representations. Id. at 1036. Thus, when “prior fraudulent oral misrepresentations are alleged regarding a subject that was specifically dealt with in a written contract, the party alleging such representations must, under the parol evidence rule, also aver that the representations were fraudulently or by accident or mistake omitted from the integrated written contract.” HCB Contractors v. Liberty Place Hotel Associates, 539 Pa. 395, 398, 652 A.2d 1278, 1279 (1995). “To require less would make a mockery of the parol evidence rule because all a party would have to do to avoid, modify or nullify [a contract] would be to aver that false representations were ‘fraudulently’ made.” Nicolella v. Palmer, 432 Pa. 502, 507, 248 A.2d 20, 23 (1968). ¶ 45 In other words, parol evidence of prior representations is inadmissible as to a matter covered by the written agreement with an integration clause, unless the parties agreed that those representations would be added to the written agreement but they were omitted because of fraud, accident or mistake. This situation is commonly referred to as “fraud in the execution” [as] the party proffering the evidence contends that he executed the agreement because he was defrauded by be ing led to believe that the documents contained terms that were actually omitted therefrom. Blumenstock, supra at 1036 (internal citations omitted). “The effect of an integration clause is to make the parol evidence rule particularly applicable. Thus the written contract, if unambiguous, must be held to express all of the negotiations, conversations, and agreements made prior to its execution, and neither oral testimony, nor prior written agreements, or other writings, are admissible to explain or vary the terms of the contract.” 1726 Cherry Street Partnership by 1726 Cherry Street Corp. v. Bell Atlantic Properties, Inc., 439 Pa.Super. 141, 653 A.2d 663, 665 (1995), appeal denied, 544 Pa. 647, 664 A.2d 976 (1995). ¶46 In the instant case, Appellant’s claims of fraud in the performance of the contract are integrally related to his breach of contract claims. The performance duties arose solely from the contract between the parties and were created and grounded in the contract itself. Further, these claims essentially duplicate Appellant’s breach of contract claim and the success of his fraud-in-the-performance claims is wholly dependent on the terms of a contract. See Pittsburgh Const. Co., supra; eToll, Inc., supra. Thus, Appellant’s fraud in the performance claims are barred under the gist of the action doctrine, because they are collateral to the contract, which is the main cause of action. See id. ¶47 With respect to Appellant’s fraud-in-the-inducement claim, we note the parties’ contract contains an integration clause. (See Agreement for the Sale of Real Estate ¶ 10. ENTIRETY; R.R. at 17a.) The agreement was fundamentally contingent on governmental agency approval. Thus, Appellant cannot claim he justifiably relied upon the alleged prior oral representations, where he signed a contract containing terms that arguably conflict with these alleged prior representations. See H.C.B. Contractors, supra. Moreover, Appellant failed to aver that the alleged prior oral representations were fraudulently omitted from the integrated written contract. If Appellees affirmatively represented to Appellant that there would be no problem getting ACE approval for construction of the 20.8 acre lake, and that representation was a material inducement to obtain Appellant’s assent to the project, that assertion should have been included in the agreement. See LeDonne v. Kessler, 256 Pa.Super. 280, 389 A.2d 1123 (1978) (citing Bardwell v. Willis Co., 375 Pa. 503, 100 A.2d 102 (1953)) (stating where party asserts he relied on understandings, promises or representations made prior to execution of written contract, party should have protected himself by incorporating into written agreement those understandings, promises or representations upon which he now relies). Therefore, under the parol evidence rule, Appellant’s fraud-in-the-inducement claims are barred as well. See HCB Contractors, supra; Blumenstock, supra; 1726 Cherry Street Partnership, supra. ¶ 48 Consistent with the cited principles of law, there is no reason to disturb the trial court’s rejection of Appellant’s fraud claims. See Pittsburgh Const. Co., supra; eToll, Inc., supra. See also HCB Contractors, supra; Blumenstock, supra. Due to our disposition of the appeal, we likewise affirm the trial court’s denial of Appellant’s prayer for punitive damages. See Baker v. Pennsylvania National Mutual Casualty Insurance Company, 370 Pa.Super. 461, 536 A.2d 1357 (1988), aff'd, 522 Pa. 80, 559 A.2d 914 (1989) (stating punitive damages are not recoverable merely for breach of contract). ¶ 49 In his final issue, Appellant argues Appellees’ original lawsuit against him was arbitrary, vexatious, and in bad faith. Appellant claims Appellees’ action falsely contended that the reduction in size of the impoundment was Appellant’s fault, in an effort to cast the responsibility of the failed project on Appellant. Appellant points to several factors in support of his position: (1) Appellant specified he did not want an impoundment less than 20.8 acres; (2) Appellees unilaterally applied for a permit to create an impoundment of 12.4 acres that did not implicate the utility poles; (3) ACE did not require the utility poles to be moved; (4) ACE did not indicate that it would authorize a larger im-poundment if the utility poles were removed; and (5) ACE did not raise the utility poles as a potential problem with the impoundment. Appellant maintains Appellees’ lawsuit was wholly predicated upon false assertions that he, not Appel-lees, were at fault. Appellant concludes he is entitled his attorney’s fees related to the defense of Appellees’ lawsuit. We agree with Appellant, but only to the extent that this claim should be considered on remand. ¶ 50 Generally, litigants are responsible for their own counsel fees unless otherwise permitted by statutory authority, agreement of the parties, or some other recognized exception to the general rule. Chatham Communications, Inc. v. General Press Corp., 463 Pa. 292, 344 A.2d 837 (1975). A trial court may award counsel fees to a party when that party’s opponent acts in a dilatory, obdurate or vexatious manner during the pendency of the case. 42 Pa.C.S.A. § 2503. The statute provides: § 2503. Right of participants to receive counsel fees The following participants shall be entitled to a reasonable counsel fee as part of the taxable costs of the matter: (9) Any participant who is awarded counsel fees because the conduct of another party in commencing the matter or otherwise was arbitrary, vexatious or in bad faith. 42 Pa.C.S.A. § 2503(9). The statutory provision at 42 Pa.C.S. § 2503(9) expressly permits a trial court to award reasonable counsel fees to a litigant when, inter alia, that litigant’s opponent initiated the action arbitrarily, vexatiously or in bad faith. An opponent’s conduct has been deemed to be “arbitrary” within the meaning of the statute if such conduct is based on random or convenient selection or choice rather than on reason or nature. An opponent also can be deemed to have brought suit “vexatiously” if he filed the suit without sufficient grounds in either law or in fact and if the suit served the sole purpose of causing annoyance. Finally, an opponent can be charged with filing a lawsuit in “bad faith” if he filed the suit for purposes of fraud, dishonesty, or corruption. By imposing these strict definitional guidelines, the statute serves not to punish all those who initiate legal actions which are not ultimately successful or which may seek to develop novel theories in the law. Such a rule would have an unnecessarily chilling effect on the right to bring suit for real legal harms suffered. Rather, the statute focuses attention on the conduct of the party from whom attorney’s fees are sought and on the relative merits of that party’s claims. Thunberg v. Strause, 545 Pa. 607, 615-16, 682 A.2d 295, 299 (1996) (internal citations omitted). The amount of counsel fees allowed is within the discretion of the trial court, whose opportunities are necessarily greater for judging the exact amount of labor, skill and responsibility involved as well as the prevailing rate of professional compensation. In re LaRocca’s Trust Estate, 431 Pa. 542, 246 A.2d 337 (1968). ¶ 51 In the present case, Appellant presented evidence that before Appellees filed suit, the impoundment of water had reached the maximum size of 12.4 acres allowed by ACE and the unmoved utility lines, which were the basis for Appellees’ suit, were not implicated. The only way the utility lines would be inundated with water was if Appellees attempted to utilize stop logs in the dam, ultimately prohibited by ACE, to create a water impoundment greater than 12.4 acres. Nevertheless, Appellees’ attorney sent several letters to Appellant threatening legal action if the utility poles were not moved, and indicating that the power lines would otherwise be inundated by water. Appellees’ attorney attested he had personally inspected the site. Such inspection, however, could have revealed only that the 12.4 acre im-poundment did not implicate the subject utility lines. These actions on the part of Appellees and their counsel indicate Appel-lees’ suit against Appellant may well have been filed and pursued vexatiously in an effort to divert attention from the real reason for the creation of the smaller im-poundment. See Thunberg, supra. Therefore, we also remand this issue to the trial court for consideration of an award of counsel fees and costs, limited to Appellant’s defense against Appellees’ lawsuit but not to include fees and costs associated with the prosecution of Appellant’s counterclaims. See Township of South Strabane v. Piecknick, 546 Pa. 551, 686 A.2d 1297 (1996) (stating appellate court has no power under any statute or rule of court to award counsel fees for proceedings in trial court). ¶ 52 Based upon the foregoing, we hold that the court erred when it excused Ap-pellees from contractual liability on the ground of mutual mistake of fact. We further hold that the court properly dismissed Appellant’s fraudulent inducement/fraudulent performance and punitive damages claims. Finally, we remand the matter for further proceedings regarding damages on Appellant’s breach of contract claim and his claim for counsel fees related to Appellant’s defense against Appellees’ original lawsuit. Accordingly, we affirm in part, reverse in part, and remand for further proceedings consistent with this disposition. ¶ 53 Judgment affirmed in part; reversed in part; case remanded for further proceedings. Jurisdiction is relinquished. . Evidence at trial indicated the dam was constructed at a height of 1505.1 feet and the actual impoundment is approximately 14.8 acres. Even at this size, Appellant maintained the impoundment does not benefit his property, and the impoundment might be subject to reduction as it exceeds the permit specifications. . Ordinarily, an appeal properly lies from the entry of judgment, not from the order denying post-trial motions. See generally Johnston the Florist, Inc. v. TEDCO Constr. Corp., 441 Pa.Super. 281, 657 A.2d 511, 516 (1995) (stating appeal to Superior Court lies from judgments entered subsequent to trial court's disposition of post-verdict motions, not from order denying post-trial motions). A final judgment entered during the pendency of an appeal is sufficient to perfect appellate jurisdiction. Drum v. Shaull Equipment and Supply, Co., 787 A.2d 1050 (Pa.Super.2001), appeal denied, 569 Pa. 693, 803 A.2d 735 (2002). Here, Appellant filed his notice of appeal on June 11, 2003, prior to the entry of judgment. At Appellant’s behest, judgment was entered on August 19, 2003. Thus, Appellant’s notice of appeal relates forward to August 19, 2003, the date judgment was entered. See Pa.R.A.P. 905(a) (stating notice of appeal filed after court’s determination but before entry of appealable order shall be treated as filed after such entry and on day of entry). Hence, there are no procedural/jurisdictional impediments to our review of this appeal. . The “public” notices referenced in this case are not for the public at large. They are technical and involve various governmental agencies. . In its decision to deny Appellant relief on his breach of contract claim, the trial court employed a combination of two legal doctrines, mutual mistake of fact and "frustration of purpose” or "impracticability of performance.” See Trial Court Opinion, filed July 11, 2002, at 9. . We note Appellees did not at any time plead the affirmative defense of mutual mistake of fact. Appellees raised this defense for the first time in their post-trial brief. However, Appellant responded to the defense on the merits and failed to argue waiver. As such, Appellant himself waived any waiver argument on his own behalf. . Appellees did not file a brief on appeal. In their post-trial brief, however, they argued the parties did not really agree on an exact size of the intended impoundment, which in and of itself constituted a mutual mistake of fact. We reject that contention, where the record and agreement as a whole makes clear the parties contemplated an impoundment of at least 20 acres. . "Fraud is a generic term used to describe anything calculated to deceive, whether by a single act or combination, or by suppression of the truth, or suggestion of what is false, whether it be by direct falsehood or by innuendo, by speech or silence, word of mouth, or look or gesture.” Blumenstock v. Gibson, 811 A.2d 1029, 1034 (Pa.Super.2003), appeal denied, 573 Pa. 714, 828 A.2d 349 (2003). To prove fraud, a plaintiff must demonstrate by clear and convincing evidence: (1) a representation; (2) which is material to the transaction at hand; (3) made falsely, with knowledge of its falsity or recklessness as to whether it is true or false; (4) with the intent of misleading another into relying on it; (5) justifiable reliance on the misrepresentation; and (6) the resulting injury was proximately caused by the reliance. Unsupported assertions and conclusory accusations cannot create genuine issues of material fact as to the existence of fraud. Id. (internal citations omitted). . An exception to this rule has been carved out for "real estate inspection cases,” which involve written agreements for the sale of real properly, almost always residential, even thought they contain integration clauses. Blu-menstock, supra. The exception does not apply to the present case. . The trial court also ejected Appellees from Appellant’s real property in excess of the metes and bounds in the map attached to the parties’ agreement and ordered them to remove any fence or other like material from Appellant’s land. Appellees did not appeal this decision. Accordingly, it remains undisturbed.

OPINION OF THE COURT NIX, Justice. Appellees, Sheila, Manuel, Isidoro and Benjamin Santiago were convicted by a judge sitting without a jury in Philadelphia County. All four appellees were found guilty of illegal possession of heroin and conspiracy. Each was sentenced to a prison term of two to five years. The indictments were laid under The Drug Device and Cosmetic Act, September 26, 1961, P.L. 1664, § 1 et seq., 35 P.S. § 780-1 et seq. On appeal the Superior Court affirmed the convictions. Commonwealth v. Santiago, 223 Pa.Super. 493, 305 A.2d 378 (1973). That court, however, vacated the sentences and remanded the cases for resentencing under the new Controlled Substance, Drug, Device and Cosmetic Act, April 14, 1972, P.L. 165, No. 64, § 1 et seq. effective June 14, 1972, 35 P.S. § 780-101 et seq. (Supp.1974-75). The Superior Court held that the sentences were illegal on the premise that the judge should have applied the sentencing provisions of the new Drug Act of 1972. Because the Superior Court found the analogous crime in the new Drug Act to be simple illegal possession of heroin, their order would result in a sentence of not more than one year for each individual. The Commonwealth appealed from the order of the Superior Court and we granted allocatur limited to a determination of which Drug Act applies for the purpose of sentencing. We also permitted Sheila Santiago to raise the issue of the refusal- of the trial court to recognize the defense of coverture. On January 8, 1972, five officers of the Philadelphia Police Department went to the home of Manuel and Sheila Santiago to serve a search warrant. When the officers knocked on the door, Sheila Santiago appeared in an upstairs window and inquired as to what the officers wanted. When Officer Ira Andrews announced his identity and purpose, she then called her husband who asked the same question. Officer Andrews answered them, but when the door was not opened, the officers forcibly entered with the use of a sledge hammer and ran upstairs to the second floor rear bedroom where they found the four Santiagos. As Officer Andrews entered the room, he saw Sheila Santiago throw something out of an open window. Upon retrieving it, the package was identified as a bundle of 25 packets of heroin. Seventeen other bundles were found on the bed, around which the other three appellees were seated. Also on the bed were strainers, spoons, razor blades, hundreds of empty glassine packets, and rubber bands. Two additional pouches containing another half a pound of heroin were found under the bed. The trial judge characterized this as a wholesale drug operation for cutting and bagging heroin which had an estimated “street value” exceeding $250,000.00. After a review of the record we are satisfied that the order of the Superior Court must be reversed and the judgment of sentence of the trial court reinstated. The new Drug Act applies to all cases not final as of June 14, 1972, which is the effective date of the Act. The Santiagos were not sentenced until October 1972. At that time their case was not final when the new Drug Act went into effect. Commonwealth v. Goodman, 454 Pa. 358, 311 A.2d 652 (1973); Commonwealth v. Thomas, 450 Pa. 548, 301 A.2d 359 (1973). Cf. Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965); Commonwealth v. Little, 432 Pa. 256, 248 A.2d 32 (1968). In Commonwealth v. Thomas, supra, we devised a formula by which we would determine whether the Drug Act of 1972 would affect a defendant’s sentence. We stated: “Three elements must be present before a pending prosecution can be governed by the new Controlled Substance Act: (1) the original offense charged must be similar to one set out in the new Act; (2) the penalties provided in the new Act must be less than those established by the prior law; and (3) the case must not be finally litigated.” Id. 450 Pa. at 555, 301 A.2d at 364. The presence of the third element has been conceded. The critical issue presented in this appeal is whether the original offense charged is similar to one set out in the new Act. And, if the preceding question is answered in the affirmative, does the new section provide a greater punishment than that permitted under the former Act. Initially, we note that heroin is a “controlled substance” regulated by section 4 of the Act of 1972, 35 P.S. § 780-104(1) (ii) (10). The original offense with which the Santiagos were charged and of which they were convicted was illegal possession of heroin under section 4(q) of the Act of 1961, 35 P.S. § 780-4(q). The Superior Court found that the analogous offense under the new Act was “knowingly or intentionally possessing a controlled . . . substance.” When comparing the two laws and constructing the word “similar” as provided in section 39(a) of the Act of 1972, we need not find the offenses identical. It is sufficient that the characteristics of the offense charged be alike, resemble or correspond to the new law. See Commonwealth v. Simpson, 222 Pa.Super. 296, 294 A.2d 805 (1972); Commonwealth v. Shaffer, 175 Pa.Super. 100, 103 A.2d 430, allocatur denied, 175 Pa.Super. XXV (1954). Cf. Commonwealth v. Pope, 455 Pa. 384, 317 A.2d 887 (1974). The Commonwealth, appellant herein, contends that because of the vast quantity of heroin and paraphernalia found in the possession of the Santiagos, the crime involved here is analogous to “possession with intent to deliver” under the Act of 1972. The Santiagos argue that a finding of guilt for illegal possession of heroin under the Act of 1961 is similar to the offense of “simple possession”, that is, knowing and intentional possession of heroin under the new Drug Act. They note that there are no quantitative limits in either the old Act or the new Act to guide the courts or the prosecution to distinguish the two offenses. Appellees further contend that to find them guilty of “possession with intent to deliver” would create an additional offense for which they were not tried. We find the Santiagos’ arguments unpersuasive. The evidence presented surrounding the arrests justified a finding that the possession was for a purpose other than personal use. The presence of $250,000.00 worth of heroin, the glassine packets, rubber bands, razor blades and other paraphernalia, unquestionably indicated a planned future transfer either by sale or other distribution. The Federal Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C.A. § 841(a) contains a provision similar to the new Pennsylvania legislation. It provides in pertinent part: “(a) Except as authorized by this title, it shall be unlawful for any person knowingly or intentionally — (1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance, . . . ” That Act has been consistently interpreted by the federal courts to allow the quantity and value of the narcotic drug as circumstantial evidence to infer the purpose and intent with which the narcotic drug is possessed. The Fifth Circuit reasoned: “The question of the validity of the inference turns on whether the amount of cocaine was such as will support an inference of intent to distribute as distinguished from mere possession for personal use.” United States v. Mather, 465 F.2d 1035, 1037 (5th Cir. 1972). See also, United States v. Echols, 447 F.2d 37 (8th Cir. 1973), cert. denied, 414 U.S. 825, 94 S.Ct. 128, 38 L.Ed. 2d 58 (1973); United States v. Ortiz, 445 F.2d 1100 (10th Cir.), cert. denied, 404 U.S. 993, 92 S.Ct. 541, 30 L.Ed.2d 545 (1971); United States v. Cerrito, 413 F.2d 1270 (7th Cir. 1969), cert. denied, 396 U.S. 1004, 90 S. Ct. 554, 24 L.Ed.2d 495 (1970). In United States v. King, 485 F.2d 353 (10th Cir. 1973), that court found: “The ‘intent’ with which a controlled substance is possessed is generally established through circumstantial evidence and in this regard we have held that the quantity of the drug possessed is a circumstance which may permit the inference that the possessor had an intent to sell, deliver or otherwise distribute. The statute clearly, and without vagueness, makes un lawful the possession of any controlled substance with an intent to distribute. The question as to the quantity which would permit the inference that the possessor had an intent to distribute is evidentiary in nature and necessarily depends upon all the facts and circumstances of the case at hand, and mention thereof in the statute is entirely unnecessary.” Id. at 356-357. (Emphasis added). Under the facts of this case, we conclude that the offense for which the appellees were convicted is analogous to possession of heroin with intent to deliver and not simple possession of heroin. Under Thomas, supra, standards and the statutory language, where the penalty under the new Drug Act is greater than under the prior law, the new Drug Act sentencing provisions are inapplicable. The penalty under the Act of 1972 for possession with intent to deliver requires the imposition of sentence of up to fifteen years in prison or a fine up to Two Hundred and Fifty Thousand Dollars ($250,000.00). This is a greater penalty than that which existed under prior law. Accordingly, the Santiagos may not receive the benefits of the Controlled Substances Act of 1972. We therefore reinstate the sentence imposed by the trial judge under the former Act. Appellee, Sheila Santiago, individually contends that the common law doctrine of coverture, or “coercion of wife by husband” Perkins, Criminal Law, 909-918 (2d ed. 1969) should be applied in her case, thereby excusing her criminal misconduct. Historically, a married woman committing a crime in her husband’s presence, created a rebuttable presumption that the wife was an unwilling participant. 9 Wigmore on Evidence, § 2514, at 425, (3d ed. 1940). The concept of coverture originated with the common law fiction of a unity of husband and wife. “The so-called ‘doctrine of coercion’ has been attributed to the ‘legal identity of husband and wife,’ to the ‘duty of obedience to her husband;’ to the original status of the wife as only ‘the servant of the husband,’ or a ‘marionette, moved at will by the husband;’ to the power of the husband to chastise the wife; to the ‘matrimonial subjection of the wife to her husband;’ to the ‘power and authority which her husband has over her;’ and even to a ‘relic’ of a belief in the ignorance and pusillanimity of women which is not, and perhaps never was, well founded.” Perkins, supra at 910, (footnotes omitted). This theory is obviously outmoded and absent statutory provisions to the contrary, the question must be resolved in the light of present day considerations rather than considerations more appropriate to the Middle Ages. The independence of women in political, social, and economic matters renders the doctrine of coercion outdated and inapplicable to modern society. As we have noted in another context: “Such a presumption is clearly a vestige of the past and incompatible with the present recognition of equality of the sexes. The law must not be reluctant to remain abreast with the developments of society and should unhesitatingly discard former doctrines that embody concepts that have since been discredited.” Conway v. Dana, 456 Pa. 536, 539, 318 A.2d 324, 326 (1974). See also, Pa.Const. art. I, § 27; Married Women’s Act, July 15, 1957, P.L. 969, No. 417, § 1 et seq., 48 P.S. § 32.1 et seq. Our Court in Commonwealth v. Lawson et ux., 454 Pa. 23, 309 A.2d 391 (1973) repudiated the legal fiction of the unity of husband and wife. We there held that both a husband and a wife would properly be convicted of conspiracy. The rationale for the abrogation of the common law rule was pertinently stated: “Some authorities also speak of the natural state of a wife’s submissiveness to her husband and conclude that because of such natural state, the wife, lacking a will of her own, could not possibly formulate the necessary criminal intent to be guilty of conspiracy with her husband. There is no reason to perpetuate the fiction that husband and wife are one person with one will in the eyes of the law. They are not. They are separate individuals. Each has a distinct personality and a will which is not destroyed by any process of spousal fusion. Each acts separately and should be separately responsible for their conduct. We have so recognized in other areas of the law. Women should not lose their identity — or their responsibility — when they become wives. The status of wife or husband should not relieve any person of one’s obligation to obey the law.” Id. at 31, 309 A.2d at 396. Cf. United States v. Dege, 364 U.S. 51, 80 S.Ct. 1589, 4 L.Ed.2d 1563 (1960); Kivette v. United States, 230 F.2d 749 (5th Cir. 1956); United States v. Anthony, 145 F. Supp. 323 (M.D.Pa.1956) (and cases cited therein); Conyer v. United States, 80 F.2d 292 (6th Cir. 1936); Commonwealth v. Zankl, 53 D. & C.2d 230 (1970); Commonwealth v. Gober, 35 D. & C.2d 709 (1966). Under the new Pennsylvania Crimes Code, “duress” is a defense to culpability where: “ . • • the actor engaged in the conduct charged to constitute an offense . . . was coerced to do so by the use of, or threat to use, unlawful force against his person or the person of another, which a person of reasonable firmness in his situation would have been unable to resist.” Act of December 6, 1972, P.L. 1482, No. 334, § 1, effective June 6, 1973, 18 Pa. C.S. § 309(a). If in fact a person is acting under duress or coercion, this provision, as under prior law, provides a defense. We can find no reason to employ a fiction which is without basis today. To do so would be to abort truth and to subvert the basic purposes of the adjudicative process. Thus, the issue for the trier of fact to resolve was whether Sheila Santiago was acting of her own volition or whether, in fact, she was being coerced by her husband or any other person in her participation in this criminal activity. It is clear, under the facts of this case, that her role was volitional. The testimony indicated that she threw twenty-five packets of heroin out of the window in an attempt to conceal this evidence from the police who were entering. She also was the first one who responded to the knocks of the police and attempted to delay their entrance. The record is barren of any indication that these acts were inspired us a result of the direction and control of a third party. To permit one engaged in criminal activity to avoid criminal responsibility by hiding behind the marital bond serves no policy and only provides the opportunity for one to unjustifiably avoid punishment for criminal acts. The Order of the Superior Court vacating sentences and remanding for resentencing to the Court of Common Pleas is reversed. The judgment of sentence of the trial court is reinstated and affirmed. ROBERTS, J., filed a concurring opinion in which MANDERINO, J., joins. . Act of September 26, 1961, P.L. 1664, § 4(q), 35 P.S. § 780-4(q). After the Assistant District Attorney conceded the Commonwealth’s weak case on the charges of sales or attempted sales of illegal narcotics, the trial court upon proper motions granted directed verdicts for the Santiagos on those bills of indictments charging sales or attempted sales of narcotics. . Controlled Substance, Drug, Device and Cosmetic Act, April 14, 1972, P.L. 165 No. 64, § 13, effective June 14, 1972, 35 P.S. § 780-113 (Supp.1974-75). “(a) The following acts and the causing thereof the Commonwealth are hereby prohibited: (16) Knowingly or intentionally possessing a controlled or counterfeit substance by a person not registered under this act or a practitioner not registered or licensed by the appropriate State board, unless the substance was obtained directly from, or pursuant to, a valid prescription order or order of a practitioner, or except as otherwise authorized by this act. (b) Any person who violates any of the provisions of clauses (1) through (20) of subsection (a) shall be guilty of a misdemeanor, and except for clauses (4), (6), (7), (8), (9) and (19) shall, on conviction thereof, be sentenced to imprisonment not exceeding one year or to pay a fine not exceeding five thousand dollars ($5,000), or both, and for clauses (4), (6), (7), (8), (9) and (19) shall, on conviction thereof be sentenced to imprisonment not exceeding three years or to pay a fine not exceeding five thousand dollars ($5,000), or both; but, if the violation is committed after a prior conviction of such person for a violation of this act under this section has become final, such person shall be sentenced to imprisonment not exceeding three years or to pay a fine not exceeding twenty-five thousand dollars ($25,000), or both . There is nothing in the record to suggest that these defendants had a prior record for narcotic convictions. . Sheila Santiago is the wife of Manuel Santiago. . Act of 1972, supra at § 39(a), 35 P.S. § 780-139(a) provides: “Prosecution for any violation of law occurring prior to the effective date of this act is not affected or abated by this act. In any case not yet final if the offense is similar to one set out in this act, the penalties under this act apply if they are less than those under prior law.” (Effective “immediately” pursuant to Act of 1972, supra at § 44, 35 P.S. § 780-144. . Act of 1961, supra at § 4(q), 35 P.S. § 780-4(q): “The possession, control, dealing in, dispensing, selling, delivery, distribution, prescription, trafficking in, or giving of, any dangerous or narcotic drug.” . Act of 1972, supra at § 13, 35 P.S. § 780-113(a)(16); see supra note 2. . Id. at § 13, 35 P.S. § 780-113(a)(30). . Pennsylvania’s legislation is an adoption of the Uniform Controlled Dangerous Substances Act. The Uniform Act was drafted to achieve a coordinated, codified uniformity between state and federal legislation and enforcement. With the enactment of the federal Act of 1970, it was necessary that the states revise and update their drug laws. See generally, Uniform Laws Annotated, 9 U.L.A. 145. To date, fifty-one jurisdictions have adopted either the Uniform Controlled Dangerous Substances Act or the Uniform Narcotic Drug Act. Pennsylvania Uniform Controlled Substance, Drug, Device and Cosmetic Act, Notes, (Supp. 1974-75). . Act of 1972, supra at § 13, 35 P.S. § 780-113(f)(1). . Act of 1961, supra at § 20, 35 P.S. § 780-20(c) provides a sentence of not less than two nor more than five years and a fine not exceeding Two Thousand Dollars ($2,000.00). . Perkins, supra at 917-918.

OPINION McDermott, justice. This case comes to us on direct appeal from the order of the Commonwealth Court entering summary judgment in favor of appellees, the Commonwealth of Pennsylvania, the Treasurer of Pennsylvania, and the Secretary of Education of Pennsylvania. Appellants are the Bensalem Township School District, Robert Dewey, and Andrew Jaskola as guardian of Mark Jaskola, 105 Pa.Cmwlth. 388, 524 A.2d 1027 (1987). Mr. Dewey claims standing as a taxpayer, while Mr. Jaskola claims standing on behalf of his minor son who is a student in the Bensalem school. This case was initiated by appellants, who filed for declaratory and equitable relief seeking to have the statutory scheme for the funding of Commonwealth public schools declared unconstitutional. Appellants challenged the statute as being irrational and arbitrary on its face, and violative of equal protection as applied. The action was filed in 1984. Thereafter, it languished in the Commonwealth Court due solely to appellants’ inactivity in prosecuting the claim. Eventually, however, appellants filed a motion for summary judgment. This motion asserted that the statute was unconstitutional on its face. There were no supporting affidavits or depositions filed with the motion, except for an affidavit from appellants’ counsel in which he made various allegations of proof but offered no concrete support. Respondents resisted appellants’ motion for summary judgment, but did not themselves move for summary judgment. The Commonwealth Court denied appellants’ motion, and then entered summary judgment in favor of respondents. Appellants have now filed a direct appeal to this Court in which they raise two issues: the first challenges the lower courts’ denial of the motion for summary judgment; and the second challenges the entry of summary judgment in favor of a non-moving party. For present purposes we need only address appellants’ second issue. Summary judgment proceedings are governed by Pennsylvania Rule of Civil Procedure 1035, which provides: Rule 1035. Motion for Summary Judgment (a) After the pleadings are closed, but within such time as not to delay trial, any party may move for summary judgment on the pleadings and any depositions, answers to interrogatories, admissions on file and supporting affidavits. Note: See Definition Rule 76 for definition of “affidavit.” (b) The adverse party, prior to the day of hearing, may serve opposing affidavits. The judgment sought shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. A summary judgment, interlocutory in character, may be rendered on the issues of liability alone although there is a genuine issue as to the amount of damages. (c) If on motion under this rule judgment is not rendered upon the whole case or for all the relief asked and a trial is necessary, the court at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel, shall if practicable ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted. It shall thereupon make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy and directing such further proceedings in the action as are just. Upon the trial of the action the facts so specified shall be deemed established, and the trial shall be conducted accordingly. (d) Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the signer is competent to testify to the matters stated therein. Verified or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him. (e) Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just. (f) Should it appear to the satisfaction of the court at any time that any of the affidavits presented pursuant to this rule are presented in bad faith or solely for the purpose of delay, the court shall forthwith order the party employing them to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused him to incur, including reasonable attorney’s fees, and any offending party or attorney may be adjudged guilty of contempt. Pa.R.Civ.P. 1035. Nothing in this rule intimates that a court may grant summary judgment in favor of a non-moving party. In fact, the rule expressly limits the courts’ power to grant summary judgment to those situations where “the moving party is entitled to a judgment as a matter of law.” Pa.R.Civ.P. 1035(b) (emphasis added). Additionally, no decision of this Court has ever authorized the entry of summary judgment in favor of the non-moving party under Rule 1035. The Commonwealth Court, however, relied upon the case of Allegheny County Port Authority v. Flaherty, 6 Pa.Cmwlth. 135, 293 A.2d 152 (1972), to support its ruling. Such reliance was misplaced. In the Flaherty decision the Commonwealth Court gave apparent approval to the entry of summary judgment in favor of a non-moving party. However, the court’s comments were not necessary to a resolution of the case, since the court ultimately entered judgment in favor of the moving party; therefore, the comments were pure dicta. Furthermore, the situation presented in Flaherty was some what unique, and, as the court there recognized, the procedural history of that case was “far from a model of pleading procedure or presentation,” Id. at 145, 293 A.2d at 258. The decision in Flaherty should be limited to its facts, and we do not find it persuasive authority upon which to affect a change in the operation of our procedural rules. We note that in the case of Boron v. Smith, 380 Pa. 98, 110 A.2d 169 (1955), this Court did permit judgment to be entered against a non-moving party under Rule 1034. Cf. Paulish v. Bakaitis, 442 Pa. 434, 275 A.2d 318 (1971). However, there are distinctions between the two rules, and our decision there is not dispositive of a motion brought pursuant to Rule 1035. Rule 1034 provides: Rule 1034. Motion for Judgment on the Pleadings (a) After the pleadings are closed, but within such time as not to delay the trial, any party may move for judgment in the pleadings. (b) The court shall enter such judgment or order as should be proper in the pleadings. Pa.R.Civ.P. 1034. Any party may seek judgment on the pleadings or summary judgment. While these motions may supplement each other, and be made at the same time, there is a distinct difference between them, and each should be distinctly and procedurely named, pleaded, and argued in its own right. A rule 1034 motion for judgment on the pleadings can be used as a motion to test whether such a cause of action as pleaded exists at law, and in that way “is in the nature of a demurrer.” Bata v. Central Pennsylvania National Bank of Philadelphia, 423 Pa. 373, 378, 224 A.2d 174, 178 (1966). “It [the motion] is limited to the pleadings them selves and no factual material outside the pleadings may be considered.” Goodrich Amran, 2d § 1035:1, p. 423. The issue in such a case is not whether the facts support the action, but whether there is such an action under the law. The instant case is a clear example: the appellants challenge the constitutionality of a statute, arguing that the statute in question cannot support the allocation of educational subsidies in a certain way because the constitution prohibits it and therefore there is no law to support it. Such a contention differs from a Rule 1035 motion. Rule 1035 “is designed to supplement the motion for judgment on the pleadings to provide for an equivalent summary disposition of the case where the pleadings may be sufficient, on their face, to withstand a demurrer but where, in actuality, there is no genuine issue of fact and this can be conclusively shown through depositions, answers to interrogatories, admissions or affidavits.” Id. § 1035(a):3, p. 427. If, under Rule 1034, a court holds that a cause of action is absolutely barred it does not matter that the court enter judgment in favor of the non-moving party because there is simply no such action and the matter ends. “It would be irrational to deny judgment on the pleadings to a party rightly entitled thereto simply because he happened not to be the party who made the motion.” Boron, supra, 380 Pa. at 102, 110 A.2d at 171. A motion for summary judgment under Rule 1035 is radically different because the issue is whether the moving party has established, by virtue of a developed pretrial record, the cause of action or defense he has pleaded; or, alternatively, whether there is a genuine issue of fact for decision. The motion, however, does not concede that the adversary’s case can be proved; and because the movant does not concede the converse facts a non-movant has received no benefit and is not entitled to a judgment under the plaintiff’s motion. Therefore, in a motion for summary judgment only the moving party can prevail, because if he fails, a dispute continues on the facts themselves. The irony of the present case is that appellants filed a Rule 1035 summary judgment motion, when they should have filed a Rule 1034 judgment on the pleadings motion. The latter motion was the appropriate one since the basis of appellants’ motion was that the pleadings alleged the facial unconsitutionality of the statute, and no evidence was necessary to rule on this claim. The Commonwealth Court accepted appellants’ procedural designation and ostensibly decided this case under the guise of a summary judgment motion. However, the rationale they applied was derived from Boron v. Smith, supra which, as we have stated, only applies to Rule 1034 motions. While we agree with the Commonwealth Court that the issue presented in this case was of a type, as in Boron, which could be decided in favor of the non-moving party, the court erred in perpetuating appellants’ error in labelling this motion as one for summary judgment. The court should have recognized this error and made it clear that, they were treating appellants’ motion as one brought pursuant to Rule 1034. This was permissible under Pa.R.Civ.P. 126. The importance of clarifying the nature of appellants’ motion, and the concomitant procedural basis for the Commonwealth Court’s ruling, becomes manifest when we consider the asserted claims of the appellants. As stated above appellants in their complaint asserted two bases for relief: first, that the school subsidy program was unconsti tutional on its face, a purely legal question requiring no development of evidence; and second, that the program was unconstitutional as applied, a factual question requiring appellants to demonstrate at a minimum the unreasonably disparate effects alleged to result from this funding scheme. Appellants’ motion for judgment addressed itself only to the first basis of relief. However, there is no indication that by filing this motion appellants intended to abandon their second position; and the denial by the Commonwealth Court of appellants’ attack on the face of the statute, was not dispositive of appellants’ “as applied” position. Therefore, since appellants still maintain a viable cause of action, it was improper to enter summary judgment against them on the entire case. Therefore, we must remand this case to the Commonwealth Court for further consideration consistent with this opinion. LARSEN and PAPADAKOS, JJ., file dissenting opinions. . After appellees filed an answer to the complaint, appellants took no further action. On October 17, 1985, the Commonwealth Court issued a rule to show cause why the case should not be dismissed. In their answer appellant maintained that they were attempting to resolve the problem through legislative action. The Commonwealth Court dismissed the rule and directed appellants to file a status report on or before May 19, 1986. The report was not filed until July 11, 1986, stating basically that the legislature provided only partial relief, and that appellants would file a motion for summary judgment. Said motion, which is the motion with which we are presently concerned, was not filed until more than three months later. . In Paulish v. Bakaitis, 442 Pa. 434, 275 A.2d 318 (1971) this court held that judgment on the pleadings cannot be entered sua sponte. The opinion admits of the possible interpretation that a court cannot enter judgment in favor of a non-moving party. Today, we expressly disapprove of that interpretation, and limit the Courts’ holding in Paulish to the effect that a court must at least be presented with a motion by one of the parties before it can consider the sufficiency of the pleadings. . Similarly, where a defendant has filed for judgment on the pleadings admitting liability but asserting an avoidance defense, e.g. statutory immunity, the failure of the moving defendant necessarily means that the plaintiffs action succeeds. Thus, it would serve no purpose for the presiding judge to refuse to enter the appropriate judgment until the plaintiff then files a pro forma motion. . Additionally, Rule 1034 is not as limited in its grant of power as is Rule 1035, and it empowers a judge to "enter such judgment or order as shall be proper in the pleadings." . Rule 126 provides in relevant part: The court at every stage of any ... action or proceeding may disregard any error or defect of procedure which does not affect the substantial rights of the parties. . Appellants’ burden would also require them to prove that there is an alternative system which would more likely achieve the desired goal of greater parity. . At this time we need not address the propriety of the Commonwealth Court’s decision regarding appellants’ facial constitutional challenge. Since appellants maintain a viable claim, i.e. establishing the unconstitutionality of the statutory scheme as applied, they are not out of court and the Commonwealth Court’s ruling is interlocutory. . We note that appellants’ prosecution of this case has been less than vigorous. See footnote 1, supra. Should this pattern of behavior continue, appellees would be within their rights to seek a judgment of non pros, the entry of which would be reversible only if the lower court abused its discretion.

The opinion of the Court was delivered by Gibson, C. J. Simply as a foreign judgment, this ex parte proceeding would not be even prima facie evidence of personal liability. Jurisdiction of the person or property of an alien is founded on its presence or situs within the territory. Without this presence or situs, an exercise of jurisdiction is an act of usurpation. An owner of property who sends it abroad subjects it to the regulations in force at the place, as he would subject his person by going there. The jurisdiction of either springs from the voluntary performance of an act, of whose consequences he is bound to take notice. But a foreigner may choose to subject his property, reserving his person: and it is clear that jurisdiction of property does not draw after it jurisdiction of the owner’s person: consequently, there can be no rightful action by the tribunals on the foundation of jurisdiction acquired by the attachment of property, which reaches beyond the property itself. It has so often been determined that a judgment in foreign attachment cannot be made to bind the person of the debtor, that it would be a waste of words to cite authorities to the point; yet it is worth while to quote an observation of Mr Justice Story, (Confl. of L. § 540), that a foreign country would not enforce a judgment recovered in a court of the parent country, for contumacy in remaining abroad, against a citizen or subject who had neither appeared to nor had notice of the suit, however conformable the proceedings might be to the local laws. How much stronger the case of a foreigner, owing no allegiance to the country or obedience to its legislation! In cases of foreign attachment heretofore, the judgment did not purport to bind the person; here there is a formal recovery from the defendants in solido, without privilege on the property attached, and it is consequently in personam. Nor is this a novelty in the jurisprudence of Louisiana. In Hill v. Bowman, (14 Louisiana R. 445), it is said that where there has been service of citation on ■a curator, the judgment .is necessarily so; and the question is, whether it is within the purview of the constitution, which declares that “ full faith and credit shall be given in each State to the public Acts, records and judicial proceedings of every State;” and that Congress may, by general laws, prescribe the manner in which such Acts, records and proceedings shall be proved, and the effect thereof.” The power thus delegated has been executed in words which bear that the judicial records of a State, when proved in the manner prescribed, “ shall have such faith and credit given them as they have by law or usage in the courts of the State from whence the said records are or shall be taken;” and if it were not open to these defendants to inquire into the legality of the jurisdiction assumed over their persons, they would certainly be concluded. The record shows that there was serviceononeof the joint owners,which in the estimation of the law of the court is service on all; for it Is affirmed in Hill v. Bowman, already quoted, that the State of Louisiana holds all persons amenable to the process of her courts, whether citizens or aliens, and whether present or absent. It was ruled in George v. Fitzgerald, (12 Louisiana R. 604), that a defendant, though he reside in another State, having neither domicil, interest nor agent in Louisiana, and having never been within its territorial limits, may yet be sued in its courts by the instrumentality of a curatpr appointed by the court to represent and defend him. All this is clear enough, as well as that there was in this instance a general appearance by attorney, and a judgment against all the defendants, which would have full faith and credit given to it in the courts of the State. But that a judgment is always regular when there has been an appearance by attorney, with or without warrant, and that it cannot be impeached collaterallyfor anythingbut fraud or collusion,is a municipal principle,and not an international one having place in a question of State jurisdiction or sovereignty. Now, though the courts of Louisiana would enforce this judgment against the persons of the defendants if found within reach of their process, yet, where there is an attempt to enforce it by the process of another State, it behooves the court whose assistance is invoked to look narrowly into the constitutional injunction, and give the statute to carry it out a reasonable interpretation. Though we have no decision of the Supreme Court of the United States, we have the authority of Mr Justice Story (Com. on Const. § 1307) for saying that, though such a proceeding is put, in general terms, on the footing of a domestic judgment, it is open to inquiry into the jurisdiction of the court to pronounce it, as well as into the right of the State itself to exercise authority over the persons or the subject-matter; for which he refers to Bessel v. Briggs, (9 Mass. 462); Shumway v. Stillman, (4 Cowen 292); and Borden v. Fitch, (13 Johns. 121); to which might be added, as of equal authority, our own decision in Benton v. Burgol, (10 Serg. & Rawle 240). What, then, is the right of a State to exercise authority over the persons of those who belong to another jurisdiction, and who have perhaps not been out of the boundaries of it? “The sovereignty united to domain,” says Vattel, “ establishes the jurisdiction of the nation over its territories or the countries which belong to it. It is its province, or that of its sovereign, to exercise justice in all places under its jurisdiction, or the country which belongs to it; to take cognizance of the crimes committed and the differences that arise in the country.” “ On the other hand,” adds Mr Justice Story, (Confl. ch. 14, § 539), no sovereignty can extend its process beyond its own territorial limits, to subject other persons or property to its judicial decisions. Every exertion of authority beyond these limits is a mere nullity, and incapable of binding such persons or property in other tribunals.” And for this he cites Picquet v. Swan, (5 Mason R. 35-42). Not to multiply authorities on a point so plain, it will be sufficient to add the name of Mr Burge, (1 Confl. 1), who says it is a fundamental principle, essential to the sovereignty of every independent State, that no municipal law, whatever its nature or object, should, proprio vigore, extend beyond the territory of the State by which it has been established.” And again, (3 Burge Confl. 1044), “ that the authority of every judicial tribunal, and the obligation to obey it, are circumscribed by the limits of the territory in which it is established.” Such is the familiar, reasonable and just principle of the law of nations; and it is scarce supposable that the framers of the constitution designed to abrogate it between States which were to remain as independent of each other, for all but national purposes, as they were before the revolution. Certainly it was not intended to legitimate an assumption of extra-territorial jurisdiction which would confound all distinctive principles of separate sovereignty; and there evidently was such an assumption in the proceedings under consideration. The court did not, indeed, begin by appointing a curator to represent the absentees, of whose defence he would probably have been ignorant or careless; but they did_ as bad by assuming that the joint owner present was the partner and attorney of his fellows absent—an assumption unfounded in fact or the law of any other community. A judgment following such a beginning, carries with it no presumption of justice. But I would perhaps do the jurisprudence of Louisiana injustice, did I treat its cognizance of the defendants as an act of usurpation. It makes no claim to extraterritorial authority, but merely concludes the party in its own courts, and leaves the rest to the constitution as carried out by the Act of Congress. When, however, a creditor asks us to give such a judgment what is in truth an extra-territorial effect, he asks us to do what we will not, till we are compelled by a mandate of the court in the last resort. To give the same effect to a criminal law, would not be a greater invasion of State rights; and it will scarce be asserted thát a State would be bound to deliver up one of its inhabitants as a fugitive from justice, to answer for an act done within his own State. Yet the constitutional provision embraces all proceedings, whether criminal or civil. It seems, then, that it was not intended to efface the lines of territorial jurisdiction for the origination of process, but only to give extra-territorial effect to judgments of tribunals having jurisdiction of the persons or the property in the first instance; and we must consequently treat all others as nullities. Judgment for plaintiffs reversed, and judgment for defendants.

SPAETH, Judge: Appellant was tried by a judge sitting without a jury and was convicted of driving while under the influence of alcohol. No post-verdict motions were filed and appellant was sentenced to probation for one year and directed to make restitution. On this appeal appellant argues that the order of restitution was improper. The evidence was to the following effect. In the early morning of October 15, 1977, appellant lost control of the automobile he was driving with the result that it went off the road and struck the front of a house owned by Elvira Powell. Ms. Powell testified that she was awakened at approximately 4:50 A.M. on October 15 by a great impact against her house. She ran to her front door and tried to open it, but had some difficulty doing so as the door had jammed. When she finally succeeded in opening the door, she discovered that her front porch and part of the foundation of her house had been damaged. After placing a call to police, she went over to appellant, who was parked on a lot next door to the house and requested his license and information about his insurance. Appellant’s speech was slurred and he was stumbling. The police soon arrived. Officer Stephan Kardell testified that appellant seemed to be intoxicated and that two half-pint bottles of gin were found on the front seat of the automobile. He further testified that the front of the automobile was damaged, as was the front of Ms. Powell’s house. Appellant testified in his own behalf, and while he admitted that he had had a few drinks, he denied being intoxicated. He also testified that he had not crashed into Ms. Powell’s house but had been forced off the road by another automobile, and that the damage done to the automobile he was driving had occurred when he had run into some boulders on the empty lot next door to the Powell house. Appellant was found guilty and was ordered to make restitution to Ms. Powell in the amount of S942.50. An order of restitution or reparation imposed either as a direct sentence or as a condition of probation constitutes a “constructive tool[] in the criminal justice jurisprudence.” State v. Gerner, 115 Ariz. 579, 566 P.2d 1057 (1977); see Schafer, Restitution to Victims of Crime— An Old Correctional Aim Modernized, 50 Minn.L.Rev. 243 (1965). Such sentences are to be encouraged as they constitute “an aid both to the criminal in achieving rehabilitation and to his victim in obtaining some measure of redress.” Commonwealth v. Walton, 483 Pa. 588, 599, 397 A.2d 1179, 1185 (1979); see State v. Harris, 70 N.J. 586, 363 A.2d 32 (1976) ; Annotation, Propriety of Condition of Probation which Requires Defendant Convicted of Crimes of Violence to Make Reparation to Injured Victim, 79 A.L.R.3d 976 (1977) . As a sentence, or a condition of sentence, imposed following a criminal conviction, an order of restitution is not an award of damages. See generally Rothstein, How the Uniform Crime Victims Reparation Act Works, 60 ABA J. 1531 (1974). While the order aids the victim, its true purpose, and the reason for its imposition, is the rehabilitative goal it serves by “impressing upon the offender the loss he has caused and his responsibility to repair that loss as far as it is possible to do so.” State v. Stalheim, 275 Or. 683, 689, 552 P.2d 829, 832 (1976); see State v. Mottola, 84 N.M. 414, 504 P.2d 22 (1972). Thus a court’s concern that the victim be fully compensated should not overshadow its primary duty to promote the rehabilitation of the defendant. See Best & Birzon, Conditions of Probation; An Analysis, 51 Geo.LJ. 809 (1963); Merceret, Sentencing Alternatives to Fine & Imprisonment, 31 U.Miami L.Rev. 387 (1977). In accordance with its primary duty to promote the rehabilitation of the defendant, the court in imposing resti tution must make sure that the amount awarded not only does not exceed the victim’s damages but also does not exceed the defendant’s ability to pay. See State v. Garner, supra; State v. Harris, supra. If the amount of restitution imposed exceeds the defendant’s ability to pay, the rehabilitative purpose of the order is disserved, especially where the restitution payment is a condition of probation, for in such a case the defendant is told that he will not be imprisoned only if he somehow satisfies a condition he cannot hope to satisfy. As one court has stated: Restitution can aid an offender’s rehabilitation by strengthening the individual’s sense of responsibility. The probationer may learn to consider more carefully the consequences of his or her actions. One who successfully makes restitution should have a positive sense of having earned a fresh start and will have tangible evidence of his or her capacity to alter old behavior patterns and lead a law-abiding life. Conditioning probation on making restitution also protects the community’s interest in having the victims of crime made whole. However, conditioning probation on the satisfaction of requirements which are beyond the probationer’s control undermines the probationer’s sense of responsibility. Huggett v. State, 83 Wis.2d 790, 798, 266 N.W.2d 403, 407 (1978). In Pennsylvania restitution can be imposed either as a condition of probation or as a direct sentence. The order of restitution in this case was a direct sentence imposed by authority of Section 1106 of the Crimes Code, which provides that “[u]pon conviction for any crime wherein property has been stolen ... or its value substantially decreased as a direct result of the crime . . . the offender may be sentenced to make restitution in addition to the punishment prescribed therefor.” 18 Pa.C.S. § 1106(a). See also 18 Pa.C.S. §§ 1106(b), 1354(c)(8) (condition of probation). Since an order of restitution is a sentence, whether it is imposed as a direct sentence "or as a condition of probation or parole, it must be supported by the record. See Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977); Commonwealth v. Martin, 466 Pa. 118, 351 A.2d 650 (1976). Among the things the sentencing court must consider on the record are: the extent of the injury suffered, see 18 Pa.C.S. § 1106(c)(1); the fact that the defendant’s action caused the injury and that he will be able to pay for it, see State v. Harris, supra; and the type of payment — lump sum or installment — that will best serve the needs of the victim and the capabilities of the defendant. See 18 Pa.C.S. § 1106(c)(1). Appellant argues that here the order of restitution is not supported by the record because the lower court failed to make a specific finding that the property damage sustained by Ms. Powell was a direct result of appellant’s crime of driving while under the influence. Our own review of the record discloses that the court below did indeed fail to make such a finding on the record. Normally, where the lower court fails to support its sentence on the record, we will vacate the sentence and remand for resentencing. See Commonwealth v. Riggins, supra; Commonwealth v. Wertz, 252 Pa.Super. 584, 384 A.2d 933 (1978). In this case, however, the evidence is clear that the order of restitution was for the damages to the Powell house; the lower court did find that appellant did in fact collide with the house and cause the damage to the front porch and foundation. While the lower court should have specifically found that this damage was a direct result of appellant’s crime of driving while under the influence, to remand for resentencing would be a useless procedural exercise. The missing specific finding is unmistakeably implied in the findings that the court did make. Affirmed. . 75 Pa.C.S. § 3731(a)(1) . Appellant did file an application for modification of his sentence approximately nine days after his sentence was imposed. . Appellant did not own the automobile but had borrowed it from its owner. . The Commonwealth and appellant stipulated that the amount of damage to Ms. Powell’s house was between $885 and $1,000. Appellant did not contend below and does not contend now that the amount awarded was improper. . Restitution and reparation mean different things. Restitution ordinarily refers to compensation for the wrongful faking of property, reparation, to compensation paid for injury or damage. Section 1106 of the Crimes Code uses the term restitution to describe both types of compensation. Section 1354(c)(8) of the Sentencing Code, however, specifically refers to restitution or reparation. In this opinion the term restitution refers to both restitution and reparation. . An order of restitution will have an effect, however, on the damages recoverable in a civil action. Thus subsection (g) of section 1106 of the Crimes Code provides that “[njo judgment or order of restitution shall debar the owner of the property or the victim who sustained personal injury, by appropriate action, to recover from the offender as otherwise provided by law, provided that any civil award shall be reduced by the amount paid under the criminal judgment.” 18 Pa.C.S. § 1106(g). . Cf. Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971); Williams v. Illinois, 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970) (constitutional problems with imprisonment imposed on indigent defendants who are unable to pay criminal fines). . For a discussion of some of the differences between restitution as a direct sentence in conjunction with other sentences and restitution as a condition of probation, see Commonwealth v. Walton, supra, 483 Pa. at 597, 397 A.2d at 1184-85. The differences between restitution as a direct sentence and as a condition of probation are not pertinent to this appeal. . Appellant does not dispute the propriety of the amount of restitution ordered in this case. See generally Lundy v. Oregon State Penitentiary, 27 Or.App. 665, 557 P.2d 59 (1976) (amount of award must appear on the record); see State v. Harris, supra, (must be a factual basis for imposition of award of restitution). . In his application for modification of his sentence appellant raised two other major objections with respect to the propriety of the lower court’s order of restitution. While he has not raised these objections on this appeal, we shall nevertheless treat them, for they raise questions as to the power of the court to impose a sentence of restitution. Cf. Commonwealth v. Walker, 468 Pa. 323, 363 A.2d 227 (1976) (illegal sentence held void despite failure to raise objections below; claim that court lacked legal authority to impose such a sentence was not waived). Appellant’s first objection was that the order of restitution was improper as appellant’s conviction was for an offense under the Motor Vehicle Code, Title 75, and not for an offense under the Crimes Code, Title 18. The lower court treated this issue in its opinion filed pursuant to this appeal. Its reasoning in dismissing this objection was as follows: In making this allegation, the defendant relies on 18 Pa.C.S. Section 1106, which provides the authority for the Court to order restitution. Section 1106(a) provides as follows: “Upon conviction for any crime wherein property has been stolen, converted or otherwise unlawfully obtained, or its value substantially decreased as a direct result of the crime, or wherein the victim suffered personal injury directly resulting from the crime, the offender may be sentenced to make restitution in addition to the punishment prescribed therefor.” Section 1106(h) provides the definition of “crime” as follows: “Any offense punishable under this title.” This title, of course, means Title 18. The basis of the defendant’s allegation is that driving under the influence of alcohol is not a crime punishable under Title 18. Rather, he argues, the crime is punishable under Title 75 of the Motor Vehicle Code. 75 Pa.C.S.A. 3731 deals with the offense of driving under the influence of alcohol. 3731(d) states: “Penalty. Any person violating any of the provisions of this section is guilty of a misdemeanor of the third degree.” Immediately following sub-section (d), the Code cross-references as follows: “Misdemeanor of the third degree defined: See 18 Pa.C.S.A. Sec. 106.” Section 106 simply defines Misdemeanor of the Third Degree. Nowhere in Title 75 is there a definition of a misdemeanor of the third degree or a punishment applicable thereto. Therefore it is clear that Title 75 defines the offense and Title 18 outlines the punishment. Thus, when Section 1106 defines a crime as an offense punishable under Title 18 and therefore, subject to an order for restitution, the Legislature has included driving under the influence of alcohol. Lower Court Opinion at 1-2. We find this reasoning persuasive and therefore hold that restitution is an appropriate sentence in cases involving violations of the Motor Vehicle Code. See Henry v. State, 77 Ga.App. 735, 49 S.E.2d 681 (1948) (restitution imposed for driving while intoxicated); Taylor v. State, 419 S.W.2d 647 (Tex.Crim.1967) (restitution imposed for motor vehicle violation). Appellant’s second objection was that Ms. Powell did not qualify as a victim within the meaning of Section 1106(h) of the Crimes Code and thus could not be awarded restitution. We also find this objection to be without merit. But cf. Commonwealth v. Lauer, 265 Pa.Super. 542, 402 A.2d 678 (1979) (claim that person awarded restitution was not a victim held waived on appeal). It is true that the Commonwealth was the victim of the crime of driving under the influence, but this fact does not bar Ms. Powell’s recovery. Section 1106(h) defines victim as “[a]ny person except an offender, who suffered injuries to his person or property as a direct result of the crime.” 18 Pa.C.S. § 1106(h). Ms. Powell is a victim under this section, for, while the Commonwealth was the victim of the crime of driving under the influence, Ms. Powell was a person whose property was damaged as a direct result of the crime. The mere fact that the Commonwealth need not prove that a collision occurred in order to sustain the conviction for driving under the influence does not mean that if a collision does occur, the victim of the collision may not qualify for restitution. We do caution the lower courts, however, that in imposing restitution in motor vehicle and other cases, they should make sure that any award made does not represent damages that are speculative or excessive. See State v. Stalheim, supra, (restitution of benefits to estate of deceased victim disallowed since forcing defendant to pay such damages would not promote rehabilitation; persons entitled to restitution defined strictly).

Mr. Justice Trunkey delivered the opinion of the court, February 10th 1879. No opinion having been filed in the court below we are not informed of what was deemed a fatal defect in the plaintiff’s case. As it appears we think it ought to have been submitted to the jury. Upon a motion for nonsuit the rule is, that the plaintiff is entitled to the benefit of every inference of fact which the jury might draw from the evidence, the defendant being considered as admitting every fact which the evidence tends to prove: Smyth v. Craig, 3 W. & S. 14; Bevan v. Insurance Co., 9 Id. 187. Where there is any evidence which would justify an inference of the disputed fact it must go to the jury, but not where there is no evidence to authorize the inference: Howard Express Co. v. Wile, 14 P. F. Smith 201; Railroad Co. v. Heil, 5 W. N. C. 91. The sense of words used in connection with what the parties intended to express by them is exclusively for the jury to determine. The judge may not put a legal interpretation on oral words, and niake it a matter of positive direction. It is the province of the court to expound the meaning of an instrument, but not of words uttered of which there can be no tenor: McFarland v. Newman, 9 Watts 55; Brubaker v. Okeson, 12 Casey 519. It is the province of the jury, who hear and observe the witness, to determine the meaning of what ho says. Only when oral testimony fails to establish a disputed fact can the judge withhold it. “ Retention of possession by the former owner of a chattel sold at sheriff’s sale, is not an index of fraud, because the sale is not the act of the person retaining, but of the law; and because a judicial sale, being conducted by the sworn officer of the court, shall be deemed fair, till it be proved otherwise:” Myers v. Har vey, 2 P. & W. 478; Craig’s Appeal, 27 P. F. Smith 448. “It is certainly not a fraud to leave property purchased at sheriff’s sale in the possession of the former owner for his use, or even for his consumption. No presumption of fraud arises from retention of possession after a sale, which being made under supervision of the law, cannot be colorable; and permission to use or enjoy the thing bought, is an act of benevolence which does not amount to a gift of it, or revest it in the debtor Walter v. Gernant, 1 Harris 515. The legal presumption that the sale was fair continues until overcome by sufficient proof that it was collusive or fraudulent. Leaving the pi’operty with the former owner is not of itself evidence of collusion, nor does it warrant an inference that the purchaser made an absolute gift, or sale of it to him. In absence of affirmative evidence to the contrary the inference is that such leaving was an act of benevolence. It is by no means uncommon for a friend of a distressed debtor to purchase his goods at judicial sale, with no other object than to aid him and save his family from want. The law does not repel such charity by any presumption of fraud so as to authorize the seizure again of those goods as the property of the debtor. Nor is it reprehensible to lease the goods on bailment advantageous to both debtor and purchaser. When it is alleged that no change in the ownership of goods has taken place, as respects creditors, because of fraud in law, it is well to keep in view some of the distinctions between judicial and private sales. Maynes became the purchaser of the goods in controversy at a sheriff’s sale, by virtue of executions against Jones. The fairness and validity of that sale are unquestioned. In five months thereafter, Atwater caused them to be seized again, and this issue was formed. Upon the trial, Maynes testified that he is still the owner. Hie cross-examination showed that he had become security for Jones’s performance of a contract for collecting garbage, that Jones owed him and was also indebted to others. He says, “ I bought in a judgment of a man by name of Trego against Jones, to protect myself, and sold him out and bought the things so he could go on and do his work; Trego was going to sell him out.” “After the sale I gave the goods to Jones and told him to take them and use them till he could pay the judgment; Jones has had possession of them ever since.” “Jones has not paid my money on the judgment; no time was fixed for him to repay me; the understanding was that he was to pay me.” By the court, “ You say you gave Jones the things?” “Yes, sir, I sold him out, and afterwards gave him the property back; he was to repay me the money; I told him to take them and work them, and if he could make any money to pay me back.” Re-direct, “I gave the things to Jones to use till he could pay the judgment.” “ When you say you gave them, you mean you let him keep them to use and work with, so as to protect you as his security.” “Yes, sir, that was it.” A large part of his judgment was not satisfied by the sale and he did not pay the sheriff the money bid. Record evidence show's title to the goods was in Maynes. Where is the evidence that it passed from him ? He had a right to possession whenever he chose to demand it. There was no contract for sale, and no consideration to support a contract for possession and use for any definite time. He said ho gave the goods to Jones, and also said he gave them to him to use, to work with, so he could perform his contract. This was not an absolute gift hut a bailment. It may he well to add that these expressions as to the effect of the plaintiff’s testimony, are in reference to disposition of the motion for nonsuit, when the judge takes the testimony as admitted, with every reasonable inference of fact favorable to the plaintiff. The title vested in Maynes at the sheriff’s sale is not impugned. Unless he had parted with the title, the goods were his, and a jury could not infer, without evidence, that he had sold or given them away. He may he either cultured or illiterate, evasive or candid, hut it was for the jury to determine his credibility as a witness, the meaning of his words and find the facts. Judgment reversed, and a procedendo awarded.

Opinion'by Mr. Justice Simpson, On the trial of an appeal by the defendant school district, from an award of damages by a jury of view, plaintiff recovered a verdict, and defendant now appeals from the judgment entered on it. At the trial, plaintiff was permitted to ask a builder, called by her as a witness, what was the replacement value of the house and garage on plaintiff’s property at the time it was taken. This evidence was admitted “for the single purpose of corroborating......the witnesses who have testified as to their estimate on the buildings on this property in order to determine the market value placed on the property by them.” Whether or not this was proper, is the only question necessary to be considered by us; the assignment which objects to the trial judge’s reference to the evidence in his charge to the jury, is of no moment, if the testimony was properly admitted. No other evidence is as unsatisfactory as that necessarily received in this class of cases. Courts and juries are given, by the witnesses, matters of opinion only, the accuracy of which is far more difficult to test than are disputed questions of fact. An endeavor to minimize this uncertainty, may excuse the error which appears in the ruling now complained of, and in the single case supposed to sustain it, but it is error notwithstanding. Even those who are but slightly conversant with the subject, know that, where the building being valued is in a neighborhood which has run down, or where it was erected by an owner for his home, or where it is so located on a large lot as to hinder the proper development of the property after the character of the neighborhood has changed, the replacement value of such house will always be greater than the value of the building as part of the property in its entirety; indeed it may be, and sometimes is, in excess of the market value of the property, including the building. Curiously enough, we have on this record two illustrations of the truth of the above. Plaintiff’s husband testified that “you couldn’t replace [plaintiff’s] property for $75,000......[but] the market value was between $40,000 and $45,000.” It also appeared that a neighboring property, on which an expensive home had been built, could not be sold until the building was torn down. It is clear, therefore, that evidence of the replacement value of plaintiff’s buildings should not have been received, unless the circumstances were so peculiar as to render it absolutely essential, in the interest of justice, to require its admission. We know of no circumstance which could justify it; certainly none appears on this record. The case was improperly tried throughout, but in a respect for which the parties, and not the court below, were responsible. The witnesses on each side were asked, in chief, not only the market value of the property in its entirety, at the time of the taking, but also how they made up that value; and each gave the value of the land, the house, and the garage, as separate items, the sum of the three being the amount alleged by the witness to be the market value of the property. This was improper. • Witnesses may testify as to that which tends to give value to a property, including buildings or anything else on or under it, which a proposed purchaser would probably consider in determining whether or not he would buy. it; but the testimony* in chief at least, must be limited to the property in its entirety, as it was at the time of the taking: Searle v. Lackawanna, etc., R. R. Co., 33 Pa. 57; Reading, etc., R. R. v. Balthaser, 119 Pa. 472; Penna., etc., R. R. Co. v. Cleary, 125 Pa. 442; Kossler v. Pittsburgh, etc., Ry. Co., 208 Pa. 50; Hamory v. Penna. etc., R. R. Co., 222 Pa. 631; Kleppner v. Pittsburg, etc., R. R. Co., 247 Pa. 605. This case well illustrates the wisdom of the rule just stated; for the average juryman would naturally reason that, if the undisputed replacement value was $75,000, the market value of $39,499.50, as fixed by the lowest of plaintiff’s witnesses, must be substantially correct, and this latter sum, with six per cent damages for detention,— as the court below points out, though the force of the calculation was apparently not noticed, — is nearly the same as the verdict of $41,406.31. After an expert witness has been examined and cross-examined as to his competency, and has, in addition, been so interrogated as to show fully the extent of his knowledge regarding the value of the property taken, in order that the jury may be able to determine what weight shall be given to his testimony, the only other questions in chief should be as to his opinion of the value of the property, in its entirety, before and after the taking. The cross-examination may, of course, cover a wider field. “In fact, any’ and every pertinent question may be put to him on cross-examination which will enable the jury to place a fair estimate upon Ms testimony as to the damages sustained by the plaintiff”: Davis v. Penna. R. R. Co., 215 Pa. 581, 585; Rea v. Pittsburgh, etc., R. R. Co., 229 Pa. 106, 115; Stone v. Delaware, etc., R. R. Co., 257 Pa. 456, 464. This includes the right to inquire “of a witness......whether he knew of certain sales made of properties in the neighborhood, ......[but not] to introduce the prices, however, at which the properties sold,......[for this] is to suggest to the jury a comparison which they are unable to make in order to determine what credit they are to give the witness. No warrant can be found in any of our cases for such a practice”: Roberts v. Phila., 239 Pa. 339, 342, citing and approving Rea v. Pittsburgh, etc., R. R. Co., supra; Girard Trust Co. v. Phila., 248 Pa. 179, 183. An exception to this rule appears, if the examination in chief shows that the “witness considered —in the sense that, in his estimate of value, he was aided by, or relied on — prices paid for properties similarly situated, [in which event] he may be cross-examined as to the prices paid for such other similar properties, as testing his good faith, credibility, accuracy and extent of knowledge,” (Penna. Co. for Ins. on Lives, etc., v. Phila., 268 Pa. 559, 563); but only if it further appears that such properties “are in the same neighborhood, and similarly situated”: Wissinger v. Valley Smokeless Coal Co., 271 Pa. 566, 569. So, also, the redirect examination may be wider than is permissible in chief, to the extent that the cross-examination opens the door to such more extensive interrogation. The question objected to in the present case having been propounded in chief, and not in cross-examination or re-direct examination, our inquiry is, does the fact that defendant did not object to evidence showing the actual value of the buildings at the time of the taking, as distinguished from the value of the property in its entirety, justify further evidence in chief as to the replacement value of those buildings? If it had been shown that there was a fixed relation between the two kinds of value, possibly evidence as to the replacement value would have been admissible by way of corroboration ; but there was no such evidence, .and, as we have shown, there was no such relation. It is clear, therefore, that the question should not have been allowed. Savings & Trust Co. v. Penna. R. R. Co., 229 Pa. 484, supposed to sustain the admission, lends no support to it. In that case, the land which was taken had standing timber on it. The court below admitted, as corroborative evidence, the value of the timber, and we sustained the admission. But this was evidence of a thing whose value entered largely into the value of the property itself. Here, the replacement value of the buildings does not enter into the actual value of the property, at the time of the taking. Moreover, even this supposed exception has been qualified, if not practically overruled, in the only case in which that authority has been cited, Viz.: Ribblett v. Cambria Steel Co., 251 Pa. 253, 259, where we said: “While we have held that the ordinary rule for the ascertainment of damages where land is appropriated under the right of eminent domain, did not control in cases somewhat like the one at bar, yet we have on numerous occasions decided that, when standing timber is destroyed, the damages therefor are to be measured by determining the difference in the value of the land, upon which the trees grew, before and after the injury complained of: Mahaffey v. New York Central & Hudson River R. R. Co., 229 Pa. 285, 287; Savings & Trust Co. of Indiana v. Penna. R. R. Co., 229 Pa. 484-489; Bullock v. Balto. & Ohio R. R. Co., 235 Pa. 417. There may be exceptional instances, when the evidence shows the trees in question to have had a selling value separate and apart from the land (for example, trees growing on a nursery farm), where a different rule would apply; but, under the facts at bar, there can be no doubt that the proper way to determine the pecuniary damage suffered by the destruction of the plaintiff’s trees was through the application of the ordinary rule just referred to.” Certain it is, that Savings & Trust Co. v. Penna. R. R. Co., supra, insofar as it approves the admission of evidence of the value of any one of the items going to make up the value of the property as a whole, clashes with all our other cases on the subject, those decided after as well as before it, and since it is also wrong in principle, it should be, and now is, overruled as to that point. The judgment of the court below is reversed, and a venire facias de novo is awarded.

Opinion by Mr. Justice Jones, These appeals raise two main questions,— (1) the jurisdiction of equity to enjoin administrative action of a duly constituted school board and (2) if such jurisdiction exists, whether its exercise is warranted on the basis of the matters set forth in the bill of complaint. The suit is by a taxpayer of the school district Of the City of Erie and seeks to restrain and enjoin the school directors of the district from accepting and retaining certain policies of insurance on school district property. The premiums on the policies have already been paid out of funds of the district. The gravamen of the plaintiff’s complaint is that thé policies in question are void because of the inclusion in the insuring clauses of certain provisions for extended coverage allegedly beyond the charter powers or, at least, the lawful competency, in general, of the various foreign and domestic issuing companies. The particular insurance companies thus indirectly involved were, upon application, permitted to intervene as parties defendant. After a hearing, .the chancellor entered an adjudication and a decree nisi awarding an injunction as prayed for by the plaintiff. Subsequently, at the suggestion of the court, all parties in interest entered into a stipulation approving two of the domestic companies (Merchants & Businessmen’s Mutual Fire Insurance Company and the Washington County Fire Insurance Company) and two of- the. foreign companies (The Central Manufacturers’ Mutual Insurance Company and the United Mutual Fire Insurance Company) as typical of all of the intervening defendants and qualified to act in behalf of all such defendants ■ in any proceedings thenceforth to be taken in this litigation. The learned chancellor made a supplemental adjudication, embracing findings of fact and conclusions of law, the effect whereof was to establish the following situation. While the companies, whose policies are involved, are authorized and empowered to issue the basic fire insurance coverage of the policies in question, the extended coverage endorsement in each instance against damage by hail is beyond the legal authority of the issuing Companies and, therefore, void; the basic policies were'not, however,-invalidated. And, further, whilé the nonassessable provisions in the policies issued by United Mutual Fire Insurance Company are accordingly void, the' policies in reality are valid as being actually assessable. A decree nisi was thereupon entered, restraining and enjoining the school district from accepting and retaining the assailed policies of insurance on the ground that the action of 'the school board in the premises constituted an abuse of discretion. All parties, including the plaintiff, filed exceptions; and, after argument thereon, the court en banc made several additional findings of fact and conclusions of law, modified others previously made, and ruled in presently material regard, contra the learned chancellor, that the fire insurance policies, including, the impeached extended coverage provi sion, are nonseverable and form,, in eachinstance,.but a single contract; that the policies are void in their entirety for the reason that the extended coverage provi: sions are ultra vires as to the insuring companies or are not within the activities authorized by .the respective companies’ certificates to do business in Pennsylvania;, and that an injunction should issue restraining the school district from retaining the disputed policies. Prom the final decree to that effect, the present appeals were, taken by the school district and by three .of the four intervening defendants (stipulated as the active representatives of all of the intervening, seven com-, panies). The Merchants & Businessmen’s. Mutual Pire. Insurance Company did not appeal. All of .the questions presented by the appellants have been discussed, and passed upon by the court below at some; stage of, the proceeding, but, in the circumstances, they will again, require separate consideration and treatment. : Equity will intervene to restrain acts of municipal-authorities which are contrary to positive law or amount to bad faith or constitute a violation of public duty: see Wilson v. Philadelphia School District, 328 Pa. 225, 239, 195 A. 90, and cases there cited. Obviously, the occasion for an exercise of the jurisdiction depends- largely upon the character of the conduct complained of in the-particular instance. The present bill makes out a proper case for equity’s jurisdiction. The averments disclose what is tantamount to a misappropriation of the funds of the school district* through the directors’ voluntary purchase of allegedly invalid insurance policies. If-that be so, then their action amounts to a direct transgression of the law and is not a mere abuse of administrative discretion. Nor does the court’s jurisdiction depend upon, the complainant’s ability at trial to make good- his averments. Where a case for equity’s jurisdiction has been sufficiently pleaded, the jurisdiction is not defeated by a possible adverse outcome: Zerbe Township School District v. Thomas, 353 Pa. 162, 165-166, 44 A. 2d 566. It is, of course, to be borne in mind that the judicial power to interfere in cases challenging acts of a character committed to the discretion of public officials is exceedingly limited. Indeed, there is a presumption that their actions are within the limits of their discretion: Lamb v. Redding, 234 Pa. 481, 484, 83 A. 362; Gemmell v. Fox, 241 Pa. 146, 150, 88 A. 426; Robb v. Stone, 296 Pa. 482, 492, 146 A. 91. “The burden of showing to the contrary, when the action of a school board is challenged with respect to matters committed to its discretion, is a heavy one; for the power of the courts in such cases is exceedingly limited, and they are permitted to interfere only where it is made apparent that it is not discretion that is being exercised but arbitrary will or caprice. ... if the facts admit of no other conclusion than that the determination of the board has been influenced by other considerations than the public interests, no matter what these may have been, the law will regard it as an abuse of power, a disregard of duty, and it becomes the duty of the courts to interfere for the protection of the public”: Lamb v. Redding, supra, at pp. 484-485. But, at the same time, the law does not assume to supervise an exercise of judgment by public officials in appropriate regard. As stated in Roth v. Marshall, 158 Pa. 272, 274, 27 A. 945,—“For an abuse of discretion or an act contrary to law the remedy is in the common pleas. But for a mistake in judgment as to the time or manner of performance of their official duties they are answerable to the constituency that elects them.” In the present instance the particular matter complained of is hardly a subject for discretion even though the question of carrying insurance (and how much) and the choice of insuring companies are discretionary. With those matters settled, it was obligatory upon the school board to obtain legally valid and enforceable policies in return for the public moneys they expended by way of premiums paid on the policies accepted. As the learned, chancellor pointed out in the original adjudication, while courts will not interfere with the exercise of discretionary powers by public officials, if it. appears that their action is based on a misconception of law or is the result of arbitrary will or caprice, equity will intervene to prevent an abuse of the entrusted power adverse to the public welfare: Hibbs v. Arensberg, 276 Pa. 24, 26, 119 A. 727. Even if the acts presently under attack should be deemed merely exercises of discretion, once it appears that they were based on a “misconception of law”, as the chancellor and the court en banc both, concluded they were, equity looks with favor upon the questioning inquiry. For a further consideration of the decisions relative to the court’s power to review and correct the actions of a school board, see Ritzman v. Coal Township School Directors, 317 Pa. 271, 276-278, 176 A. 447; also McLaughlin v. Lansford Borough School District, 335 Pa. 17, 23, 6 A. 2d 291. The appellant’s incidental attack on the plaintiff’s standing to complain is without merit. The bill avers his ownership of real estate (situate within the school district of Erie) which is subject to taxation by the district. The complaint is essentially a class bill and, properly so, having been filed not only in behalf of the plaintiff but “for and on behalf of any citizen of Erie [the confines of the district] . . .”: cf. Gericke v. Philadelphia, 353 Pa. 60, 63, 44 A. 2d 233. For the restraint of wrongs committed by municipal officers against the public interest, a taxpayer “is accorded a standing in equity because of the reason that he is a taxpayer and that if municipal funds are misappropriated he will be injured pecuniarily, and not upon the ground that he is simply a citizen or an inhabitant or an elector. The invasion of his pecuniary interests is the special injury that gives him a standing to maintain a bill”: Wolff Chemical Company v. Philadelphia, 217 Pa. 215, 218, 66 A. 344. In the case last cited, Mr. Justice Mestrezat, speaking for this Court, said that, “In the Pennsyl vania cases, the ground for sustaining the bill is said to be that the interest of a taxpayer, when money is to be raised by taxation, or expended from the treasury, is sufficient to entitle him to maintain a bill to test the validity of the law which proposes the assessment or expenditure.’ ” That the diversion, wasting or misappropriation of municipal funds involves such pecuniary injury to an individual taxpayer as to bestow upon him a standing to complain, there is, of course, no doubt: see Wilds v. McKeesport City School District, 336 Pa. 275, 278, 9 A. 2d 338. Whether the policies in the present instance are actually void and, consequently, a manifest wasting of municipal funds, are matters of merit to be discussed hereinafter. However, on the face of the bill with its averments of municipal loss and the plaintiff’s interest therein, his standing to complain is not .open to question. His right in such regard is no more dependent upon the ultimate outcome than is the jurisdiction of the court in the first instance: cf. Zerbe Township School District v. Thomas, supra. Coming to the merits, the first question is whether the contested fire insurance policies, together with the extended, coverage endorsements thereon, are to be construed as entire contracts or whether they are sever-able, i. e., is each basic fire insurance coverage a separate undertaking of the insurer distinct from the risks included in the extended coverage endorsements. There appears to be a difference of opinion among the authorities on this point: see Corpus Juris Secundum Insurance, Vol. 44, Sec. 336, p. 1284. Some hold that insurance policies, as well as ordinary contracts, are generally to be treated as entire and indivisible, especially where the consideration or premium paid is single and entire and not allocated to various risks. The early Pennsylvania cases (see, e. g., Gottsman v. The Pennsylvania Insurance Company, 56 Pa. 210, 214-215) seem to favor that view, but each of those cases involved a single risk, for example, fire, usually upon various properties or different types of components; none was concerned with the coverage in one instrument of insurance against different types of risk or hazard. Other authorities- adopt the- view-’-that insurance contracts, ostensibly-entire, may be-treated-as divisible and severable, depending upon- the r circumstances attending their issuance, - the manifest intent of the parties and the items covered,- — 'the-legal'effect being a separate insurance obligation -respectively on each of the individual risks covered. The court below treated' the policies in dispute as being entire for;the reason that a single premium charge- was' paid for each policy. But, it is our view that the extended-coverage endorsement incident to these standard fire • insurance policies are to be considered as- separate -and distinct undertakings of coverage against the respective* risks specified. This, we believe to be in furtherance of the intent of The Insurance Company Law (Act of May 17, 1921, P. L. 682, Sec. 522, as amended, 40 PS § 657) wherein it is provided that, in addition to the types of risks permitted to be included in the Standard-FireTnsurance Policy of the State of Pennsylvania, authorized: companies may issue “(g) Appropriate - forms of supplemental contract or contracts, or extended coverage;endorsements, . . .” upon approval of the Insurance'Commissioner. The clear indication of the statutory provision just quoted is that the standard policy and the added provisions or extended coverages are to be deemed separate and divisible; undertakings. . Such being, the case, the policies of, fire insurance, here involved, are valid, certainly to the extent of their basic undertakings and their additional coverages also, passing for the .moment the coverage against hail. No. enjoinab le fault is, therefore, to be attributed to the school directors with respect to the insurance policies in suit. There is still the question as to whether the extended coverage against loss by hail is actually invalid; Each of the foreign insurance companies involved-had charter powers or was authorized by the statutory law of the State of its domicile to write the insurance embraced by the extended coverage provision. The only discrepancy was that the certificates of the respective foreign companies to do business in Pennsylvania, as issued by the Insurance Commissioner, failed or omitted to mention the inclusion of authority to issue insurance covering loss or damage from hail, — the type of insurance included in the extended coverage endorsements under consideration. Admittedly, the domestic companies lacked express charter power to issue policies of insurance against damage from hail; and the court below ruled that authority in such regard was in no way granted either expressly or impliedly by statutory provision. Consequently, those policies were held to be void, the court treating the contracts as being entire. Insofar as the foreign insurance companies are concerned, however, the issuance of the extended coverage endorsements against hail was not ultra vires. Those companies merely failed to comply strictly with the Pennsylvania statute regulating the transaction of business by foreign insurance companies within the State. And . so, by virtue of a noncompliance, obviously inadvertent rather than intentional, with the statute relative to doing business in this State, the foreign companies lacked authority to transact the underwriting business in a single particular for which risk they had actually issued coverage although in all related particulars they had express authority so to act. It is well-settled that, in such circumstances, the company is estopped, as against innocent purchasers, from denying its authority to transact business in the foreign State. The Pennsylvania decisions are in accord with this doctrine. In Swan v. Watertown Fire Ins. Co., 96 Pa. 37, 42, it was stated that, — “These [foreign insurance] companies doing business in this state without having complied with the provisions of the statute, for that reason, may not enforce their contracts; but cannot set up their turpitude to defeat actions on their contracts brought by innocent persons. Their agents may neglect to procure the prescribed certificates, but that shall not avail the principals to avoid their contracts for insurance. The statute does not impose upon the insured the duty of seeing that the insurer and its agents have complied with the statutory requirements. That a company soliciting and receiving the consideration for insurance, may avoid its obligation on the ground that either itself or its agent has violated the law, is a proposition repugnant to familiar elements of the law.” See also The Watertown Fire Insurance Co. v. Simons, 96 Pa. 520, 526. Accordingly, the extended coverage under the policies issued by the foreign companies in the instant case can be fully enforced in appropriate circumstances. The companies are estopped as a matter of law from setting up their failure to comply with the registration statute. In passing, it is only fair to note in this connection that the appellant insurance companies themselves expressly affirm the validity of the disputed policies both as to their basic insurance and their extended coverages. It is beyond reasonable dispute that the school board obtained valid and binding policies of insurance enforceable with respect to every risk covered thereby whether by the basic policy or the endorsements thereon. The school directors did not, therefore, act with any disregard of the duties of their office or in a way inimical to the interests of the taxpayers of the school district. So much applies to the policies issued by the foreign insurance companies. We have then to consider whether the extended coverage provisions endorsed on the policies issued by the domestic insurance companies are equally enforceable. Such insurance being in excess of the charter and corporate powers of the domestic companies would seem to constitute ultra vires acts. The learned court below so considered them and accordingly concluded that the policies were void, relying particularly on certain cited Pennsylvania cases (inter alia Arrott v. Walker, 118 Pa. 249, 257, 12 A. 280) and, to some extent, upon the Act of February 4, 1870, P. L. 14. It is true that, under that Act and the cited cases construing it, unauthorized policies of insurance were held to be void, and no action thereon could be maintained successfully. However, the Act of 1870 was specifically repealed by The Insurance Company Law of 1921, cit. supra. Section 107 of the latter Act (40 PS § 367) is now the general provision in relevant connection; it is concerned with the prohibition of individuals, associations and partnerships from' doing insurance business, penalties being specified for violations. But, in no way does that Act declare any policies absolutely void as did the Act of 1870. It was the apparent intent of the legislature that the matter be left open for appropriate judicial inquiry and adjudication as occasion might require. The three cases cited in the opinion of the lower court to the purported effect that ultra vires contracts of insurance are void since the passage of the Act of 1921 as amended áre readily distinguishable from the instant ' case. In ■ those cases, agreements, which were construed to be “contracts of insurance”, had been executed by undertaking establishments having no actual or apparent authority to conduct an insurance business. In the present instance the companies possessed the legal power to write insurance and to the ordinary innocent customer they would appear to have authority to issue the insurance as written. The instant case falls within the rule that a corporation which has received and retained the benefits and advantages of a contract should not be allowed to escape its. obligations upon a plea of ultra vires, especially if the contract does not contravene .any statute or public policy: see Couch, Cyclopedia of Insurance Law, Vol. 1, Section 248, p. 584. Such a;rule has been adopted, in this State with respect to business corporations generally: see Presbyterian Board v. Gilbee, 212 Pa. 310, 314, 61 A. 925, and the Act of May 5, 1933, P. L. 364, Section 303, 15 PS § 2852-303. While there is no case which specifically applies the rule to insurance companies, no good reason can be advanced why it should not be applied to them as well as other business corporations. The character of business which they conduct is of a vital public concern; and, from the nature of the governmental regulation to which they are statutorily subjected, it is apparent that the primary intent of the legislature is the safeguarding of the rights of the public and their individual dealings with insurance eoxhpanies. Consonantly, rules favoring the insured are preferred. Inasmuch as there is no statute in this State rendering void such ultra vires contracts of insurance (of domestic companies), as are here involved, it seems logical that the rule above quoted be presently applied and the issuing companies be held estopped from asserting a defense of ultra vires to any action upon the policies. And, here, likewise, the school directors, having obtained valid and enforceable policies in return for the funds expended, are not chargeable with censurable conduct. It may be that the extended coverage endorsement issued by the Washington County Fire Insurance Company was not actually ultra vires for the reason that, although its charter did not expressly authorize it to write the character of insurance contained in the extended coverage, The Insurance Company Law of 1921 seems to have supplied that deficiency. The Washington County Fire Insurance Company so contends, and it has clearly set forth in its brief the reasoning in support of that contention. But, without passing upon that point, we choose to rest the validity of the extended coverage insurance issued by the domestic companies upon the ground of estoppel. The decree is reversed, the costs on these. appeals to be borne one-half by the appellee and the other half by the intervening defendants jointly.

OPINION EAGEN, Justice. On April 23, 1970, appellee Donald G. Stauffer joined with his wife, appellant Theresa E. Stauffer, in conveying to appellant alone for the stated consideration of one dollar the land and residence which both owned and had been occupying as tenants by the entireties. Subsequently, he brought this action in equity in the Court of Common Pleas of Chester County to compel a reconveyance. After a trial, the chancellor made his adjudication and entered a decree nisi in favor of Mr. Stauffer which granted the relief sought; on November 29, 1974, the court en banc dismissed the exceptions of Mrs. Stauffer and made the decree final. This direct appeal followed. The record discloses that the parties were married on October 17, 1953, and that they became the owners of the land in question by means of a gift from Mrs. Stauffer’s parents on August 3, 1956; their house was subsequently built and paid for primarily, if not entirely, out of the earnings of Mr. Stauffer. Toward the end of March, 1970, Mrs. Stauffer became suspicious that her husband had become involved with another woman, and on March 26 she consulted an attorney for advice about her domestic situation. Shortly thereafter, she confronted her husband with her suspicions, and he admitted to her not only that he had been engaged in an adulterous relationship, but that the “other woman” was Mrs. Stauffer’s own sister, Victoria Gavin. Subsequently, Edward Gavin, the husband of Victoria, came to the Stauffer home, and in the presence of Mrs. Stauffer and Mr. Gavin, Mr. Stauffer wrote out a “confession” in which he detailed his involvement with Mrs. Gavin. The foregoing facts were essentially undisputed. Other events leading up to and following the aforementioned conveyance, however, and particularly the relationship and understanding of the parties during this period, could be determined for the most part only from the often-contradictory testimony at trial of Mr. and Mrs. Stauffer. After hearing the testimony, the chancellor made the following pertinent findings of fact: “3. In late March or early April, 1970, Plaintiff made confession of his adulterous relationship with Defendant’s sister, Victoria Gavin, which activities had ended in late March, 1970. “4. The Defendant consulted with Lawrence Sager, Esquire, four or five times between March 26, 1970 and April 23, 1970. “5. The Defendant had been highly emotional and distraught during the period of March 26-April 23, 1970. “6. The Defendant related to the Plaintiff that Mr. Gavin would be down at the house ‘with the law.’ “7. The Plaintiff did evidence a fear of a lawsuit by Mr. Gavin. “8. On April 23, 1970, the Plaintiff agreed to transfer his interest in the jointly-held property after a prolonged hysterical outburst by the Defendant. “9. On April 23, 1970, at a meeting at Mr. Sager’s office, Plaintiff transferred his interest in the jointly-held property to the Defendant. :|; # ‡ ij; * t\t % “11. The Plaintiff, at the April 23rd meeting was advised by Mr. Sager of his right to consult counsel of his choice and he elected to proceed without consulting an attorney. “12. At all times during their marriage, the Plaintiff had made any important financial decisions, upon which the Defendant relied. “13. At the meeting of April 23, 1970 Plaintiff expressed concern over the security of the ‘homestead’ for his wife and children. “14. Until the date of transfer, the Plaintiff and Defendant had continued to live together and carry on marital relations. “15. At the meeting of April 23, 1970 the prevailing mood was that the Plaintiff and Defendant would continue to live together. “16. Shortly after the conveyance of the property on April 23, 1970, marital relations between the Plaintiff and Defendant totally ceased. “17. After the conveyance of the property, the Defendant and the children evidenced a disregard for the Plaintiff.” Drawing upon these findings, the chancellor concluded that appellant held what had been her husband’s share in the property as constructive trustee for him because “the transfer of Plaintiff’s interest in real property jointly held was fraudulently induced by threats and misrepresentations of the Defendant,” and that “Plaintiff is entitled to a reconveyance of his interest in the real property.” After the argument before the court en banc, he in another opinion further concluded that appellee was not barred from affirmative relief by the clean hands doctrine, either because of his adultery with Mrs. Gavin or his attempted fraudulent conveyance. Appellant herein contests each of these conclusions. Initially, we note that on appeal we are bound by the chancellor’s findings of fact, particularly if approved by the court en banc, to the same extent as we would be bound by the factual determinations of a jury. The test in either case is whether the findings are adequately supported by the record. The chancellor’s findings are entitled to particular weight in a case in which the credibility of the witnesses must be carefully evaluated, because he has had the opportunity to hear them and to observe their demeanor on the stand. Charles v. Henry, 460 Pa. 673, 334 A.2d 289 (1975). In this case, since these findings are indeed adequately supported in the record, though largely dependent on the unsupported testimony of Mr. Stauffer and sometimes contradicted by that of Mrs. Stauffer, our task is to determine whether the factual inferences and legal conclusions derived from them are correct. Although we have held that ordinarily, when a husband transfers property to his wife, a presumption arises that a gift was intended—Lapayowker v. Lincoln College Preparatory School, 386 Pa. 167, 125 A.2d 451 (1956) — such a presumption is, of course, rebuttable, and here the chancellor found that there was sufficient credible evidence to establish a constructive trust rather than a gift. The imposition of a constructive trust, unlike the finding of an express or a resulting trust, does not require that the parties specifically intended to create a trust; it is an equitable remedy designed to prevent unjust enrichment. Buchanan v. Brentwood Fed. Sav. & Loan Ass’n, 457 Pa. 135, 320 A.2d 117 (1974); Pierro v. Pierro, 438 Pa. 119, 264 A.2d 692 (1970); Restatement of Restitution § 160 (1937); 5 A. Scott, Law of Trusts §§ 404.2, 462 (3d ed. 1967). There is thus no rigid standard for determining whether the facts of a particular case require a court of equity to impose a constructive trust; the test is whether or not unjust enrichment can thereby be avoided. This Court has repeatedly cited with approval the oft-quoted language of Justice (then Judge) Cardozo in Beatty v. Guggenheim Exploration Co., 225 N.Y. 380, 386, 122 N.E. 378, 380-81 (1919) : See, e. g., Buchanan v. Brentwood Fed. Sav. & Loan Ass’n, supra at 152, 320 A.2d at 126; Shapiro v. Shapiro, 424 Pa. 120, 129, 224 A.2d 164 (1966); Chambers v. Chambers, 406 Pa. 50, 54-55, 176 A.2d 673, 675 (1962). “A constructive trust is the formula through which the conscience of equity finds expression. When property has been acquired in such circumstances that the holder of the legal title may not in good conscience retain the beneficial interest equity converts him into a trustee . . . . A court of equity in decreeing a constructive trust is bound by no unyielding formula. The equity of the transaction must shape the measure of relief.” Appellant strenuously argues that in this case no confidential relationship existed between the parties at the time of the transaction, and that therefore there can be no constructive trust; she cites Foster v. Schmitt, 429 Pa. 102, 107, 239 A.2d 471 (1968) for the proposition that a confidential relationship requires that the transferee occupy toward the transferor “such a position of advisor or counselor as reasonably to inspire confidence that he will act in good faith for the other’s interest” and maintains that this was not the situation here. Appellant is mistaken, however, in assuming both that the chancellor found a confidential relationship in this case and that he needed to do so in order to impose a constructive trust. The chancellor’s determination was based not on the abuse of a confidential relationship, but on his conclusion that the transfer was “fraudulently induced by threats and misrepresentations of the Defendant.” It is well-established that “Where the owner of property transfers it, being induced by fraud, duress or undue influence of the transferee, the transferee holds the property upon a constructive trust for the transferor,” Restatement of Restitution § 166 (1937), and that where the transfer is so induced, a constructive trust will be imposed without proof of a confidential relationship. See Chambers v. Chambers, supra; Christy v. Sill, 95 Pa. 380 (1880). Whether or not a confidential relationship exists in a given case is usually a question of fact to be determined by no inflexible rule but by a weighing of the particular factors present in that case. The mere finding of such a relationship does not in itself cause a constructive trust to be imposed; its effect is simply to impose a burden upon the party benefiting from the trans action of proving that he took no unfair advantage of his relationship with the other. By the same token, absent a finding of confidential relationship, the complaining party may still prove unjust enrichment. See generally Note, Confidential Relationships in Pennsylvania Law, 97 Pa.L.Rev. 712 (1949). But although the chancellor’s conclusion in this case did not depend upon a finding of confidential relationship, we must still examine the actual relationship between the parties to determine whether or not the requisite unjust enrichment was present. In doing so, we must focus on the relationship between the parties at the time of the transaction in question. Hamberg v. Barshy, 355 Pa. 462, 50 A.2d 345 (1947). Therefore, although it is a pertinent factor, it is not necessarily a controlling one that the chancellor found “at all times during their marriage, the Plaintiff had made any important financial decisions, upon which the Defendant relied.” Mr. Stauffer’s decision to turn over to his wife, without meaningful consideration, his share of what the record indicates was by fair his largest asset, was not an ordinary “important financial decision” and can only be interpreted in relation to the unique situation in which he found himself at that time. Furthermore, even if the relationship between the parties was not the sort in which our courts have traditionally found a confidential relationship sufficient to shift the burden of proof, we do not have to regard the transaction as merely an arm’s-length one. Human relationships are frequently too complex to be classified simply as either “confidential” or “arm’s-length”; a relationship can have elements of confidentiality without being strictly a “confidential relationship,” and less diligence is required of a plaintiff who relies to his detriment on the closeness of his relationship to the defendant than of one who deals on a genuinely arm’s-length basis. See Zahn v. McMillin, 179 Pa. 146, 36 A. 188, 57 Am.St.Rep. 591 (1897); Hedges v. Primavera, 218 F.Supp. 797 (E.D.Pa.1963). The record in this case indicates that when Mrs. Stauffer first became suspicious and later learned of her husband’s adultery, her confidence in him was understandably severely undermined, and that her visits to a lawyer during this period were to obtain advice not only about the possibility of straightening out her marital difficulties, but also about securing her rights and those of her children in the event of a separation. We can also infer that she was particularly distressed that the woman her husband had become involved with was her own sister. Yet the chancellor, with sufficient basis in the record, found that up to the time of the conveyance the parties “continued to live together and carry on marital relations” and that at the time of the conveyance “the prevailing mood was that the Plaintiff and Defendant would continue to live together.” As for Mr. Stauffer, the record clearly suggests, whether or not he had formerly been the dominant party in the relationship, that after the discovery of his adultery he was not. His writing out a confession in the presence of his wife and Mr. Gavin suggests a sense of guilt, if not contrition. According to his testimony, his eventual decision to convey the property at his wife’s urging came after she had repeatedly told him of her fears of the dire consequences of Mr. Gavin’s purported lawsuit, and immediately after “a prolonged hysterical outburst” during which she first drove the family car so recklessly that he pulled the keys out of the ignition in fear and she later drove wildly away from her husband and her father after rejecting her husband’s suggestion, agreed to by her father, that the property be conveyed not to her but to the children. He further testified that his only reason for yielding to his wife’s urging about the property was the fear, induced by her, of the lawsuit, together with his impression that by agreeing to the transfer, he would “save the house for all of us, the family; not just for my wife and the children, for all of us as a family.” In addition, Mr. Stauffer repeatedly testified that he finally agreed to, sign over the property to his wife because he had faith in her: “Q. Well, what was your reaction to what your wife said? What was your state of mind? “A. Well, my state of mind, I was worried, and I didn’t know if I was going to be sued or not. But I, as we went along with things there, why, I more or less had faith and things in her own and I agreed to sign the house and things over to her. “Q. What do you mean ‘faith in her’, faith in what way? “A. Well, I trusted her and things there, and she’d been faithful to me for years and all. . . . ” Despite his own prior unfaithfulness, we cannot say that such faith was either implausible or unreasonable, given that his wife had always acted in good faith toward him in the past, he had confessed and terminated his adulterous affair, and — according both to his testimony and the chancellor’s finding — the mood at the time of the conveyance was that husband and wife would continue to live together. Nor is the plausibility of this faith contradicted by his admission that he was told by his wife’s lawyer that he was acting for Mrs. Stáuffer alone: “Q. What else did Lawyer Sager say to you then ? “A. He told me that I was, that I could have counsel, you know, see my own attorney and things; and I said I didn’t have — I have faith in her and things, that 1 didn’t have to see my own attorney. I figured the house would still be between the two of us, even if I did sign it over.” We cannot therefore find that the conveyance was an arm’s-length transaction. In this regard, it is significant that in her pleadings, while averring that it was “an arm’s-length transaction, wherein defendant was endeavoring to insure some form of security for her children,” appellant also averred that “plaintiff agreed to convey his interest in the subject real estate to defendant to manifest his trustworthiness and good faith with respect to defendant.” This is not the language of an arm’s-length transaction, and transactions entered into to manifest trustworthiness and good faith imply a mutuality of both. It remains to be determined, nevertheless, whether or not the chancellor erred in his conclusion that Mrs. Stauffer took unfair advantage of Mr. Stauffer and fraudulently obtained his share of the property by means of threats and misrepresentations. Although the record supports the conclusion that Mrs. Stauffer’s behavior with regard to Mr. Gavin’s threatened lawsuit had a coercive effect on Mr. Stauffer, there is nothing in this alone to suggest that the lawsuit had not indeed been threatened or that her fears of its consequences were not genuine; in this regard, it may have been significant, however, that in his deposition her attorney testified that he did not recall her mentioning the lawsuit to him and that her father also testified he remembered nothing being said about it at the time. The chancellor, rather, based his ultimate conclusion of misrepresentation on the contrast between the apparently ongoing marital relationship he found before the conveyance and the “total abatement” of the relationship on the part of Mrs. Stauffer that followed shortly after it: “Immediately after the transfer of April 23, 1970, the Defendant effected a total abatement of family atmosphere toward the Plaintiff in the household, ceased sexual relations with the Plaintiff and moved out of the bedroom. Admittedly, the Plaintiff and Defendant were in the midst of a domestic problem as evidenced by the confession of his adulterous relationship with the Defendant’s sister, but this Court is swayed by the severe contrast in Defendant’s behavior immediately after the transfer, the ‘hysterical outbursts’ immediately prior to the transfer, and the constant conversation concerning the threat of a lawsuit by Mr. Gavin. These factors lead us to the belief that the Defendant sought to secure complete interest in the property for herself and the Chancellor is satisfied that the means employed to obtain such an interest amounted to such undue influence through misrepresentations and threats as to grant the Plaintiff a reconveyance of his interest in the real property.” It is clear that a fraudulent intention at the time of a transaction can be inferred from the totality of the circumstances surrounding the transaction, including subsequent conduct on the part of the defendant. See DeBernard v. DeBernard, 384 Pa. 194, 120 A.2d 176 (1956); Grove v. Kase, 195 Pa. 325, 45 A. 1054 (1900). We cannot, therefore, find that the evidence was insuf ficient to support the chancellor’s conclusion in this case. Appellant further contends that, regardless of whether the imposition of a constructive trust would ordinarily have been justified, appellee should have been barred from affirmative relief because, as a result both of his attempted fraudulent conveyance and of his adultery, he did not come into a court of equity with clean hands. The clean hands doctrine, however, does not require that a plaintiff be denied equitable relief merely because his conduct has been shown not to have been blameless. The bar of unclean hands is applicable in Pennsylvania only where the wrongdoing of the plaintiff directly affects the equitable relationship subsisting between the parties and is directly connected with the matter in controversy. Pennsylvania Society for the Prevention of Cruelty to Animals v. Bravo Enterprises, Inc., 428 Pa. 350, 237 A.2d 342 (1968). Furthermore, the application of the doctrine to deny relief is within the discretion of the chancellor, and in exercising his discretion the chancellor is free not to apply the doctrine if a consideration of the entire record convinces him that an inequitable result will be reached by applying it. Universal Builders, Inc. v. Moon Motor Lodge, Inc., 430 Pa. 550, 244 A.2d 10 (1968); Shapiro v. Shapiro, 415 Pa. 503, 204 A.2d 266 (1964). In the present case, we do not find that the chancellor abused his discretion in declining to apply the doctrine. In both his pleadings and his testimony at trial, Mr. Stauffer indicated that he conveyed the property in order to save it from being seized to satisfy judgment in Mr. Gavin’s purported lawsuit based on the alienation of his wife’s affections. It is clear that one with a legal claim against a person at the time that person makes a conveyance, even one that has not yet been reduced to judgment or even filed, is a future creditor who is entitled to set aside the conveyance if he can show it was made with actual intent to hinder, delay, or defraud present or future creditors. Uniform Fraudulent Conveyance Act, Act of May 21, 1921, P.L. 1045, No. 379, § 7, 39 P.S. § 357; Baker v. Geist, 457 Pa. 73, 321 A.2d 634 (1974); Butler County v. Brocker, 455 Pa. 343, 314 A.2d 265 (1974). Indeed, it has been specifically held that a husband with an existing though unliquidated claim for damages for the alienation of his wife’s affections is a creditor entitled to set aside a conveyance if it is found to be fraudulent. Hatton v. McElhaney, 20 Pa. D. & C. 110 (1933). There can be no doubt in the instant case that Mr. Stauffer intended to make a fraudulent conveyance. The fact remains, however, that he was mistaken in his assumption that his entireties property jointly held with his wife could have been reached by a creditor of him alone; property owned by tenants by the entireties is not subject to the debts of either spouse, and they may alien it without infringing upon the rights of their individual creditors. Murphey v. C. I. T. Corp., 347 Pa. 591, 33 A.2d 16 (1943). Since Mr. Gavin could not have reached the property before the conveyance, it follows that the conveyance itself could not have been fraudulent as to him. Appellant nevertheless argues that the applicability of the clean hands doctrine in this case should be determined, not by whether or not the conveyance was actually fraudulent, but by whether or not appellee’s intent was fraudulent; she urges that in the criminal law impossibility is no defense to a charge that one has attempted a crime. The considerations pertinent to the criminal law, however, are not necessarily those pertinent in a court of equity. Although there are older cases to the contrary, it is now well-settled in Pennsylvania that the clean hands doctrine is only applicable to the equitable relations between the parties and that a party not affected by the fraud, whether actual or intended, is in no position to assert it as grounds for the denial of affirmative relief. See Dales v. Muir, 351 Pa. 187, 40 A.2d 476 (1945); Vercesi v. Petri, 334 Pa. 385, 5 A.2d 563 (1939); Asam v. Asam, 239 Pa. 295, 86 A. 871 (1913); Bechtel v. Ammon, 199 Pa. 81, 48 A. 873 (1901); Walacavage v. Walacavage, 168 Pa.Super. 334, 77 A.2d 723 (1951). This is particularly so in a case like the present one, in which the chancellor determined that the attempted fraudulent conveyance was induced by the very party who now asserts the claim of unclean hands with respect to the transaction. See Palmer v. Foley, 305 Pa. 169, 157 A. 474 (1931). As for Mr. Stauffer’s adulterous relationship with Mrs. Gavin, it is clear that it directly affected the equitable relationship between the parties, but the question remains whether or not it was directly connected with the subject matter in controversy. Certainly there can be no doubt that the transaction in question would not have occurred had there been no adultery, and we therefore cannot say that it was merely collaterally or indirectly connected with it. Cf. McLaughlin v. McLaughlin, 410 Pa. 1, 187 A.2d 905 (1963); Hartman v. Cohn, 350 Pa. 41, 38 A.2d 22 (1944); Belmont Laboratories, Inc. v. Heist, 300 Pa. 542, 151 A. 15 (1930). Nev ertheless, we cannot find on the facts of this case that the chancellor abused his discretion in declining to bar appellee from affirmative relief. This Court has stated that “Equity will not stand aside a plaintiff whose rights have been transgressed and permit them to be appropriated because of previous bad conduct, and if the plaintiff offers reparation for what he has done, he may be granted relief, contingent upon repairing the injury he has inflicted.” Hartman v. Cohn, supra, 350 Pa. at 46, 38 A.2d at 25. It may well be that the injury appellee has done to his wife and to his marriage is indeed irreparable, yet the record indicates that after the discovery of his adultery he has acted in good faith toward appellant. After confessing and terminating the adulterous relationship, he made the conveyance in question, according to appellant’s own pleadings and testimony, for the purpose of securing his wife and children from the consequences of his prior conduct. The record also shows that after the conveyance he continued to make the mortgage payments due on the property. As for his wife, according to the chancellor’s findings, after she learned of the adultery, she continued to live with him and maintain a marital relationship until the time of the transfer in issue. The chancellor here found that appellant fraudulently induced appellee to make the transfer after she learned of the adultery and while she continued to live with him as his wife. It would be inequitable to permit her to be unjustly enriched because of his previous adulterous conduct. The decree is affirmed. Costs to be paid by the parties in equal parts. JONES, C. J., and POMEROY and NIX, JJ., concur in the result. ROBERTS, J., filed a dissenting opinion. . See Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P.L. 673, No. 223, art. II, § 202, 17 P.S. § 211.202(4). . In Butler v. Butler, 464 Pa.-, 347 A.2d 477 (1975), we held that in light of the passage of the Pennsylvania Equal Rights Amendment, Pa.Const. Art. I, § 28 (adopted May 18, 1971), a contribution to entireties property by either husband or wife must be presumed a gift to the other. Since Butler merely states that the presumption of gift, previously applied only to transfers by the husband, must be applied equally to transfers by either party, it contains nothing to disturb the established presumption of gift in cases where, as here, the transfer was from the entireties estate to the wife alone. . It can, of course, be argued that Mrs. Stauffer’s alleged behavior on this occasion is evidence not of her dominance, but of her weakness, but this would be to ignore the extent to which weakness, whether real or apparent, can be a source of power over one who feels a sense of guilt or responsibility with regard to that person. Appellant points out that Stewart v. Hooks, 372 Pa. 542, 94 A.2d 756 (1953) approves a presumption of masculine dominance in a marital relationship. Such a presumption can, of course, be overcome by the facts in a particular case, but in any case such a one-sided presumption with regard to the sexes can no longer stand. See Butler v.-Butler, supra.. . The lawyer testified by deposition that Mrs. Stauffer had said nothing to him about an impending lawsuit, and that his understanding from her was that the parties had agreed upon the transfer as a means of securing the wife and children “in the eventuality there was a break-up of the marriage.” Mr. Stauffer’s testimony, however, indicates that he connected his wife’s urging that he save the house by making the conveyance with the advice she was receiving from the attorney. . Mr. Gavin did not testify at the trial. The record indicates that he brought no lawsuit, however, and that such an action is now barred by the statute of limitations. . In his discussion the chancellor stated that the “total abatement” of marital relations followed “immediately” after the transfer, while his finding of fact was that it occurred “shortly after the conveyance.” Mr. Stauffer actually testified that his wife moved out of their bedroom and became completely estranged from him on the third day after the conveyance. While the legal conclusion of fraud and misrepresentation would have been more strongly supported had the record indicated that the termination of marital relations was immediate rather than a few days later, we cannot find as a matter of law that the chancellor’s conclusion was incorrect, since there is no requirement that the subsequent conduct that will justify an inference of fraudulent intent be immediate. . The issue has not been raised, and therefore we have not considered whether Mr. Stauffer would have been entitled to the imposition of a constructive trust on the theory that the conveyance was made under a mistake of law. See 5 A. Scott, Law of Trusts § 465 (3d ed. 1967). Cf. Norard Hosiery Mills, Inc. v. Orinoha Mills, 416 Pa. 454, 206 A.2d 56 (1965); First National Bank of Sunbury v. Rockefeller, 333 Pa. 553, 5 A.2d 205 (1939). . Compare Williamson v. Williamson, 57 Pa.D. & C.2d 413 (1971). There the husband abandoned his wife and home and maintained adulterous relationships for three and one-half years. During this period his wife, daughter, and son-in-law paid all tax, insurance, and repair expenses in connection with the home. Finding a court order to support his wife too onerous, he finally threatened to move back into the house unless his wife released him from the order. When she refused, he tried to force his way into the -house, and when he was ejected, he brought an action in equity against his wife, son-in-law, and daughter seeking an injunction compelling them to cease interfering with his right of peaceful possession in the entireties property. In the course of the hearing, his wife testified that she would admit him into the home if he stopped his philandering and resumed the marital relationship, but he candidly a’dmitted that he had no intention of doing so and only brought the action in order to force his wife to release him from the support order. Confronted with this continuing course of opprobrious conduct toward the defendant, far in excess of the original adultery, the chancellor applied the clean hands doctrine and barred him from equitable relief.

Opinion by Mr. Justice Brown, Lewis J. Somers, the father-in-law of the plaintiff, purchased from the Columbia Field Club eight tickets for a theatrical performance to he given on February 26, 1904, at a theater in the city of Philadelphia under the management of the appellees. They had issued a certain number of tickets to the club, to be sold by it, as the performance was to be for its benefit. After the tickets had been issued to it a fire commission, appointed by the mayor of the city, directed the aisles of the theater to be widened as a measure of greater safety to the public by removing the end seat on each row of the center section. The eight tickets purchased by Somers were in the fifth row of this section and were numbered from 1 to 8, No. 1 being for the one along the aisle. Two of these eight tickets — Nos. 3 and 4 — -were purchased by plaintiff from his father-in-law. The order of the fire commission led to some confusion in connection with the sales of seats, as the appellees did not know who had purchased tickets from the club before the order was complied with, but arrangements were made to issue other tickets to the holders of those for the seats along the aisles which had been removed. By some oversight all of the eight seats called for by the tickets purchased by Somers were resold, and when he and his family presented their coupons to the usher they were informed that they could not, under the circumstances, be given the seats called for. They were offered eight together elsewhere, as they insisted upon being seated as a family, but these were declined as being too far back. They were then offered seats in two of the boxes, but these were refused, on the ground that, as they had come as a family, they insisted upon sitting together, and in the seats called for by their coupons. In view of the alterations made in pursuance of the order of the fire commission it was impossible for the managers of the theater to give the family these eight seats, but, according to plaintiff’s own testimony, they courteously offered to seat them elsewhere. The party, however, refused every proposition and became noisy, to the annoyance of those witnessing the performance, which had commenced. They were told that they could not continue discussing the matter inside of the theater and were directed to go outside, where, according to the testimony of the treasurer of the appellees, they were tendered back the money they had paid for their tickets. After having so declined every offer to give them other seats to witness the performance, they left the theater, and the plaintiff shortly afterwards brought this action to recover the price of the tickets purchased by him, and “ for the inconvenience and annoyance and mortification and indignity and humiliation suffered ” by him. Under the foregoing facts the court below directed a verdict for the defendants, for the reason that there could be no recovery in trespass — the form of action adopted by the plaintiff — and the single question before us is the correctness of this ruling. It was so manifestly correct that the judgment might well be affirmed without saying more. The ease as presented by the plaintiff has not a single tortious feature. He had purchased a ticket, calling, on its face, for a seat which he insisted on having, and it was the duty of the defendants to give it to him ; but their failure to perform that duty was simply a failure to perform their contract with the holder of the ticket, and for such failure, the remedy, as in any other simple breach of contract, is in assumpsit for damages for the breach. The confusion resulting from the change in the rows of seats, which followed the order of the fire commission, was the excuse given for not being able to furnish the family the seats called for by the tickets, and it ought to have been accepted by any reasonable person. The plaintiff, if not willing to take any of the other seats offered to him, ought to have been content to have his money refunded. In support of the contention that the appellant has a right of action in trespass, decisions in cases of common carriers are cited, in which trespass was held to have been the proper form of action for refusal to carry passengers, or for unlawfully ejecting them without force or violence. But the difference between the duty of a common carrier and that of a theater proprietor has been wholly overlooked. That of the former is absolute to carry whoever may wish to be carried. It is a duty growing out of no contract, but rests at all times on the common carrier in return for the franchises and privileges conferred by the state. If, in violation of this duty, it refuses to receive a passenger, or unlawfully ejects him from one of its conveyances, trespass will lie upon the disregard of the implied obligation to serve the public, or the tort may be waived and assumpsit maintained for a breach of the contract of carriage, if one has been entered into. The rule is thus stated in Vol. 15, Ency. of Pleading & Practice, 1121 : “ It may be stated as an abstract proposition that where the duty of a common carrier to a passenger is not one which is implied by law by reason of the relation of the parties, but depends solely upon the fact that it has been expressly stipulated for, the remedy is in contract and not in tort; 'but where the duty is implied by law by reason of the relation of the parties, or where the passenger sustains an injury by reason of the breach of a duty which the railroad owes to the public in general, the remedy is in tort.” “ When the gist of the action is a breach of duty and not of contract, and the contract is not alleged as the cause of action, and when from the facts alleged, the law raises the duty by reason of the calling of the defendant, as in the case of innkeepers and common carriers and the breach of duty is solely counted upon, the rules applying to actions ex delicto determine the rights of the parties: ” Frink v. Potter, 17 Ill. 406. “ The liability of a carrier of passengers is a subject which has become of great practical importance since the introduction of railroads, and the subject of the measure of damages for breach of contract of carriage of a passenger has been much discussed. The relation between carrier and passenger is more than a mere contract relation; indeed, it may exist in the absence of contract. It is clear that any person rightfully on the cars of a railway company is entitled to protection by the carrier, though he is a free passenger. Any breach of this duty owed by the carrier to the passenger would seem to be a tort: recovery may be had either in an action of tort or in an action for breach of the contract. The contract made by a common carrier of passengers (and we shall see that the same is true of contracts made by all incorporated telegraph companies) is not simply a voluntary engagement such as an ordinary contract inter partes, but an agreement made in pursuance of an obligation towards all the world imposed either by his mere status as common carrier, or under his charter, or both. In other words, it is a contract which he is under a duty to make, and under a duty to perform, so that a breach is not a mere breach of contract, but also, as we have said, a tort: ” 2 Sedgwick on Damages, (8th ed.), sec. 859. The proprietor of a theater is a private individual, engaged? in a strictly private business, which, though for the entertain-! ment of the public, is always limited to those whom he may agree to admit to it. There is no duty, as in the case of a common carrier, to admit every one who may apply and be willing to pay for a ticket, for the theater proprietor has acquired no peculiar rights and privileges from the state, and is, therefore, under no implied obligation to serve the public. When he sells a ticket he creates contractual relations with the holder of it, and whatever duties on his part grow out of these relations he is bound to perform, or respond in damages for the breach of his contract, if it is of that only that complaint can be made. Such is just the situation here. A courteous explanation was made why the contract with the plaintiff as the holder of the ticket issued by the defendants could not be specifically performed; other seats in different parts of the house were offered to him and the rest of the family, which could have been occupied by them together as one party, but were declined; seats in the proscenium boxes were refused, because the party would be separated, and even after all this ■ they were not evicted from the building, but simply told that their loud discussion of what they conceived to be the great wrong done them could not be carried on inside the theater, to the annoyance of those who were witnessing the performance; and, without rudeness or violence, they were directed to go into the foyer, where they continued to discuss the situation. They could have had seats at any time, but would take none except those called for by their tickets. The allegation of the plaintiff, in his attempt to make out a case of trespass against the appellees, is that, by their conduct, he was unlawfully ejected from the theater, to his mortification, indignity and humiliation. The proof is just to the contrary, and shows nothing but a simple breach of a simple contract, resulting from a cause which • was explained to him and which ought to have been regarded as unavoidable. But he and some of the rest would listen to nothing but what their tickets called for. If the contract with him was broken, he is entitled to nothing more than the actual damages for the breach, and these, according to the testimony of the treasurer of the appellees, were tendered to him. In affirming this judgment nothing more would be said but for the citation of Drew v. Peer, 93 Pa. 234, as authority for the right of the plaintiff to maintain trespass. There is no analogy between the two cases. Peer and his wife, two colored persons, purchased tickets for reserved seats in the theater of the defendant. On the evening of the performance they passed through the street door and were within a few feet of the ticket taker at the entrance to the orchestra circle when the man who was taking the tickets cried out “ Clear them niggers out,” and they were violently ejected from the building. In aiT action in case a recovery was had and sustained, and it was said by Sterrett, J.: “ Whether the tickets conferred merely a license or something more is immaterial. If they gave only a license to enter the theater and remain there during the performance, it is very clear that the agents of the defendant had no right to revoke it as they did, and summarily eject Peer and his wife from the building, in such manner as to injure her. We incline to the opinion, however, that as purchasers and holders of tickets for particular seats they had more than a mere license. Their right was more in the nature of a lease, entitling them to peaceable ingress and egress, and exclusive possession of the designated seats during the performance on that particular evening.” All that was decided was that the defendant had no right to revoke the license in the manner she did and violently and rudely eject the plaintiff and his wife from the theater. The suit was for damages resulting from their rude ejection, and what is said about the tickets being more than a mere license is to be regarded as simply obiter dictum. Even as such it is certainly not in accord with the authorities in this country and in England. “ Licenses which are given by the sale of tickets to theatres and other places of amusement are revocable: ” Cooley on Torts (2d ed.), p. 306. “A theatre ticket being a mere license to the purchaser which may be revoked at the pleasure of the theatrical manager, upon such revocation, if the person attempts to enter, or if, having previously entered, he refuses to leave upon request, he becomes a trespasser, and may be prevented from entering or may be removed by force, and can maintain no action of tort therefor. His only remedy is by an action on the contract to recover the money paid for the ticket and damages sustained by the broach of the contract implied by the sale and delivery of such ticket:” Vol. 21 Ency. of Pleading & Practice, 647. Among the cases sustaining this are Wood v. Leadbitter, 13 M. & W. 838; McCrea v. Marsh, 78 Mass. 211; Burton v. Seherpf, 83 Mass. 133; Pearce v. Spalding, 12 Mo. App. 141; Johnson v. Wilkinson, 139 Mass. 3 ; Greenberg v. Western Turf Assn., 140 Cal. 357. In the light of these and other authorities a theater ticket is to be regarded as a mere license, for the revocation of which before the holder has actually been given his seat, and has taken it, the only remedy is in assumpsit for the breach of the contract. Judgment affirmed.

The opinion of the Court, filed was delivered by Black, C. J. The Bank of Pennsylvania was first chartered in 1793. The charter was renewed in 1810, and afterwards again in 1830. By the last-mentioned act the Bank was incorporated for twenty-five years, with a capital of two and a half millions of dollars, and was required to loan to the Commonwealth a sum not exceeding four millions of dollars at a premium of five per cent., the certificates to bear an interest of five per cent. It was also enacted that all certificates of state stock should be issued and transferred at the Bank of Pennsylvania, without charge either to the Commonwealth or to the persons making such transfers. These conditions of the charter were accepted and complied with. The state Avas the owner of three-fifths of the capital stock, and for that reason or some other this Bank was not made subject to .the graduated tax upon dividends provided for by the act relating to banks, passed 1st April, 1835. But in 1843 the state sold out her shares of the stock, and in 1848 a law was passed extending the act of 1835 to all banks whose charters had been renewed or should afterwards be renewed, “ except in cases where there is an express exemption in the act extending or reneiving their charters.” The Auditor-General, deeming the Bank of Pennsylvania within the terms of this act, made out an account against it for taxes unpaid in 1848, 1849, and 1850, amounting, with interest, to $51,068.75. From this account the Bank appealed to the Common Pleas of Dauphin,, whose judgment Avas in favor of the Commonwealth. The case comes to us on writ of error. The charter contains no express stipulation on the part of the state not to tax the Bank or its stockholders, either for its property, its profits, its capital, or its franchises. It is therefore literally within the terms of the act of 1848. It can relieve itself from the payment of the tax only by showing the act which imposes it to be unconstitutional and void. This it asserts is the case, on the ground that the charter was a contract, and the act of 1848 a violation of it. That an act of incorporation is a contract betAveen the state and the stockholders, is held for settled law by the Federal Courts and by every State Court in the Union. All the cases on the subject are saturated with this doctrine. It is sustained not by a current, but by a torrent of authorities. No judge who has a decent respect for the principle of stare decisis — that great principle which is the sheet anchor of our jurisprudence — can deny that it is immovably established. Sitting here to declare the law as it is, not- as we would have it to be, our private opinions are not entitled to a feather’s weight in opposition to the universal voice of our predecessors and our cotemporaries .in every part of the country. 'I say this for myself alone. My brethren think the question does not arise here, and have given me no authority to commit them on it. But we are all willing, though for different reasons, to concede the correctness of the argument for the plaintiff in error, so far as it asserts that the charter is a contract. This being assumed, what is the true construction of it ? I have already said that there is no exemption from taxation stipulated for in the charter. The act of incorporation is entirely silent on that subject. We are then to consider whether the state lost the power to tax the dividends of the Bank by not reserving it in words, or whether the Bank, by not bargaining for exemption, left its stockholders liable to pay out of their profits a share of the public expenses. We think the latter proposition is true, and not the former. The taxing power is an incident of the highest sovereignty. It is an essential part of every independent government. By the constitution, and by the principles which lie at the foundation of every organized society, the state may tax all the persons, natural and artificial, within her borders, and compel them to contribute such part of their property and income as the Legislature may think right, to defray the expenses and meet the engagements of the government. The wealth of men who are associated together is not less subject to taxation than if it were owned by individuals. The right is as clear to tax an incorporated company as a mercantile partnership. The state being in full possession of this power at the time of the contract in question, it is impossible to see how she could have lost it by not bargaining with the Bank for permission to keep it. It is the appointed duty of the Legislature to use the power of taxing the people with justice and moderation, and not to alien it away. To sell out this part of the state’s sovereignty is not one of their regular functions. It is intrusted to the legislative department not to be annihilated, but to be exercised and administered. The power is given by all, and ought to operate on all for the benefit of all. To exempt some would be to increase the burdens of others. Taxation, to be just, must be equal, and to be equal, it must be universal. The whole community has, therefore, a deep interest in retaining the power undiminished in the hands where the constitution has placed it. Chief Justice Marshall (4 Peters 561) thought it so important that he seemed to doubt whether a state could relinquish it at all. That it can be surrendered, at least partially, has since been settled in Gordon v. The Appeal Tax Court (3 Howard 146). But surely, a power so vitally necessary to the very existence of a state, is not to be taken as surrendered, relinquished, and given up, by a contract which says nothing about it. If acts of incorporation are to be so construed as to make them imply grants of privileges, immunities, and exemptions, which are not expressly given, every company of adventurers may carry what they wish without letting the Legislature know their designs. Charters would be framed in doubtful or ambiguous language, on purpose to deceive those who grant them; and laws which seem perfectly harmless on their face, and which plain men would suppose to mean no more than what they say, might be converted into engines of infinite mischief. The Legislature, without knowing or intending it, might be thus induced to disarm the state of its most necessary powers, and transfer them to corporations. The continued existence of a government under such circumstances would not be of much value. There is no safety to the public interests except in the rule which declares that the privileges not expressly granted in a charter are withheld. Again: where is the end of a claim like this ? If the privilege of being exempt from taxes may be asserted by a bank because its charter does not say that it shall be taxed, what other privilege may it not claim on the same ground ? If silence is a gift of one privilege, why shall it not confer every other ? This rule of interpretation would make every act of incorporation a grant of unlimited' power, except in so far as the power might be limited by express reservations in favor of the state. Taking no other than the simplest commercial view of the transaction ; forgetting the injustice' of freeing one portion of the people from the public burdens, and accumulating them all upon the rest; considering the members of the Legislature as the mere factors of the state for the sale of immunities and privileges, and the Bank as a purchaser, the question still recurs, what and how much did it buy ? If the government is to be looked on as a dealer in commodities of this sort, the right conceded to other traders ought not to be denied her of retaining whatever she does not choose to part with. A man who has two acres of land and conveys one of them, does not thereby lose his title to the other. If I sell my horse, the purchaser does not by that means gain a right to my ox. The interpretation which wrouId make the silence of the charter imply a relinquishment of the taxing power, is against all analogy. Where land or other property is granted by the state, the grantee does not take it free from, taxation. I do not know a single argument in favor of implying such an exemption from a bank charter which would not apply with quite as much force to a patent for land. If an act of incorporation is a contract, so is a patent. If the payment of a bonus for the charter implies that no more shall be paid, the same inference may be made from the payment of purchase-money of land. If a bank may be taxed so heavily as to take all its profits, the power, when exercised upon land, maybe as much abused. The powers exercised by Congress under the Constitution of the United States, are made up of those delegated to the federal government by the states. But the powers not delegated are reserved ; and though an amendment was added which declared this to be the construction, it was not doubted that it ought to be so interpreted, independent of any provision in the instrument itself. The amendment was opposed, on the sole ground that it was useless ; and its adoption only proves how jealous the people were of the rights of the states. It will take more than we have yet heard to convince us that the silence of the Constitution has withheld the sovereign powers of the state from the general government only to be absorbed by acts of incorporation, which are equally silent. We are not satisfied that a bank charter, intended merely to make money for a few private individuals, should he more liberally construed than that great compact ordained by the people of the states for the most important of all earthly purposes, “ to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to themselves and their posterity.” The argument of the plaintiff in error is not only contrary to reason, against sound policy, inconsistent with the public safety, and opposed to plain analogy; but, what is perhaps more to the purpose, it is also in direct contradiction of the judicial authorities. It would be losing time to refer to cases abroad, when those decided in the Supreme Court of the United States (which, in cases like this, is the tribunal of the last resort) are conclusive, direct, and full to the point. The Providence Bank v. Billings (4 Peters 514), is so much like the case at bar, that no material difference is discernible. The Legislature of Rhode Island, in 1791, granted to the Providence Bank a charter, which, like that of. the Bank of Pennsylvania, was silent on the subject of taxation. In 1822, a law was passed taxing its capital. The payment of the tax was resisted as a violation of the charter; but the Court were unanimously of the contrary opinion, and declared that an abandonment of the taxing power could never be presumed in any case where the deliberate purpose of the state to abandon it did not appear. “ This power,” said the Court, “resides in government as part of itself, and need not be reserved when property of any description or the right to use it in any rqanner is granted to individuals or corporate bodies. However absolute the right of an individual may be, it is still in the nature of that right that it must bear a portion of the public burdens, and that portion must be determined by the Legislature.” In The Charles River Bridge v. The Warren Bridge (11 Peters 420), the same principle was reaffirmed in still stronger and broader terms. It was held -in that case that no contract can be created between the state and a corporation by implication; and that all the privileges, exemptions, and immunities not granted in plain words, are reserved to the state. “ Whenever,” says Chief Justice Taney, “any power of the state is said to be diminished, whether it be the taxing power or any other affecting the public interests, the same principle applies, and the rule of construction must be the same.” These cases are in entire harmony with others in the same Court, (4 Peters 165; 3 Peters 289), and with the English cases decided before and since. These decisions of the Supreme Court of the United States are binding on the State Courts, not merely as precedents, and therefore proving what the law is, but as the deliberate judgment of that tribunal with whom the final decision of all such questions rests. The State Courts have almost universally followed them. But no tribunal in the Union has acceded to the rule they lay down with a more earnest appreciation of its justice than did this Court in The Bank of Easton v. The Commonwealth (10 Barr 442). That was a much stronger case against the Commonwealth than the one now before us. There the charter was not entirely silent on the subject of taxation. The Bank was required to pay taxes at a fixed rate, and that rate was increased by subsequent legislation. It was plausibly argued that the rate of taxation agreed upon in the charter implied a contract on the part of the state to claim nothing more. But it was held otherwise, on the ground that if such an exemption existed, it must be the result of a deliberate intention to relinquish this prerogative of sovereignty distinctly manifested. The Court declared that “ to give the Act of incorporation such a construction would be a gross violation of the wholesome principle that an abandonment of the power of taxation is only to be established by clearly showing this to have been the deliberate purpose of the state.” If anything is settled, it is this rule of construction, that a corporation takes nothing by its charter except what is plainly, expressly, and unequivocally granted; and that in all things else the powers which the state may exercise over its affairs are as full and ample as if it were an individual carrying on the same business. When this principle comes to be applied to the case in hand, the argument of the plaintiff in error dissolves into nothing. Two cases decided by State' Courts have been cited, and apparently relied on with some confidence, in which it was held that certain banks were impliedly exempt from taxation, though there was no express stipulation to that effect. One is The State of Ohio v. The Commercial Bank of Cincinnati (7 Ohio Rep. 125); the other is The Union Bank v. The State of Tennessee (7 Yerger 490). These cases resemble that of the Easton Bank more than the one before us. In both, the grants were stronger than this; in both, the authorities were totally overlooked or disregarded; and in neither of them is the reasoning of the Court at all satisfactory. The judge of the Common Pleas, among the reasons given for his opinion, said that this tax was imposed on the property of the stockholders, and not on the franchises of the Bank. I do not see why this should have been excepted to, since we can only take notice of false conclusions, and not .of bad reasoning. But we have no doubt the judge was right. The tax is not laid nor exacted until the dividends are declared, and then they are held by the Bank as a depository. The Bank is liable to an action for refusing to pay them. But it makes no difference whether they be called the franchise of the corporation or the property of the corporators; in either case they may be taxed. In the Providence Bank case the capital was taxed. Profits are quite as legitimate, and cer tainly a much fairer subject of taxation than capital without regard to its productiveness. It was shown on the trial, that numerous other hank charters expressly reserved the right of taxation; from which the inference is attempted to be drawn, that without such a reservation the Legislature supposed the right would be gone. We can only say that if such was the opinion of the Legislature, it was a mistake; but it does not change the law. Probably, however, it was done, not in ignorance, but from a wise caution. It may have been prompted by a natural and prudent desire to take away from the banks all possible pretence for resisting the lawful authority of the Commonwealth. The Court below charged the jury that the evidence of public embarrassment, the proclamation and message of the Governor, the journals of the House of Representatives, and the reports of its committees, should be wholly disregarded. What less could any Court be expected to do with such evidence ? It was not only of no value, but it was delusive and dangerous. The impropriety of giving any attention to facts and circumstances outside of the record ought to be • very easily seen. The act of incorporation, as it passed both Houses and was approved by the Governor, contained no exemption from taxes. In that shape the stockholders, at a meeting twelve days afterwards, accepted and agreed to it, and resolved that “ the several provisions of the said act shall be binding on this corporation, according to the true intent and meaning thereof.” With what show of propriety can they now go behind the charter and say that their assent was not given to “ the several provisions of the said act,” but to something else not contained in it ? If it were allowable to look beyond the written contract for evidence of its terms, if it were not the law that a previous oral agreement is merged in a subsequent written one, still the evidence here would amount to nothing, for none was given which showed that there ever existed anything like an understanding or agreement that the Bank should be exempt from taxation. If the Governor and every member of both Houses had been willing to insert such a stipulation in the act, it would not have been binding until it was actually inserted and accepted by the other party. But no willingness to do so was expressed by the Legislature. The Governor and Senate said nothing on the subject. The journals given in evidence are those of the House only. And what do they prove ? Merely that a minority of that one House was in favor of providing for an annual tax instead of requiring a loan. But of course the majority had it their own way, carried the clause which made the loan a condition, and left the taxing power where it was before, without either surrendering it to the Bank or going through the useless formality of reserving it to the state. Judgment affirmed.

OPINION, Me. Justice Mitchell : The place of the accident was in the public road, where both parties had a right to be, and where each, therefore, was bound to be on the lookout for the other: Schmidt v. McGill, 120 Pa. 405. But the right of the defendant’s cars was superior. They were confined to the track, and on that they had the right of way, to which the use by other parties, on foot or otherwise, was of necessity subordinate. The plaintiff, on the other hand, could use the whole road, and which part of it she took was merely a matter of convenience. That defendant in clearing its track from snow for the passage of its cars had made it also more convenient for plaintiff to walk on, could not be turned to its disadvantage, or enlarge the plaintiff’s rights over that part of the public road. They were still subordinate to defendant’s right of way: Jatho v. Railway Co., 4 Phila. 24; Thomas v. Railway Co., 132 Pa. 504; Adolph v. Railway Co., 76 N. Y. 530. These being the respective rights of the parties, the plaintiff came to a point on the road where the defendant’s track ran through a snow-drift, for a distance estimated by plaintiff her self at half a block, where the snow had been removed from the track, leaving a passage just wide enough for the cars, with vertical walls of snow two or two and a half feet in height. It was plainly a place of danger for a foot passenger, in case a car should reach it, and therefore a place for unusual caution and vigilance. But the rest of the road was, as plaintiff testified, ankle deep in snow and slush, and plaintiff took the more dangerous, but more comfortable way. She says she looked just before she went into the cut, to see if there was ■ a car behind her, and saw none. But on this, the pivotal point of the case, the uncontradicted evidence is overwhelmingly against her. The drift was at the top of a hill or rise, from which there was an unobstructed view in the direction from which the car was coming, fixed by plaintiff’s own witnesses at quarter to half a mile, and up this hill the car came at a moderate speed, with bells that could be heard for forty rods. Yet plaintiff herself says she had got but a little way into the passage before the car came upon her. It is unquestionable that the car must have been plainly in sight at the time she entered this dangerous path, and if she looked at all it must have been a mere heedless glance, which all the evidence shows was not an adequate performance of the duty the situation required. The case belongs clearly to the class of Carroll v. Railroad Co., 12 W. N. 348, and required the court to pronounce plaintiff negligent as matter of law. The defendant’s second point should have been affirmed. As this point is conclusive of the case, it is not necessary to discuss the others. Judgment reversed.

The opinion of the court was delivered, April 5th 1873, by Read, C. J. This is a writ of error to the Criminal Court of Schuylkill county, sued out under the Act of the 15th February 1870, upon the oath of the defendant, and brings, up the whole record. The constitutionality and jurisdiction of this court have been finally settled in Commonwealth v. Green, 8 P. F. Smith 226, and in Commonwealth v. Hipple, 19 Id. 9, and its concurrent jurisdiction with the Courts of Quarter Sessions of the Peace and Oyer and Terminer and General Jail Delivery of the County of Schuylkill, is fully recognised and established by the Act of 22d April 1870 (Pamph. L. 1254), and the court below were therefore right in overruling the plea to the jurisdiction, entered by the defendant. On the preliminary hearing before the committing magistrate, the defendant and his counsel being present, a witness was examined whose testimony was taken down by defendant’s counsel,' and the witness having died before the trial, the notes of his evidence proved by the counsel under oath, were offered in evidence, objected to and admitted. It was objected that by the Constitution of the state, the defendant was entitled to meet the witnesses face to face. The doctrine on this subject is thus laid down in the 3d volume of Russell on Crimes, by Greaves, 4th edition, 1865, page 249. “ If there has been a previous criminal prosecution between the same parties, and the point in issue was the same, the testimony of a deceased witness, given upon oath at the former trial, is admissible on the subsequent trial, and may be proved by any one who heard him give evidence,” and the same is repeated at page 424, in the note. We find the same rule in 1 Phillips & Arnold’s Evidence, pp. 306-7, and in 1 Pitt Taylor on Evidence, 4th edition, 1864, pp. 445 447. Dr. Wharton, in his valuable Treatise on Criminal Law in the United States, vol. 1, p. 667, says: “ The testimony of a deceased witness given at a former trial or examination, may be proved at a subsequent trial by persons who heard him testify. Even the notes of counsel of the testimony of such witness on a former trial between the same parties, touching the same subject-matter, are evidence when proved to be correct in substance, although the counsel does not recollect the testimony independently of his notes. The better opinion seems to be that it is sufficient to prove the substance of what the deceased witness said, provided the material particulars are stated, though it has been sometimes held, that unless the precise words could be given, the testimony would be rejected.” In The Commonwealth v. Richards, 18 Pick. 434, it was held that the 12th article of the Declaration of Rights, which provides that in criminal cases the accused shall have the right “ to meet the witnesses against him face to face,” is not violated by t]ie admission of testimony in a criminal trial before a jury to prove what a deceased witness testified at the preliminary examination of the accused before a justice of the peace.” This case was affirmed seven years afterwards in Warren v. Nichols, in 6 Metc. 261, and the further ruling in that case “ that the whole of the testimony of the deceased witness upon the point in question, and the precise loords used by him must be proved,” was substantially affirmed. Hubbard, Justice, dissented from this ruling and assigned very cogent reasons against it. £( As the decision now stands,” says this able judge, “it prescribes a rule for the admission of testimony, which the imperfection of our nature, in the construction of our memories, will not warrant. It in truth excludes the thing it proposes to admit, and at the same time opens a door for knaves to enter, where honest men cannot approach.” “ Other learned judges have maintaned, that a rule so rigid was unwise, and I confess, I prefer the reasoning of Gibson, J., in the ease of Cornell v. Green, 10 S. & R. 16, to that of the learned judge in Commonwealth v. Richards, and with him agrees also the learned author of the Treatise on the Law of Evidence.” 1 Greenl. § 165. Upon this subject the ablest discussion of the whole question is to be found in the opinion of Judge Drummond, in The United States v. Macomb, 5 McLane’s Rep. 286, delivered in the Circuit Court of the United States for the District of Illinois, at July Term 1851. At the preliminary examination, a witness, since deceased, testified in relation to the offence, which was robbing the mail. The accused was present and his counsel cross-examined the witness. Witnesses were permitted on a trial before a jury, under an indictment found for the same offence, to prove what the deceased witness testified to at the preliminary examination. It is sufficient in such case to prove substantially, all that the deceased witness testified upon the particular subject of inquiry. A decision upon the same point is to be found in United States v. White, 5 Cranch’s Circuit Court Rep. 460. The 6th article of the amendments to the Constitution of the United States provides that in all criminal prosecutions the accused shall enjoy the right “ to be confronted with the witnesses against him.” The Constitution of Pennsylvania of 1776, provided “that in all prosecutions for criminal offences, a man hath a right to be confronted with the witnesses.” The Declaration of Rights, in the Constitution of 1790, changed the phraseology from confronting, to “to meet the witnesses face to face.” The doctrine enunciated by Judge Drummond in 1851, was followed by the Supreme Court of Missouri, after a very exhaustive argument on the constitutional question, in The State v. Mc O’Blenis, in 24 Missouri (3 Jones) 402, and The State v. Baker, Id. 437, in 1857, and in The State v. Houser, 26 Missouri (5 Jones 431), in 1858, and by the Supreme Court of Ohio in Summons v. The State, in 5 Ohio (N. S.) 325, in 1856. In this state the most liberal rule has been adopted, in relation to the evidence of what was testified to by a deceased witness on a former trial or examination, as will be seen by referring to Cornell v. Green, 10 S. & R. 14; Chess v. Chess, 17 Id. 409; Moore v. Pearson, 6 W. & S. 50, and Rhine v. Robinson, 3 Casey 30, in which case Chief Justice Lewis said“The notes of counsel, showing what a deceased witness testified to on a former trial between the same parties touching the same subject-matter, are evidence when proved to be correct in substance, although the counsel did not recollect the testimony independent of his notes, and although he did not recollect the cross-examination.” To which may be added the decision in Phila. & Reading R. R. v. Spearen, 11 Wright 306, the opinion being delivered by my brother Agnew. There was, therefore, no error in the court admitting the notes of Mr. McCool of the testimony of Ewing, a deceased witness, in the examination before the committing magistrate, or the notes of any other counsel, or those of the committing magistrate himself. “ Upon the trial of any indictment for murder, or voluntary manslaughter, it shall and may be lawful for the defendant or defendants to except to any decision of the court, upon any point of evidence or law, which exception shall be noted by the court, and filed of record as in civil cases, and a writ of error to the Supreme Court may be taken by the defendant or defendants after conviction and sentence.” “If, during the trial upon any indictment for murder or voluntary manslaughter, the court shall be required by the defendant or defendants to give an opinion upon any point submitted and stated in writing, it shall be the duty of the court to answer the same fully and file the point and answer, with the records of the case:” Criminal Procedure Act of 31st March 1860, §§ 57, 58, Pamph. L. 444. Under this head is ranged the reception under objection of the dying declarations of Mrs. Kraemer, the wife of the murdered man. “ The dying declarations of a person who expects to die, respecting the circumstances under which he received a mortal injury, are constantly admitted in criminal prosecutions, where the death is the subject of criminal inquiry, though the prosecution be for manslaughter; though the accused was not present when they were made, and had no opportunity for cross-examination, and against or in favor of the party charged with the death.”- “ When every hope of this world is gone, when every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth, a situation so solemn and awful is con sidered by the law as creating the most impressive of sanctions.” 1 Wharton’s Criminal Law, § 669; 3 Russell by Greaves 250; 1 Greenleaf, §§ 156, 162, 346; 1 Taylor on Evidence 616. ‘^The contitutional provision,” says Dr. Wharton, “that the accused shall be confronted by the witnesses against him does not abrogate the common law principle, that the declarations in extremis of the murdered person in such cases are admissible in evidenceId. •In Woodsides v. The State, 2 Howard (Miss.) 655, the court, at p. 665, in answer to the constitutional objection that the prisoner had a right to be confronted with the witness against him, say: “But it is upon the ground alone, that the murdered individual is not a witness, that his declarations made in extremis can be offered in evidence upon the trial of the accused. If he were or could be a witness, his declaration upon the clearest principle would be inadmissible. His declarations are regarded as facts or circumstances connected with the murder, which, when they are established by oral testimony, the law has declared to be evidence. It is the individual who swears to the statements of the deceased that is the witness, not the deceased.” In Anthony v. The State of Tennessee, 1 Meigs 277, the court say, upon the first ground of objection, “ We are all of opinion that the Bill of Rights cannot be construed to prevent declarations properly made in articulo mortis from being given in evidence against defendants in cases of homicide.” The same doctrine is to be found in The State of Iowa v. Nash, 7 Iowa 347, and in Robbins v. State of Ohio, 8 Ohio St. R. (N. S.) 131; Com. v. Casey, 11 Cushing 417, and very directly in Com. v. Carey, 12 Id. 246. There are also various statements to the same effect in most of the decisions cited above in relation to the admission of evidence of the testimony of a deceased witness. All these cases are confined to the dying declarations of the murdered person upon the trial of the individual accused of the murder. At the York assizes on the 17th July 1837, in Rex v. Baker, 2 Moo. & Rob. 53, it was held, on an indictment against a prisoner for the murder of A. by poison, which was also taken by B., who died in consequence, that B.’s dying declarations were admissible. Coliman, J., after consulting Parke, B., expressed himself of opinion that as it was all one transaction, the declarations were admissible, and accordingly allowed them to go to the jury, but he sajd he would reserve the point for the opinion of the judges. The prisoner was acquitted. This case is entitled to greater weight, as Baron Parke, the year before, in Stobart v. Dryden, 1 Mees. & Welsby 615, had been considering the question of dying declarations, after full argument, and delivered the opinion of the court. This case is mentioned in 1 Phillips and Arnold 243, in 3 Russell 268; 1 Taylor on Evidence 618. In The State v. Terrell, 12 Richardson (S. C.) 321, it was held upon the trial of an indictment for the murder of A. by poison, which was taken at the same time by B. and C., both of whom as well as A. died from its effects, the dying declarations of B. are admissible against .the prisoner, although the general rule seems to be, that dying declarations are admissible only, where the indictment is for the murder of the party making the declarations. The murder was effected by putting strychnine in a bottle of whiskey, administered by the defendant, at the same time, to three persons, and caused the deaths of the grandfather and uncle of the prisoner, and of a third person, whose dying declarations were received in evidence upon the trial of the accused for the murder of his grandfather. Upon the authority of these cases the learned judge admitted the dying declarations of the wife, upon the trial of the defendant for the murder of her husband. In this there was error, for the husband was found dead on Monday morning 26th Feb. 1872, three hundred yards from his dwelling, and his wife was discovered on the same morning lying across her bed in the house in an insensible condition and with her face and head terribly beaten and disfigured. Kraemer and his wife were both advanced in years and there was no doubt that robbery of gold and silver which was known to be in the house led to their murder, but we do not see any facts that would bring these dying declarations of Mrs. Kraemer within those two authorities, supposing them to be good law. If the prisoner had been tried upon the indictment for the murder of Mrs. Kraemer, her dying declarations would have been strictly legal evidence against him. The array of grand and petit jurors was challenged from their being drawn from a jury-wheel not secured according to law. By the existing law two jury commissioners are elected triennially, who are substituted for the county commissioners, and who with the law judges and the sheriff perform the duties prescribed by the 2d section of the Act of 10th April 1867 (Pamph. L. 62), who shall “ place the names of the persons so selected in the proper jury-wheel, and the said jury-wheel, locked as now required hy law, shall remain in the custody of the said jury commissioners and the keys thereof ' in the custody of the sheriff of the said county.” The mode of drawing the jurors is prescribed by the 3d section, and the 4th section, after repeating certain acts, provides “ that all acts and parts of Acts of Assembly now in force in relation to the custody, sealing and unsealing, locking and opening of the jury-wheel of the respective county, and all Acts and parts of Acts of Assembly now in force imposing any penalty or punishment on the sheriff and county commissioners or either of them for anything done or omitted by them or either of them, in relation to the keeping, locking, opening, sealing or breaking the seal of any jury-wheel, or in relation to the selecting or drawing of jurors shall be taken, deemed and held to apply to the said jury commissioners and sheriff.” The duties of the sheriff and commissioners, now jury commissioners, are distinctly prescribed, as may be seen by reference to 1 Brightly’s Digest 830, 831. The 16th paragraph, which is sect. 90 of the Act of 14th April 1834, expressly provides, “ as soon as the selection of jurors and the depositing of their names in the wheel as aforesaid shall be completed, the sheriff shall cause the same to be locked and secured by sealing-wax, and thereon the said sheriff and (jury) commissioners shall impress distinctly their respective seals.” It is the jury-wheel that is to be locked and sealed. It is clear that only one seal was used, and that it was not sealed with the respective seals of the two jury commissioners and sheriff, making three seals. Of course this was error, and the array so challenged should have been set aside and the indictment for the murder of Kraemer should have been quashed. The same objection will apply to the indictment for the murder of Mrs. Kraemer. New bills therefore should be presented to a new grand jury. _ _ Strict attention should be paid to the execution of the jury law, so as to avoid these technical objections, which if not made at the time, are cured by the 53d section of the Criminal Procedure Act of 31st March 1860. The judgment is reversed and the record remanded, with this opinion, setting forth the causes of reversal to the court below for further proceeding.

Tilghman C. J. after stating the bill of exceptions, delivered his opinion as follows: There is no doubt but the alderman had power to take the recognisance, nor has any question been made on that point. The objections are, that the evidence given to the jury was not a recognisance, but only a loose note, by which it did not appear that the defendant was bound to the com monwealth, or bound at all, and that it was not signed by the alderman. A recognisance is a debt of record, entered into , ,. , _ before some court, judge, or magistrate, having authority to take the same. By the act for establishing courts of judicature, passed in the year 172.2, j'ustices of the peace, in or out of sessions, are authorized to take all manner of recognisances and obligations, which any justice of the peace of Great Britain may do; and when the recognisances are taken out of sessions, they are to be certified to the next general sessions of the peace. In the city of Philadelphia, the aldermen have all the authority of justices of the peace, and recognisances taken by them are certified to the Mayor’s Court. The manner of taking a recognisance is, that the magistrate repeats to the recognisors the obligation into which they are to enter, and the condition of it, at large, and asks them if they are content. He makes a short memorandum, which it is not necessary that they should sign, although a custom has lately taken place in this city, for the recognisors to sign their names. From this short minute, the magistrate may afterwards draw up the recognisance in full form, and certify it to the court. This is the most regular and proper way of proceeding. But the general, and almost the, universal practice is, to certify either the original, or a copy, of the short memorandum. The justices and aldermen usually certify in this manner all recognisances taken by them and returnable to one court, and sign one general certificate relating to them all. In the present case, both the original memorandum, and a certified copy of the return to the Mayor’s Court, were given in evidence; and it appears to me that the evidence was sufficient to support the action. In all countries there are particular modes of doing business, which are known and regarded by their courts. Our courts and justices transact their business with much less form than in England. By this we save much expense, although we are sometimes subject to ill consequences arising from uncertainty. In this commonwealth, the records of the courts of justice, consist principally of short entries, not reduced to form. It is sufficient if these entries contain substance capable of being worked into form. I think it reasonable to apply the same rule to recognisances taken by magistrates out of court. The question will then be, whether the memorandum given in evidence in this case, contained substance sufficient to be drawn into a formal recognisance? I think it did. It contained the sum in which the recognisors were bound, and the nature of the condition. It was entitled The Commonwealth v. Austin, and the crime with which he was charged, was sufficiently mentioned. From all this it is evident that the recognisors were bound to the commonwealth, although it is not expressly said so. I should not be for confirming any illegal practice of justices of the peace, or any practice not expressly sanctioned by law, which might be attended with dangerous consequences. But I see nothing illegal or dangerous in their practice of taking and certifying recognisances by short minutes, or in permiting those minutes to be given in evidence to juries, as often as questions arise on the recognisances. Whether they contain sufficient substance, will always be open to inquiry. In the case now before us, I think the papers offered in evidence, did substantially support the issue joined on the part of the commonwealth; and I am therefore of opinion that .the judgment of the Court of Common Pleas be reversed. Yeates J. and Brackenribge J. concurred. Judgment reverse*}»

The opinion of the Court was delivered by Rogers, J. As the maintenance of the widow and daughter is “charged upon” and “payable out of” the estate devised, the remedy is in the orphans’ court, and not by ejectment, as is ruled in Donner v. Donner, decided at this term and not yet reported. Bear v. Whisler, 7 Watts 144, arises on a deed and not on a will, and in that respect is distinguishable from this. This is a case peculiarly fitted for equitable cognizance. The testator directs “ that his widow shall have a good and comfortable living, as long as she remains his widow, of (from) the farm.” He devises the farm to his son William, upon “condition that he shall maintain his wife and daughter, and pay the other legatees the sum which he directs they should have.” It would be almost impracticable for a court of common law to do complete justice,' in such cases, between parties; but this desirable end may be attained through the medium of the orphans’ court, which has the same power in the premises as a court of chancery. The doubt here, is, whether the widow is obliged to reside on the land, if she wishes the benefit of the bequest.. It would be better for all parties that she should reside on the farm, provided her doing so was consistent with the intention of the testator, which was to secure to her a permanent home, and a comfortable subsistence. But it is not to be supposed that he designed that she should continue to reside on the property at the sacrifice of every comfort of life. It is true, that no decided acts of cruelty have been proved, nor is this necessary; for the situation of a person may be rendered, by petty annoyances, as uncomfortable, as by acts of open outrage, and these of such a nature, as it is difficult for a third person to appreciate, and which may not be susceptible of legal proof. Why then compel a widow, or unmarried sister, to live at the mercy of the caprice, or' ill temper of a brother, or his assignee. If this principle should be established, there would be little difficulty to rid themselves of the burthen of providing for them altogether. These family arrangements are frequentiy made by parents anxious in their last moments to provide, as far as human prudence can, a comfortable support, for their widows, and unmarried daughters; and extreme caution should be observed to avoid giving bequests such a construction, as may afford a temptation to abuse. It seems to be conceded that the devisee cannot be compelled to maintain the beneficiary on the farm itself, and why should not the right of choice be reciprocal? It is a matter which admits of compensation in money, and the amount of the allowances must depend on all the circumstances of the case. Each case must furnish its own rule, and hence the peculiar propriety of referring this class of cases to the orphans’ court. And this accords with Warthoff v. Draconet, 3 Watts 245, where these principles were incidentally noticed. Here the intention of the testator was to pledge the farm devised to his son, to secure, as he expresses it, “a good and comfortable living and maintenance, for his widow and daughter.” J udgment reversed.

OPINION OF THE COURT MANDERINO, Justice. This direct appeal from judgments of sentence for murder in the second degree and conspiracy was previously before this Court. At that time, appellant’s counsel, who was also trial counsel, filed a brief with this Court. Appellant, Buford Dilbeck, pro se, also, submitted a brief challenging the effectiveness of his counsel’s assistance both at trial and in the then pending appeal. We agreed with appellant that his counsel’s appellate brief did not meet the requirements of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and Commonwealth v. Baker, 429 Pa. 209, 239 A.2d 201 (1968). Since appellant had also raised the issue of the same counsel’s effective assistance at trial, we remanded the matter for the appointment of new counsel, unless waived by appellant on remand, and ordered new counsel, if appointed, to file a new brief and argue this appeal. See Commonwealth v. Dilbeck, 455 Pa. 113, 314 A.2d 505 (1974). Subsequent to our remand, new counsel was appointed and now represents appellant in this appeal. Several issues are raised including a claim that the trial court failed to comply with Rule 319(a) of the Pennsylvania Rules of Criminal Procedure in accepting appellant’s plea of guilty to murder generally. Appellant contends that the trial court’s pre-plea examination was deficient since it failed to elicit the information required by the Rule which was in effect at the time of the plea. Specifically, appellant charges that the colloquy failed to establish that the appellant understood the nature of the charges to which he was pleading guilty. We agree and therefore reverse. Although a colloquy appears of record prior to the acceptance of the guilty plea, there was no inquiry to determine whether the appellant understood the nature of the charges to which he pleaded guilty. An examination of the colloquy discloses the following concerning the charges: “[DEFENSE COUNSEL]: All right. Now, Buford, along with that, do you understand that by pleading guilty to murder generally you are pleading guilty to the fact that you caused the death of Harry Balthasor, Jr.? [APPELLANT]: Yes, sir. [DEFENSE COUNSEL]: And of course you are also pleading guilty to the crime of conspiracy and by that you are admitting that you conspired with some other person to cause his death. [APPELLANT]: Yes, sir. [DEFENSE COUNSEL] : Now, Buford, you realize that you are pleading guilty to the crime of murder generally and that his Honor will now have the obligation to decide what degree of murder, whether it be first degree murder, second degree murder or manslaughter? Do you understand that? That the Judge will now decide that? [APPELLANT]: Ido.” The above inquiry does not meet the requirements of Rule 319(a), which was in effect at the time of appel lant’s plea on April 15, 1971. In Commonwealth v. Ingram, 455 Pa. 198, 316 A.2d 77 (1974), under almost identical circumstances, we invalidated the trial court’s acceptance of a guilty plea entered on June 18, 1971, saying, “an adequate on the record colloquy under Rule 319(a) [of the Pennsylvania Rules of Criminal Procedure] must include a demonstration ‘that the defendant understands the nature of the charges. . . .’ (citations omitted) ... to demonstrate such understanding, [the defendant] must be told more than just that he has been charged with murder or robbery, for example. While such terms clearly connote some meaning to the layman, this meaning does not always embrace the basic legal elements of the crime. If this were not the case, there would be no need for instructions to a jury on such points, for certainly, an average defendant cannot be presumed to understand more than an average juror. Thus, for an examination to demonstrate a defendant’s understanding of the charge, the record must disclose that the elements of the crime or crimes charged were outlined in understandable terms.” (Emphasis added.) Id. at 203-204, 316 A.2d at 80. See also Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), which pointed out that an understanding of the charges is necessary before a plea of guilty is accepted because the plea is an admission of all elements of the crime charged. Appellant here was told simply that his guilty plea was to a charge of murder generally and conspiracy to murder, and that, if accepted, a degree of guilt hearing would be held at which he could be found guilty of either murder in the first degree, murder in the second degree, or voluntary manslaughter. No effort was made to explain the elements of any of these crimes. Nor does the record show that appellant understood their nature. No mention was made of the element of the crime of murder known as “malice.” “Appellant was entitled to an explanation of the elements of the crime of murder with an illustrative elucidation of the term ‘malice.’ This explanation was not given. Thus, the questions asked were inadequate.” Id. 455 Pa. at 204, 316 A.2d at 80. The Comments to Rule 319(a) of the Pennsylvania Rules of Criminal Procedure recommend that “at a minimum the judge asked questions to elicit the following information (1) Does the defendant understand the nature of the charges to which he is pleading guilty ? (2) Is there a factual basis for the plea ? (3) Does the defendant understand that he has the right to trial by j ury ? (4) Does the defendant understand that he is presumed innocent until he is found guilty? (5) Is the defendant aware of the permissible range of sentences and/or fines for the offenses charged ? (6) Is the defendant aware that the judge is not bound by the terms of any plea agreement tendered unless the judge accepts such agreement? We reiterate here what was said in Ingram, supra, at 204-205, 316 A.2d at 81: “Adherence to [the guidelines, set out in the Comments to Rule 319(a)] will serve to protect the rights of defendants while simultaneously facilitating appellate review.” Failure to satisfy these minimal requirements will result in reversal. Commonwealth v. Schork, 467 Pa. —, 356 A.2d 355 (1976); Commonwealth v. Miner, 467 Pa. —, 356 A.2d 346 (1976). In light of our decision on this issue, we need not now consider the other questions raised on this appeal. Reversed and remanded for a new trial. JONES, C. J., and EAGEN and POMEROY, JJ., dissent.

Opinion by Mr. Justice Simpson, By the holographic will of J. Dundas Lippincott his residuary estate is given to a trustee, with directions to invest it and divide the income “every six months between my wife Isabel Armstrong Lippincott, and my nephew Ralph Wurts-Dundas, share and share alike. Should either die before the other, without descendants alive at his or her decease, this share shall go to the one surviving. “On the death of my wife, Isabel Armstrong Lippincott, I give and bequeath the residue and remainder of my estate to my nephew Ralph Wurts-Dundas, for life with remainder to his descendants taking per stirpes upon the principal of representation,” with a further remainder to certain hospitals “should he leave no descendants surviving him.” The will was executed on August 4, 1904, when testa-, tor was sixty-four years of age, and his wife thirty-seven; they had been married for some time and had no children. Some years after his death she remarried, is now fifty-five years old, and is still childless. The widow and nephew both survived testator, as did also a daughter of the latter, who was born before the will was executed, and is appellee here. The nephew died first, and, because of this fact, we have the present controversy, which relates solely to the distribution of the one-half of the income of the residuary estate, accruing after his death and during the lifetime of the widow, and which he would have received, if he had not died, At the audit below there were three claimants for this fund. The widow alleged there was no express gift of it, in the event of the nephew dying during her lifetime, leaving descendants, and hence she was entitled to a por-. tion of it, as upon an intestacy. The administrator of the estate of the nephew claimed that the nephew was given an estate during the lifetime of the widow, and as he died during that lifetime, leaving a descendant him surviving (who could not take because the will did not so provide), under the gift per autre vie this one-half share should be awarded to him, as the nephew’s personal representative. The daughter of the nephew claimed that under the will there was an implied gift to the nephew’s descendants, should he die during the lifetime of the widow leaving descendants, and hence this fund should be awarded to her as the only one in this class. This latter was the conclusion reached by the court below; and, from the decree made in accordance with it, the other two claimants have severally taken these appeals. Notwithstanding the able and exhaustive argument of counsel for the widow, and the equally ingenious one of counsel for the administrator, we are not convinced that, under the will alone, any real doubt arises regarding the accuracy of the conclusion reached by the court below. We are satisfied that, — by acting as his own lawyer, probably with one or more other wills to guide him, but without any accurate understanding of the legal terms used in them, — testator has succeeded, as usual, in befriending the lawyers, though not their clients. Counsel for the widow, without directly saying so, asks us to overrule Beilstein v. Beilstein, 194 Pa. 152, and the cases in its train, largely because the English courts still follow their earlier antagonistic conclusions. We decline to do this; on the contrary, we reaffirm the conclusion reached in that case, both on the ground of stare decisis and because it is sound in principle. No one doubts but that every layman would understand a will in precisely the way there decided, and since this is a layman’s will, written by a layman, we ought so to construe it: Shaffer’s Est., 262 Pa. 15, 19. In England the courts give great weight to technical rules, in determining the intent; with us, if possible, we ascertain it from the language alone, without reference to such rules, which are considered only so far as discovering the intent is concerned when it does not otherwise clearly appear, — they being applied, however, on the distribution, after the intent has been ascertained from the language of the will. With Beilstein v. Beilstein, supra, as our guide, it is clear, if the first paragraph of the residuary clause is alone considered, appellee would be entitled to take, for there would be an implied gift to her, because her father, the nephew named in the will, died leaving her as his only descendant. It is alleged, however, that because of the second paragraph above quoted, the gift cannot be implied, since thereunder the widow’s descendants, should she leave any, could take none of this income, whereas, under the clause out of which the alleged implication arises, her descendants would take her share of it, she being one of the “either” therein specified. She therefore claims that no implication should be allowed, since permitting it would involve a contradiction not otherwise appearing, and hence an intestacy arose, by reason of which she became entitled to the disputed half share of the income. There is no such contradiction however. An elliptical form of expression is quite common in writing and speaking alike, and perhaps in wills and contract's most of all. It is not necessary to repeat things that have just been expressed; they are understood to be in the mind of the speaker or writer, and the listener or reader likewise understands them, without repetition. In Goold Brown’s “Grammar of English Grammars” it is said, at page 815: “Ellipsis is the omission of some word or words, which are necessary to complete the construction, but not necessary to convey the meaning. Such words are said, in technical phrase, to be understood; because they are received as belonging to the sentence, though they are not uttered. Of compound sentences, a vast number are more or less elliptical; and sometimes, for brevity’s sake, even the most essential parts of a simple sentence are suppressed. There may be an omission of ......even a whole clause, when this respects what precedes.” It was not necessary, therefore, for testator to repeat in the second paragraph what had been said in or was necessarily implied from the first; hence the alleged contradiction does not exist and the rule of Beilstein v. Beilstein, supra, controls. A striking illustration of the fact that the conclusion thus reached is correct, and of the necessity for not giving a too literal construction to the language of holographic wills, — indeed, of any wills, — appears from another analysis of these residuary clauses. Under the last sentence of the first paragraph, (viz, “Should either die before the other, without descendants alive at his or her decease, this share [of the income] shall go to the one surviving”), if the widow had died first, leaving no descendants, the trust would have continued, the nephew receiving the whole of the income. By the second paragraph, on the death of the widow under the circumstances stated, the trust would at once end and the nephew get a life estate. It is clear, therefore, that either the last clause of the first paragraph above quoted must be so remodeled as to make it applicable, so far at least as the continuance of the trust is concerned, only to the case of the nephew dying first leaving no descendants, thereby partially eliminating the “either,” on which appellants so greatly rely, or the ellipsis must be supplied in the second paragraph. Indeed, with precisely the same argument and citation of authorities hereafter referred to, it might as well be contended that there was no gift of the principal, under the contingency which has arisen, since the life estate of the nephew was dependent on his surviving the widow, the remainder estate dependent on the facts appearing on his death as life tenant, and the widow is not to be disinherited except as the result of express words or necessary implication. No one contends for this, however, and it can hardly be doubted, when the matter is broadly viewed from the standpoint of testator, but that supplying the ellipsis furnishes the better construction. In the light of what has been said, the will should, in our judgment, be construed as if it read as follows (the words in brackets being the added clauses): I direct that the income from my residuary estate shall “be divided every six months between my wife, Isabel Armstrong Lippincott, and my nephew, Ralph Wurts-Dundas, share and share alike. Should either die before the other without descendants alive at his or her decease, this share shall go to the survivor [otherwise it shall go to such descendants] . On the death of my wife, Isabel Armstrong Lippincott [leaving no descendants] I give and bequeath the residue and remainder of my estate to my nephew, Ralph Wurts-Dundas for life, with remainder to his descendants ......[if my wife is then dead or when she dies].” The first added clause is, of course the implied gift; the second and third are the completing of the elliptical sentences. Against all that has been said above, the widow’s contention is that no implication can be drawn from the language actually used, because to do so would violate the rule that an heir (and, a fortiori, a widow, who has been called “a purchaser for value”), is not to be disinherited unless as the result of express words or necessary implication. This rule (which, as already stated, is of no effect, if the language of a will fairly leads to the conclusion that the heir is not to take), is of the same force and effect, and no greater, than the one which says the testator must be presumed to have intended to avoid an intestacy as to any part of his estate: Grothe’s Est., 229 Pa. 186, 190. Yet here the widow endeavors to make the former of greater weight than the latter, and this, not for the purpose of obtaining the share to which she would have been entitled as “heir,” but a greater share, to the injury of one who is an heir. The adjudication gives to her the full one-half of the income to which she is entitled under the intestate laws, and now she seeks, as against those having an equal statutory right, to obtain three-fourths of the income, and leave for the others only one-fourth of it. True, this result arises, as she alleges, because there is an intestacy, which, of course, simply assumes the point she asks us to decide, and moreover does not alter the fact that she is seeking to declare the intestacy, in order that the heir, quoad the income, may be pro tanto disinherited, without express words or necessary implication. It is difficult to read this will without concluding the nephew and his descendants, being of testator’s blood, were the principal objects of his bounty; that he believed his widow would have no children, a conclusion which time has justified; that he thought one-half of the income from his residuary estate would be ample for her support, and only gave her the other half in the event of the extinction of the nephew’s line; that no reason appears why testator should have given those descendants the principal of his estate in remainder and yet have deprived them of this one-half of the income, when, on the death of their father, who had theretofore received it, they would possibly need it all the more; and that (as affecting the administrator’s claim) the will does not show even the slightest trace of ah intention that the personal representatives of the nephew should receive anything, or that the nephew’s descendants should take other than directly from testator. True, all of these considerations would fall before a contrary intent expressed in the will; as there is none, however, they are entitled to due weight in determining what was testator’s purpose. The decree of the court below is affirmed and the appeals are dismissed at the cost of the respective appellants.

Opinion by Mr. Justice Bell, Was the testator’s bequest of -the corpus of a trust fund of |6000. (after a life estate to his son) to his son’s issue who are living at the time of the son’s death, to be divided among said issue (income in the meantime to be paid to the son’s widow) at the time said issue arrive át. the.age.of 30 years, contingent or vested subject to .be divested? If-the gift was contingent then, as,a majority of the court below held, the bequest violated the rule against perpetuities; if it was vested subject to be divested it was a valid gift and the testator’s 30 year old grandson, who is the appellant, is entitled to. the fund. The rule against perpetuities was well and clearly established; its application has often been difficult and perplexing. Before discussing the rule against perpetuities and its applicability to this will, it seems wise to search Newlin’s will to discover, if possible, the testator’s intent, because that of course is the pole star: Mulert Estate, 360 Pa. 356, 61 A. 2d 841; Sarver’s Estate, 324 Pa. 349, 188 A. 141; Prime’s Petition, 335 Pa. 218, 6 A. 2d 530; Byrne’s Estate, 320 Pa. 513,181 A. 500. The testator’s intent must be ascertained by a consideration of the entire will which of course must be read in the light of the circumstances surrounding bim when he made it: Packer’s Estate (No. 1), 246 Pa. 97, 92 A. 65; Hermann’s Estate, 220 Pa. 52, 58, 69 A. 285; Mulert Estate, 360 Pa. 356, 61 A. 2d 841; March Estate, 357 Pa. 216, 53 A. 2d 606. The attendant circumstances include the condition of his family, the natural objects of his bounty and the amount and character of his property: Fahey’s Estate, 360 Pa. 497, 500, 61 A. 2d 880; Mayer’s Estate, 289 Pa. 407, 137 A. 627; Frisbie’s Estate, 266 Pa. 574, 109 A. 663. Testator, a lawyer, died December 23, 1922, having made a last will which was dated August 24, 1920. He left an estate of approximately |44,000. He was survived by a widow, who is still living, a son, who died September 15, 1934, and a grandson, the present appellant, who was born December 1, 1919 — 9 months before testator’s will and 3 years prior to his death. Testator di rected Mg executors to convert all Ms estate into money •when they felt it was for the best interest of his estate, and when the , whole of his residuary estate had been converted into money, he gave a full equal one-half share to his wife; $6000. in trust; a $1500. legacy to his niece, Carolyn Newlin; and the remainder of his residuary estate to Jessie Pearce Eckler, her heirs and assigns forever. The provision with respect to the aforesaid fund of $6000.' is as follows: “2nd . . . b. I give, devise and be-, queath unto my Executor, hereinafter named, or its successor, the sum of Six thousand ($6,000.00) Dollars in [a spendthrift] trust, to . . . pay over the interest or dividends received therefrom, . . . when and as the same may be gotten in, to my son, John Harrison Newlin, for . . . his natural life. . . . In case my son should leave a widow and issue at the time of his death then the said interest or dividends of said trust fund are to be paid to said widow until said issue arrive at the age of thirty (30) years at which time the corpus of said fund shall be divided among them, share and share alike. In case my son should die without leaving issue living at the time of his death, and said issue of my son should leave no issue, or if my son leaves issue living at the time of his death, if such issue should die before arriving at the age of thirty (30) years without leaving issue, then said trust fund is to be held in trust by my Executor . . . and the interest or dividends, when and as received, paid over to my Brother, T. P. Newlin and on his death, if his wife Melinda Newlin survives him, to her, my Sisters^ Celia, A. Stephens and Lizzie V. Roberts, or the survivors of them, share and share alike. Upon the death of my said Brother, his wife, Melinda Newlin, and my said Sisters the corpus of said fund shall be divided equally between my niece Carolyn Newlin, and. my nephew, Harold V. NewlAn, their heirs and assigns.” Testator’s widow received a one-half share of his estate. It will be noted that his son was bequeathed only the income from the f6000. trust fund and unless this appeal is sustained, testator’s grandson will receive no part or share of his grandfather’s estate. The court below held that the bequest of the remainder was to the son’s surviving issue if and when they arrived at the age of thirty (30) years (which by possibilities was a period longer than a life in being and 21 years thereafter) and was therefore contingent and violated the rule against perpetuities. What is the rule against perpetuities? “1. Perpetuities are grants of property, wherein the vesting of an estate or interest is unlawfully postponed: Saunders on Uses and Trusts 196; and they- are called perpetuities not because the grant, as written, would actually make them perpetual, but because they transgress the limits which the law has set in restraint of grants that tend to a perpetual suspense of the title, or of its vesting, . . .”: City of Philadelphia v. Girard’s Heirs, 45 Pa. 9, 26, 27. “. . . the rule against perpetuities prohibits the creation of future interests or estates Avhich by possibility may not become vested within a life or lives in being at the death of the testator and twenty-one years thereafter, together Avith the period of gestation? See 21 R.C.L. 282; Hillyard v. Miller, 10 Pa. 326, 334; City of Phila. v. Girard’s Heirs, 45 Pa. 9, 26; Yard’s App., 64 Pa. 95, 98; Coggins’s App., 124 Pa. 10; Rhodes’s Est., 147 Pa. 227; Barton v. Thaw, 246 Pa. 348; Lilley’s Est., 272 Pa. 143, 151; Feeney’s Est., 293 Pa. 273; Gray, Rule against Perpetuities, 3d edition, section 214; Foulke, Perpetuities, etc., in Pennsylvania, section 329. . . . The rule is not one of construction, but a positive mandate of law to be obeyed irrespective of the question of intention. . . . Where the gift is to a class, the class must be such that all the members of it must necessarily be ascertained and take absolutely vested interests within the period. If the gift is to a class and it is void as to any one of the class, it is void as to all: 21 R.C.L. 303, 308; Coggins’s App., supra; Wiekersham’s Est. (No. 1), 261 Pa. 121, 127; Gray, Rule against Perpetuities, 3d edition, sections 373 et seq.; Foulke, Perpetuities, etc., in Pennsylvania, section 445.”: Lockhart’s Estate, 306 Pa. 394, 400-401, 159 A. 874. If a bequest is to a class who take at the death of a life tenant, the fact that the members of the class are unknown or even not in being at the death of the testator, or that their interest is subject to be increased or decreased or divested by subsequent events, will not render the gift contingent or violate the rule against perpetuities: Edwards’ Estate, 255 Pa. 358, 99 A. 1010; 360 Pa. 504, 62 A. 2d 763; Overbrook Heights Building & Loan Assn. v. Wilson, 333 Pa. 449, 5 A. 2d 529; Reed’s Estate, 307 Pa. 482, 161 A. 729; McCauley’s Estate, 257 Pa. 377, 101 A. 827; Lloyd’s Estate, 326 Pa. 230,192 A. 98. “Where an estate is given to a life tenant, with remainder to the children of the life tenant, the estate vests at once upon the birth of each child, subject to open and let in after-born children, . . . without regard to the question of whether or not a child survives the life tenant”: Edwards’ Estate, 255 Pa. 358, 361, 99 A. 1010; Edwards’ Estate, 360 Pa. 504, 508, 62 A. 2d 763. “The interest of the defendant, the issues in being of the class of which he is a member, may be decreased or enlarged by future issue or by the death of some of the living issue in the same class, but this does not make his estate a contingent one”: Overbrook Heights Building & Loan Assn. v. Wilson, 333 Pa. 449, 454, 5 A. 2d 529. “Where a. bequest is to a class, the vesting is not postponed because of uncertainty as to who, if any, may be the constituents of the class at the time fixed for the enjoyment of it. If there is a present right to a future possession, though that right may be defeated by some future event, contingent or certain, there is nevertheless a vested estate”: McCauley’s Estate, 257 Pa. 377, 382, 101 A. 827; Reed’s Estate, 307 Pa. 482, 484, 161 A. 729. An estate which is vested and payable to a grandson at 25, but is divested if the grandson die before attaining 25 years of age, does not violate the rule against perpetuities: Bilyeu’s Estate, 346 Pa. 134, 137, 29 A. 2d 516; Allen’s Estate, 347 Pa. 364, 366, 32 A. 2d 301. Before applying these well settled principles, “The proper procedure is to determine the true construction of the will, just as if there was no such thing in existence as the rule [against perpetuities], and then to apply it' rigorously in complete disregard of the wishes and intention of the testator: 21 R.C.L. 294; Bender v. Bender, 225 Pa. 434, 438; Gerber’s Estate, 196 Pa. 366, 375; Gray, Rule against Perpetuities, 3d edition, section 629”: Lockhart’s Estate, 306 Pa. 394, 401, 159 A. 874. We must first, therefore, determine the true construction of the will without any thought or consideration of the rule against perpetuities. If (and only if) the intention of the testator, gathered from the four corners of the will, is — as here — not clear, we can. resort .to pertinent rules of construction in order to aid in the ascertainment of the testator’s intent: Weir’s Estate, 307 Pa. 461, 467, 161 A. 730; GroningeFs Estate, 268 Pa. 184, 187, 110 A. 465; Mulliken v. Earnshaw, 209 Pa. 226, 58 A. 286; Woods’ Estate, 321 Pa. 497, 500, 184 A. 13. The first of these pertinent presumptions or rules of construction is that an heir is not to be disinherited except by clear and plain language or as it is often expressed, by plain or express words or by necessary implication: Grothe’s Estate, 229 Pa. 186, 190, 78 A. 88; Lippineott’s Estate, 276 Pa. 283, 290, 120 A. 136; Murray’s Estate, 313 Pa. 359, 362,169 A. 103; French’s Estate, 292 Pa. 37, 41, 43, 140 A. 549. Moreover, if it is not clear from the language of the will whether the remainder is vested or contingent, then as Mr. Justice Linn said in WeiFs Estate, 307 Pa. 461, 468, 469, 161 A. 730, “it is necessary to keep in mind the rule ‘that an interest is to .he construed contingent only when it is impossible to construe it as vested’: Rau’s Est., 254 Pa. 464, 98 Atl. 1068; that the intention to create a contingent interest ‘should appear plainly, manifestly and indisputably:’ McCauley’s Est., 257 Pa. 377, 101 Atl. 827. ... In Marshall’s Est., supra, it is said: ‘The law leans to vested rather than to contingent estates, and the presumption is that a legacy is vested: Carstensen’s Est., 196 Pa. 325 [46 Atl. 495]; Tatham’s Est., 250 Pa. 269 [95 Atl. 520]; Neel’s Est., 252 Pa. 394 [97 Atl. 502]; Rau’s Est. [supra], and ‘cthe presumption that a legacy was intended to be vested, applies, with far greater force, where a testator is making provision for a child or a grandchild, than where the gift is to a stranger or to a collateral relative:” Wengerd’s Est., 143 Pa. 615 [22 Atl. 869]’ ”. See to the same effect: GroningeFs Estate, 268 Pa. 184, 189, 110 A. 465. The majority of the court below, relied, mainly on 'Thompson 'Trust, 363"Pa. 85',"'69 A.'2d' 112/ Moore v. Smith, 9 Watts 403, and Elsbree Estate, 362 Pa. 494, 66 A. 2d 851, -which interpret the words “transfer” or “pay” or “divide” to mean a contingent gift. The strongest case is Thompson Trust, 363 Pa. 85, 69 A. 2d 112. In Thompson Trust, settlor directed his trustee to pay the dividends from 300 shares of stock to his granddaughter Bessie, for her life, and after her death to pay the dividends unto her children, and as each child reaches the age of 21 years to transfer to such child a pro rata number of shares of said stock, and 'in • default of any such child reaching 21 years to transfer said stock to the settlor’s heirs. This case is representative of a line of cases which hold that where there is no separate and antecedent gift which is independent of the direction and time for payment and the gift is necessarily implied solely from the direction to pay or divide or transfer, the legacy is contingent. On the other hand these decisions are offset by another line of cases which hold similar gifts to be vested: Lloyd’s Estate, 326 Pa. 230, 192 A. 98; Allen Estate, 347 Pa. 364, 32 A. 2d 301; Rickenbach Estate, 348 Pa. 121, 34 A. 2d 527; Safe Deposit & Trust Company v. Wood (No. 1), 201 Pa. 420, 50 A. 920; Bilyeu’s Estate, 346 Pa. 134, 29 A. 2d 516; Middleton’s Estate, 212 Pa. 119, 61 A. 808; Groniriger’s Estate, 268 Pa. 184,' 110 A. 465; Reed’s Appeal, 118 Pa. 215, 11 A. 787. In Lloyd’s Estate, 326 Pa. 230,192 A. 98, the trustee was directed to pay the income to testator’s wife for life and after her death “in trust to be equally divided between my children and the issue of any deceased, child as they respectively arrive at the age of twenty-one years, share and share alike, . . . the income of said respective shares to be paid to said children, or grandchildren, if any, during their respective ■ minorities”. The gift was obviously contingent if the grandchildren or issue were entitled to.the corpus only if they arrived aicthe age of -21. . The- Court held :that .the interest was vested and said (page 233) : “As long ago as McClure’s Appeal, 72 Pa. 414, we pointed out (p. 418): ‘Though there be no other gift than in the direction to pay or distribute in futuro, yet if such gift or distribution appears to be postponed for the convenience of the fund or property, or where the gift is only postponed to let in some other interest, the vesting will not be deferred till the period in question.’ Here there can be no question that the gift was postponed to enable the widow to enjoy the income from the estate during her life This language seems equally applicable to the Newlin will. In Allen Estate, 347 Pa. 364, 32 A. 2d 301, testatrix left $8000. from the residuary estate in trust to pay the net income to her sister Rosa for life. If Rosa survived her, immediately upon Rosa’s death, should nephew Carl’s two children, Eleanor and Carl, have arrived at the age of 30 years, the trust should cease and the principal should be paid to them; but should they not have arrived at the age of 30 years at the time of Rosa’s death, then “I direct that the share of either or both of them be held in Trust... until, he, she, or they, shall have arrived at the age of thirty (30) years and be . . . paid over to them . . . absolutely and in fee.” The Court held that the trust estate vested in Eleanor and Carl upon the death of Rosa and that their interest was not contingent on their arrival at 30 years of age. These cases illustrate how difficult, if not impossible, it is to harmonize or reconcile the myriad will cases which fall on one or the other side of the vested-contingent line, and especially is this so in the so-called “pay and divide” cases which create so many technical and perplexing problems. While precedents in will eases are generally of little value, because few wills have a twin brother, we believe that Middleton’s Estate, 212 Pa. 119, 61 A. 808, is the closest case to the present will. In Middleton’s Estate the testator directed his trustees to pay the income from the balance of his residuary estate to his wife “until his said grandson should be tioenty-five, and then or at his death, whichever event should first happen, to convey one-third to testator’s son, Benjamin, . . . one other third to testator’s son Lewis, . . . and the remainder, upon his attaining the said age, to his grandson absolutely.” It will be noted that in Middleton’s Estate, just as in Newlin’s estate the income was payable not to the grandson, but to the [testator’s] wife until the grandson arrived at the age of 25 [30] years, at which time the corpus of the fund was to be paid to him. It is very difficult to differentiate the Newlin will from the Middleton will which the Court held gave the grandson a vested interest. In the light of these rules of construction we believe that the ambiguity in this will should be resolved (1) in favor of vesting, and (2) in favor of the heir. We construe this will to mean that the testator intended to give to those of his son’s children who were living at his son’s death a vested interest in the corpus of the $6000. trust fund; that this fund should be paid to them when they become 30 years old; that if they died prior thereto without leaving issue, the interest thereon should be paid to testator’s living . . . brother (and wife) and sisters and upon the survivor’s death, the corpus to “be divided equally between my niece Carolyn Newlin, and my nepheio, Harold Y. Newlin, their heirs and assigns”. We come more readily to this conclusion because it is equitable in this case to benefit the testator’s grandspn, and more particularly because testator’s gift over was hot to issue who might be living at some remote future date, but to living persons whom he knew and specifically named, thus indicating, we believe, an intent, independent of any rules of construction, to give his remainder to the children of his son who were living at his son’s death and to postpone merely the time it became payable. Under this construction of the will, all authorities are agreed that there was no violation of the rulé against perpetuities. Judgmént reversed; each party to pay his or her respective costs. • The Act of April 24, 1947, §4, P. L. 100, 20 Purdon 301.4, page 474, changes the law in one respect by making actualities at the end of the period, rather than possibilities at the time of the creation of interest, govern. Although we do not regard it as material, it may not be amiss to note that the testator sometimes used “issue” to mean, “children”. Italics throughout, ours. The numerous contingencies which are unprovided for are obvious. Changed by the Act of April 24, 1947, supra.

Opinion by Mr. Justice Jones, The sole issue on this appeal is the validity of the service of a complaint in trespass in Philadelphia upon a foreign corporation. Gerald Botwinick, on December 13, 1963, instituted a trespass action in Court of Common Pleas No. 3 of Philadelphia County against Credit Exchange, Inc., a New York corporation (the New York corporation), wherein Botwinick sought damages for an alleged business libel by the New York corporation. On December 27th, 1963, a deputy sheriff of Philadelphia County purported to serve the complaint in Philadelphia upon the New York corporation. The sheriff’s return of service recited that a true and attested copy of the complaint had been served on one Mr. DiVitto “the clerk for the time being in charge of [the New York corporation’s] usual place of business at 1218 Chestnut St., in the County of Philadelphia . . . .” The New York corporation filed preliminary objections on the ground that the court lacked jurisdiction over the person of the New York corporation inasmuch as 1218 Chestnut St., Philadelphia, was not “the usual place of business” of the New York corporation, but rather was the “the usual place of business” of Credit Exchange of Pennsylvania, Inc., a Pennsylvania corporation (the Pennsylvania corporation), which, although a subsidiary of the New York corporation, was not a defendant in the trespass action. In support of its preliminary objections, the New York corporation submitted an affidavit by its .executive vice-president setting forth that the New York corporation was organized in New York, was not licensed nor registered to do business in Pennsylvania, had never filed tax returns nor paid taxes in Pennsylvania, owned the capital stock of the Pennsylvania corporation, but did not operate or control the latter’s business, filed state and federal taxes separately from its subsidiary, maintained separate minutes and bank accounts and conducted separate meetings, all outside of Pennsylvania. On April 1, 1964, Judge R. P. Alexander entered an order sustaining the preliminary objections and holding that the court lacked jurisdiction over the New York corporation. Approximately one week later, Judge Alexander issued another order, accompanied by a memorandum opinion, vacating the order of April 1, 1964, and giving Botwinick “leave to schedule depositions or otherwise attempt to support its position relative to the jurisdiction of the court in this case” and further directing that the preliminary objections be continued for argument pending the taking of such depositions. Thereafter, Botwinick took the deposition of one Herbert Janis, manager of the Pennsylvania corporation. On January 7, 1965, Judge Weinrott entered an order dismissing the preliminary objections. Prom this order the present appeal was taken. In his opinion, inter alia, Judge Weinrott noted: . . [T]he testimony of the credit manager [Janis] establishes ample activity and interaction between the companies [i.e., the New York corporation and the Pennsylvania corporation] to warrant and justify the claim of jurisdiction and a finding that the New York company was operating in Pennsylvania under the Business Corporation Law.” Disposition of this appeal requires, consideration of Pa. R. C. P. 2180(a) (2), which provides, inter alia: “Service of Process (a) Service of process within the county in which the action is instituted shall be made upon a corporation or similar entity by the sheriff of that county by handing a copy thereof .... (1) to an executive officer, partner or trustee of the corporation or similar entity; or (2) to an agent or person for the time being in charge of, and only at, any office or usual place of business of the corporation or similar entity . . . .” (Emphasis supplied.) Specifically, was 1218 Chestnut Street, Philadelphia, the “office or usual place of business of” the New York corporation at the time of this service? Botwinick, in seeking to establish venue in Philadelphia County for its action against the New York corporation, takes the position that it is the New York corporation, not the Pennsylvania corporation, which conducts the business at 1218 Chestnut Street and that the Pennsylvania corporation is simply an “alter ego”, a “shadow” or a facade of the New York corporation. It is clear that, absent some “entry” or “presence” within the state by the conduct of at least minimal business activity within the state by this New York corporation, Pennsylvania, consistent with the limitations of due process, could not exercise any jurisdiction over this foreign corporation: International Shoe Co. v. Washington, 326 U.S. 310, 66 S. Ct. 154; Hanson v. Denckla, 357 U.S. 235, 78 S. Ct. 1228. “Doing business” within the state has a dual significance: (a) it is essential to the exercise of any jurisdiction by the state over a foreign corporation and (b) it is essential in determining the appropriate venue for an action against a foreign corporation. While it is undisputed that the New York corporation was not registered and had no certificate of authority from the Department of State to “do business” in Pennsylvania, the question has been raised whether in fact the New York corporation was “doing business” within the Commonwealth. Section 1011 C of the Business Corporation Law, defines what shall constitute “doing business”: “For the purposes of determining jurisdictions of courts within this Commonwealth, the entry of any corporation into this Commonwealth for the doing of a series of similar acts for the purpose of thereby realizing pecuniary benefit or otherwise accomplishing an object, or doing a single act in this Commonwealth for such purpose, with the intention of thereby initiating a series of such acts, shall constitute ‘doing business’.” (Emphasis added). The record contains only the testimony of Mr. Janis, manager of the Pennsylvania corporation. From such testimony certain facts indicate the existence of a close relationship between the New York and Pennsylvania corporations: (a) both corporations use the same forms of subscribers’ contracts; (b) the letterhead of the Pennsylvania corporation reads “Credit Exchange, Inc., 1218 Chestnut St.”; (c) “changes of recommendations” in credit ratings come from the office of the New York corporation under the letterhead of that corporation; (d) the Pennsylvania corporation’s minute books and original records are kept in New York even though the Pennsylvania corporation does not have an office in New York; (e) the same individual is president of both corporations; (f) all the capital stock of the Pennsylvania corporation is owned by the New York corporation. Contraindicating any interdependence between the two corporations are these facts: (a) each corporation is registered and incorporated in a different state; (b) each corporation keeps separate books and financial records; (c) each corporation files separate tax returns; (d) the Pennsylvania corporation pays its own rent and telephone bills and purchases its own supplies; (e) each corporation maintains separate bank’ accounts; (f) the Pennsylvania corporation owns its own fixtures and furniture and hires and fires its own personnel; (g) Mr. Janis testified that he runs the office at 1218 Chestnut Street, Philadelphia, completely free of control by the New York corporation; (h) there is no mention in the Pennsylvania corporation’s minutes of any relationship to the New York Company; (i) the New York corporation supplies only “information” to the Pennsylvania corporation. Certain facts are clearly and unequivocally established: (a) all the stock of the Pennsylvania corporation is owned by the New York corporation; (b) both corporations have the same president; (c) the Pennsylvania corporation is a subsidiary of the New York corporation; (d) each corporation carefully maintains the integrity of its respective corporate existence separate and apart from the other; (e) the names of the two companies are similar; (f) the letterhead used by the Pennsylvania corporation reads “Credit Exchange, In.corporated, 1218 Chestnut Street”; (g) the trespass action is based on allegedly libelous conduct of the New York corporation and not of the Pennsylvania corpo ration, and Botwinick does not seek to enforce against the Pennsylvania corporation any liability of the New York corporation; (h) there is no allegation that the subsidiary Pennsylvania corporation was used as an instrumentality by-the New York corporation to accomplish any illegal, fraudulent or dishonest purpose. The leading case on this general subject is Cannon Manufacturing Co. v. Cudahy Packing Co., 267 U.S. 333, 45 S. Ct. 250. Cannon sued Cudahy Packing Company, a Maine corporation, in North Carolina. Service of process was made in North Carolina upon Cudahy Packing Company of Alabama, a subsidiary of the Maine corporation. To show the Maine corporation was doing business in North Carolina, Cannon sought to show the identity pro hac vice between the Maine and Alabama corporations. The Maine corporation owned all the capital stock of the Alabama corporation and “the [Maine corporation] dominate[d] the Alabama corporation, immediately and completely”; the Alabama corporation marketed the products of the Maine corporation not as agent but as a subsidiary and bought such products from the Maine corporation and sold such products to dealers. Each corporation maintained its corporate identity separately and distinctly. The United States Supreme Court, speaking through the late Mr. Justice Brandeis, refused to ignore the corporate existence, carefully maintained, in determining the existence of jurisdiction and set aside the service made on the subsidiary corporation, stating, inter alia: “Such use of a subsidiary does not subject the parent corporation to the jurisdiction” of North Carolina and “The corporate separation, though perhaps merely formal, was real. It was not pure fiction” (267 U.S. at p. 337). See also: Cons. Textile Corp. v. Gregory, 289 U.S. 85, 53 S. Ct. 529; Philadelphia & Reading Ry. Co. v. McKibbin, 243 U.S. 264, 37 S. Ct. 280; Peterson v. Chicago, etc., R. Co., 205 U.S. 364, 27 S. Ct. 513; Blount v. Peerless Chemical (P.R.) Inc., 316 F. 2d 695, 698, 699; Hendricks v. Alcoa Steamship Co., 203 F. Supp. 33; Farr’s, Inc. v. National Shoes, Inc., 191 F. Supp. 803; 104 U. Pa. L. Rev. pp. 403-406; 18 A.L.R. 2d 193 et seq. Such exceptions as there are to this rule are presently inapposite: Dam v. General Electric Co., 111 F. Supp. 342. Neither the similarity of names between the parent and subsidiary corporation (Moorhead v. Curtis Publishing Co., 43 F. Supp. 67), nor the total ownership of the stock of the subsidiary by the parent (Cannon, supra; Moorhead, supra; Technograph Printed Circuits, Ltd. v. Epsco, Inc., 224 F. Supp. 260) nor the fact that a single individual is the active chief executive of both corporations (Hendricks, supra; Technograph, supra) will per se justify a court in piercing the corporate veil if each corporation maintains a bona fide separate and distinct corporate existence. There is a well recognized exception to these general rules if the record demonstrates that the subsidiary is the “alter ego” of the parent to the extent that domination and control by the parent corporation renders the subsidiary a mere instrumentality of the parent; under such extreme circumstances the parent corporation may be held to be doing business within the state under the facade of the subsidiary: Mas v. Orange-Crush Co., 99 F. 2d 675; Cutler v. Cutler Hammer Mfg. Co., 266 F. 388; United Steelworkers v. Copperweld Steel Co., 230 F. Supp. 383, 388, and cases therein cited. The court below held that the Pennsylvania corporation in the case at bar was the “alter ego” of the New York corporation. Our reading of the record finds no justification for such conclusion. Botwinick relies upon Rumig v. Ripley Manufacturing Corporation, 366 Pa. 343, 77 A. 2d 360; Convery v. Clairol, Inc., 123 F. Supp. 29; Mays v. Oxford Paper Co., 195 F. Supp. 414; Solt v. Interstate Folding Box Co., 133 F. Supp. 7; and Williams v. Rose, 403 Pa. 619, 170 A. 2d 577. In our view, such authorities are presently inapposite. In Rumig, the trespass suit was bottomed on the tort responsibility of the lessee of certain premises and the evidence clearly indicated that it was the parent foreign corporation which, prior to the incorporation of the domestic subsidiary corporation, had negotiated this lease, that the subsidiary was created for the purpose of acting as the nominal lessee and that the subsidiary was simply the “shadow” of the parent corporation. In Gonvery, the foreign corporation, through an agency in the state, was actively engaged in doing business. In Mays, the foreign corporation, through two of its salaried representatives who visited customers within the state, was actively doing business within the state. In Solt, the foreign corporation had an office within the state regularly used by its salesmen, when not on the “road”, had its name in the telephone directory and on the entrance to the building and was actively in business. In Williams, the foreign corporation had engaged in activities in the state and its formation was part of the alleged fraud which formed the basis of the equity action. We are convinced from the instant record that the Pennsylvania corporation was not a mere fiction but maintained carefully its separate corporate existence; that, in substance, there were two separate entities and that the Pennsylvania corporation, even though a subsidiary of the New York corporation, was not a mere instrumentality of the latter. Under the authorities, supra, the New York corporation cannot be said to have been “doing business” within Pennsylvania so as to be subject to the regulatory power of Pennsylvania. Moreover, the evidence points unequivocally to 1218 Chestnut Street, Philadelphia, as the “office” or “usual place of business” of the Pennsylvania, not the New York, corporation. Therefore, on the state of this réc ord, the attempted service of this trespass complaint at 1218 Chestnut Street, Philadelphia, under Rule 2180 (a)(2) must be set aside. Lastly, Botwinick urges upon us the well established rule, lately re-enunciated in Williams, supra (p. 622) that, when preliminary objections, if sustained, would result in dismissal of the action, such objections should be sustained only in cases clear and free from doubt. The factual situation in the case at bar is such that it is clear that these preliminary objections must be sustained. Order reversed. Strange as it may seem, the record fails to identify Mr. DiVitto. It was Trader this Bale that service of process was made. No attempt was made to serve the Secretary of the Commonwealth under §1011 of the Business Corporation Law, Act of May 5, 1933, P. L. 361, §1011, as amended, 15 P.S. §2852-1011. A sheriff’s return of service is not conclusive where a foreign corporation is involved: O.A.C. Hagen Corporation v. Empire Sheet & Tin Plate Co., 337 Pa. 232, 233, 11 A. 2d 144. Cf. Hollinger v. Hollinger, 416 Pa. 473, 206 A. 2d 1. Venue for a personal action against a corporation is prescribed by Pa. R. C. P. 2179(a) : (1) the county where the corporation has its registered office or principal place of business, (2) a county where the corporation regularly conducts business, (3) the county where the cause of action arose, or (4) a county where a transaction or occurrence took place out of which the cause of action arose. Shambe v. Delaware & Hudson R. Co., 288 Pa. 240, 135 A. 755; International Harvester Co. v. Kentucky, 234 U.S. 579, 34 S. Ct. 944. Act of May 5, 1933, P. L. 364, §1011, as amended by the Act of November 10, 1959, P. D. 1406, §1, as amended by the Act of August 13, 1963, P. L. 703, §2, 15 P.S. §2852-1011.

Per Curiam, The premises at 1435-37 Spruce Street, Philadelphia, a nineteen story apartment building, was assessed for taxation at $940,000 for 1932. The property owner appealed to the court below and that court found from disputed evidence that the market value of the premises was $884,000 and this was approved by the court in banc. In an appeal from an assessment for taxes, the findings of fact of the court below have great force, and these findings will not be set aside unless clear error is made to appear: Rockhill Iron & Coal Co. v. Fulton County, 204 Pa. 44. While the weight of the evidence is before this court, findings of the court below that are based on the weight of evidence, will not be disturbed: Lehigh & Wilkes-Barre Coal Co.’s Assessment, 298 Pa. 294, 308. We do not reverse its findings except for clear error: Thompson’s Appeal, 271 Pa. 225, 229. The record of the assessment, made by proper officers, approved by the board of revision, is prima facie evidence on appeal to the court below of the value of the property; it will be conclusive unless the evidence to rebut it establishes to the satisfaction of the court a different value. See Pennsylvania Stave Co.’s Appeal, 236 Pa. 97. The court below reduced the assessed value and there is nothing in this record to disturb that conclusion. Decree affirmed at the cost of appellant.

Mr. Justice Green delivered the opinion of the Court, We think it can not be questioned that the deed from Jackson to Joseph M. Payne of June 1st, 1872, and the mortgage in suit from J. M. Payne to Jackson of same date, for securing the payment of $9,000, were intended by all the parties to represent, and actually did represent, an arrangement for securing to Jackson the payment of a debt due by' George Payne to him. The legal title to the premises was at that time in Jackson. He was willing to convey the title to George. Payne or to any one he might name, and take a mortgage from the grantee of the title to secure his debt. All of this was testified to by Jos. M. Payne, was notcontradictedby Jackson, and is corroborated most strongly by Jackson’s letters of March 2d, and March 17th, 1871, to George Payne, and December 8th, 1871, to Jos. M. Payne. There was no proof of any independent transaction between Jackson and J. M. Payne and no proof of any indebtedness from J. M. Payne to Jackson other than that derived from the mortgage in question. The object of the arrangement manifestly was, the vesting of the title in some one representing George Payne, and at the same time securing to Jackson the payment of the debt which George Payne owed him in as effective a manner as was possible, by a mortgage on the premises described in that instrument. This being the true situation of the parties, it is clear that the matter embraced in the offer of testimony covered by the first assignment of error was competent, because it tended to disclose, in connection with the evidence by which it was to be followed, the character of the original transaction between Jackson and George Pajme. We think it also illustrates the correctness of the answer to the defendant’s 1-|- point covered by the sixth assignment. That.is, upon the theory that the mortgage in suit was given to secure a debt of George Payne, it should not include more than was legally due, and any excess over that amount could not be recovered although the mortgage given by J. M. Payne was the obligation of another person. It seems to us also that there was sufficient evidence to show that the original conveyance by George Payne to Jackson was intended merely as a security for a debt, and not as an absolute deed. It would not be possible to understand the letters and above all the ultimate transaction with Jos. M. Payne except upon that theory. But the court went further than this and referred to the jury the question whether there was a bonus of $2,000 exacted from J. M. Payne, and added to the amount of the real debt making it $10,000 instead of $8,000. In support of this allegation there was no testimony but the unsupported oath of Joseph M. Pa3'ne the defendant. It was absolutely denied by the oath of the plaintiff and the case stood on this subject upon the oath of the plaintiff and the mortgage on one side, and the unsupported oath of the defendant on the other. The letter of the plaintiff of March 2d, 1871, written more than a year before and in which the plaintiff said “the amount is something over $8,000 ” contained a mere casual and indefinite statement, not purporting to be precise, and is of no weight whatever when contrasted with the solemn and deliberate'act of giving a mortgage for a different amount fifteen months later. There-was neither allegation nor proof of any fraud, accident or mistake, in the execution of the mortgage, nor of any promise then made as to its use which was subsequently violated. We have several times held, that in these circumstances parol evidence is not admissible to contradict or vary written instruments. We have also held that in any case where such evidence is admissible, if there is but the unsupported oath of one of the parties to the instrument on the one side, and the opposing and contradictory oath of the other party, together with the words of the instrument, on the other side, such unsupported oath is not sufficient to justify the reformation of the instrument, and in such case the evidence should not be submitted to the jury. In Phillips v. Meily, 10 Out., 536, both these phases of the general subject were carefully considered and authoritatively ruled, and in our subsequent reflection and experience have confirmed us in the views there expressed. Authorities to the same effect are Thorne v. Warfflein, 4 Out., 456, 519; Nicolls v. McDonald, 5 Id., 514; Smith v. Nat. Life Ins. Co., 7 Id. on p. 184; North and West Branch Railway Co. v. Swank, 9 Id., 555. In the case of Juniata Building Association v. Hetzel, 7 Out., 507 our brother Tbtjnkey expresses our convictions fully in the following language: “ The defendant seeks to escape liability on the ground of a verbal agreement that induced him to sign the bond, because it shifted his position, as it appears on the face of the bond, to a secondary one which cannot be reached until after exhaustion of another security. He sets up an equitable defence and contends that if the testimony of himself stands alone, and is contradicted by a dozen witnesses it remains for the jury to determine the facts involved. This is true as respects every question of fact in any claim at law, but every right founded upon a claim which is strictly equitable whatever the form of procedure, should be supported by evidence that would satisfy a chancellor. If a fact be averred in the bill and denied in the answer it cannot be pretended that the uncorroborated testimony of the plaintiff would be sufficient to establish such fact in a court of equity.” As the attempt in the present case is to reform a mortgage by showing that it was given for an amount different from that which is expressed on its face, the contention comes clearly within the purview of the foregoing observations which are repeated in 9 Out. on p. 501-2. In the portion of the charge covered by the fourteenth assignment the learned court below submitted to the jury the determination of the question as to the amount due upon the mortgage as originally given, when in our opinion they should have given a binding instruction that it must be taken as $9,000, the amount stated in the instrument. In this we think there was error, and we therefore sustain the fourteenth assignment. The argument that the mortgage was obtained by duress we regard as without merit in any point of view. The first and sixth assignments are not sustained. As to the second, third and fourth assignments we can not understand why declarations or acts which transpired between the plaintiff and the defendant in the present action, are not admissible, even though they occurred in the presence of George Payne. They are admissible because they are the acts and declaration of these parties, and thej are no less the acts and declarations of these parties in every sense in which the law can regard them, whether any other person was present or not. We think that conversation with George Payne in his life time, or acts then done with him, can not loe proved by Jackson in this case because it was George Payne’s debt for which the mortgage in suit was given, and the plaintiff is the survivor of the transaction between hi in and George Payne, whose rights in this respect have devolved upon the defendant. But that circumstance can not defeat the right of the plaintiff to testify as to what took place between himself and the defendant, whether George Payne was then present or not. The defendant is alive, is a competent witness, and can testify fully in relation to the same matters. Between them there is no inequality if both may testify to the same matters occurring when both were together, but there would be very serious inequality if the defendant may, and the plaintiff may not, testify as to such matters. We sustain these three assignments in so far as they cover the exclusion of evidence by the plaintiff as to acts and declarations occurring between the plaintiff and defendant in the presence of George Payne. In other respects they are not sustained. The fifth assignment is unimportant while, if the case stood only upon the mortgage of 27th February, 1849, a presumption of payment would arise in 1872, yet if the mortgage of 1872 were given in whole or in part for the same debt, that presumption would necessarily be thereby rebutted. The assignment is not sustained. As to the seventh, ninth, tenth and twelfth assignments we do not feel that we can say there was no evidence, or not more than a scintilla, tending to prove at least negligence on the part of the plaintiff in the matters referred to, and hence we can not sustain them. Wé do think, however, it would have been proper for the court to define with more accuracy the duty of the plaintiff in the premises, and to explain what acts or omissions would constitute negligence, and even to refer to some extent to the testimony on both sides on these subjects. Merely naming the witnesses on each side, or some of them, and telling the jury that counsel have discussed it and that they must find a fair and impartial verdict, is not an adequate mode of presenting such matters to a jury. It does not enlighten them as to what their duties' are, nor does it furnish them with any sufficient guide for their action in considering and passing upon' a mass of testimony the meaning and effect of which may not be very intelligible to the ordinary mind without explanatory comments by the court. As the case must be tried again, we do not desire to discuss the testimony, nor do we feel called upon to reverse upon any of the assignments we are now considering, trusting that what we have said in a cautionary way may receive the consideration of the court on another trial. These assignments are not sustained. As to the eighth and thirteenth assignments we have serious question whether there was even a scintilla of evidence upon which the plaintiff can be properly charged with culpable negligence for not prosecuting the suit against Freck with due diligence, and thus becoming chargeable with the consequences of an actual recovery and collection of the claim against him. Very able and experienced counsel were employed to commence and prosecute the claim. An action was brought in due season. There was delay in getting it tried, but it is not easy to see how the plaintiff is responsible for that kind of delay. The cause was repeatedly on the trial list but not reached. The time of the court was occupied in an extraordinary degree by the trial of very exciting and important criminal cases. It is a hard measure of liability for a private citizen to be held responsible for delay in collecting a claim, when the delay was not of his own production. A judgment was recovered but it was five years after suit brought, and in the mean time Freck, the defendant, became insolvent and the claim was not collected. We will not reverse on these assignments, because what was said by the court was hypothetical upon assumed facts which if true would justify the conclusions expressed. But we have much doubt whether all the actual facts in evidence were sufficient to justify a conclusion of liability for negligence. Upon another trial we think the circumstances which would constitute liability by reason of negligence should be defined with more precision in order that the jury may understand the duty to which the plaintiff was subject in this regard, and in what respects, if any, he disregarded it to the injury of the defendant. The case is not the same as if the plaintiff already held a judgment against Freck for the claim in question and failed to take proper measures for its collection. But it includes the necessity of first obtaining a judgment and for that, after a suit was brought, other persons, some of them officers of the law. whom the plaintiff could not control, are in part responsible, and the question is whether the delay was due entirely to the fault of the plaintiff, or whether by greater exertions, such as a person would use in prosecuting his own claims, a speedier judgment might have been obtained, and if so, whether it would have been in time to collect the claim. We can not say there was error in the language covered by the fifteenth assignment. It is perhaps amenable to some of the foregoing criticism, but in itself it is .not error. Judgment reversed and new venire awarded.

Opinion by Mr. Justice Musmanno, The appellants in this case appeal from judgment on a verdict which they contend is excessive. The jury’s verdict was $15,464.20, which the lower court reduced to $12,000. We begin, therefore, with the accepted rule that — “It is the duty of the lower court to control the amount of the verdict; it is in possession of all the facts as well as the atmosphere of the case, which will enable it to do more even-handed justice between the parties than can an appellate court.” (King v. Equitable Gas Co., 307 Pa. 287.) We can only disturb the lower court’s adjudication of the verdict in the event it “shocks a sense of justice” to allow it to stand. The plaintiff, Michael J. Bochar, was injured on July 7, 1947, on the Pennsylvania Turnpike when his car collided with a car belonging to the defendant company under circumstances which have caused defendants to acknowledge complete responsibility for the accident. The impact of the collision threw the plaintiff against the dashboard of his car with such violence that he sustained a multiple, comminuted fracture of the right knee cap with displacement of loose fragments of bone. Numerous abrasions and contusions were also inflicted about his face and legs. He was taken to the Everett Hospital in Everett, Pennsylvania, where he was operated upon, a portion of the right patella removed and his right leg from hip to foot placed in a plaster cast. The cast came off on August 14, 1947, and for the next three months the patient received physical therapy treatments which included massage, heat application and manipulation of the knee which had lost considerable flexion. He got about on crutches and cane and returned to work November 20, 1947. Dr. W. W. Sipes, who performed the operation, declared the limitation of motion of the knee to be 25 to 30%; Dr. G. L. Laverty testified to a 20 to 25% limitation in active movement; and Dr. J. I. Kendrick testified that the plaintiff suffered a half inch atrophy in the right thigh and % inch atrophy in the mid thigh with a loss of 25 degrees flexion in the knee. The plaintiff has been employed by the Bell Telephone Company for 16 years, doing installation, repair and various other types of work. As an outside telephone man he climbed poles to string wires to houses. His knee injury has made pole climbing impossible. When he returned to the Bell Telephone Company after the accident he was assigned to a desk job since he was unable to take up the special occupation, “automatic switching,” in preparation for which he had studied and trained. In time, however, he took up this work but his semi-frozen knee prevented him from full performance of the tasks attached to that employment. The particular job had to do with tracking “stuck calls” through a mass of equipment located in the telephone exchange: “A. We have a flashlight, and the equipment starts at the floor and ends at the ceiling. It is mounted on racks, a great deal of equipment. But when you trace out a stuck call, all your tracing information is at the bottom of the equipment, about 12 to 18 inches from the floor, and when you trace a connection, and it requires you to stoop to reach the readings in the rack. . . Q. To find one stuck call do you stoop just once? A. No, sir. Q. How many times? A. You stoop eight times for one stuck call. Q. What does the average man in your office handle, the number of stuck calls per day? A. The average man in the industry can trace about one hundred stuck calls a day. Q. How many can you trace? A. I can trace about half of that amount. Q. That means that you do how many in number a day, on the average? A. About 50. You stoop how many times for each day? A. 50 times 8 would be 400 stoops.” (Emphasis supplied) The knee joint is perhaps one of the nicest and most delicate pieces of anatomical engineering in the body, so that the pain and discomfort accompanying the stooping to which Bochar is subjected in his work can be comprehended when one notes the testimony of Dr. Sipes: “Q. State whether or not the injury to Mr. Bochar’s right knee which you have described would affect him if he were kneeling down on the floor, for example? A. Yes, sir. Q. If he were doing any work or any other act which required him to kneel, would his injury affect such an act of kneeling? A. Yes, sir.” The defendants contend that there was no evidence of impairment of earning power and that the fact that Bochar’s wages were higher after the accident than before proves no deterioration of earning ability. A tortfeasor is not entitled to a reduction in his financial responsibility because, through fortuitous circumstances or unusual application on the part of the injured person, the wages of the injured person following the accident are as high or even higher than they were prior to the accident. Parity of wages may show lack of impairment of earning power if it confirms other physical data that the injured person has completely recovered from his injuries. Standing alone, however, parity of ivages is inconclusive. The office Avorker, who loses a leg has obviously had his earning ability impaired even though he can still sit at a desk and punch a comptometer as vigorously as before. It is not the status of the immediate present which determines capacity for remunerative employment. Where permanent injury is involved, the whole span of life must be considered. Has the economic horizon of the disabled person been shortened because of the injuries sustained as the result of the tortfeasor’s negligence? That is the test. And it is no answer to that test to say that there are just as many dollars in the patient’s pay envelope now as prior to his accident. The normal status of a healthy person is to progress, and to the extent that his progress has been curtailed, he has suffered a loss which is properly computable in damages. The plaintiff testified that because of his disablement he was not allowed to be employed overtime (on Sundays and holidays). On a rotation basis he was entitled to be on the job every fourth Sunday for which work he would receive time and one-half pay. (The pay for holidays was double time.) Up to the date of the trial the plaintiff lost |126Q because of inability to do this overtime work. Dr. Sipes testified that the impairment in the flexion of the injured knee would be permanent so that the jury had the right to compute the loss of overtime wages on a permanent basis. In his charge to the jury the learned Trial Judge very properly left to the jury determination of the duration of the impairment in earning power: “It will also be your duty to determine therefrom whether his partial impairment of earning power will last until the end of his life expectancy — he is now 33 years oid- or, if not, how soon Avill it probably change for the better, that is, whether the partial loss of earning power is temporary or permanent; and then adjust your award for such loss of earning power, if you find any, by the present worth rule which we shall hereafter explain to you.” Further: “In computing the partial temporary or partial permanent loss of plaintiff’s earning poAver in the future, if you find any such loss under all of the evidence, you must determine how many years it will continue, Iioav long he will be incapacitated, or how long he Avill probably live if you find his incapacity Avill be for life.” We cannot say that under these instructions, superimposed on the facts of the case, the jury was not justified in awarding a sum of substance for impairment of earning power. The item of pain, suffering and in convenience is also one of substance. The record contains considerable testimony on the subject of the great amount of pain to which the plaintiff was subjected during the time he was in the hospital and subsequent to that time. Dr. Kendrick also explained that, due to the knee injury, Bochar, when kneeling, would be forced into an awkward position and an unsteady balance. The plaintiff lost wages in the sum of $1292 because of absence from work, his medical expenses amounted to $460.50, his inability to work overtime which would have been assured him had it not been for his injury, amounted to $1260. He is a comparatively young man and in the field of employment to which he has apparently permanently committed himself, his injury is a definite money-losing handicap. The record, plus the trial judge’s appraisement of the damages, justifies the reduced verdict of $12,000, and the Judgment is affirmed. Some of the increase was due to “a general high cost of living increase.” Yeager v. Anthracite Brewing Co., 259 Pa. 123, 128.

Opinion by Mr. Justice Eagen, On October 20, 1971, Blanche Buchler was shot and killed in front of her home in Philadelphia, Pennsylvania. Three days later respondent, Mack Truesdale, was arrested by the Philadelphia police and charged with murder and conspiracy in connection with the killing. Thereafter, on October 27,1971, Truesdale was afforded a preliminary hearing and, after the presentation of evidence, was bound over for the grand jury. At this hearing it was further determined that bail should be denied because the proof was evident and the presumption great, and the offense rose to the level of murder in the first degree, and pursuant to Article 1, Section 14 of the Pennsylvania Constitution the offense being a capital one was not bailable. On November 8, 1971, Truesdale petitioned the Court of Common Pleas of Philadelphia for a writ of habeas corpus alleging he was improperly being detained; the petition was subsequently denied with the court finding that his detention was proper. On December 2, 1971, Truesdale was indicted on the charges of murder and conspiracy, in connection with the death of Blanche Buchler, by a grand jury and is now awaiting trial on the indictments. Thereafter, certain pretrial proceedings took place and on June 30, 1972, Truesdale made another application for his release on bail. The foundation of his new application rested on the recent decision of the United States Supreme Court in Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726 (1972), which abolished the death penalty as it theretofore had existed in Pennsylvania. A hearing was held, and the trial court granted bail in the amount of ten thousand dollars. The Commonwealth immediately filed a petition in this Court requesting the assumption of plenary jurisdiction pursuant to Section 205 of the Appellate Court Jurisdiction Act, Act of July 31, 1970, P. L. 673, Art. II, §205, 17 P.S. §211.205, and Truesdale joined in the request. A rule to show cause issued and argument was held on Saturday, July 29, 1972. The sole question presented is whether a defendant who is awaiting trial on the charge of murder, which rises to the level of murder in the first degree, has a right to bail pending trial. We assume plenary jurisdiction and now proceed to a determination of the issue on the merits. Article 1, Section 14 of the Constitution of Pennsylvania of 1968 provides the following with respect to bailable offenses: “All prisoners shall be bailable by sufficient sureties, unless for capital offenses when the proof is evident or presumption great . . . .” Consequently, the Constitution of the Commonwealth mandates all persons have a right to be released on bail prior to trial in all cases except those involving capital offenses. In the recent past this has meant that all persons, except those charged with murder in the first degree, had a right to bail while awaiting trial, subject to the accused giving adequate assurance he would appear for trial. If a person was charged with murder which rose to the level of murder in the first degree, he could be denied bail when the proof was evident or the presumption great. This result was dictated by the decisions of this Court which have consistently interpreted the constitutional phrase “capital offense” to mean only murder in the first degree, since this was the only crime for which the death penalty could be imposed. In Commonwealth ex rel. Alberti v. Boyle, 412 Pa. 398, 195 A. 2d 97 (1963), this Court stated: “A ‘capital offense’ within the meaning of the Constitution means a crime of such a character that the penalty or sentence of death may he imposed even though the crime is punishable by death or life imprisonment, or by a lesser sentence. ... In other words, a capital offense is a crime for which the death penalty may, but need not be inflicted.” Id. at 400, 195 A. 2d at 98. See also Commonwealth v. Caye, 447 Pa. 213, 290 A. 2d 244 (1972) and Commonwealth v. Keller, 433 Pa. 20, 248 A. 2d 855 (1969). With the decision of the United States Supreme Court in Furman v. Georgia, supra, and Commonwealth v. Scoleri, 432 Pa. 571, 248 A. 2d 295 (1968), cert. granted, 408 U.S. 934, 92 S. Ct. 2852 (1972), as well as this Court’s decision in Commonwealth v. Bradley, 449 Pa. 19, 295 A. 2d 842 (1972), which cases have invalidated the death penalty as it presently exists in Pennsylvania, we are left to decide if the definition of “capital offense” which we adopted in Alberti requires that the bail set for Truesdale was proper. After extensive study and reflection we rule that the constitutional phrase “capital offense” is a definition of a penalty, i.e., the death penalty, rather than a definition of the crime of murder in the first degree. In Alberti, we stated: “In other words, a capital offense is a crime for which the death penalty may, but need not be inflicted” 412 Pa. 400, 195 A. 2d at 98, and in our recent decision of Commonwealth v. Caye, supra, Mr. Justice Roberts, speaking for the Court stated: “ ‘A capital offense is a crime for which the death penalty may ... be inflicted.’ . . . Only murder in the first degree is so punishable.” 447 Pa. 216, 290 A. 2d at 246 [emphasis added]. A reading of these cases leads to the conclusion that “capital offense” refers to the punishment or penalty which may be imposed upon the person found guilty of a crime, rather than a definition of a particular crime. Consequently, since there are presently no criminal offenses in the Commonwealth for which the death penalty may be imposed, there are no “capital offenses”; hence, by mandate of our Constitution, all offenses are bailable prior to trial. Not only is this result dictated by our own Constitution and the case law interpreting that document, it also follows from a reading of cases from other jurisdictions which have interpreted similar constitutional provisions. In State v. Johnson, 61 N.J. 351, 294 A. 2d 245 (1972), and in Ex Parte Contella, S.W. 2d (1972), the Supreme Court of New Jersey and the Court of Criminal Appeals, of Texas, respectively, both found by intepretation of constitutional provisions similar to our own that bail was a matter of right in all cases now that the United States Supreme Court has invalidated the death penalty. Moreover, in State v. Pett, 253 Minn. 429, 92 N.W. 2d 205 (1958), the Supreme Court of Minnesota was faced with the exact same question we are confronted with after the Minnesota legislature had abolished the death penalty. After determining the term “capital offense” strictly referred to the death penalty, the Court stated: “Where words used in our constitution have a clear and well-defined meaning, there is no room for construction. Neither the courts nor the legislature have a right to substitute for words used in the constitution having a well-defined meaning other words having a different meaning. That is ex- aetly what we would be doing were we to substitute ‘murder in the first degree’ for ‘capital offense.’ Murder in the first degree is not a capital offense when it cannot be punished by death. The right to amend the constitution rests exclusively with the people, and, if, constitutionally, bail is to be withheld in cases other than capital offenses at the discretion of the trial court, that change must be brought about by an amendment of the constitution. As the constitution now reads, all crimes are bailable.” Id. at 432-33, 92 N.W. 2d 207-08. Lastly, the Supreme Court of Kansas reached the same result in the case of Eso Parte Ball, 106 Kan. 536, 188 P. 424 (1920), finding that once the legislature had abolished the death penalty in cases involving murder in the first degree, this crime was no longer a “capital offense” and therefore it was bailable as a matter of right, under the Kansas Constitution.9 Moreover, an analysis employed by the Supreme Court of New Jersey in State v. Johnson, supra, also dictates this result. In Johnson, the Court noted that in a prior decision, State v. Williams, 30 N.J. 105, 152 A. 2d 9 (1959), it had held when a man is found guilty of murder in the second degree, such a finding constituted an acquittal of murder in the first degree and if the party won a reversal on appeal, he had a right to bail awaiting retrial, because he was no longer subject to a “capital offense.” The Johnson Court then went on to discuss its decision in State v. Wolf, 46 N.J. 301, 216 A. 2d 586 (1966) stating: “Wolf was convicted of murder in the first degree and the jury recommended life imprisonment. The conviction was reversed for trial errors . . . and retrial was ordered. Prior to retrial on defendant’s application the trial court ruled that the State was barred from again seeking the death penalty. On appeal by the State we affirmed, holding that the jury having rendered a judgment against infliction of the death penalty, the issue must be considered as adjudicated and binding for purposes of the forthcoming trial. The distinction drawn between a verdict of guilt of first degree murder which carried the death penalty and such a verdict which imposed life imprisonment obviously signified that murder which can produce only life imprisonment is not a capital offense, within the meaning of the Constitution.” 61 N. J. 356, 294 A. 2d at 248. The decision of this Court in Commonwealth v. Caye, supra, and Commonwealth v. Keller, supra, are exactly the same as the New Jersey Supreme Court’s decision in the Williams case. And our decision in Commonwealth v. Littlejohn, 433 Pa. 336, 250 A. 2d 811 (1969) (imposition of life imprisonment precludes the imposition of the death penalty in a retrial) is substantially the same as the decision in Wolf. It follows from our opinions that after a verdict of life imprisonment, upon retrial, the offense is no longer a “capital offense,” because the death penalty may not then be imposed. Cf. Commonwealth v. Caye, supra. Thus, we agree with the foregoing learned analysis of our sister state. The fundamental purpose of bail is to secure the presence of the accused at trial. However, in the absence of evidence the accused will flee, certain basic principles of our criminal law indicate bail should be granted, these are: (a) the importance of the presumption of innocence; (b) the distaste for the imposition of sanctions prior to trial and conviction; and (c) the desire to give the accused the maximum opportunity to prepare his defense. The Commonwealth argues that the urge to flee is so great where one faces a possible conviction of murder in the first degree and a sentence of imprisonment for life, that bail should not be allowed in such instances. This argument ignores the mandate of the Pennsylvania Constitution and also fails when analyzed pragmatically. Prior to the invalidation of the death penalty, there was a strong flight urge because of the possibility of an accused forfeiting his life, and the framers of our Constitution must have felt that if a person were accused of a crime and had to risk the possibility of receiving the death penalty or forfeiting bail, he would obviously choose the latter. However, they did not feel the urge to flee was as great where the maximum penalty was life imprisonment, as indicated by the failure to draft the Constitution to read, bail may be denied in cases of “capital offenses or life imprisonment.” Thus, with the maximum penalty for murder in the first degree being life imprisonment, we believe the urge to flee is diminished. There are a number of criminal offenses in the Commonwealth which carry a possible penalty of life imprisonment, and the offenses have traditionally been bailable. We do not intend by this opinion that pretrial bail may not be denied regardless of the circumstances. As noted before, the right to release before trial is conditioned upon the accused giving adequate assurance he or she will appear for trial. If upon proof shown, the court reasonably concludes the accused will not appear for trial regardless of the character or the amount of the bail, then in such an instance bail may properly be denied, regardless of the nature of the charges. The burden, of proof is upon the Commonwealth. This decision must be reached by the application of certain criteria, such as: (1) general reputation in the community; (2) past record; (3) past conduct while on bail; (4) ties to the community in the form of a job, family, or wealth. See Pa. R. Crim. P. 4005. However, the trial court must also consider that modern police methods, such as, exchange of photographs and fingerprints, act as a deterrent to flight. The Commonwealth also urges us to rule that bail may be denied to protect the community from further criminal activity on the part of the accused, or in order to safeguard the well-being of witnesses in the case. We realize this is truly a pressing problem and the rights of the public and of witnesses to be protected from harm is of the greatest concern, however, what the Commonwealth is really ashing us to do is provide for a system of preventive detention. This would be an unprecedented step on our part, and one that is fraught with constitutional problems in terms of due process. It would also be contrary to the whole foundation of our penal system, since our laws punish for past offense, rather than incarcerate a person to prevent future offenses. Moreover, the Commonwealth’s suggestion requires a presumption on our part that an accused is guilty, rather than innocent, and also that he will commit additional crimes if released on bail. Likewise, the Commonwealth’s suggestion indicates a lack of understanding of the purpose of the bail system. Bail was conceived as a means of securing the accused’s pres- ence at trial, while at the same time according him liberty prior to trial so he could prepare his case. The traditional decision to deny bail was not a means of keeping an accused confined to protect the public, it was a means of assuring he would appear at trial. In short, the Commonwealth is asking us to apply the procedure of granting or denying bail to a purpose it was not designed to fulfill, i.e., pretrial incarceration as a preventive form of punishment for an act unconsummated. In this regard, Mr. Justice Jackson, of the United States Supreme Court, sitting as a circuit justice once stated: “The Government’s alternative contention is that defendants, by misbehavior after conviction, have forfeited their claim to bail. Grave public danger is said to result from what they may be expected to do, in addition to what they have done since their conviction. If I assume that defendants are disposed to commit every opportune disloyal act helpful to Communist countries, it is still difficult to reconcile with traditional American law the jailing of persons by the courts because of anticipated but as yet uncommitted crimes. Imprisonment to protect society from predicted but unconsummated offenses is so unprecedented in this country and so fraught with danger of excesses and injustice that I am loath to resort to it . . .” Williamson v. United States, 184 F. 2d 280, 282 (1950). Thus, anticipated criminal activity alone cannot stand as a grounds for the denial of bail. This, however, is not to say it cannot be considered in setting the amount of bail in conjunction with the aforementioned ele ments in determining if the accused will flee. Moreover, it may be considered by a trial judge in setting the terms of bail, but as tbe sole ground for the absolute denial of bail it is invalid. For the aforementioned reasons and because the instant record is absent of proof to warrant the conclusion Truesdale will not appear for trial, the order of the trial court granting him release on bail pending trial is affirmed. It is so ordered. Mr. Chief Justice Jones dissents. Section 205 of the act reads as follows: “Notwithstanding any other provision of law, the Supreme Court may, on its own motion or upon petition of any party, in any matter pending before any court or justice of the peace of this Commonwealth involving an issue of immediate public importance, assume plenary jurisdiction of such matter at any stage thereof and enter a final order or otherwise cause right and justice to be done.” Prior Constitutions of this Commonwealth have contained identical language with respect to bailable offenses. See Pennsylvania Constitution of 1776, §28; Pennsylvania Constitution of 1790, Art 9, §14; Pennsylvania Constitution of 1838, Art. 9, §14. See also Act of March 81, 1860, P. L. 427, §7, as amended, 19 P.S. §51, which provides: “In all cases the party accused, on oath or affirmation, of any crime or misdemeanor against the laws, shall be admitted to bail by one or more sufficient sureties . . . except such persons as are precluded from being bailed by the constitution of this Commonwealth . . . .” See also Pa. R. Crim. P. 4002(2). Act of June 24, 1939, P. L. 872, §701, as amended, 18 P.S. §4701. Cf. Commonwealth v. Farris, 443 Pa. 251, 278 A. 2d 906 (1971). See also Note, Criminal Procedure—Determination of Accused's Right to Bail in Capital Cases, 7 Vill. L. Rev. 438 (1962). Alberti is apparently the first decision of this Court which interpreted Article 1, §14, but for lower court decisions in accord with Alberti, see generally Commonwealth v. Scarsellato, 35 Wash. 234 (Washington County 1955) ; Commonwealth ex rel. v. Manley, 60 Pa. D. & C. 194 (Lackawanna County 1947) ; Commonwealth v. Lemley, 10 P.L.J. 122 (Greene County 1862) ; Commonwealth ex rel. Chauncey and Nixon v. Keeper of the Prison, 2 Ashm. 227, 234 (Philadelphia County 1838). Commonwealth v. Lemley (1862), supra, exhibits an early understanding of the phrase “capital offense” and the subject of bail generally: “At common law, bail is a matter of discretion with the Judges. The Court of Kings Bench had an unlimited power of admitting to bail for all offenses, including treason and murder; but bail was not demandable as a right. Of course, the Judicial discretion was exercised according to established rules. The object of the detention or imprisonment of the prisoner being to secure his forthcoming to abide the sentence of the law, the principle inquiry was, whether a recognizance would effect that end. In seeking an answer to this inquiry, the matters chiefly considered, were, the seriousness of the charge, the nature of the evidence, and the severity of the punishment Hence, when the offense was capital, and the evidence in support of it was strong, bail was denied because no pecuniary consideration would be likely to secure the attendance of the prisoner, to the probable loss of his life. And the same rule prevailed in offenses not capital, where the evidence was clear, and the punishment was, by a long and rigorous imprisonment; and, for the same reason. “In Pennsylvania, bail is not a matter of discretion; it is an absolute right. It is a right guaranteed by the fundamental law of the State; and where, by that law, a prisoner is entitled to the right, no power exists anywhere, to deprive him of the full benefit of it. It is not necessary to refer to the Act of 1705. The Constitution itself defines the right. The clause in the Constitution of 1798, copied into our present Declaration of rights, provides that ‘all prisoners shall be bailable,, by sufficient sureties, unless for capital offenses, where the proof is evident or the presumption great.’ What is a capital offense within the meaning of this clause? Plainly, an offense for which the death penalty is inflicted; a felony of death.” Id at 122. See also Pa. B. Crim. P. 1100(a) which states: “Capital Case or Crime is one in or for which the death penalty may be imposed.” See also Black, Law Dictionary (4th ed. 1951) p. 263: “. . . [A] Capital Case or Crime is one in or for which the death penalty may, but need not necessarily, be inflicted.” In Oontella, the Court of Criminal Appeals of Texas stated: “We therefore conclude that bail may no longer be denied on the ground that the offense is a capital offense and the proof is evident. Since the death penalty may not be imposed, there no longer exists a ‘capital felony’ as defined in Art. 47 V.A.P.G. Likewise, since the death penalty is no longer a possible penalty, it is impossible for the State to offer evidence, in this or any other case, sufficient to establish that the ‘proof is evident’ as that term is defined in Ex Parte Paul, supra. Therefore, there is no case in which bail may be denied under the provisions of Art. 1, Section 11 of the Texas Constitution or Art. 1.07, V.A.C.C.P.” S.W. 2d at The State, in Pett, argued that “capital offense” had reference to the offense, rather than the punishment, as does the Commonwealth in the instant case. The well-reasoned answer of the Court, with which we agree, is as follows: “The argument of the state, adopted by the trial court, is that, inasmuch as murder in the first degree was the only crime punishable by death at the time we abolished capital punishment, the constitution had reference to the offense rather than to the punishment and that murder in the first degree still is murder in the first degree; hence that the trial court now has the same discretion in denying bail to a defendant charged with that offense as it had when the conviction was punishable by death. While there is logic to this argument and the result may well be a desirable one, it is untenable from a constitutional standpoint. In essence, what the state asks us to do is to construe the constitution to read ‘except for murder in the first degree’ instead of ‘except for capital offenses.’ ” Id. at 430, 92 N.W. 2d 206. The Court stated: “The legal effect of the constitutional provision as a whole is equally definite and well settled. All offenses are bailable of right, except those to which the death penalty is affixed, and those to which the death penalty is affixed are bailable unless the proof be evident or the presumption great. . . .” “The Constitution, which in this respect is self-executing, left the Legislature free to prescribe whatever punishment it saw fit for murder, and all other offenses. The Constitution, however, dealt specifically with the subject of bail, and made all offenses which the Legislature did not see fit to punish capitally bailable. The meaning of the Bill of Rights at the time it was adopted cannot be changed without changing the Constitution itself. This the Legislature is not competent to do. At present, treason is the only capital offense under the laws of this state, and all others are bailable as a matter of right, notwithstanding the statute of 1911.” Id. at 540-42, 188 P. at 425-26. We arc not persuaded by tbe views expressed in People v. Anderson, 6 C. 3d 628, 100 Cal. Rptr. 152, 493 P. 2d 880 (1972) and People ex rel. Dunbar v. District Court, Colo. , P. 2d (1972). See McNair’s Petition, 324 Pa. 48, 187 A. 498 (1936) ; Steel v. Commonwealth, 7 Watts 454 (1838) ; Commonwealth v. Lemley, supra n. 6 (see accompanying quote) ; Pa. R. Crim. P. 4001(a) which provides: “Bail is the security required and given for the release of a person in the custody of the law, conditioned upon a written undertaking that he will appear when required and do all other things stipulated therein.” See generally Note, Bail: An Ancient Practice Reexamined,, 70 Yale L. J. 966 (1961). The United States Supreme Court set forth these basic reasons in Stack v. Boyle, 342 U.S. 1, 72 S. Ct. 1 (1951), wherein it is stated: “This traditional right to freedom before conviction permits the unhampered preparation of a defense, and serves to prevent the infliction of punishment prior to conviction. See Hudson v. Parker, 156 U.S. 277, 285 (1895) [15 S. Ct 450, 453, 39 L. Ed. 424]. Unless this right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning. “The right to release before trial is conditioned upon the accused's giving adequate assurance that he will stand trial and submit to sentence if found guilty. Ex Parte Milburn, 9 Pet. 704, 710 (1835) [9 L. Ed. 280].” Id. at 4-5, 72 S. Ct at 3. Mr. Justice Jackson in a separate opinion stated: “The practice of admission to bail, as it has evolved in Anglo-American law, is not a device for keeping persons in jail upon mere accusation ttntil it is found convenient to give them a trial. On the contrary, the spirit of the procedure is to enable them to stay out of jail until a trial has found them guilty. Without this conditional privilege, even those wrongly accused are punished by a period of imprisonment while awaiting trial and are handicapped in consulting counsel, searching for evidence and witnesses, and preparing a defense.” Id. at 7-8, 72 S. Ct. at 5. In Johnson, supra, the New Jersey Supreme Court stated: “The underlying motive for denying bail in capital cases was to secure the accused’s presence at the trial. In a choice between hazarding his life before a jury and forfeiting his or his sureties’ property, the framers of the many State Constitutions felt that an accused would probably prefer the latter. But when life was not at stake and consequently the strong flight-urge was not present, the framers obviously regarded the right to bail as imperatively present.” 61 N. J. 360, 294 A. 2d at 250. See e.g., Treason, Act of June 24, 1939, P. L. 872, §201, 18 P.S. 4201; Kidnapping, Act of June 24, 1939, P. L. 872, §723, 18 P.S. 4723; Fourth Offenders under the Habitual Criminal Act, Act of June 24, 1939, P. L. 872, §1108, 18 P.S. §5108; Rape, Act of June 24, 1939, P. L. 872, §721, as amended, Act of May 12, 1966, Special Session No. 3, P. L. 84, §1, 18 P.S. §4721; Assault with Intent to Ravish, Second Offense, Act of June 24, 1939, P. L. 872, §722, as amended, Act of May 12, 1966, Special Session No. 3, P. L. 84, §1, 18 P.S. §4722. For example, if on a past offense the accused had jumped bail, it would seem that the judge could properly deny bail, or if after committing a murder the accused had fled the Commonwealth and was returned to the authorities of the Commonwealth under a fugitive warrant either by the police of another state or by federal officials bail could properly be denied. In Johnson, supra, it was noted: “But release on bail is not simply a formal or automatic matter. A number of factors must be considered in fixing tbe amount of the bond: (1) the seriousness of the crime charged against the defendant, the apparent likelihood of conviction and the extent of the punishment prescribed by the Legislature. It may be recognized that the same urge for flight is not present where the death penalty is not involved. But exposure to a life sentence for murder may well stimulate a substantial urge to flee—even if not as intense as where the accused faces the possibility of death. And the urge may intensify in the future if the recent elimination of the death penalty results in a more restrictive parole policy; (2) the defendant’s criminal record, if any, and previous record on bail, if any; (3) his reputation, and mental condition; (4) the length of his residence in the community; (5) his family ties and relationships; (6) his employment status, record of employment and his financial condition; (7) the identity of responsible members of the community who would vouch for defendant’s reliability; (8) any other factors indicating defendant’s mode of life, or ties to the community or bearing on the risk of failure to appear.” 61 N. J. 364-65, 294 A. 2d at 364-65. Obviously, the Commonwealth would have to argue he has a propensity to commit future crimes based on his past record. Such terms of bail can be found in Standards Relating to Pretrial Release, A.B.A. Project on Minimum Standards for Criminal Justice, §5.2, p. 18 (Approved Draft 1968), which states: “(b) Where conditions on release are found necessary, the judicial officer should impose one or more of the following conditions : “(i) release the defendant into the care of some qualified person or organization responsible for supervising the defendant and assisting him in appearing in court. Such supervisor should be expected to maintain dose contact with the defendant, to assist him in making arrangements to appear in court and, where appropriate, to accompany him to court The supervisor should not be required to be financially responsible for the defendant, nor to forfeit money in the event he fails to appear in court; “(ii) place the defendant under the supervision of a probation officer or other appropriate public official; “(iii) impose reasonable restrictions on the activities, movements, associations and residences of the defendant; “(iv) where permitted by law, release the defendant during working hours but require him to return to custody at specified times; or “(v) impose any other reasonable restriction designed to assure the defendant’s appearance.” Moreover, the A.B.A. also recommends the following at §5.5, p. 20, where the accused may commit a serious crime or he may threaten witnesses. “5.5 Prohibition of wrongful acts pending trial. “Upon a showing that there exists a danger that the defendant wiU commit a serious crime or will seek to intimidate witnesses, or will otherwise unlawfully interfere with the orderly administration of justice, the judicial officer, upon the defendant’s release, may enter an order: “(a) prohibiting the defendant from approaching or communicating with particular persons or classes of persons, except that no such order should be deemed to prohibit any lawful and ethical activity of defendant’s counsel; “(b) prohibiting the defendant from going to certain described geographical areas or premises; “(c) prohibiting the defendant from possessing any dangerous weapon, or engaging in certain described activities or indulging in intoxicating liquors or in certain drugs; “(d) requiring the defendant to report regularly to and remain under the supervision of an officer of the court”

Opinion by Mr. Justice Horace Stern, A jury found defendant guilty of murder in the first degree and imposed the penalty of death. On this' appeal there áre 45 assignments of error; many of them, however, are trivial and so obviously lacking in merit as not to require discussion. Defendant is a young man 25 years of age. A psychiatrist testified that he was in the “dull, normal group” with an intelligence age of 14 to 16 years. After he left school he worked at various jobs'from time to time until 1943 when he entered the service in the recent war, becoming a member of the Marine Corps Reserve. Nine months láter he was honorably discharged “by reason of unsuitability for Marine Corps service,” his medical record indicating that he was a psychoneurotic, “constitutional psychopathic state, inadequate personality.” Within four months after his discharge he became engaged in, a conspiracy, in Lancaster County to rob the proprietor of a gasoline, station, .pleaded guilty and was sentenced to pay the costs of prosecution and placed on probation for a period of two years. He also participated in a couple of robberies in Dauphin County, pleaded guilty to one such offence and was sentenced to pay the costs, and placed on probation for a period of three years. Fáiling to keep a steady job, he apparently became so destitute that he was obliged to pawn a suit of clothes in order to obtáin money for the purchase of gasoline for his car on the occasion of the very expedition which resulted in the murder of which he was convicted. One Robert Staley, a friend of defendant, told him that he knew of an aged man named Humpert who had considerable money át his home, and they decided to “go and get it”: On March 24, 1947 they went from Harrisburg to Gettysburg in defendant’s car; Staley drove'because defendant was not familiar with the roads in-Adams County:- They spent the afternoon searching for Humpert’s farm; they ultimately found it but discovered that Humpert' was not at home; they then spent the evening at the home of Staley’s sister where they drank a quantity of liquor so' that defendant becáme intoxicated to some, extent. At about 10.30 P.M. they started for Humpert’s-place; when they reached it they parked the car and both men--'got out and went to the house, defendant taking with him' a leather-handled claw hammer. Staléy rapped on - the door ’ and when Humpert appeared -asked'for an' automobile jack for which he pretended to have immediáte need. Humpert took a lantern and, followed by defendant, and he in turn by Staley, théy walked-toward the-barn.- Suddenly defendant struck Humpert, knocked him to the ground, and continued to.hit-him with-the hammer. While this was going on Staley returned to the house but, finding'the door locked, came back -to defendant who reached into one of the pockets of the prostrate Humpert, took therefrom a key, and handed it to Staley. Both defendant and Staley-then entered the house, made’a search, and Staley found a pocket-book containing $1300 of which he after-wards gave defendant $65 claiming that he had found only $130. The two men then drove to Harrisburg; on the way defendant threw into a creek the hammer and a flashlight (these were later found and fished out by the police), and Staley also threw in the key. Later they washed, put on other clothes, and threw Humpert’s pocket-book and the clothes they had worn during the commission of the crime into a creek in Cumberland County. Defendant had the heels of his boots changed by a shoemaker in order to prevent identification of his footprints at the scene of the murder, and he also purchased other tires for his car, throwing the old ones away on a dump. On the evening of March 26 Humpert’s dead body was found lying in his barn with many dreadful lacerations of the scalp and face, blackened eyes, broken nose, a multitude of body bruises, and a depressed fracture of the skull. Defendant was arrested by the State Police on April 1 and on the following day was taken by them to the Humpert home where he admitted his complicity in the crime and described in detail how it happened. Later on the same day he made a written confession. He was indicted on April 23 and arraigned on April 28; his trial began on April 30 and extended through May 6, 1947. He testified that he had not planned the crime with Staley and that when he left the home of Staley’s sister he was so intoxicated that he did not recall anything that happened thereafter on that night. Before trial, counsel for defendant petitioned, first the court below and then this Court, for a change of venue and also for a continuance, claiming that the public sentiment in Adams County had been very much aroused by the brutal murder of this old man and that highly inflammatory articles had appeared there in the public press emphasizing the fact that defendant and Staley had confessed to the murder. We refused a change of venue because a strong feeling of revulsion is inevitable when such a crime is committed, especially in a rural community, but here there was nothing to indicate that defendant would be unable to obtain a fair trial, and the event so proved, because the jurors were carefully selected, the trial proceeded with calmness and deliberation, the jury considered the testimony for several hours before they returned a verdict, and there was nothing to show that they were influenced in any way by bias or prejudice. As to the motion for a continuance, it appears that the trial began on the 37th day after the commission of the crime, the 29th day after defendant’s arrest, and about 3 weeks after counsel had been retained; there is no pretense that, because of shortness of time, defendant was unable to produce witnesses who might otherwise have been available, or that his counsel could not make any investigation they desired in preparation for the trial. The granting or the refusal of a petition for a change of venue or for a continuance is largely a matter for the sound discretion of the trial court, and, unless that discretion is abused, which here it was not, its action will not be disturbed: Commonwealth v. Flood, 302 Pa. 190, 195, 196, 153 A. 152, 153; Commonwealth v. Deni, 317 Pa. 289, 292, 293, 176 A. 919, 920, 921; Commonwealth v. Lockard, 325 Pa. 56, 62, 63, 188 A. 755, 758; Commonwealth v. Schurtz, 337 Pa. 405, 408, 409, 10 A. 2d 378, 380; Commonwealth v. Chavis, 357 Pa. 158, 166, 167, 53 A. 2d 96, 100. There were several photographs admitted in evidence showing the gruesome wounds on Humpert’s face and head, the place where his body was discovered, and both the outside and the inside of his house and his barn. It has so long been the accepted practice to admit such photographs in evidence in the trial of criminal cases, and their use has been so frequently sanctioned and declared unobjectionable by repeated decisions of this Court, that the assignments of error based on their admission call for no extended discussion. All that the law. requires is that photographs should not be introduced merely for the purpose of exciting the emotions of the jurors, but only-where they are helpful in aiding them in their investigation of the crime and the defendant’s guilt, and that purpose should be carefully explained to them. The matter is one for the exercise of the tidal judge’s discretion: Commonwealth v. Webb, 252 Pa. 187, 198, 97 A. 189, 193; Commonwealth v. Ware, 279 Pa. 282, 285, 123 A. 795, 796; Commonwealth v. Winter, 289 Pa. 284, 289, 137 A. 261, 263; Commonwealth v. Sydlosky, 305 Pa. 406, 409, 158 A. 154, 155; Commonwealth v. Dreamer, 324 Pa. 220, 223, 224, 188 A. 117, 118; Commonwealth v. Ferry, 326 Pa. 129, 132, 133, 191 A. 130, 131, 132; Commonwealth v. Peronace, 328 Pa. 86, 93, 94, 95, 195 A. 57, 60, 61; Commonwealth v. Yeager, 329 Pa. 81, 87, 88, 196 A. 827, 831; Commonwealth v. Earnest, 342 Pa. 544, 550, 21 A. 2d 38, 40, 41. Here the learned trial judge -several, times instructed the jury that' they, must-not allow the pictures to inflame their minds. against defendant, that the photographs of the deceased were admitted only for the purpose of showing: the position of his body as it was found lying in the barn and the location and severity of his wounds as indicating the violence of the attack made upon him and tending to prove that his: death was due to a felonious killing and’not to other causes.' Nor was there any abuse of the trial judge’s discretion in admitting in evidence the hammer.‘said-to have.been used in the commission of the- crime, the flashlight, defendant’s boots, and some burlap bags with blood stains theréon which were found in the barn. Such. objects have customarily been admitted in evidence in murder trials. On the day following defendant’s arrest he was taken to the Humpert farm and there, in the presence of police officials, the district attorney and a court stenographer, he was questioned in regard to the crime. Asked whether he wished to make a voluntary, statement, he said that he did, that he wanted “to get it off my mind”. His answers were taken down stenographically and later transcribed and read at the trial by the stenographer from her transcript. He told in detail of all that had taken place the night of the crime and ended by saying: “I was intoxicated very much at the time this happened. I am not asking for leniency. I want what is coming to me bút I will say if I had .been sober I would not have did it.” . After the .questioning was over the group went to the district attorney’s office where defendant made a concise statement. embodying what he had previously recited; this, statement was taken directly ,on the typewriter as he made it; he read it, signed it, and swore to it before a Justice of the Peace. It was offered in evidence and admitted over the objection of defendant’s counsel.' When, later in the trial, defendant testified, he said that at the time he was .arrested on the morning of April 1 he had not yet had his breakfast and during that entire day when he was confined in the State Police Barracks at. Harrisburg he was without food .and, for part of the time, without drinking water; he stated that he asked, to get in touch with his parents and made a request for a lawyer but was not granted permission ; he further testified that the facts alleged in the statement he. made the-following day were not known .to him personally. but had been suggested to him by Staley who was. confined in, a cell adjoining his at the Police.Barracks,.Staley-.telling him that that was the story which .he had given to the police and .urging him to “try'to-keep our statements alike”. In view of these alleged facts the admission-in evidence of defendant’s -signed- statement is now assigned.as error.. It is to be noted that the stenographer’s transcript of defendant’s answers to the-questions propounded to him had already been admitted without objection and covered everything set forth in the later signed statement which, therefore, really added nothing to the record; furthermore, that the statement was unquestionably true because it was corroborated, partly by the finding of the articles in the creek, partly by the action of defendant in changing the heels of his boots, destroying his automobile tires and throwing away his clothes, partly by the conditions found at the place of the murder, and partly by the testimony of witnesses in regard to defendant’s activities on the day of the murder prior to his departure with Staley for the Humpert farm. Defendant admitted that he was questioned only in the morning of April 1 for a period of 3 to 3% hours; he does not say that he was deliberately denied food and drink upon his requesting it and it was only after he had eaten breakfast the next morning that he was taken to the Humpert farm and there asked the questions which he freely answered; he does not claim that there was any threat made or inducement offered in order to obtain a confession. We do not have, therefore, a case here of protracted confinement, of questioning for an unreasonable period of time or at any unreasonable hour, of parading the accused back and forth to a cell, or any other act of oppression which would justify a claim that he was denied due process of law; the confession which he made was not “the result of torture, physical or psychological”: (United States v. Mitchell, 322 U. S. 65, 68). The trial judge charged the jury that defendant’s confession should be ignored by them if they believed that it was secured by threats, promises, inducements, or any other means which would have been likely to cause him to give an untruthful statement, and they should take it into consideration only if they found, under the evidence, that it had been voluntarily given without fear or intimidation. This was in accord with the rule laid down by this Court in many cases, namely, that where the Commonwealth’s witnesses show that a confession is made voluntarily without such threats or inducements as might secure a false confession, it must he admitted; if afterwards the defendant testifies, or produces other witnesses who testify, that it was not voluntarily made, it becomes a question for the jury, who must be instructed that, if they find the confession was not voluntarily made, they must wholly disregard it: Commonwealth v. Epps, 193 Pa. 512, 516, 44 A. 570, 571; Commonwealth v. Spardute, 278 Pa. 37, 48, 122 A. 161, 165; Commonwealth v. Lockard, 325 Pa. 56, 62, 188 A. 755, 757; Commonwealth v. Jones, 341 Pa. 541, 548, 549, 19 A. 2d 389, 393. The court, over objection, admitted in evidence the official records of defendant’s previous criminal offenses, the conspiracy to rob in Lancaster County and the participation in a robbery in Dauphin County. These records were admissible in order to aid the jury in its function of fixing the penalty if they found the crime to be one of murder in the first degree; evidence of former convictions has been accepted for that purpose ever since the passage of the Act of May 14, 1925, P. L. 759; Commonwealth v. Parker, 294 Pa. 144, 143 A. 904; Commonwealth v. Williams, 307 Pa. 134, 160 A. 602; Commonwealth v. Harris, 314 Pa. 81, 171 A. 279; Commonwealth v. Holley, 358 Pa. 296, 56 A. 2d 546. The objection of defendant’s counsel was based upon the fact that in both cases sentence had been suspended and defendant placed on probation; therefore reliance is placed upon the technical proposition that, to constitute an admissible record of a conviction, there must be not only a verdict and judgment of guilt but also the imposition of a sentence. This indicates a complete misapprehension of the purpose for which the jury is to receive information of other offenses committed by the defendant on tidal, namely, that they should be able intelligently to fix the penalty, and, to that end, that they ought to know what manner of man it is upon whom they are being asked to impose sentence,—his criminal proclivities, his demonstrated attitude toward law and order, and,- on the other hand, such mitigating factors as may exist in the nature of impaired health, mental deficiencies, state of intoxication, or other circumstances. Accordingly it has never been held that a defendant’s commission of other crimes can be shown only by official records; on the contrary, proof thereof has been received in the shape of oral statements or written confessions made by defendant (Commonwealth v. Parker, 294 Pa. 144, 143 A. 904; Commonwealth v. Mellor, 294 Pa. 339, 144 A. 534; Commonwealth v. Dague, 302 Pa. 13, 152 A. 839; Commonwealth v. Petrillo, 341 Pa. 209, 19 A. 2d 288), as well as through oral testimony elicited from the defendant on the witness stand (Commonwealth v. Flood, 302 Pa. 190, 153 A. 152; Commonwealth v. Kurutz, 312 Pa. 343, 168 A. 28). It is clear, therefore, that the admission inherent in a voluntary plea of guilty is not only proper evidence but perhaps the best evidence for the purpose intended, since it is a confession made in formal manner and, when accepted and entered by the court, is a conclusive determination of guilt and the equivalent of a conviction: 14 Am. Jur. 952, §272; Kercheval v. United States, 274 U. S. 220, 223. It follows that such a plea would be evidential as an admission even if it had not been acted upon by the court at all. For these reasons, as well as to contradict testimony of defendant in which he had attempted to minimize his participation in the previous robberies, it was proper for the court to allow the Commonwealth in rebuttal to place in evidence a written confession'which he had made shortly after their occurrence stating the facts in regard to the two offenses as to which he had pleaded guilty and another one of the same nature committed at or about the same time. The court carefully and properly instructed the jury that evidence as to defendant’s previous misdeeds was introduced for the purpose of aiding them in determining the penalty in the event they found -defendant guilty of murder in the first degree and that they must not consider it in regard to the question of his guilt or innocence or in determining the degree of guilt. A psychiatrist who testified on behalf of defendant was asked in cross-examination how much he had received as a fee for the examination he had made of defendant and for his appearance in court as an expert witness. An objection to this question was properly overruled. The information it sought to elicit had a possible bearing upon the witness’s impartiality, credibility, and interest in the result: Grutski v. Kline, 352 Pa. 401, 43 A. 2d 142; Duffy v. Griffith, 134 Pa. Superior Ct. 447, 4 A. 2d 170. At the request of his counsel, Staley, defendant’s associate in the crime, was allowed to be present in the court-room while defendant was testifying; he stood up and was identified by defendant during the course of the latter’s cross-examination. There was nothing objectionable in this because it is not conceivable that defendant was prejudiced thereby. As the court below said in its opinion refusing a new trial: “He [Staley] was not handcuffed and there was nothing to indicate that he was in custody or, in fact, to indicate that he was other than a spectator.” In Commonwealth v. Petrillo, 338 Pa. 65, 92, 12 A. 2d 317, 330, defendants in cases not connected with the murder then on trial were sitting in the court-room, obviously in custody, and it was held that this was improper and prejudicial, but the situation in the present case was wholly different because Staley was a participant in the very crime for which defendant was being tried and was referred to constantly throughout the testimony. Several assignments of error are based upon portions of the trial judge’s charge to the jury. One of them is to the court’s refusal to charge that if the jury found that defendant’s intoxication was. so great as to Fender it impossible for Mm to form a wilful, deliberate and premeditated intent to take the life of deceased the grade of the homicide would be reduced to murder in the second degree. So to have charged would obviously have been error for the case was not one in which the Commonwealth was obliged to prove a specific intent on the part of defendant to commit murder. Intoxication is not a defence to relieve a defendant from responsibility for crime except that in some cases of felonious homicide, if it so clouds the intellect as to deprive it of the power of deliberation or premeditation, it may serve to reduce the crime of murder from first to second degree. Where, however, a murder is committed in the perpetration of a robbery or a burglary it is, irrespective of any question of intent, murder in the first degree, and therefore the fact that this defendant may have been drinking to excess was of no legal significance as bearing upon the degree of his crime: Commonwealth v. Wooding, 355 Pa. 555, 557, 50 A. 2d 328, 329. The court instructed the jury that if defendant intended merely to steal, to commit larceny, it would not be sufficient to support the charge of first degree murder, but the evidence here showed more than a larcency; there was both a robbery and a burglary. It is true, as defendant argues, that the question of intoxication was important in connection with the determination of the penalty, and it is said that the court should have stressed this phase of the matter to the jury, but the element of intoxication and all other possibly mitigating circumstances were covered by the court’s statement in its charge, several times repeated, that the jury were to determine the penalty only as the result of a full consideration of all the facts and circumstances disclosed by the testimony and all the information brought out about him at the trial; this would include his mental capacity and his state of intoxication as tending to prove a condition of diminished responsibility; it was not necessary for the trial judge to discuss in detail each of the factors, pro and con, that would properly enter into their consideration of the penalty to be imposed: Commonwealth v. Wooding, 355 Pa. 555, 559, 560, 50 A. 2d 328, 329, 330. Whether the jury exercised a wise discretion in fixing the penalty at death is not a matter for this Court to determine: Commonwealth v. Thompson, 321 Pa. 327, 332, 184 A. 97, 99, 100; Commonwealth v. Taranow, 359 Pa. 342, 344, 345, 59 A. 2d 53, 54. We find nothing in the trial judge’s charge to the jury that gives support to the criticism of it made by defendant’s counsel that it stressed unduly the Commonwealth’s evidence and minimized that of defendant. On the contrary, the charge was extremely fair, temperate, and judicial in tone, and this in spite of the revolting nature of the crime and the implausibility of the defence presented. The sentence in the charge to which counsel especially objects is this: “I might say to you that in this case the Court cannot see how you can fail to find a verdict of murder in the first degree.” Admittedly, this was a strong statement on the part of the trial judge. It is to be noted, however, in the first place, that since, from defendant’s confession and the uncontradicted evidence in the case, there could be no real doubt but that he had murdered Humpert, the court was amply justified in expressing a vigorous opinion. In the second place, as will appear from the paragraph hereinafter quoted in which this sentence appeared, the court’s meaning obviously was that if defendant was guilty of murder the jury could hardly fail to find a verdict of murder in the first degree since it was committed in the course of a robbery and burglary. In the third place, the objection loses all force when the sentence in question is read in connection with what immediately preceded and followed it and which emphasized that the responsibility of decision was solely that of the jury. What the trial judge said, in its entirety, was this: “And again I want to say this, that it is the power and responsibility and the duty of the jury in all cases of this type to determine the guilt or innocence of the defendant and if they determine that the defendant is guilty of murder to determine the degree of that murder. Anything that I have said in my charge has not been meant to take away from you, or to interfere with you in any way in the performance of that duty. I have said to you several times that if you find certain facts that would illustrate or be certain things—I said that simply for the purpose of illustration. You still have the power and the duty to determine the facts; to determine whether the defendant is guilty of murder or not guilty of murder and if guilty to determine in what degree. I might say to you that in this case the court cannot see how you can fail to find a verdict of murder in the first degree. Again I say to you that in stating that opinion of the court’s thought I again do not mean to take away from you in any way your function, your power, or your responsibility of finding the guilt or innocence of the defendant and the degree of that guilt if you find him guilty of murder. But that is the court’s own thought.” Previously in the charge the court had said: “You understand from that section of the statute that I read to you that in case you find the defendant guilty of murder, it is your duty and yours alone to fix the degree of the murder. Nothing that the Court may hereafter say should be understood by you as intended in any way to relieve you of that responsibility or to interfere with you in the exercise of that responsibility. That is a function solely of the jury and you have the right and the power under the law to determine not only the guilt or innocence of the defendant on the charge of murder but also to find in your verdict the degree of that offense.” Near the end of his charge the trial judge repeated once more the same admonition: “The first thing I want to again call to your attention—I expressed an opinion on the matter of your verdict. When I expressed it I told you that that was not binding on you in any respect whatever and was not meant to interfere in any way with your verdict. You have the duty, the power and the responsibility in this case of finding the defendant guilty or not guilty of murder. If you find him guilty of murder of the first degree of fixing the penalty. Now the Court expressed the opinion of the Court and it is not binding on you in any respect whatsoever.” And, finally, the court told the jury explicitly that “You have a choice of four verdicts. Not guilty; guilty of murder in the second degree; guilty of murder in the first degree with life imprisonment; guilty of murder in the first degree with the death penalty; and you could return your verdict accordingly.” Then, addressing counsel, the court asked: “Does that cover the balance of the situation?” to which both attorneys indicated that it did. A trial judge has the right to express his opinion of the guilt of the defendant and therefore of the verdict which in his judgment the jury should render, the only restriction being that he must advise the jury that anything he states in that connection is not binding upon them but that it is their sole power and responsibility to determine the guilt or innocence of the defendant, and in cases of murder the degree of the guilt, and, if their finding be one of murder in the first degree, the penalty to be imposed. In Commonwealth v. Cunningham, 232 Pa. 609, 611, 81 A. 711, 712, the trial judge said in his charge to the jury: “I do not believe there is anything in the case that would justify you in saying that the evidence warranted the defendant in killing McDevitt in self-defense.” But since he went on to state that “You are not bound by my opinion”, his charge was declared to be unobjectionable, this Court saying that “It is the undoubted right of a judge and often it is his duty to express to the jury his opinion of the weight and the effect of the evidence. The only limitation of the right is that there must be reasonable ground for his statement and that it is not made as a binding direction but leaves the jury free to act.” In Commonwealth v. Lawrence, 282 Pa. 128, 135, 127 A. 465, 467, the trial judge said: “If you believe that the defendant, Lawrence, participated in a robbery or an attempt to commit a robbery, in my opinion there is no verdict for you to render but a verdict of murder in the first degree, and in saying that you have to take the law as you take the evidence.” This court held that that was not an attempt to decide the case, but that “the jury was left free to act, and if they believed defendant guilty they had the right and duty to fix the degree of guilt. The charge did not invade the province of the jury, . . .” In Commonwealth v. Brue, 284 Pa. 294, 297, 131 A. 367, 368, the trial judge charged as follows: “Without intending to control your judgment or your conclusion in any way, we say to you that, so far as the court can see, upon the admission of the defendant himself, upon the abundant proofs of the Commonwealth, there is no ground to draw any conclusion other than that this defendant, as one of three burglars, participated in the burglary of the Klopp mansion,— that in the course of that burglary a murder was committed, which, under the law, amounts to murder in the first degree,—and that this defendant, as one of those three burglars, is therefore guilty of murder in the first degree.” This Court said that, since the trial judge later stated to the jury that it was their duty and theirs alone to fix the degree of the murder, the charge was not subject to criticism. In Commonwealth v. Nafus, 303 Pa. 418, 420, 154 A. 485, 486, the trial judge told the jury that if they came to the conclusion that the defendant had participated in an attempt to perpetrate a robbery he “is guilty of murder in the first degree, and in the opinion of the court deserves the maximum penalty under the law.” This Court affirmed the verdict of murder in the first degree with the penalty of death, finding nothing objectionable in the judge’s persuasive invitation to the jury to impose the death penalty. In Commonwealth v. Gable, 323 Pa. 449, 454, 455, 187 A. 393, 395, 396, the trial judge charged that the crime there involved was “one of the most sordid and brutal crimes in the history of this county, and if that-is true and you believe that testimony, ... it would be your duty to render a verdict of murder in the first degree, . . .” He further said: “There is no question of reasonable doubt in this case.” This Court sustained even that statement in view of the fact that defendant in his confession had admitted the killing and the manner in which it was accomplished. In Commonwealth v. Jones, 341 Pa. 541, 551, 19 A. 2d 389, 394, the trial judge said that, if found guilty of murder in the first degree, the defendant “ought to receive the severest penalty.” This court said that the pronouncement was not objectionable because the jury were instructed that they were not bound by the judge’s opinion. In Commonwealth v. Moyer, 357 Pa. 181, 187, 188, 53 A. 2d 736, 740, which represents perhaps the most extreme illustration of a vigorous expression of opinion by a trial judge which was upheld by this Court, the judge said in his charge: “I understand counsel here asked for acquittal, . . . but that is entirely a matter for you, you will reach a verdict and it is your verdict but we do not know why the question was ever propounded to you at all, why they [the two defendants] should be acquitted. . . .; under the evidence in the case, we will not submit that to you at all.” And later he added: “We have told you that you have authority to say whether this was murder in the first degree, murder in the second degree or voluntary manslaughter, but we cannot conscientiously say to you that we agree with any suggestion made by counsel for the defendants that the men ought to be set free on the charges preferred against them. However, we are leaving the matter entirely to you. We are expressing our opinion, and you will not be influenced by anything we will say, but we are quite sure you look to the judge for guidance . . . but we cannot acquiesce in conscience with the suggestion that these men should be acquitted. They are charged with this offense; the matter is entirely with you, and you are free to do as you please.” This Court affirmed verdicts of guilty with the death penalty for both defendants. In the present case the learned trial judge told the jury many times, and in clear and impressive language, that they were not bound by any expression of opinion on his part but that the power, the duty, and the responsibility of decision lay solely with them; therefore, under all the authorities, it is clear that he complied with all the requirements in that regard. The evidence in this case amply justified the jury in returning a verdict of murder in the first degree. As far as the imposition of the death penalty is concerned, this Court, as already stated, is not the tribunal to review that decision. Judgment and sentence affirmed.

Opinion, Mr. Justice Paxson : The petition in this case sets forth that the petitioner resides at No. 18 North Twelfth street, in the Ninth ward of the city of Philadelphia, and has for the last five years carried on the business of selling liquor at retail, at the said house, having been licensed to carry on said business in conformity with the laws of tbis commonwealth, heretofore existing; that being desirous of continuing said business, he presented his petition to the Court of Quarter Sessions, in conformity with the terms of the act of assembly of May 13, 1887, praying for a license to sell at retail vinous, spirituous, malt, or brewed liquors for the period of one year from June 1, 1888; that he has complied strictly and in every respect with said act, and that he possesses all the qualifications required thereby; that “no evidence, petition, remonstrance or statement of counsel, or of any other person whatever, being made or offered, or any objection of any kind being made against him or his said application, he was permitted to depart and was dismissed from any further hearing ”; that on the second day of April, 1888, it was announced by the said judges of the said court that the said application or petition of the petitioner had been refused. The petitioner prays this court “ That the said judges of the said court of Quarter Sessions who heard his said application and petition, and who refused to grant the same, may be commanded, first, by an alternative mandamus, to show cause why the prayer of said petition or application should not be granted, and secondly, by a peremptory mandamus to do fully all that is required to be done by the said act, and justice.” The seventh section of the act of May 13, 1887, under which it is claimed it is the duty of the Court of Quarter Sessions to grant this license, is as folloAvs: “The said Court of Quarter Sessions shall hear petitions from residents of the ward, borough, or township, in addition to that of the applicant, in favor of and remonstrances against the application for such license, and in all cases shall refuse the same whenever in the opinion of the said court, having due regard to the number and character of the petitioners for and against such application, such license is not necessary for the accommodation of the public and entertainment of strangers or travelers, or that the applicant or applicants is or are not fit persons to whom such license should be granted; and, upon sufficient cause being shown, or proof being made to the said court, that the partjr bolding a license has violated any law of this commonwealth relating to the sale of liquors, the Court of Quarter Sessions shall, upon notice being given to the person so licensed, revoke the said license.” It will be noticed that the petition does not aver that the judges of the Court of Quarter Sessions have neglected or refused to act upon his petition. His grievance is, that they have acted and have refused him a license. He now asks that they shall be compelled to show cause why his license should not be granted, and by a peremptory mandamus “ to do fully all that is required to be done by the said act, and justice.” We understand the prayer for relief to mean that if the judges cannot show that the petitioner has not complied with the act of 1887, or tbat a remonstrance has been filed, or an objection made by one or more citizens to the granting of a license to the petitioner, it is the duty of this court to issue a peremptory mandamus to the judges of the Quarter Sessions to compel them to grant such license. The petitioner assumes that he is entitled as a matter of right to a license, upon complying with the provisions of the act of 1887, in the absence of any allegation that he is an improper person to be so licensed. This is the fallacy which underlies his case, as well .as the able argument of his learned counsel. He has no such absolute right, nor has any other man in the commonwealth. It is not needed to review the license legislation of this state for the last half century. That was thoroughly done by Mr. Justice Agnew in Schlaudecker v. Marshall, 72 Pa. 200. It is sufficient to say that prior to the act of 1887, the law was by no means uniform, there being many local acts in existence differing essentially from each other. In Philadelphia, any citizen could procure a license, .upon payment of the license fee to the county treasurer. In some counties licenses were granted by the Court of Quarter Sessions, where in the opinion of the court the public accommodation required them. The whole history of our license system and the legislation attending it shows that the unrestricted sale of liquor has for a long time been regarded as a great evil. It is one which statesmen, and many earnest men and women, have been wrestling with from the organization of the government. When therefore the legislature came to enact the act of 1887, they were seeking to curb and regulate this evil. This clearly appears from the title of the act. It reads, “An act to restrain and regulate the sale of vinous and spirituous, malt or brewed liquors, or any admixture thereof.” The mode of restraint adopted by tbe legislature was twofold. One was, to increase the price of the license, by which many saloons would be closed and others rendered more respectable; the other was, to substitute the discretion of the Court of Quarter Sessions for the mere ministerial duty of granting licenses by county treasurers, as it had theretofore existed in Philadelphia and some other places. If the construction of the act contended for by the petitioner be the correct one, then the title of the act should read, “ An act to increase the sale of liquor and to derive revenue therefrom.” In other words, it would give every man in the state the right to sell liquor, who could pay for his license and comply with the act. This would do violence to its letter and spirit. The petitioner begs the whole case, when he assumes that he has a right to a license because he is a respectable man, has always kept a respectable house, and that no remonstrances have been filed against him. It is an error to suppose that the sole duty of the court is confined to the inquiry whether the applicant is a citizen of the United States and a man of good moral character, etc. Back of all this lies the question whether the petitioner’s house is “necessary for the accommodation of the public and entertainment of strangers and travelers,” and the plain duty of the Court of Quarter Sessions, under the act of assembly, is to so exercise its discretion as to “ restrain ” rather than increase the sale of liquor. W.e do not know how many public houses there are in the Ninth ward; it is not material that we should. We are bound to presume that the judges below have ascertained the number in a judicial manner; that they have in like manner decided how many are necessary for the public accommodation. An investigation of this question has no particular bearing upon the petitioner’s fitness to keep a saloon ; it is a general one, with which he has no more legal concern than any other citizen of the Ward. The question is one of public concern; the petitioner is no party to it in the sense that persons are parties to private litigation. It may thus happen that licenses are refused to persons against whom there is no possible objection on personal grounds. Thus, if a ward has one hundred public houses where only fifty are required by the public wants, it is plain that fifty houses must be denied license although every one of the applicants is a worthy man and keeps a respectable house, and though there be neither remonstrance nor objection on the score of want of fitness. The denial of a license under such circumstances may seem arbitrary. The trouble is, there are more persons who want to sell liquor than the legislature consider it for the public good to license for that purpose. I will not consume time with an extended discussion of the right of the judges of the Court of Quarter Sessions to exercise their discretion in the granting of license. It has been exercised by that court almost time out of mind, and the power has again and again been affirmed by this court. This discretion, however, is a legal discretion, to be exercised wisely and not arbitrarily. A judge who refuses all applications for license, unless for cause shown, errs as widely as the judge who grants all applications. In either case it is not the exercise of judicial discretion, but of arbitrary power. The law of the land has decided that licenses shall be granted to some extent, and has imposed the duty upon the court of ascertaining the instances in which the license shall be granted. In order to perform this duty properly, the act of assembly has provided means by which the conscience of the court may be informed as to the facts; it may hear petitions, remonstrances, or witnesses, and we have no doubt the court may in some instances act of its own knowledge. The mere appearance of an applicant for license, when he comes to the bar of the court, may be sufficient to satisfy the judge that he is not a fit person to keep a public house. The judge is not bound to grant a license to a man whom he knows to be a drunkard or a thief, or has actual knowledge that his house is not necessary for the public accommodation. The object of evidence in such cases is to inform the conscience of the court, so that it can act intelligently and justly in the performance of a public duty. While the act of deciding in such cases is perhaps quasi-judicial, the difference between the granting or withholding of a license, and the decision of a question between parties to a private litigation, is manifest. Neither the petitioner nor any other person in tins state has any property in the right to sell liquor. It is needless to cite the numerous cases in which this court has refused to interfere with the discretion of the Quarter Sessions in regard to licenses. I will refer to Schlaudecker v. Marshall, supra, which is upon all-fours with this, and where the question was raised upon an application for a mandamus to a board of licensers appointed under the act of May 10, 1871, giving to the said board “the same power and authority to grant licenses in the city of Erie as the Court of Quarter Sessions by law now has.” The act then in force was that of March 22, 1867, the first section of which was substantially the same as the seventh section of the act of 1887, so far as the duties of the court are concerned. The petitioner there* as here, averred all that was necessary under the law to entitle him to a license, nor does any remonstrance appear to have been filed against it. The petitioner obtained a rule upon the board, to show cause why they should not grant his application. An answer was put in by the board in which, after specifying the number of applications, the number granted, and the number refused, they said: “ The respondents answer and say that they claim it is not only simply their privilege, but an important duty enjoined on them by law, fully and carefully to examine every application for license, and when they are found to be in form according to the provisions of the act of assembly, that would constitute a prima facie case. Then it becomes the duty of the board, particularly when there are one hundred and thirty-four applications for license to deal out spirituous liquors in a city of a population of about twenty thousand, first, to see if the public interest required that number to be licensed; and, second, is the applicant a person of good repute for honesty and temperance? and, third, has he the necessary house room? These facts the board has to ascertain from evidence or personal inspection, and thereupon to judge and determine upon all the cases submitted to the board. These respondents claim that it is their duty, in discharge of an obligation they owe to the public, not to take the certificate of the twelve citizens as conclusive as to the necessity of the tavern or eating-house for the publio accommodation, as to the honesty and temperance of the applicant, and as to his being provided with house room, but to examine into the matter, and upon a full and careful investigation to decide who shall have license and who shall not. These respondents did decree upon Mr. Schlaudecker’s application and rejected it, and believe they acted in accordance with the law in doing so.” This court, in an elaborate opinion by Mr. Justice Agnew, decided that, upon this state of facts, tbe writ of mandamus was properly refused. See, also, Toole’s Appeal, 90 Pa. 376, as to tbe discretion of tbe court. Were, we to grant tbe alternative mandamus now prayed for, it would result only in a return thereto by tbe judges of tbe court below that they have considered tbe appbcation of tbe petitioner, and in tbe exercise of tbe judicial discretion conferred upon them by law, have rejected it. Under all our cases such a return would be conclusive, and it would lead to no profitable result to allow tbe writ. It is therefore denied.

Opinion by Mr. Chief Justice Moschzisker, Plaintiff, Catherine Ford, filed a claim against A. E. Dick Company to recover compensation on behalf of herself and children for the death of her husband, James Ford, who, she alleged, died as the result of an accident, which occurred in the course of his employment with defendant. The latter’s answer was that Ford had committed suicide. The referee’s award in favor of claimant was approved by the board; on appeal, however, the Common Pleas of Schuylkill County sent the case back for further evidence. Again the referee found in favor of claimant, and the board approved; but the court below reversed and entered judgment in favor of defendant. Plaintiff has appealed to us. All the evidence which we are about to recite was received without objection. Ford was a watchman for defendant company, his work requiring him to inspect and generally take care of the boilers at the company’s coal mines during the night. He was found at his regular place of service early in the morning of October 4, 1921, by Frank Steibler, defendant’s engineer, with his throat cut and traces of blood spread around the premises, indicating movements by the wounded man after his injury. Steibler, who was the first person to come in contact with Ford following the occurrence, at once asked him, “What is the matter, are you sick?” and received the reply, “No, I cut my throat.” Steibler exclaimed, “What?” Whereupon Ford again said, “I cut my throat,” immediately adding, “Go to hell.” Steibler then inquired, “How did you do it?” and the response was, “With a pocket knife.” When asked by Steibler when this happened, Ford said, “Fifteen after eleven.” William Fox, foreman for defendant, was summoned by Steibler and arrived at about six o’clock. Fox testified that one of Ford’s sons, a boy, was there, who asked his father, “Pop, what happened to you?” and he said, “I got my throat cut.” The boy inquired, “Who done it?” and the reply was “Myself.” Then the boy asked, “Who told you to do it?” and his father responded, “Neil Ferry.” This witness said that he had met Ford the night before and he seemed to be “perfectly sober,” “all right.” Fox said he had made a search of the premises to discover any knife or other implement with which Ford could have cut himself, but found none. When asked about the state of mind Ford was in when he made the declarations in the witness’s presence, he said: “He spoke straight enough to me; he could speak all right.” Fox, like the witness Steibler, testified to blood being scattered about in several places; and, in addition to the above-quoted declaration on the part of deceased, he testified that he himself had asked Ford what happened to him, and the latter replied, “I cut my throat.” Then Fox asked, “Wliat did you blow the whistle for ?” and the injured man said, “For help.” Another witness who testified to declarations by Ford was Dr. Wetterau, who was the first physician to attend the injured man. This witness said that he inquired of his patient how it happened and the reply was that he had cut himself with a knife. When asked by the doctor, “Why did you do that, Jerry?” the witness testified that Ford “closed his lips and refused to answer anything further.” This, the witness stated, was “all” that Ford had said; he also stated that Fox was present on the occasion and in a position to hear everything that was said. It will be observed that the declarations of Ford reported by Dr. Wetterau .differ from those detailed by Fox, and that the latter, if he heard what deceased said to the doctor, made no reference to it in his testimony. The testimony of the above three witnesses covers all the declarations made by deceased before his removal to the hospital. Several days after his injury, Ford’s wife saw him at the hospital. At first he had nothing to say; but on her second visit, when asked, “How did this happen?” she stated that he just lifted his hand and said, “There they come,” and when asked “How many?” replied, “Two.” The witness testified that she thought her husband was sane at the time of these declarations; she said that, though Ford drank at times, he had not been indulging for some days before his death. Bernard Carlin, a nephew of Ford, testified that he called at the hospital, and when he inquired of the patient, “Who did it?” Ford replied, “I was tackled.” James Ford, a son of deceased, testified that he saw his father in the hospital and asked him, “Did you do it?” The reply was, “No.” He then asked, “Who did it?” and the father said, “I don’t know.” This witness expressed the opinion that the injured man was conscious and sane when he uttered the declarations just recited. Dr. Gaughan, who attended deceased at the hospital, said that he arrived in a serious condition, “with the wind-pipe wide open.” This witness stated, the patient was “delirious most of the time.” Two other witnesses were produced at the second hearing, and no objection has been made to their testimony. The first of these, Neil Ferry, said that he had known deceased for years and was on the most friendly terms with him; that he had never, under any circumstances, told him to cut his throat. Some point is made in the opinion of the court below about a statement in the testimony to the effect that there were two Neil Ferrys, and that the man who appeared might not have been the one meant by deceased; but it seems reasonably clear from all that was said on the subject of Neil Ferry that this was the one in question. There was nothing to show that the other Neil Ferry, if he existed, lived anywhere in the locality involved in this case, or who or what he was; whereas the testimony shows that the Neil Ferry who appeared was well known to all concerned, and everyone seemed to take it for granted at the hearing that this was the man in question. The only remaining witness was a man named Thomas, who testified he had known Ford all his life; that he had met him going to work on the night before the fatality and observed nothing unusual about him. Thomas said he had talked with deceased that evening and found him “jovial,” “in a good humor.” Section 301 of the Workmen’s Compensation Act of 1915, P. L. 736, provides “that no compensation shall be made when the injury or death be intentionally self-inflicted, but the burden of proof of such act shall be upon the employer.” The compensation authorities believed and found that defendant had not borne this burden; while the court below believed and found to the contrary. Thus arises the point in the case. There is a presumption against suicide or self-destruction on the part of a sane person, who came to his death under circumstances not explained (Continental Ins. Co. v. Delpeuch, 82 Pa. 225, 231, 235; Travellers’ Ins. Co. v. McConkey, 127 U. S. 661, 667; Guardian Life Ins. Co. v. Hogan, 80 Ill. 35, 42; 22 C. J. 95; Chamberlayne, Modern Law of Evidence, section 1053), and this presumption is expressly recognized by the act before us when it casts on the employer the burden of proving the contrary state of affairs. In Kelly v. Director General, 274 Pa. 470, 474, 475, we said: “Where a presumption in favor of a party entitles him to have his case submitted to [the triers of the facts] it cannot be withdrawn from them merely because ......other evidence [tends] to rebut that presumption [even though] the evidence to rebut the presumption may be very strong.” There we called attention to the well-recognized fact that those who see and hear witnesses are best situated to judge the value of the evidence given by such witnesses, and said that, while “the force of the evidence may or may not be sufficient to convince them that the natural presumption arising from human instinct [has been] repelled, [yet,] before they can come to this conclusion, they must consider the circumstances under which the repelling witnesses testify.” Finally, adding authorities, we said: “Whether the presumption is rebutted is for [the triers of the facts] unless the evidence to the contrary is clear, positive, credible and either uncontradicted or so indisputable in weight and amount as to justify the court in holding that a verdict against it must be set aside as a matter of law.” Here we have a guiding rule for the present case. Other guiding rules are stated in Vorbnoff v. Mesta Machine Co., 286 Pa. 199, 207, 209, as follows: “The compensation authorities are to decide all questions of fact and the courts are to decide those of law;...... mixed questions of fact and law......may be reviewed by the courts on their latter aspect alone.” Again, as to findings of fact, the only question for the courts is, Does the record contain legally competent evidence to sustain them? Defendant contends that the only legally competent evidence on this record, as to how Ford came to his death, is that showing declarations by the deceased which tend to prove he committed suicide; that these particular statements are admissible as declarations against interest, while none of the declarations tending to show that deceased’s wound was not intentionally self-inflicted have any legally sufficient grounds to support their admission in evidence. There are several answers to the contentions just stated. To begin with, the presumption which carried plaintiff’s case to the triers of the facts, though rebut-table, had the same probative force as direct evidence: Holzheimer v. Lit Bros., 262 Pa. 150, 152, 153, and other authorities supra. Next, the testimony of the witness Steibler, who first saw Ford after the accident, is competent as part of the res gestee (Smith v. Stoner, 243 Pa. 57, 63; Com. v. Puntario, 271 Pa. 501, 506), and his evidence does not show that deceased’s wound was intentionally self-inflicted, it merely shows that he said, “I cut my .throat,” and told when it happened. Then, the physical facts attendant upon or accompanying the finding of deceased, as well as the evidence concerning the duties performed by him, etc., were for the consideration of the triers of facts, and properly may have had weight with them in reaching their mixed conclusion of fact and law that defendant did not prove deceased’s wound to have been intentionally self-inflicted. But, since all the declarations of deceased were received without objection, both those given in evidence by plaintiff and by defendant, we must assume that both plaintiff and defendant elected so to try the case, and we have said that, under such circumstances, even evidence ordinarily incompetent may be considered (Poluski v. Glen Alden Coal Co., 286 Pa. 473, 476); though we have also said material findings cannot rest on that kind of evidence alone: McCauley v. Imperial W. Co., 261 Pa. 321, 326. Here, our review of the evidence shows several declarations by Ford which, though they fail plainly to say his wound was not intentional or self-inflicted, yet are consistent with the presumption to that effect, and in connection with these declarations it must be recognized that one often colloquially states, “I cut myself,” when the cut is purely accidental. It is possible that certain of Ford’s declarations that are now sought to be used against him ought to be understood in this innocent sense. As we are now reviewing the work of a trial tribunal, — the compensation authorities, — which refused to find that Ford’s wound was intentionally self-inflicted, whatever reasonable meaning the declarations now under consideration can be given which is consistent with the findings of that tribunal should be adopted by us; and this under the rule that a court of review must look at the evidence in the light most favorable to the party who obtained the verdict on the facts. Then, again, the record now before us contains certain declarations plainly indicating that Ford’s wound was not intentionally inflicted; since these declarations apparently were admitted by tacit agreement of both parties, they were not to be ignored, but were proper to be considered by the compensation authorities, with the declarations relied on by defendant and the other items of proof, — snch, for instance, as the significant fact that there was evidence that the knife was not found, after search, — in determining whether defendant had overcome the presumption against self-injury and proved suicide. In Flucker v. Carnegie Steel Co., 263 Pa. 113, 119, we said that, “when the dead body of an employee is found on the premises of his employer at or near his regular place of service, under circumstances fairly indicating an accidental death which probably occurred during the usual working hours of the deceased, the inference may fairly be drawn, in the absence of evidence to the contrary, that the employee was injured in the course of his employment.” Had Ford been found at the place and hour disclosed by the evidence in this case, dead, with his throat cut, there Avould have been a presumption, under the authority just cited, that he had died an accidental death in the course of his employment. Suicide was suggested in the Flucker Case, and Ave said (p. 118) that the burden was on the employer to show this, adding that “the conclusion of fact as to the manner of [the employee’s] death was for the compensation authorities to draAV, and, when made by the referee and affirmed by the board, it was not subject to reversal by the court below,” citing Poluskiewicz v. Phila. & R. C. & I. Co., 257 Pa. 305. Of course, if the evidence relied on by the claimant was one-sided and conclusively showed a self-inflicted injury or suicide, the presumption to the contrary could not prevail; but that is not this case. Here, it cannot be said as a matter of law that the award in plaintiff’s favor entirely lacks eAddential support ; no more can it be held that the evidence relied on by the other side is “so clear, positive, credible, and uncontradicted,” or so “indisputable in weight” as to justify the court below in holding that the employer had sustained the burden put on it, and, on this theory, to warrant it in setting aside the findings of the compensation authorities that defendant had not proved the injury which caused Ford’s death to be intentionally self-inflicted, or in refusing to abide by the accompanying finding that deceased “met with an accidental injury while in the course of his employment, by which he sustained a lacerated larynx that contributed to his death,” which second finding, under the circumstances of this case, logically followed the first one. The court below, apparently under the mistaken impression that the law gave it the right to pass on the weight of .the evidence, and thus to change findings of fact made by the compensation authorities, and apparently entirely overlooking the presumptions in claimant’s favor and the burden of proof resting on defendant, states in its opinion, “We think the testimony clearly shows decedent cut his own throat......[and] proves that the injury was intentionally self-inflicted......; it does not support the contrary finding.” All of this indicates that the learned court below did precisely what, in Kuca v. Lehigh Valley Coal Co., 268 Pa. 163, 165, and, later, in Vorbnoff v. Mesta Machine Co., 286 Pa. 199, 207-8, as well as in other cases there cited, we definitely decided the Workmen’s Compensation Act denied the courts power to do; that is to say, it weighed the evidence and changed the findings of fact made by the referee and the compensation board. In the VorbnofE Case, where the court below had made a like mistake, we said, after carefully examining the statute, “The court acted beyond its power......; [it] had no authority to weigh the evidence and thus change the findings and reverse the final action of the board.” The probable mental condition of Ford when he made the various declarations concerning his injury, and the opinions of the several witnesses in that regard, all have a bearing in this case, as to which the referee, who saw and heard the witnesses, was, above all others, in the best position to judge. It is difficult to understand how anyone, wounded as was Ford, — with his “wind-pipe wide open” and the great loss of blood which, according to the testimony, he suffered, — could have been able to make the many declarations attributed to him; but, be that as it may, it is 'not for us, any more than it was for the court below, to weigh the evidence, and thus decide the facts; the facts are for the compensation authorities to decide and the law is for the courts. When findings of fact have been made, only questions of law connected therewith can be ruled upon by the courts. The court below had the right and duty to apply the standard hereinbefore stated, and thus to pass on questions of law connected with the burden of proof, also to determine whether there was any evidence upon the record to support the findings of fact in claimant’s favor, — particularly the two ultimate findings to which we have called attention, — or any legally competent evidence for that purpose; but it lacked power to go further and substitute its own findings according to what it conceived to be the weight of the evidence. It should be constantly remembered in administering the workmen’s compensation law, not only that the authority of the courts must be found in the statute, but also that the statute evidences a contract: Anderson v. Carnegie Steel Co., 255 Pa. 33, 39; Liberato v. Royer, 281 Pa. 227, cf. 81 Pa. Superior Ct. 403, 408. In the present instance, the compensation authorities kept within their defined powers, under the act, but the court below did not; hence we are unable to sustain its disposition of the case. The judgment appealed from is reversed; the award is reinstated and affirmed. Mr. Justice Schaffer dissented.

Opinion by Mr. Justice Eagen, This appeal arises from a decree of the Court of Common Pleas of Allegheny County which denied equitable relief to appellants, all members of the Pittsburgh Athletic Association. The gravamen of their complaint was that a certain bylaw purportedly passed at a meeting held November 14, 1967, which limited the transferability of certain membership certificates unlawfully deprived them of vested property rights. Secondarily it was contended that even if the questioned bylaw were found to he a proper exercise of corporate power, passage still had to be declared a nullity since the enactment did not receive the required two-thirds vote mandated in the bylaws. After preliminary objections to this complaint were dismissed, the matter came on for trial before Silvestre J., sitting as chancellor. At the completion of testimony the chancellor entered his adjudication and decree nisi dismissing the complaint. Exceptions were subsequently dismissed and a final decree was entered by the court en banc. This appeal was then filed. Trial of the issue disclosed the following facts: The Pittsburgh Athletic Association, a nonprofit membership corporation, was incorporated by decree of tbe Court of Common Pleas of Allegheny County on December 24, 1908, at No. 120 First Term, 1909. The Association’s underlying purpose was and is the maintenance of a club for athletic exercises and social enjoyment. Life membership was established under the original bylaws of the organization in 1908. Between the year of its establishment and 1923, some 164 original life memberships were sold by the Association, 122 of which are presently outstanding. Such membership called for an entrance fee of one thousand dollars. The legend on the life membership certificate reads in pertinent part as follows: “Life Member” “The membership hereby represented is perpetually exempt from dues and assessments but is subject to all other bylaws and rules. “This membership is transferable on the books of the Association upon assignment and surrender of this Certificate in accordance with the provisions of the bylaws.” [Emphasis supplied.] On the reverse of the certificate is a provision for its assignment and transfer “according to provisions set forth in the bylaws of said Association.” During the intervening years between the foundation of the group and the inception of this lawsuit, the provisions in the bylaws dealing with life membership have been amended on several occasions. Prior to February 6, 1922, the relevant portion of the bylaws provided that: Section 4. “Life membership shall be transferable on the approval of the Board of Directors, subject to the regular action of the Membership Committee, upon the payment of a transfer fee equal to the amount of the resident initiation fee in force at the time transfer is made, and such members shall be exempt from the payment of dues and assessments. The Association has first opportunity to purchase any life membership which may be offered for sale.” Section 9. “Each Life Member shall pay an entrance fee of $1,000 and shall be exempt from the payment of annual dues.” In 1948 the word “Perpetual” was added to the title of Life Membership, so that it read in the bylaws “Life [Perpetual] Membership.” In 1954 the bylaws were again amended by making the life membership transferable only to resident members. Finally, the amendment of November 14, 1967, which gave rise to the present dispute provided as follows: Section 5. “Life Membership shall be transferable to a Resident member only on the approval of the Board of Directors, subject to the regular action of the Membership Committee, upon the payment of a transfer fee equal in amount to the Resident initiation fee in force at the time transfer is made, provided there be credited on such payment in the amount of any initiation fee already paid by him, and such member shall be exempt from the payment of dues and assessments. “Effective ten (10) days following the enactment of this amendment Bylaw, all Life Memberships in existence will be entitled to one (1) transfer as set forth above, and if and when said transfer takes effect, the new certificate will be marked with the legend, ‘This certificate is non-transferable’. However, the Life Member holding the new certificate will have all the other privileges of Life Membership as set forth herein, with the exception of transfer rights and any rights incidental thereto. “No Life Memberships, in addition to the 157 outstanding shall be issued. The Association has first opportunity to purchase any Life Membership which may be offered for sale.” Appellants assert that the effect of the 1967 amendment was to convert what had been a life membership, exempt from dues and assessments and heretofore continuously transferable, subject to the bylaw regulations, to a life membership which would be terminated at the death, resignation or expulsion of the transferee of the present holder. The inherent defect, in their estimation, is the deprivation of contractual and property rights; rights which were vested in the holders of life memberships and which cannot be divested without their consent. The property right so vested is declared to be the unqualified right to transfer each such certificate in perpetuity, exempt from dues and assessments in the hands of the holder. It is appellee’s position that while in past practice life memberships have been transferred beyond the life of the original life member, such transfers have always been made pursuant to the bylaws of the Association and their subsequent amendments. It is argued that the transferability of a life membership arose out of and exists solely by virtue of the bylaws of the Association and that an amendment limiting transferability is within the power of the Association, despite the fact that it may restrict privileges which were previously permitted by the liberal policy. The chancellor concluded that it was necessary to strain the definition of life membership in order to find a perpetual right of transferability and declined to do so. \He further found by analysis of the contract between the Association and its members that any right of transferability emanated from the bylaws and as such, was subject to future amendment. On this basis he found that the Association was acting within the parameters of its authority in amending this bylaw and accordingly dismissed the complaint. Two issues are presented for our determination: first, whether the court below erred in determining that life membership holders did not have a perpetual right to transfer such memberships; and second, whether it is now open to appellants to argue that the amendment did not receive the necessary vote of the membership. We take as our starting point scrutiny of the term life member, in general and in the context in which it appears in the membership certificate document. While there is a dearth of cases on the point the term “life membership” was discussed by the court in Masonic Country Club of Western Michigan v. Holden, 12 F. 2d 951 (1926). At issue was the tax consequence of club membership. Analyzing the nature of such a membership, the court said at page 955: “It is a matter of common knowledge, of which this court will take judicial notice, that the kind of membership in clubs and organizations such as the plaintiff which is cal hid life membership is a familiar one, and constitutes essentially, as its name indicates, membership for life, subject to earlier termination only by resignation or dishonorable expulsion.” See also, Martin v. Town & Country Development, Inc., 230 Cal. App. 2d 422, 41 Cal. Rptr. 47, 10 A.L.R. 3d 1347 (1964), wherein the holding of the trial court that lifetime membership meant for the lifetime of the plaintiffs was affirmed. Instantly appellants direct our attention to the use of the word “perpetual” in the legend on the life membership certificate and in the bylaws. As was earlier noted, the certificate plainly states that, “The member ship hereby represented is perpetually exempt from dues and assessments, but is subject to all other bylaws and rules.” However, the word “perpetual” appears but once on the certificate and then as a modifer of the phrase “dues and assessments”. At no point does it modify the term “life member” nor in logic can it be transposed to do so. Moreover, if the word “perpetual” were given the meaning for which appellants contend, i.e., an indefinite existence or duration on the part of the membership and a right of perpetual transferability, the title “Life Member” would be bereft of meaning. Nor do we overlook the fact that the second paragraph of the certificate deals with the very matter of transferability and yet fails to use the word “perpetual”. We attribute little significance to the 1948 amendment to the title in the bylaws which formerly read “Life Members” and which now reads “Life [Perpetual] Members”. We are instead persuaded by the reasoning of the lower court that, “At the most all that was intended was an attempted clarification and conformity to the legend on the Life Member Certificate that that membership was perpetually exempt from dues and assessments.” Appellants couple their argument that a vested property right in these memberships certificates arises by virtue of the contract between the Association and its individual members with the conclusion that this case is thus governed by such decisions as that of Marshall v. Pilots Association, 206 Pa. 182, 55 A. 916 (1903), and Becker v. Berlin Beneficial Society, 144 Pa. 232, 22 A. 699 (1891). Therein this Court refused to sanction what it deemed to be a forfeiture or impairment of preexisting contract rights vested in the membership. The difficulty as we perceive it lies in the major premise of the aforementioned argument. • In our view the contract in the instant case consists of two elements: (1) the certificates of membership, ami (2), the bylaws (including subsequent amendments) of the corporation. In lucid terms the certificate declares the holder to he perpetually exempt from all dues and assessments hut “subject to all other bylaws and rules” and “transferable ... in accordance with the provisions of the bylaws.” Emanating as they do from the bylaws, the rights of the membership (including any right of transfer) are qualified from the outset. Any right granted could thus be revoked or changed. See Moon v. Locomotive Engineers Ins. Ass’n., 343 Pa. 472, 23 A. 2d 474 (1942). While it would have been possible for the Association to fix forever all of the rights of life members, thus rendering them insusceptible to future alteration, the documents critical to this case indicate eschewal of such an approach since certificate rights (save in the areas of dues and assessments) are made totally dependent upon the bylaws. Appellants’ reasoning, if accepted, would lead to an anomalous result in that their contract rights, if determined to he absolute and vested (with an unbridled right of transfer) would be different from and greater than their source, the bylaws. In our judgment cases like Moosic Lakes Club v. Gorski, 402 Pa. 640, 168 A. 2d 343 (1961), cited by appellants, are inapposite since none deals with an “open contract” clause as is present instantly. In none of the cases cited were rights expressly taken and accepted subject to all bylaws of the organization. Furthermore, we are not convinced that the principles operating in the case of Schaad v. Hotel Easton Co., 369 Pa. 486, 87 A. 2d 227 (1952), are in all ways relevant to the instant case. Schaad involved the attempted impairment through bylaw amendment of the rights of a preferred stockholder. Our Court held that certain contractual rights between a corporation and its members cannot be destroyed by a simple amendment to the bylaws without the consent of all those concerned even where there is provision for amendment. The Pittsburgh Athletic Association is, however, a nonprofit, nonstock corporation. The entirety of its assets is vested in the corporation alone; members are not and cannot be deemed owners in any sense of the term. What is being claimed presently is a vested right in the membership itself. Such a concept is rather ill-suited to consensual societies and clubs. We adopt the pertinent observation of the chancellor that: “Inherent in the idea of a social club is the notion that those who make up the association be free to choose [possibly subject to certain limitations not here pertinent] who should belong and upon what terms. It is true that the right to choose its members may be given up by such a club. However, we find that this was not the intention here and we will not do it by indirection.” Appellants urge us, in the event of our deciding the first question adversely to them to remand this case to the lower court for a further hearing at which time argument will be received on whether the bylaw re ceived the necessary vote. It is strongly asserted that the chancellor’s resolution of the issue in his opinion, declaring it moot by agreement of the parties was clear error and an obvious abuse of discretion. The following additional facts help to illustrate the problem at hand. In their original complaint appellants asserted the amendment did not receive the necessary vote. Prior to the commencement of trial there was some on-the-record discussion about stipulating the number of votes cast. Appellants were willing to stipulate that 278 members attended the meeting and that the teller’s count showed 179 votes for the resolution and 83 against. Appellee would not stipulate as to the accuracy of the teller’s count. Disagreement centered around some 12 votes plus the question of how many members were still in attendance at the time of the vote. At this point the on-the-record stipulation discussion bogged down and ended inconclusively. The crucial fact of which we must take cognizance is that at trial, counsel for appellants introduced no evidence whatsoever on the issue of whether or not the amendment carried. While such failure seems to lend credence to the court en banc’s conclusion that there was such a stipulation, we do not pass on the point since it is black letter law that an appellate court cannot consider anything which is not a part of the record in the case. See Kilian v. Allegheny County Distributors, Inc., 409 Pa. 344, 185 A. 2d 517 (1962). However, we cannot overlook the barren state of the record on this issue conjoined with the fact that there was no reservation of the question on the record, and hence we conclude that the point was inadvertently or otherwise surrendered. Decree affirmed. Each side to pay own costs. Mr. Justice Manderino dissents. Mr. Justice O’Brien and Mr. Justice Pomeroy took no part in the consideration or decision of this case. None of the appellants voted for or in any way consented to this amendment. Nor are any of them original life members but have instead come by their memberships in various other ways; as gifts or inheritances, purchases from original life members, through tlie Association itself acting as intermediary or from the estate of deceased members. Each of the transfers to them was in accordance with club procedure, pursuant to the bylaws, i.e., payment of a transfer fee, approval of tlie membership committee and the Board of Directors and transfer on the books of the Association. The bylaws of the Association from 1922 to 1967 provided that life membership was to be transferable by approval of the Board of Directors, subject to the regular action of the membership committee and upon payment of a transfer fee. The bylaws, however, were not explicit as to the period of this transferability, i.e., whether it was to continue as long as the membership was outstanding, or whether it was to be only for the life of the original holder. The parties presented conflicting testimony and interpretations at trial. At the February 6, 1922, meeting Section 9 was incorporated into the body of Section 4 by the membership. It should be noted that no bylaws were produced by either side for the period prior to 1922. The club’s examination of its records turned up a portion of the 1922 bylaws and the first complete set of bylaws attached to the minutes of the 1939 annual membership meeting. In order to determine what the original bylaw on life membership provided, the Association manager, a Mr. Bailey Settle, took the pre-February 6, 1922, provision and traced it back through the minute books of the Association to 1911 and discovered that it had never before been the subject of an amendment. The same process was repeated with regard to the critical bylaw on the power to amend bylaws. The search revealed that the Association had this power from its inception, a fact which was conceded by appellants in their brief. See and Cf. Kensington National Bank et al., Trustees v. Cedarbrook Country Club et al., 161 Pa. Superior Ct. 407, 54 A. 2d 838 (1947), where it was said by the court that the rights of holders of certain proprietary certificates depended upon the contract which they entered into with the Club when the certificates were issued, the terms of which were contained in the certificates and in the bylaws. Concepts of voluntariness are inherent in the notion of a club or association. In Carpenter v. Zoning Board of Appeals of Framingham, 352 Mass. 54, 223 N.E. 2d 679, 681 (1967), the Supreme Judicial Court of Massachusetts said that a “club” could be said to be “an association or a corporation comprised of individuals joining together for social intercourse or some other common object,” and noted also that “Samuel Johnson long ago defined a club as ‘an assembly of good fellows, meeting under certain conditions.’ ” See also, Chafee, The Internal Affairs of Associations Not for Profit, 43 Harv. L. Rev. 993, 1006, 1007 (1930). In his adjudication Judge Silvestri wrote: “At the trial of the matter the parties agreed, if it was found by the Court that the plaintiffs do not have a ‘vested property right’ in their membership and the defendant has the right to enact bylaws regulating the transfer of the ‘Ufe Member’ or if the plaintiffs do have a ‘vested property right’ in their membership, that in either event the question of the improper tabulation of the ballots cast would be moot, for the reason that under the first possible finding the defendant would be able to hold another meeting and rectify any alleged errors and under the second possible finding the bylaws amendment whether properly or improperly enacted would be a nullity.” The court en banc also found that the parties agreed to resolve the vote issue in the manner outlined by the chancellor, noting, however, that “The agreement . . . was not reduced to writing by counsel or placed in the record.” It went on to say, “It is the opinion of this court that the better practice would have been to imt the agreement of counsel in writing in the form of a stipulation and place it on the record. . . . This Court, however, will not vacate the decision of the Chancellor merely because of the conflicting recollection of one counsel.”

Opinion by Mr. Justice Maxey, TMs is an appeal from tlie final decree of the Orphans’ Court of Philadelphia County confirming, with some modifications, the auditor’s report on the account of the Pennsylvania Company for Insurances on Lives and Granting Annuities, (hereinafter referred to as the trustee) Trustee under the deed of Nucom Kenin, dated April 12, 1929. Kenin died insolvent on June 1, 1929, leaving a last will, with codicil, both dated April 12, 1929. By his will he appointed Bose Kenin, (his daughter) Otto F. Pfizenmaier and The Pennsylvania Company for Insurances on Lives and Granting Annuities executors and trustees also of his estate. Kenin’s widow died on February 6, 1930. By deed of trust dated April 12, 1929, Kenin assigned to trustee certain policies of insurance on his life, totalling in their face amounts $100,000, “in trust to collect the proceeds of the said policies upon maturity and pay over the same unto the Trustees named in the last Will and Testament of the Settlor to be thereafter held by them under the same uses and trusts and with like distribution as in said Will set forth with reference to the residuary estate of the Settlor”. By his will of the same date Kenin bequeathed his residuary estate in trust for the benefit of his wife and his descendents (with a gift to charity if there was an ultimate failure of issue). The first two questions arising from this record are the following: (1) Should the proceeds of these insurance policies be paid to the executors of the estate of the deceased settlor on the ground that the deed of trust is testamentary in character? (2) Is the case ruled by the provisions of the Uniform Fraudulent Conveyance Act of May 21,1921, P. L. 1045 (40 P. S. 517) ? The court below answered both of these questions in the affirmative. Four of the insurance policies, aggregating $60,000 had previously been held under a prior deed of trust, dated November 6,1926, Avhereunder the Union National Bank Avas Trustee. The account giving rise to the present proceedings Avas filed on January 30,1935, and after it Avas called for audit Arthur Littleton, Esq., Avas appointed Auditor by a decree entered December 21, 1936. Meetings Avere held before the Auditor from January 7, 1937, to July 12, 1940.. The Auditor’s report Avas filed on April 21, 1941. On April 18,1941, exceptions to the Auditor’s report Avere filed on behalf of The Pennsylvania Company for Insurances on Lives and Granting Annuities as Trustee under Deed of Nucom Kenin dated April 12th, 1929, and as one of the Trustees under the Will of Nucom Kenin dated April 12th, 1929, Bose Kenin, individually and as one of the Trustees under the said Will, Fanny Hart, Samuel K. Hart, Imvin Morton Hart and Anita Hart, beneficiaries; also on behalf of The Pennsylvania Company for Insurances on Lives and Granting Annuities individually as a bank. On April 19,1941, exceptions to the report Avere filed on behalf of the Corn Exchange National Bank and Trust Company. By three certain supplemental reports filed Avith the entire record by the Auditor on April 23, 1941, exceptions 31, 32 and 33 of the Corn Exchange National Bank and Trust Company Avere sustained and all other exceptions by all exceptants Avere dismissed. These exceptions Avere duly argued before the court en banc and in an opinion filed June 13,1941, exceptions 38, 39, 40 and part of 43 of the Corn Exchange National Bank and Trust Company of Philadelphia Avere sustained and all others Avere dismissed. From that decision and the final decree thereon the present appeals were taken, that of the Trustee under the deed on June 24, 1941, to January Term, 1941, No. 252; that of the Pennsylvania Company for Insurances on Lives and Granting Annuities as a bank on the same date to January Term, 1941, No. 253, security in both appeals being duly fixed and entered; those of The Pennsylvania Company for Insurances on Lives and Granting Annuities and others, trustes under the will and of individual persons interested under the terms of the will on July 3,1941, to January Term, 1941, Nos. 262-6; that of the Corn Exchange National Bank and Trust Company on August 13,1941, to January Term, 1941, No. 289. The conclusion of the Auditor, which was sustained by the court below, was that the disposition which Nucom Kenin made of the proceds of his policies of life insurance was a testamentary disposition, and that such proceeds were assets of his estate which should have been paid over to the executors of his will and become subject to the claims of his creditors. The Auditor in his able and painstaking report says: “The deed of trust of the insurance policies was revocable; and settlor retained the power to amend the deed in whole or in part, or in any or all of its terms and conditions. It further provided that if the right of revocation or amendment thus reserved was exercised by settlor at any time, any of the policies then forming a part of the trust and designated by settlor shall be released from the terms of the deed and shall be assigned to the settlor or his nominee absolutely for such uses and purposes as the settlor might designate. The settlor also provided that any and all payments, dividends, surrender values, disability payments and benefits of any kind which may accrue on account thereof during the lifetime of the settlor shall be payable to him direct, and the settlor shall have the right at any time to use any of the said policies for the purpose of borrowing from the respective insurance companies any sums which he may desire. The Act of June 28, 1923, P. L. 884, provides: That the net amount payable under any policy of life insurance . . . upon the life of any person heretofore or hereafter made for the benefit of or assigned to the wife or children or dependent relative of such person shall be exempt from all claims of the creditors of such person arising out of or based upon any obligation created after the passage of this Act, whether or not the right to change the named beneficiary is reserved by or permitted to such person.’ The first inquiry is whether or not that which Nucom Benin did on April 12, 1929, brings these policies within the provisions of the Act of 1923. That Act exempts from claims of creditors of the assured proceeds of policies ‘made for the benefit of or assigned to the wife or children or dependent relative’ of the assured. The policies, immediately prior to the creation of the deed of trust, were for the benefit of the Executors and Administrators of Nucom Benin. It is true that four of the policies had previously in 1926 been placed in the insurance trust with the Union National Bank as Trustee, and the beneficiary therein had been changed from ‘executors or administrators’ to ‘Union National Bank, Trustee’. But this deed of trust was revoked by the settlor on April 3, 1929, prior to the execution and delivery of the deed presently under discussion. Upon the revocation of the earlier deed, the Union National Bank, Trustee, ceased to have any right or interest in the four policies; and had Nucom Benin died in the interval between the revocation of the earlier deed and the creation of the present one, the proceeds of the policies would have been payable to ‘his executors or administrators’. The fifth insurance policy, namely, that of the Penn Mutual in the amount of f40,000, had been the subject matter of many changes and assignments. Prior to April 12, 1929, it had never, however, been the subject matter of a deed of trust. The last assignee of the policy prior to that date was the Land Title and Trust Company in Philadelphia; and that Company (The Real Estate-Land Title and Trust Company) on April 3, 1929, assigned the policy ‘unto the insured’s Executors, Administrators or Assigns.’ So that had Nucom Benin died between April 8, 1929, and April 12th, tlie proceeds of such, policy would have been payable to his Executors or Administrators. On April 12, 1929, therefore, as has hereinbefore been found, the beneficiaries of each of the five policies were the Executors or Administrators or Assigns of the assured. On that day he executed and delivered a deed of trust to the Pennsylvania Company as Trustee, listing the five policies and directing the Trustee to hold the policies and, on maturity, to collect the proceeds and to pay the proceeds over to the Trustees named in the settlor’s will to be held by them under the same uses and purposes as set forth in the settlor’s will. Did that act constitute an assignment of the policies To the wife or children or dependent relative’ of Nucom Kenin? In the opinion of the Auditor, it did not.” The reasoning of the Auditor is sound and the conclusion he came to must be accepted. All wills are ambulatory and become effective only when the will’s maker dies. Between the date of the will and the maker’s death, fifty days later, it was within the power of Kenin to change the beneficiaries of the insurance policies by changing his will. It was also possible for him to revoke or physically destroy that will, without making another, and so die intestate. In the latter event, the trustee could have collected the proceeds of the policies only for the Administrator of Kenin’s estate. It follows that what Kenin did on April 12, 1929, in respect to his insurance policies did not bring “the net amounts payable under those policies within the exemption against the claims of creditors and in favor of the wife or children or dependent relative of” the insured provided for in the Act of June 28,1923, P. L. 884. The Auditor pertinently points out that “the only duty which the Trustee named in the deed of April 12th had was to collect the proceeds of the insurance policies and pay them over “to the Trustees named in the last will and testament of the settlor”. The administration qf the fund thereafter was to be by the testamentary Trustees — unascertainable until his death — and not by the Trustee named in the deed. The Auditor correctly held that the principles enunciated by this court in Myers’ Estate, 309 Pa. 581, 164 A. 611, are determinative of the first question raised in this case. In that case the question was whether the state could collect an inheritance tax on the proceeds of certain life insurance policies in the face of the exemption provided for in the Act of March 28, 1929, P. L. 118, amending the Transfer Inheritance Tax Act of June 20, 1919, P. L. 521, and which provides as follows: “The proceeds of policies of life insurance payable otherwise than to the estate of the insured, and whether paid directly by the insured to beneficiaries designated in the policies or to a trustee designated therein and held, managed and distributed by such trustee to or for the benefit of such persons or classes of persons under such plan and in such estates as may have been prescribed by the insured under agreement with such trustee shall not be included in imposing any tax under this section” (i. e., subsection (d)). The facts in that case were that Max Myers, the insured, executed on September 16, 1930, a trust agreement whose subject was six insurance policies on his life, totaling $22,021.21. He made his will on the same day, and died six days later. The deed of trust on the policies named no beneficiaries of the trust but provided that the principal should be distributed in accordance with the terms of the settlor’s will, and reserved to the settlor the right to revoke or alter the trust, to withdraw property from it and add to it, and to receive all dividends and other cash distributions on account of the policies named in the trust. This court, in an opinion by the present Chief Justice, said: “The settlor retained complete title and control. No other interest than his, vested or contingent, arose until his death. . . . The deed named no beneficiaries. ...” The appellant trustee contends that the Myers case is distinguishable factually from the instant case in that it involved only the right to levy a transfer inheritance tax. This factual distinction between the two cases does not make the principles laid down in the Myers case inapplicable here. In both the Act of 1923 (supra) and the Act of 1929 (supra) for the purpose is to exempt the proceeds of life insurance policies made for the benefit of certain designated persons and not payable to the estate of the insured from (in the one case) “all claims of the creditors of such person” and from (in the other case) the Transfer Inheritance Tax of June 20, 1919, P. L. 521. This court’s decision in the Myers case is that “the designation of the actual beneficiaries who are to receive the proceeds of the policies must be made in the lifetime of the insured and in the trust instrument in order to bring the transaction within the terms of the Act of 1929. . . . Only where the trust instrument is complete in itself by naming the beneficiaries of the proceeds of the policies is the fund realized from the policies free of tax” (italics suplied). The Myers case holds that when a settlor of a trust shows by the trust agreement that he intends to control by his will the disposition of the proceeds of his life insurance policies, those proceeds must be treated for transfer tax purposes as though they were made payable to his estate. No insured person can exercise post-mortem control over the proceeds of his life insurance policies and still keep those proceeds within the exemption provided for in the above cited Transfer Inheritance Tax Act of 1929. The same reasoning leads to the decision that no insured person can exercise post-mortem control over the proceeds of his life insurance policies and still keep those proceeds -within the exemption provided for in the above cited insurance proceeds exemption Act of 1923. In neither case can the statutory exemption and testamentary control of the thing exempted coexist. Our conclusion that the deed of trust is testamentary in character is in harmony with the Restatement of the Law of Trusts. Section 56 of the Restatement declares: “Where the owner of property purports to create a trust inter vivos but no interest passes to the beneficiary be fore the death of the settlor, the intended trust is a testamentary trust and is invalid unless the requirements of the statutes relating to the validity of wills are complied with.” Under comment (e) is the following: “If the owner of property transfers it to another person in trust for such person as the transferor may designate by an act which is testamentary, the intended trust is testamentary . . .”. Comment (c) to Section 26 of the Restatement of the Law of Trusts, p. 81, reads as follows: “. . . If the owner of property transfers it to another in trust for such person as he may designate thereafter, no trust arises unless and until he designates the beneficiary”. In the instant case the “owner of property” did not designate the beneficiaries of his insurance policies trust until his will spoke at the instant of his death and it was then too late to exclude his creditors from making successful claims against these assets. Appellant cites cases in support of the proposition that where there are two or more instruments creating or relative to a trust they should be construed together to effectuate the intention of the Settlor and this is true even though one of these instruments is a will. This proposition has often received judicial recognition when no rights of creditors were affected by such recognition. In the instant case Kenin had the right to direct by will how the proceeds of his insurance policies held in trust should be distributed provided that before his will became effective by his death no rights of creditors attached to his property right in those insurance policies. If it were not for the claims of Kenin’s creditors, he conld have by will distributed the proceeds of his insurance policies in any manner he saw fit to do so, just as he could have in the same solvent situation disposed of all the rest of his property, subject, of course, to his widow’s rights under the intestate laws of the Commonwealth. “In Pennsylvania, under the mixed jurisdiction of our courts, it is settled that the executor or administrator of an insolvent estate may set aside a fraudulent conveyance, as he is in such a case a trustee for creditors”: Appeal of Elliott’s Executors (supra). The creditor appellee, the Corn Exchange National Bank and Trust Company of Philadelphia, contends also that when the deed of trust was executed without consideration on April 12, 1929, the policies which had previously been payable to the estate of Nucom Kenin were delivered to and transferred unto the name of the trustee under the deed of trust, and that Kenin was then insolvent and therefore this conveyance was a conveyance in fraud of his creditors and voidable as to them, under the Uniform Fraudulent Conveyance Act of May 21, 1921, P. L. 1045 (39 PS §354). Appellee argues that the facts of this case bring it within the ruling of this court in Fidelity Trust Co. v. Union National Bank of Pittsburgh, 313 Pa. 467, 169 A. 209. The decision in that case must be interpreted in the light of the facts of that case. It has been said and often reiterated that “in every case what is actually decided is the law applicable to the particular facts; all other legal conclusions therein are but obiter dicta”: Cohen v. Virginia, 6 Wheaton 264, 399; Welsch v. Pittsburgh Terminal Coal Corporation, 303 Pa. 405, 408, 154 A. 716. In the Fidelity Trust Co. case (supra) this court held that “it appears clearly that the conveyances [of insurance policies] were made [by an insolvent] with actual intent, as distinguished from an intent presumed in law to hinder, delay or defraud creditors”. This court also found that the insured maintained his credit “by concealment and false pretences, made with knowledge that they were false. Such false pretences support the inference of actual intent” to defraud. We also found that when the insured changed the beneficiaries in the policies in question totaling $255,-456.19 from his estate to his trustee for the benefit of his wife and three children, he “could not, with reason, have considered that he had not provided adequate insurance for his wife and children, because they were then, under the trust agreement, the beneficiaries of insurance greatly in excess of $500,000 and his own affairs were in very precarious condition. In addition his wife was the beneficiary of a $500,000 policy under the trust agreement”. This court has not held that in every ease where an insolvent insured provides by a trust agreement or otherwise for the payment of the proceeds of his policies to his wife and children, such a provision is unlawful and a fraud upon the insured’s creditors. We said in negativing the contention of fraud in Potter Title and Trust Company, Admr., v. Fidelity Trust Company, Trustee, et al., 316 Pa. 316, 317, 175 A. 400: “The wife and children of every man have an insurable interest in his life, and the law has always looked with favor on life insurance contracts made for their comfort and maintenance. From our earliest cases down to the present day this court has upheld and encouraged such provi sions and protected them from claims of creditors: Stutzman, Admr., v. Fidelity Ins. Co., 315 Pa. 47, 49. In addition, the legislature has enacted laws for the protection of the wife and children, as beneficiaries of life insurance policies, from claims of creditors of the insured (Acts of April 15, 1868, P. L. 103, and June 28, 1923, P. L. 884), and this benefit inures to them whether the insured was solvent or insolvent, or had reserved the right to change the beneficiary: Schaeffer’s Est., 194 Pa. 420; Irving Bank v. Alexander, 280 Pa. 466.” In Provident Trust Company v. Rothman et al., 321 Pa. 177, 185, 183 A. 793, this court said, quoting from an earlier case: “The policy of the law, even where the rights of creditors may be adversely affected, favors the wife to whom her husband has attempted to secure the benefit of insurance upon his life: Weil v. Marquis, 256 Pa. 608 [101 A. 70]; Kulp v. March, 181 Pa. 627 [37 A. 913].” In Newman v. Newman et al., 328 Pa. 552, 196 A. 30, this court in an opinion by Mr. Justice Linn declared in effect that in the absence of bad faith, it is not a fraudulent conveyance for an assured to restore his wife as beneficiary of a life insurance policy after she had consented to a change of beneficiary in order to permit her husband to use the policy as collateral for a loan subsequently repaid. See also Stutzman, Admr., v. Fidelity Mutual Life Insurance Company et al., 315 Pa. 47, 172 A. 302, in which this court in an opinion by the present Chief Justice declared that “the public policy of the state as evidenced by the Act of June 28, 1923, P. L. 884, 40 PS §517, and the legislation which preceded it, is to favor wives and children as against creditors of insured husbands and fathers”. In view of our decision that the trust deed in question was testamentary in character it is not necessary to decide whether the fac bs on this record bring this case within the ruling of the fast of the five insurance policy cases last cited and quoted from or within the rulings .in the other and later cases. Since the trust deed was testamentary in character the proceeds of the five listed insurance policies should have been paid to the executors and trustee under the’ will of Nucom Kenin, to be administered primarily for the benefit of his creditors. The decree of the court below, embodying the recommendation of the Auditor, “that The Pennsylvania Company, as Trustee under the deed, be ordered and directed to replace in the principal of the account presently before the Court, the sum of $97,231.15 in cash in substitution for the assets presently constituting the balance of principal shown therein; and that such balance be then awarded to Rose Kenin, Otto F. Pfizenmaier and The Pennsylvania Company for Insurances on Lives and Granting Annuities as Executors of the will of Nucom Kenin, deceased,” is correct. The only other questions requiring discussion relate to “interest and costs”. When the Pennsylvania Company as trustee under Kenin’s deed of trust received the proceeds of the insurance policies amounting to $97,-231.15 its duty under the deed was as set forth in the second paragraph of this opinion. Instead of doing its duty as prescribed in the deed of trust, the trustee invested these proceeds and distributed the income of the investment to the residuary beneficiaries under the will. Prudence required that it file its account as trustee un der the deed of trust and ask the court to award the fund. It was nearly six years before it filed an account. The Auditor concluded that “interest on the fund at the legal rate of 6% from the date the trustee breached the provision of the trust by investing a part of the fund, to wit, August 3, 1929 . . . down to the date of the filing of the Trustee’s account, to wit, January 30, 1935, should be added to the principal fund to be- paid over” by this Trustee. The Auditor later refused to accept the view of the exceptant to his report that the Trustee pay interest after the date of filing its report as well as for the period preceding the report’s filing. The court in banc, after considering exceptions to the Auditor’s report held that the Auditor properly ruled that all investments should be replaced with cash and then said: “We agree with the exceptant creditor that interest should be charged for the improper withholding of this fund. Equitably we feel that the accountant should have a reasonable time within which to prepare its account, file the same, and have it audited. One year, in our opinion, would have afforded ample opportunity for this purpose. We therefore direct that interest at the rate of 6% shall be charged upon the amount which the accountant collected, beginning one year from such period until actual payment of the award. There would seem to be no legal justification for the trustee to deviate from the clear terms of the trust, and it must therefore pay interest as damages for detention: 33 C. J. 178; McCornack v. Sharpless, 254 Pa. 541; Potter’s Est., 249 Pa. 158; Ihmsen’s Appeal, 43 Pa. 431, and Kline’s Est., 280 Pa. 41.” There is no statutory requirement that damages for the detention of funds be measured by the legal rate of interest for the period of the detention. That such damages have often been thus measured was due to the fact that under the normal investment conditions prevailing (except for brief intervals) during the period ante-dating 1929, a just charge for detention was 6% per annum. This was apparently the situation in the cases above cited. Interest has been aptly defined as “the natural growth, or incident of money and bears the same relation to it that rent does to land”: Woerz v. Schumacher, 161 N. Y. 530, 536, 56 N. E. 72. Damages for the detention of money under the circumstances here present should be measured by what the money so detained would have produced if it had been delivered to those entitled to it. 25 Corpus Juris Secundum, p. 536, sec. 52, makes this statement: “Interest will be denied where there are reasons founded on the conduct of plaintiff or other special circumstances existing in the case and the justice of the situation requires it.” At p. 560, sec. 71, C. J. S. states this “general rule”: “The measure of compensating damages is such sum as will compensate the person injured for the loss sustained, with the least burden to the wrong-doer consistent with the idea of fair compensation”. In Agnew Co. v. Board of Education, 83 N. J. Equity 49, 89 A. 1046, the Court of Chancery of New Jersey held that the City of Paterson was liable for interest only at a rate conformable to the rate it would have had to pay a bank on the money it “detained” because it had been enjoined from paying the amount due on a certain contract. It fixed the rate at 4% (the legal rate of interest in New Jersey is 6%). In Vice-Chancellor Stevenson's opinion appears the following: “The questions relating to the charge and allowance of interest in this case are difficult. It is well said in 16 Am. & Eng. Ency. of Law (page 922) that ‘there is no subject in the law with reference to Avhich there is greater conflict and confusion in the cases than that of interest.’ Unless a case be found which is a conclusive authority establishing a precedent, the safest way for a court of law or equity is to decide all questions pertaining to interest according to the plainest and simplest considerations of justice and fair dealing. I do not think that there is any case in New Jersey which controls any of the points relating to interest, to be adjudicated in this case. ... It should be borne in mind that the whole tendency of courts of law and courts of equity for a considerable period of time has been to break away from hard and fast rules and charge and allow interest in accordance with principles of equity, in order to accomplish justice in each particular case. ... I do not think that it would be just to compel the City of Paterson to pay 6 percent interest when it has been able at all times to borrow at 4 per cent. Nor do I think that the claimants are entitled to greater interest than that which is charged against the city. . . . It is notorious that money has been worth only 4 or 5 per cent in the way of interest.” In Cook v. Fowler et al., L. R. 7, H. L. 27-38 (14 English Ruling Cases 546), it was held that where a written security is given for the payment of money at a certain day, with interest up to that day, and the sum secured and the interest thereon are not paid at the day, the principal and interest become from that time a debt which, when recovered by legal process, may, in the discretion of a jury or of the Court, be made the subject of an additional liability, which, however, is not properly a liability to interest according to the contract, but to damages for the breach of it. The Lord Chancellor (Lord Cairns) in announcing the decision said: “Any claim, in the nature of a claim for interest after the day up to which interest was stipulated for, would be a claim really not for a stipulated sum and interest but for damages, and then it would be for the tribunal before which that claim was asserted to consider the position of the claimant, and the sum which properly and under all the circumstances should be awarded for damages.” Lord Hatherly, concurring, said that the case had been well put “by my noble and learned friend on the woolsack; namely, to treat the case ... as a claim to damages in consequence of the default of payment, and ... to allow interest at the rate of four per cent”. In the instant case “the plainest and simplest considerations of justice and fair dealing” require that an allowance be made for the detention of the proceeds of the insurance policies, not as interest eo nomine but by way of damages. We take judicial notice of the fact that during the period of this detention, money could not be safely invested so as to yield a return of six per cent a year, and that if the Trustee had delivered the proceeds of the insurance policies to the Trustees under the will and the latter had followed the testator’s directions “to hold and invest the same and keep the same safely invested” the investments would not have yielded more than 2yz% a year. We, therefore, reduce the award of the court below, of interest at 6% a year to damages for detention at the rate of 2y2% a year, beginning one year from the date the Trustee collected the proceeds of the insurance policies, until the award’s payment. The appellant-trustee claims it is entitled to the usual compensation as trustee and a reasonable allowance for counsel fee for its defense of the trust. We agree with the court below that there should be no commissions allowed to the trustee because, as Judge Stearns pointed out in his opinion: “By violating the plain terms of the trust instrument the trustee has caused all of the present litigation, with its attendant expense and delay. Had the trustee performed its duty and paid the proceeds to the executors, they in turn would have accounted for the money, and all questions would have been settled and adjudicated.” However, in fairness to the trustee it should be stated that there is no ground to impugn its good faith in this matter. Its failure to carry out the terms of the trust was obviously ««intentional. The fact that it was also one of the trustees under Kenin’s will tends to explain its confusion as to its duty. It should also be noted in fairness to the trustee that no case exactly like this has ever before been adjudicated by this court. We agree with the court below that “counsel for the trustee should receive compensation” from this estate, but in the language of Judge Stearns, speaking for the Orphans’ Court: “This compensation should be solely predicated upon his duties as attorney in a usual and normal accounting. The bulk of the service of the distinguished counsel for accountant, was rendered in defending the trustee. We do not regard $5,000 a proper counsel fee for supervising the collection of approximately $100,000 cash, and for preparing an account and attending the audit. $1,000 is more than ample compensation for such a service. Doubtless $5,000 is a most modest compensation for the tremendous labor involved in this litigation, but whatever may be the value of such service, it must be borne by the trustee alone. We accordingly allow $1,000 as compensation to counsel for accountant, as a proper charge against this fund.” The decree of the court below as herein modified is affirmed at the cost of the appellant, The Pennsylvania Company for Insurances on Lives and Granting Annuities. This court held in Appeal of Elliot’s Executors, 50 Pa. 75, that assignments of life insurance policies by an insolvent insured, to a trustee for the insured’s wife “would have been good against heirs, devisees or legatees” but were not good against creditors. We said: “These policies were securities for money, valuable dioses in action which could be sold at public and private sale and are included in the general words personal estate or property, and would pass under that head by deed or will . . .”. The opinion pointed out that “in England in the later eases it is held that unless the property conveyed can be reached by execution, the c.onveyance is not fraudulent because it does not delay or hinder creditors”. We disagreed with this later English ruling and declared it “contrary to the earlier cases as held by Chancellor Kent (1 Story’s Com. 368)”. The Appeal of Elliott’s Executors (1865) long antedated the insurance policy exemption Act of June 28, 1923, and is cited only to show that under certain circumstances the rights of creditors in the proceeds of insurance policies were early recognized as being superior to the claims of wives or children. This court in Elliott’s Executors distinctly declared, however, that that case was “not meant to extend to policies effected without fraud directly and on their face for the benefit of the wife, and payable to her; such policies are not fraudulent as to creditors, and are not touched by this decision”. The Act of 1923 as to the proceeds of policies of life insurance “made for the benefit of or assigned to the wife or children or dependent relative of such [insured] person” is in harmony with the last-quoted excerpt from Elliott’s Executors. As to the construction of the Uniform Fraudulent Conveyance Act in other jurisdictions, in respect to the transfer of life insurance policies, by an insolvent insured, from his estate to his children, without consideration, so far as that transfer affects creditors, see Equitable Life Assurance Society v. Hitchcock (1935), 270 Mich. 72, 258 N. W. 214, 106 A. L. R. 591, and First Wisconsin National Bank v. Roehling (1937), 224 Wis. 316, 269 N. W. 677 (p. 131 of 1940 Supplement to Vol. 9 of Uniform Laws Annotated). See also article on “The Fraudulent Transfer of Life Insurance Policies”, in Vol. 88, No. 7, p. 771, of the University of Pennsylvania Law Review (May 1940). It may be noted that among the three Executors and Trustees in Kenin’s will is the Pennsylvania Company for Insurances on Lives and Granting Annuities and that this company is the sole trustee under the deed of trust. The Act of May 28, 1858, P. L. 622, see. 1 (41 PS §3), fixing at 6% the lawful rate of interest for the loan or use of money, in all cases where no express contract shall have been made for a less rate does not rule the question of “damages for detention”. The word “use” when referring to money is often employed as a synonym for “loan”. Money is not “used” within the meaning of this act when it is detained under the circumstances here present.

OPINION NIX, Justice. Appellant Burns, a medical doctor specializing in orthopedics, entered into an employment contract with appellee New Castle Orthopedic Associates (Orthopedic) in November, 1975. Orthopedic is a professional association of four doctors located in Lawrence County. The employment agreement provided for Dr. Burns’ employment for one year beginning January 1, 1976, at an annual compensation of $60,000. It contained the following covenant not to compete: “In the event that Burns leaves the employment of Orthopedic on or before January 1, 1977, . . . Burns agrees that he will not practice medicine and/or orthopedics in any form whatsoever in Lawrence County, Pennsylvania, for a two (2) year period after terminating his employment with Orthopedic.” In November, 1976, Dr. Burns expressed dissatisfaction with his relationship with Orthopedic and indicated that he would seek other employment. A new contract was negotiated and executed on December 30, 1976, providing for a five month period of further employment beginning January 1, 1977, at a monthly salary of $7,500, or $2,500 more than Dr. Burns’ previous monthly salary. The new contract expressly nullified all obligations under the former employment contract and also contained the following covenant not to compete: “In the event the employment of Employee, as provided for hereunder is terminated for any reason whatsoever, the Employee expressly agrees that he will not practice medicine and orthopedics in any form whatsoever in Lawrence County, Pennsylvania, for a two year period after the termination of his employment with the Employer.” Pursuant to a clause allowing either party to terminate the new contract on two weeks’ notice, Dr. Burns resigned from Orthopedic effective March 28, 1977. He thereafter opened his own office in Lawrence County and began to practice medicine and orthopedic surgery on his own behalf. Orthopedic brought this action in equity against Dr. Burns seeking specific enforcement of the covenant and sought a preliminary injunction. The preliminary injunction was granted on May 13, 1977, following a hearing at which both parties were present and represented by counsel. The Superior Court affirmed per curiam without opinion with one Judge noting a dissent. We granted review and now reverse the grant of the preliminary injunction. The standard by which we review the propriety of the issuance of a preliminary injunction limits equitable relief to instances where it is established that a subsequent award of damages would be inadequate to compensate the loss suffered by a plaintiff who has prima facie established a clear right of recovery. At all times it must be remembered that a preliminary injunction seeks to maintain the status quo until the rights of the parties can be finally adjudicated. In the case of Herman v. Dixon, 393 Pa. 33, 141 A.2d 576 (1958), we stated: Since a preliminary injunction is somewhat like a judgment and execution before trial, it will only issue where there is an urgent necessity to avoid injury which cannot be compensated for by damages and should never be awarded except when the rights of the plaintiff are clear. Also, it should in no event ever be issued unless greater injury will be done by refusing it than in granting it. Id., 393 Pa. at 36-37, 141 A.2d at 577. More recently, we reaffirmed this principle in John G. Bryant Co., Inc. v. Sling Testing & Repair, Inc., 471 Pa. 1, 369 A.2d 1164 (1977), where we said: “The scope of our review on an appeal from a decree either granting or denying a preliminary injunction is to examine the record only to determine if there were any apparently reasonable grounds for the action of the court below . . . .” Lindenfelser v. Lindenfelser, 385 Pa. 342, 343—44, 123 A.2d 626, 627 (1956). (Emphasis supplied). Summit Township v. Fennell, 392 Pa. 313, 140 A.2d 789 (1958). Alabama Binder & Chemical Corp. v. Pennsylvania Industrial Chemical Corp., 410 Pa. 214, 215, 189 A.2d 180, 181 (1963). And the essential prerequisites for the issuance of a preliminary injunction are: first, that it is necessary to prevent immediate and irreparable harm which could not be compensated by damages; second, that greater injury would result by refusing it than by granting it; and third, that it properly restores the parties to their status as it existed immediately prior to the alleged wrongful conduct. Alabama Binder & Chemical Corp. v. Pennsylvania Industrial Chemical Corp., supra. Even more essential, however, is the determination that the activity sought to be restrained is actionable, and that the injunction issued is reasonably suited to abate such activity. And unless the plaintiff’s right is clear and the wrong is manifest, a preliminary injunction will not generally be awarded: Keystone Guild, Inc. v. Pappas, 399 Pa. 46, 159 A.2d 681 (1960), and Herman v. Dixon, 393 Pa. 33, 141 A.2d 576 (1958).” Id., 471 Pa. at 6-7, 369 A.2d at 1166-67, quoting Albee Homes, Inc. v. Caddie Homes, Inc., 417 Pa. 177, 181, 207 A.2d 768, 770 (1965). Additionally, the concern of the courts for the public welfare results in a close judicial scrutiny of restraints on physicians because of the value of their services to the community, 14 Williston on Contracts, § 1639 (Jaeger ed. 1972) at p. 114. Unless there were “apparently reasonable grounds” for the trial court to believe that it was presented with a situation of “urgent necessity”, it should not have issued the preliminary injunction. The two most important factors to be taken into account in this determination are first, whether an immediate and irreparable harm is actually threatened, and second, whether greater harm is caused by issuing the injunction than by refusing it. This limitation on the hearing court’s exercise of its equitable powers is warranted because the relief is being sought prior to a final determination on the merits of the case and without a complete development of all of the facts upon which a final judgment will depend. Applying this formula to the record before us, we are convinced that greater harm is worked by the issuance of this injunction than would result from its denial, and that Orthopedic has failed to establish immediate and irreparable injury that could not be subsequently compensated in damages. We start our analysis with Herman v. Dixon, 393 Pa. 33, 141 A.2d 576 (1958), whose facts closely resemble those before us. There, defendant physician was brought to Pottsville to practice obstetrics with the plaintiff, a physician with an established obstetrics practice in the area. The defendant later left the plaintiff’s employ and set up his own practice of obstetrics in Pottsville, in violation of a covenant not to compete in his employment contract. This Court reversed the issuance of a preliminary injunction where the trial court refused to permit the defendant to cross-examine the plaintiff as to whether the plaintiff’s income had decreased, or his practice had been damaged, and whether the defendant had used confidential information or had solicited any of the plaintiff’s patients. Because the record before it was devoid of this information, the Herman Court held that the plaintiff had failed to establish “such urgent necessity for the prevention of irreparable harm . as would justify the peremptory relief awarded.” Id., 393 Pa. at 37, 141 A.2d at 578. The present case is markedly similar. The court below failed to allow defendant to introduce into evidence the plaintiff’s financial records, thereby preventing Dr. Burns from showing whether Orthopedic had suffered financially from Dr. Burns’ practice in the prohibited geographic area. On the other hand, where the record in Herman failed to indicate whether plaintiff’s practice had been damaged, in the instant case, the president of Orthopedic testified that he was sure that the number of patients treated by Orthopedic had not changed despite Dr. Burns’ independent practice. Additionally, not only has Dr. Burns not solicited the patients of his former employer, the record indicates, and the trial judge acknowledged, that Dr. Burns actively counseled his former patients to remain under the care and treatment of Orthopedic even after he began his independent practice. The trial court relied heavily upon our recent case of John G. Bryant Co., Inc. v. Sling Testing & Repair, Inc., 471 Pa. 1, 369 A.2d 1164 (1977), where we affirmed the issuance of a preliminary injunction to enforce a covenant not to compete in a salesman’s employment contract. In that case, the plaintiff was able to demonstrate actual damages of only $427.00 and the defendant claimed that irreparable harm had not been shown so as to justify a preliminary injunction. In rejecting defendant’s contention we said: This reasoning however, ignores the nature of the violation herein involved. It is not the initial breach of a covenant which necessarily establishes the existence of irreparable harm but rather the threat of the unbridled continuation of the violation and the resultant incalculable damage to the former employer’s business that constitutes the justification for equitable intervention. ****** The covenant seeks to prevent more than just the sales that might result by the prohibited contact but also the covenant is designed to prevent a disturbance in the relationship that has been established between appellees and their accounts through prior dealings. It is the possible consequences of this unwarranted interference with customer relationships that is unascertainable and not capable of being fully compensated by money damages. Id., 471 Pa. at 7, 8, 369 A.2d at 1167 (emphasis added). The trial court interpreted this language to mean that the mandate of Herman v. Dixon, supra, requiring evidence of irreparable injury to the plaintiff, need not be followed. In so doing, the trial court misunderstood the thrust of our reasoning in Sling Testing. The Herman and Sling Testing cases are not in conflict. Herman states the threshold evidentiary requirement that must be met before a preliminary injunction may be issued: actual proof of irreparable harm. Sling Testing supplements Herman in those cases where the plaintiff’s proof of injury, although small in monetary terms, foreshadows the disruption of established business relations which would result in incalculable damage should the competition continue in violation of the covenant. No reasonable interpretation of Sling Testing justifies the conclusion that it was intended to diminish the force of the Herman opinion. Rather, Sling Testing is supportive of the Herman rationale. That rationale governs this case where the trial court refused to put plaintiff to his proof of irreparable injury and merely presumed irreparable injury from the nature of the business, and the breach of the covenant. The record fails to indicate that Orthopedic incurred irreparable injury from Dr. Burns’ independent practice. Each of Dr. Burns’ four physician witnesses testified that they experienced considerable delays in obtaining appointments for their patients with Orthopedic’s doctors. These delays ranged from four weeks to four months. Additionally, these witnesses acknowledged that there is a shortage of orthopedic specialists in Lawrence County. Orthopedic was at tempting to serve more patients than it could possibly accommodate. This is quite unlike the normal commercial situation in which there are only a limited number of prospective clients and the alleged breach significantly affects the share of the former employer. Here, the potential pool of clients far exceeds the appellee’s ability to serve them. Under these circumstances it is difficult to find any irreparable injury wrought upon the appellee by the appellant. One of the factors to be considered in reviewing the issuance of an injunction enforcing an anticompetitive employment covenant is the effect of the action upon the interests of society as a whole. Consequently, when the courts of other jurisdictions have been presented with this question, their analysis has focused upon the number of practitioners in the area involved. In Odess v. Taylor, 282 Ala. 389, 211 So. 805 (1968), for example, because of a shortage of ear, nose, and throat specialists in the area, the court held that it would be adverse to the public interest to enjoin the defendant physician from practicing this specialty in the area mentioned in the covenant not to compete in his employment contract. In the following cases, the courts upheld and enforced the restrictive covenants because there was a sufficiency of physicians already practicing in the area: Middlesex Neurological Associates, Inc. v. Cohen, 3 Mass.App. 127, 324 N.E.2d 911 (1975) (neurosurgeon enjoined from practicing his specialty where area did not appear to need additional neurologist); Horne v. Radiological Health Services, 83 Misc.2d 446, 371 N.Y.S.2d 948 (1975) (covenant not to compete enforced where there appeared to be sufficient radiologists in the county and there appeared to be no adverse impact on the public); Cogley Clinic v. Martini, 253 Iowa 541, 112 N.W.2d 678 (1962) covenant not to compete enforced against orthopedic surgeon where there were over 460 physicians, including many specializing in orthopedic surgery, in the area included within the covenant); Foltz v. Struxness, 168 Kan. 714, 215 P.2d 133 (1950) (where there was a recent influx of ten additional physicians into the city covered by the covenant not to compete); Wilson v. Gamble, 180 Miss. 499, 177 So. 363 (1937) (covenant enforced against physician where the number of physicians in the city was sufficient for the rendition of medical services to the citizens thereof and of its vicinity). In an era where the availability of and the rising cost of medical services are matters of national concern, the law must consider the impact of the enforcement of these noncompetitive clauses upon the problem. Paramount to the respective rights of the parties to the covenant must be its effect upon the consumer who is in need of the service. This is of particular significance where equitable relief is being sought and the result of such an order or decree would deprive the community involved of a desperately needed service. In the case before us all of the defendant’s witnesses, including three physicians and a thoracic-orthopedic-plastic surgeon, testified that there was a shortage of orthopedic specialists in Lawrence County. This factor, taken together with the considerable delay suffered by patients wishing orthopedic treatment from the plaintiffs establishes a definite harm to the public interest by the issuance of a preliminary injunction by the trial court in this instance. On this record we are constrained to find that the chancellor acted without reasonable grounds in entering the preliminary injunction. The order of the Superior Court affirming the decree of the Court of Common Pleas of Lawrence County is reversed and the preliminary injunction is dissolved. Each party to bear own costs. EAGEN, C. J., and LARSEN, J., concurred in the result. ROBERTS, J., filed a dissenting opinion in which O’BRIEN, J., joined. . It should also be noted that the United States Supreme Court has been increasingly harsh toward anticompetitive practices in the learned professions. See, e. g., National Society of Professional Engineers v. United States, 435 U.S. 679, 98 S.Ct. 1355, 55 L.Ed.2d 637 (1978); Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977); Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976); Goldfarb v. Virginia State Bar, 421 U.S. 773, 95 S.Ct. 2004, 44 L.Ed.2d 572 (1975). . In a similar situation, the New York courts have held that in the absence of solicitation of the employer’s customers by the former employee, a covenant not to compete will ordinarily not be enforced where there is nothing special about the character of the services rendered and there are no trade secrets or unfair dealings. Lantieri Beauty Salon v. Yale, 169 Misc. 547, 7 N.Y.S.2d 984 (1938). In determining the uniqueness of services, “ ‘more must ... be shown to establish such a quality than that the employee excels at his work or that his performance is of high value to his employer.’ ” Frederick Chusid & Co. v. Marshall Leeman & Co., 279 F.Supp. 913 (S.D.N.Y.1968).

Opinion by M[b. Justice Jones, This is an appeal from the judgment of sentence imposed by the Common Pleas Court of Philadelphia. With two judges concurring in the result, the Superior Court affirmed. Com. v. Spencer, 216 Pa. Superior Ct. 169, 263 A. 2d 923 (1970). We granted allocatur. The charges against appellant stem from an unlawful entry into the apartment of a Patricia Fitzgerald on July 3, 1967. While in her bedroom, Mrs. Fitzgerald was suddenly confronted by a man brandishing a pistol who ordered her to move toward the bed. Fearing a possible rape and/or harm to her six-year-old daughter, Mrs. Fitzgerald began screaming and the man fled. Appellant was later arrested, indicted and found guilty by two juries on the charges of assault and unlawful entry. On appeal we are confronted with two distinct issues: (1) whether it was reversible error for the trial court to permit the introduction of certain identification testimony; and (2) whether the court erred in the use of the “Allen” charge. (Allen v. United States, 164 U.S. 492, 501, 502 (1896)). Following appellant’s arrest, a police stand-up with three other men was conducted at the East Detective Division at Front and Westmoreland Streets in Philadelphia on July 6, 1967, and appellant was identified by Mrs. Fitzgerald as the man who entered her apartment. Since counsel was neither present nor waived in this stand-up occurring twenty-four days after the United States Supreme Court delivered its landmark decisions in United States v. Wade, 388 U.S. 218 (1967), and Gilbert v. California, 388 U.S. 263 (1967), it would be error to admit any evidence pertaining to the stand-up or any in-court identification evidence which is tainted by the stand-up. A reading of the preliminary hearing record convinces us, as it convinced both trial judges, that any identification by Mrs. Fitzgerald based on appellant’s dental make-up would be improper since Mrs. Fitzgerald first noticed that irregularity during the stand-up. Nonetheless, the second trial judge inadvertently permitted a testimonial identification of appellant based on his teeth. Although the admission of the “dental” testimony-tainted by the stand-up identification was error, Mrs. Fitzgerald’s testimony was not objected to by defense counsel and her in-court identification was unequivocal in all respects, at all stages of these proceedings, and we conclude the receipt into evidence of this improper identification testimony was harmless error within the meaning of Harrington v. California, 395 U.S. 250 (1969), and Chapman v. California, 386 U.S. 18 (1967). See, e.g., Com. v. Williams, 440 Pa. 400, 405-08, 270 A. 2d 226, 228-30 (1970) (concurring opinion). However, we recognize that this conclusion begs the question whether the other courtroom identification by this witness had an origin independent of the illegal stand-up or whether it was similarly tainted. We begin with the proposition enunciated in Wade, that, “[w]here, as here, the admissibility of evidence of the line-up identification itself is not involved, a per se rule of exclusion of courtroom identification would be unjustified.” 388 U.S. at 240. While realizing that a line-up will ofttimes “crystalize the witnesses’ identification of the defendant for future reference,” id., the Supreme Court held “the proper test to be applied in these situations is that quoted in Wong Sun v. United States, 371 U.S. 471, 488, ‘“[wjhether, granting establishment of the primary illegality, the evidencé to which the instant objection is made has been come at by ex-, ploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” Maguire, Evidence of Guilt, 221 (1959).’ ” 388 U.S. at 241. Because it could not be determined from the record whether the courtroom identification in Wade and Gilbert had an independent origin, the Supreme Court, in both cases, found it necessary to “vacate the conviction pending a hearing to determine whether the in-court identification had an independent source,” 388 U.S. at 242. See, also, 388 U.S. at 272. The same procedure ivas employed by this Court in Com. v. Whiting, 439 Pa. 205, 266 A. 2d 738 (1970). However, on these facts, we find such remand to be unnecessary since the first judge conducted an independent inquiry of the witness’ other identification and concluded it was not tainted. See, e.g., Com. v. Williams, 440 Pa. 405-08, 270 A. 2d 226, 228-30 (1970) (concurring opinion). Applying the Wade standards, we note: (1) the complainant observed the man identified as appellant for five to ten minutes in a brightly lit room; (2) there was no substantial discrepancy of physical description between any pre-stand-up description and the appellant’s actual description; (3) complainant identified appellant through photographs prior to arrest; (4) the complainant consistently identified the appellant at every stage of these proceedings and testified she would “never forget his face”; and (5) there was only a three-day interval between the alleged act and the stand-up. Accordingly, we conclude: (1) the witness’ courtroom identification, apart from the dental testimony, was not tainted by the illegal stand-up and (2) this unequivocal courtroom identification renders harmless the error in permitting the dental identification. Secondly, appellant urges us to reverse his conviction because of the trial judge’s use of the so-called “Allen” charge. The second trial commenced on January 13, 1969, and the jury retired to deliberate after hearing the judge’s initial charge at 11:13 a.m. on January 17, 1969. At 4:40 p.m. on the same date, the foreman of the jury reported an inability to reach a verdict on both counts as the jury was hopelessly deadlocked. At that point the prosecutor requested, at side-bar, that the judge charge the jury in accordance with Allen v. United States, 164 U.S. 492, 501-02 (1896), and the defense objected. Reluctant to so charge the jury, the trial judge sent the jury back for further deliberation and held a conference on the record in his chambers at 5:10 p.m. Present at the conference was the District Attorney of Philadelphia who requested the Allen charge if for no other reason than to test its continuing validity and the trial judge agreed. After the jury returned to the courtroom, the trial judge, substantially quoting Allen, charged as follows: “ £In a large proportion of cases absolute certainty cannot be expected. Though a verdict must be the verdict of each individual juror and not a mere acquiescence to fellow jurors, nonetheless juries should examine the question of guilt or innocence with candor and with proper regard and deference to the opinions of each other. It is the duty of the jury to decide the case if they can conscientiously do so. The jury should listen with a disposition to be convinced to each other’s arguments. If much the larger number of the jurors are fully convinced, a dissenting juror should consider whether his doubt is a reasonable one if it made no impression upon the minds of so many other jurors, equally as honest and as intelligent as himself. While undoubtedly the verdict of the jury should represent the opinion of each individual juror, it by no means follows that opinions may not be changed by conference in the jury room. The very object of the jury system is to secure unanimity by a comparison of views, qnd by arguments among the jurors themselves. It certainly cannot be the law that each juror should not listen with deference to the arguments, and with a distrust of his own judgment, if he finds a large majority of the jury taking a different view of the case from what he does himself. It cannot be that each juror should go to the jury room with a blind determination that the verdict shall represent his opinion of the case at that moment, or that he should close his ears to the argument of men . . .’, and I will add parenthetically women, s. . . who are equally honest and intelligent as himself . . .’ and I add as herself.” The jury then returned for further deliberation and later had dinner between 6:20 p.m. and 8:00 p.m. Returning to the courtroom at 9:51 p.m. for an account of one witness’ testimony, the judge ordered the playback of a tape recording of that witness at 10:45 p.m. Upon hearing the recordings, the jury again retired. Finally, at 12:20 a.m., January 18, 1969, the jury returned verdicts of guilty on both counts. In the past this Court has held that a conviction will be reversed if the jury’s verdict was effectively coerced by the trial judge’s charge: Com. v. Wilmer, 434 Pa. 397, 254 A. 2d 24 (1969) (initial charge); Com. v. Holton, 432 Pa. 11, 247 A. 2d 228 (1968) (supplemental charge). See, also, Jenkins v. United States, 380 U.S. 445 (1965). Hence the precise issue is whether the Allen charge has such a coercive effect. The thrust of appellant’s attack on the Allen charge is directed toward that portion emphasizing that the jurors in the minority should both listen with deference ;to the jurors in the majority and re-examine their minority position. Two. implications may be created by these propositions: (1) a minority juror should yield to." the majority; and (2) those with no reasonable doubt, i.e., the majority, need not re-examine tlieir position despite the existence of a reasonable doubt in the mind of a minority juror. It cannot.be overemphasized that each notion is contrary to the hallowed tradition .of. trial by jury secured by both our federal and state constitutions: .TJ. S. Const., árt III, §2 and amend. VI; Pa.. Const:, art. I, §6. Thus, we can agree with the vast majority of jurisdictions that the Allen charge contains these1 potential abuses. ..Moreover, we share the Third Circuit’s view in United States v. Fioravanti, 412 F. 2d 407 (3d Cir. 1969), cert. denied, 396 U.S. 837 (1969), that the Allen charge should not be employed by the trial judges of this Commonwealth after the date of this opinion. Our ruling herein on the Allen charge is prospective and applicable only to trials which take place after the date of this decision. Cf. Great Northern Ry. v. Sunburst Oil & Refining Co., 287 U.S. 358 (1932). As to trials which occurred prior to the date of this decision, we will deal with appeals from such trials on an ad hoc basis and will examine the trial record to determine whether or not the Allen charge unduly influenced the jury. In the case at bar, we have independently examined the record and are persuaded by the rationale of the Superior Court: “the jurors in the instant case were not coerced. The jury’s verdict came seven hours after the Allen charge was given. In those seven hours, the jurors deliberated for three separate intervals. They also had what appears to have been a leisurely dinner. They were also sufficiently aware of their duty and their need of information to return to the courtroom to ask that certain testimony be read to them. This is not the mark of a coerced jury. Accordingly, we hold the giving of the Allen Charge in this case to be harmless.” 216 Pa. Superior Ct. at 174, 263 A. 2d at 926. Deadlocked juries are a matter of concern to both the bench and the bar. Recently, Standards Relating to Trial by Jury have been promulgated by the American Bar Association. We commend these Standards as guide lines for the courts to follow when juries are deádlocked. Accord, Thomas v. United States, 8 Cr. L. 2141 (C. A. D.C. Nov. 6, 1970). Such guide lines may avoid the evils inherent in the Allen charge and with proper usage may aid in the alleviation of problems which arise when juries are deadlocked. Judgment affirmed. . Mr. Chief Justice Bell took no part in the consideration ór decision of this case. ■ Mr.'Justice Cohen took no part in the decision of ithis case. •. Prior to the trial in question, appellant was acquitted, by a different judge and jury, of the charges of burglary and rape but found guilty of assault and unlawful entry. Subsequent thereto, the first trial judge granted appellant’s motion for a new trial because of certain errors in the charge. Retried on the lesser offenses of unlawful entry and assault before a second judge and jury, appellant was convicted and sentenced, after disposition of post-trial motions, to a term of imprisonment not less than one year nor more than two years on the assault charge and a term of five months to one year on the unlawful entry charge. In the jargon of the Philadelpiha Police Department, a standup occurs when a series of men individually confront the identifying witness whereas a line-up involves the same set of men collectively presented to the identifying witness. However, the two terms are so loosely interchanged in the record that we cannot determine, with certainty, whether appellant was identified in a line-up or a stand-up. In the posture of this particular appeal, the distinction is academic since counsel was not present. See, e.g., Com. v. Whiting, 439 Pa. 205, 266 A. 2d 738 (1970). Though the same counsel represented appellant at both trials and should have been aware of the correct basis for objection to the dental identification, counsel instead based his objection on the Fifth Amendment privilege against self-incrimination, which was overruled. Eather than impugn either the defense attorney or the second trial judge, we will consider the matter to be á mere oversight on the' part of both. In this manner we are not confronted with the situation of a second judge relitigating the suppression order, especially since the second judge indicated at the outset of the trial he would consider himself bound by the first judge’s order suppressing any dental Identification testimony. The charge in Allen was substantiaUy as follows: “. . . although the verdict must be the verdict of each individual juror, and not a mere acquiescence in the conclusion of his fellows, yet they should examine the question submitted with candor, and with a proper regard and deference to the opinions of each other; that it was their duty to decide the case if they could conscientiously do so; that they should listen, with a disposition to be convinced to each other’s arguments; that, if much the larger number were for conviction, a dissenting juror should consider whether his doubt was a reasonable one which made no impression upon the minds of so many men, equaUy honest, equally intelligent with himself. If, upon the other hand, the majority were for acquittal, the minority ought to ask themselves whether they might not. reasonably doubt the correctness of a judgment which was not concurred in by the majority.” Thoroughly researching the thought of many commentators as well as the precedents in other jurisdictions, the Third Circuit, in United States v. Floravanti, 412 F. 2d 407 (3rd Cir. 1969), cert. denied, 396 U.S. 837 (1969,) and- the Superior Court below prospectively abolished the use of the Allen ‘ charge. Since the date of ■those decisions, we note thát the Court of’ Appeals for the District ó A Columbia, while not deciding the Allen charge is per se coercive, ’has adopted the ABA guide lines. Thomas v. United States, 8 Cr. L. 2141 (CA D.C. Nov. 6, 1970). In a similar fashion, the Maryland Court of Special Appeals held it to be error for a trial judge, slid ¿ponte, to interrupt the jury’s deliberation and give the Allen charge. Fletcher v. Maryland, 8 Md. App. 153, 258 A. 2d 781 (1969). Onv the'other hand, the- Fourth Circuit recently held that reading the Allen charge to a deadlocked.jury, was not error. United States v. Sawyers, 423. F. 2d 1335 . (4th Cir. 1970). See, also, Note, On instructing Deadlocked Juries, 78 Yale L. J. 100 (1968). A third, problem enunciated by the Superior Court and the Third Circuit involves the criminally accused’s right to a unani•niious jury: “Inherent in a defendant’s' right to a verdict by a unanimous jury is his ’right to á new trial should the 'jurors fail to agree,” 216 Pa. Superior Ct. at 174, 263 A. 2d at 926. See, also, 412 F. 2d at 416. Dike the Supreme Court, “[w]e intimate no view whether or not the requirement of unanimity is an indispensable element of the Sixth Amendment jury trial.” Williams v. Florida, 399 U.S. 78, 100 n. 46 (1970). Any discussion of this point is irrelevant in'.light of the.already noted, problem. Those standards provide: “5.4 Length of deliberations; deadlocked jury (a) Before the jury retires for deliberation, the court may give an instruction which informs the jury: (i) that in order to return a verdict, each juror must agree thereto; (ii) that jurors have a duty to consult with one another and to deliberate with a view to reaching an agreement, if it can be done without violence to individual judgment; (iii) that each juror must decide the case for himself, but ■ only after an impartial Consideration of the evidence with his fellow jurors;- (iv) that in the course of deliberations, a juror should not-hesitate to reexamine his own views and change his opinion if convinced it is erroneous; and (v) that no juror should surrender his honest conviction' as to the' weight or effect of the evidence solely because of the opinion- of his fellow jurors, or .for'the mere purpose of returning a’verdict, (b) If it appears to; the .court that the jury has been unable to agree, the court may require the jury to continue their deliberations and may give or repeat an instruction as provided in subsection (a). The court shall not require or threaten to require the-jury to deliberate for, an .-unreasonable length of time or for.-unreasonable intervals, (c). The jury, may be discharged without having agreed upon a verdict if it appears that there is no reasonable probability of .agreement;,” - 3. Cr.,,L... Rptr. at 3215 (Approved Draft, 1968).

Opinion by Mr. Justice Horace Stern, Plaintiff, a taxpayer of the City of Pittsburgh, files a bill in equity in which he challenges the constitutionality of the Parking Authority Law of June 5,1947, P. L. 458, and prays that an injunction be issued restraining the Public Parking Authority of Pittsburgh, created under the authority of that Act, from exercising the powers therein granted, and restraining the City of Pittsburgh from appropriating to it any public funds or entering into any agreement with it for the waiver of taxes on its properties. This Court took original jurisdiction of the bill. The Commonwealth of Pennsylvania and the Downtown Parking Association, a voluntary association of owners and operators of parking lots and facilities in the downtown area of the city, were given leave to intervene. The Parking Authority Law declares, as a matter of legislative finding, that there has been an ever-increasing trend in cities of the second class in the number of persons entering the business sections by private automobiles; that the free circulation of traffic of all kinds through the streets of such cities is necessary to the health, safety and general welfare of the public; that the greatly increased use of motor vehicles of all kinds has caused serious traffic congestion on the streets of such cities; that the parking of motor vehicles on the streets has contributed to this congestion to such an extent as to interfere seriously with the primary use of such streets for the movement of traffic; that such parking prevents the free circulation of traffic, impedes rapid and effective fighting of fires and the disposition of police forces in the district and endangers the health, safety and welfare of the general public; that such parking threatens irreparable loss in property valuations; that this parking crisis can be reduced by providing sufficient off-street parking facilities properly located; that the establishment of a parking authority will promote the public safety, convenience and welfare; that it is intended that the authority cooperate with all existing parking facilities so that private enterprise and government may mutually provide adequate parking services for the convenience of the public. Therefore it is declared to be the policy of the Commonwealth of Pennsylvania to promote the safety and welfare of the inhabitants thereof by the creation in second class cities of bodies' corporate and politic to be known as “Parking Authorities” which shall exist and operate for the purposes contained in the Act. Such purposes are declared to be public uses for which public money may be spent and private property acquired by the exercise of the power of eminent domain. The Act gives to the city council of second class cities the power to organize a Parking Authority by the adoption of a resolution or ordinance to that effect; upon approval of the articles of incorporation filed by the council it becomes the duty of the Secretary of the Commonwealth to issue to the Authority a certificate of incorporation. The Authority constitutes a public body exercising public powers of the Commonwealth as an agency thereof, but it shall not be deemed to be an instrumentality of the city or engaged in the performance of a municipal function. Its purpose is to study the public needs in relation to parking and to establish a permanent coordinated system of parking facilities by acquiring, improving, maintaining and operating land and facilities to be devoted to the parking of all kinds of vehicles, but it shall not engage in the sale of gasoline, the sale of automobile accessories, automobile repair and service or any other garage service, or the sale of any commodity of trade or commerce. It is empowered to charge reasonable rates for its facilities for the purpose of providing for the payment of the expenses of construction, improvement, repair, maintenance and operation of its facilities and properties and the payment of the principal of and interest on its obligations, the reasonableness of such rates to be subject to determination by the courts. It is vested with the power of eminent domain within the limits of the city. It is denied the poAver to pledge the credit or taxing power of the Commonwealth or any political subdivision, and none of its obligations are to be deemed obligations of the CommonAvealth or any of its political subdivisions. It is exempted from the payment of taxes and assessments upon any property acquired or used by it, but in lieu thereof it may agree to make payments to the city, the county or any political subdivision. There are additional provisions which follow the familiar pattern of Authorities established for various purposes by other statutes and which need not be detailed here. Acting in pursuance of tlie Parking Authority Law the council of the City of Pittsburgh caused the Public Parking Authority of Pittsburgh to be incorporated, and the city has made a loan to it, the Authority being granted the power under the Act to borrow money and accept grants from the municipality. The attack on the constitutionality of the statute is based almost entirely on the contention that the purpose for which the Authority is created does not constitute a public use. It is true, of course, that the question whether the use to which a governmental agency intends to devote property taken under the alleged right of eminent domain is a public one, is a judicial question for the determination of the court: Philadelphia, Morton & Swarthmore Street Rwy. Co.’s Petition, 203 Pa. 354, 362, 53 A. 191, 193; Pennsylvania Mutual Life Insurance Co. v. Philadelphia, 242 Pa. 47, 52, 53, 88 A. 904, 906; Dornan v. Philadelphia Housing Authority, 331 Pa. 209, 222, 200 A. 834, 841. But a legislative declaration with respect to that question, while not conclusive, is entitled to a prima facie acceptance of its correctness: Dornan v. Philadelphia Housing Authority, supra; Belovsky v. Redevelopment Authority of Philadelphia, 357 Pa. 329, 334, 54 A. 2d 277, 280. Not only is the declaration of legislative findings in the present Act impressive in pointing out the urgent need of legislation of this type, but the conditions it portrays are well known to all inhabitants of our larger cities. It is unfortunate that many operators of automobiles habitually ignore the fact that highways are intended primarily for travel and not for the storage of vehicles other than by way of transitory stops for loading and unloading. The conges tion caused by such misuse of the streets and by the ever-increasing amount of motor vehicle traffic has become a major problem of municipal administration, — a problem particularly acute in a city like Pittsburgh where it is aggravated by the concentration of the downtown business section in a “Golden Triangle” of comparatively narrow streets and tall office and commercial buildings, many of the occupants of which use private automobiles to and from their offices and stores. Studies made by the Pittsburgh Regional Planning Association and the Allegheny Conference on Community Development reveal that parking facilities in that city are grossly inadequate and that private enterprise has not been able to solve the problem because private parking lots are frequently temporary in nature and located without much regard for actual parking requirements, vacant land being utilized for parking purposes in more or less haphazard fashion merely for the purpose of earning taxes on the land pending profitable disposition of it for construction purposes. Under such circumstances, as was said in Belovsky v. Redevelopment Authority of Philadelphia, 357 Pa. 329, 339, 54 A.2d 277, 282, “public aid must accompany private initiative if the desired results are to be obtained”. The widespread need of legislation to furnish such aid can be gleaned from the fact that in 1946 alone 65 cities opened new parking lots, and, by 1945, 22 States and the District of Columbia had enacted laws in some form dealing with parking facilities. Those attacking the constitutionality of such a law as that which is here under consideration obviously labor under the mistaken notion that its purpose is merely to cater to the convenience of the owners and operators of motor vehicles; on the contrary its effect may be to interfere with the perhaps greater convenience of parking on the public streets; its real purpose is to promote the larger and more general good of the community by freeing the streets of the impediments and perils arising from dangerous and often intolerable conditions of traffic congestion. And since tbe Act is concerned with the regulation of the transportation of persons and property along the highways of the municipality, and since the evils it seeks to remedy vitally affect conditions for the transaction of business, the prevention of accidents, the effective operations of fire and police forces, and, in general, the enjoyment of many phases of city life and activities, its justification stems directly from the exercise of the police power, which is the supreme power of government. The right of eminent domain which it gives to the Authority must be viewed, therefore, not as though it were an independent and unrelated grant of such a right, but with regard to the major and primary object of the legislation, which is to facilitate and make safe the use of the highways. In Dornan v. Philadelphia Housing Authority, 331 Pa. 209, 221, 200 A. 834, 840, it was pointed out that “views as to what constitutes a public use necessarily vary with changing conceptions of the scope and functions of government, so that today there are familiar examples of such use which formerly would not have been so considered. As governmental activities increase with the growing complexity and integration of society, the concept of ‘public use’ naturally expands in proportion”. It is no constitutional objection to the statute, nor does it derogate from the public character of its objective, that the Authority will to some extent conduct what may heretofore have been regarded as a private enterprise; to hold otherwise would mean that the State would be powerless, within constitutional limitations, to act in order to preserve the health and safety of its people even though such action were imperative and vital for the purpose. What the court holds, therefore, is that where, as here, the contemplated use of property is in aid of, and ancillary to, the exercise of the police power, the public nature of such use is conclusively determined, and therefore the State may, where the use of the highways is hampered by a local lack of parking facilities, authorize the municipal acquisition and operation of publicly owned and operated parking facilities reasonably calculated to alleviate that condition. Indeed, such a project is but a mild advance on the existing plan employed by many municipalities of designating individual parking spaces on the streets and making a charge for such facilities through the use of parking meters, a right confirmed by this court in William Laubach & Sons v. Easton, 347 Pa. 542, 32 A. 2d 881. It being thus established that the use contemplated by the Act is public in character, it follows that the taking of property by eminent domain for such use does not violate Article I, section 9 of the Constitution of Pennsylvania or the 14th Amendment to the Federal Constitution. For the same reason all the other objections to the constitutionality of the statute automatically evaporate. Thus there is no merit in the contention that the exemption from taxation of the property and bonds of the Parking Authority is in contravention of Article IX, sections 1 and 2 of the State Constitution; the use of the property being public, such exemption would follow even in the absence of an express statutory provision to that effect: Dornan v. Philadelphia Housing Authority, 331 Pa. 209, 228, 200 A. 834, 843. The objection that the Act permits the appropriation or donation by cities of public funds to the Parking Authority and that this is contrary to Article IX, section 7 of the Constitution must likewise fail, since that constitutional provision is applicable only to the appropriation of public funds to a purely private enterprise and has no application to a public corporation such as this Authority: Tranter v. Allegheny County Authority, 316 Pa. 65, 80, 81, 173 A. 289, 296; Williams v. Samuel, 332 Pa. 265, 275, 2 A. 2d 834, 839; Belovsky v. Redevelopment Authority of Philadelphia, 357 Pa. 329, 344, 345, 54 A. 2d 277, 284, 285. As is not unusual in attempts to establish that a statute is unconstitutional, the final assault is made on the title of the Act, it being claimed that Article III, section 3 of the Constitution is violated because the subject-matter of the statute is not clearly expressed in the title; it is said that the title does not reveal that the Authority is to be allowed to lease portions of the first floor of its parking facilities for commercial use in order to assist in defraying its expenses, nor does it give notice of the broad powers conferred upon the receiver who may be appointed by the court in case the Authority defaults in the payment of its bonds. It is elementary, however, that the title of an act need not, in order to comply with the constitutional requirement, be an index of its provisions or a synopsis of its contents; so long as it indicates the general subject to which all the provisions of the act are incidental or germane, it is sufficient: Sloan v. Longcope, 288 Pa. 196, 202, 135 A. 717, 718; Commonwealth ex rel. Schnader v. Liveright, 308 Pa. 35, 81, 161 A. 697, 712; Commonwealth ex rel. White v. Miller, 313 Pa. 140, 143, 144, 169 A. 436, 437; Commonwealth v. Stofchek, 322 Pa. 513, 518, 185 A. 840, 844. The bill is dismissed; the parties to bear their respective costs. Several statutes have recently been enacted authorizing political subdivisions to acquire and operate properties as parking lots or public garages for the relief of traffic congestion in the public high ways: Act of May 16, 1945, P. L. 582, as to third class cities; Act of April 17, 1947, P. L. 63, as to first class cities; Act of May 14, 1947, P. L. 223, as to first class townships; Act of July 10, 1947, P. L. 1481, Article VII, section 701, XXIV, as to second class townships; Act of July 10, 1947, P. L. 1621, Article XII, section 1201, XLIII, as to boroughs. cf. Dornan v. Philadelphia Housing Authority, 331 Pa. 209, 223, 200 A. 834, 841.

Per Curiam, The decree of the court below is affirmed on the comprehensive and convincing opinion of President Judge Froneeield ; costs to be paid by appellant.

Mr. Justice Paxson delivered the opinion of the Court, February 4, 1884. These are five appeals from the decree of the court below distributing the estate of John H. Jones, deceased. I will consider the questions they present without incumbering the opinion by references to the particular appeals in which such questions are respectively raised. Among the claims presented before the auditor was one by Edwin W. Lehman and John. L. Busby, executors and trustees of the will of William Crean, deceased, for $5,460; and one by Emily Lehman for $3,820. Both claims rest upon the same principle and need not be separately discussed. The claim first named arose under tire following circumstances: On the 22d of January, 1874, the decedent, John H. Jones, entered into a written agreement with the claimants whereby he covenanted and agreed to be responsible for and guarantee the payment of the interest upon each of ten several indentures of mortgage, given and executed by William S. Kite to the claimants, “ as the same shall accrue unto the said. Edwin W. Lehman and John L. Busby, executors and trustees as aforesaid, until such time as the lots described in said mortgages shall be improved- to fully secure the mortgage debts thereon secured.” This -agreement was signed and sealed by the decedent. The lots of ground described in the agreement have not been improved up to the present time. It was found by the auditor that the interest on these mortgages remaining unpaid up to the first 'of January, 1883, amounted to $5,460. The two principal questions which are involved in this claim may be stated as follows: 1st. Does the decedent’s covenant to pay the interest on the mortgages bind his executors and administrators, and 2d, -If the covenant does extend to the executors and administrators, was the lien thereof continued as to the real estate of the decedent ? As to the first point it was strongly urged by the learned counsel representing some of the appellants that the covenant did not extend to the executors and administrators of the covenantor, and Quain’s Appeal, 10 Harris, 510, was cited in support of this view. Quain’s Appeal was the first Pennsylvania case which squarely decided that a ground rent covenant does not survive against executors or administrators except as to the rents which accrued in the lifetime of the decedent; and that rents which accrue subsequent to the death of the covenantor are not payable out of his personal estate, and it is not too much to say that that decision was somewhat of a surprise to the profession. For it must be conceded that such covenants are personal and may be enforced against the covenantor during his life, even after he has parted with the ground out of which the rent issues. The court was doubtless driven to that decision by the practical impossibility of enforcing such a covenant, in many instances perpetual, against a dead man’s estate, and no one at the present day who will take the trouble to read the opinion of the court as delivered by Justice Lowkxe, can doubt its soundness". Quain’s Appeal was followed by a decision of the District Court of Philadelphia, in which, in an opinion delivered by the late Judge Stboud, it was held that while the administrator” of a grantee in a ground rent deed is a proper party to an action of covenant for the rent accrued after his death, the judgment will however be restricted to the land out of which the rent issues. See Gardiner v. Painter, 3 Phila. Rep., 365. This case was not brought up to this court for review, but in Williams’ Appeal, 11 Wright, 283, it is referred to by the late Chief Justice Thompson with approval, and the doctrine thereof, as well as of Quain’s Appeal, affirmed by this court. We.may therefore regard the question at rest. But we are not prepared to apply the same doctrine to the case in hand for obvious reasons. While there are some points of analogy between a ground rent and the covenant in question, there are also essential points of difference. In the former instance the rent issues out of the land, and the covenantee must be presumed, especially in the case of perpetual rents, to rely upon the security of the land for payment. In the creation of such ground rents, as was said by this court in Quain’s Appeal, supra: “ The grantor of the land cannot be presumed to have then placed any value on such a covenant; for the personal covenant of the original grantee is as nothing in a series of tenants lasting forever. The real security is the covenant running with the land and encumbering it; and this is the essential reliance of the owner of the rent.” It is not so with the covenant we are considering. The land in its unimproved condition was not deemed a sufficient security, and the mortgagee declined to take the mortgages without security that the interest should be paid until such time as by improvements placed upon the property his mortgages should be made safe. So that we must assume that the mortgagee looked to the personal security of the covenant, and to that alone, for the interest. Nor is it a perpetual covenant. It may be regarded as a security for the improvement of the property. This is really its scope, and the decedent could have relieved himself and his estate by doing this or procuring it to be done by others. The decision in Quain’s Appeal was a necessity growing out of the peculiar facts of that case, and we are not disposed to apply it to cases in which no such necessity exists. Were we to do so in the present instance, we would be at a loss where to draw the line. The general rule is that all personal covenants survive to the executor or administrator of the covenantor, and to take a case out of the rule there must be something more than the mere fact that the covenant is to be performed in future. We are clearly of opinion that the executors of this testator are bound by his covenant to pay the interest on the mortgages in question. This brings us to the second branch of the inquiry, which relates to the extent the real estate of the testator is bound by the covenant. The Act of 24th of Feb., 1834, section 24 (P. L. 77) provides two ways in which the debts of a decedent can be continued upon his real estate for a longer period than five years after his death. They are: First.- — By the commencement and prosecution of an action against his heirs, executors or administrators within the period of five years from his death, and Second. — Where the debt is not payable within five years, a copy or particular written statement of the bond, covenant, debt, or demand shall be filed within the period of five years in the office of the prothonotary of the county where the real estate to be charged is situate. Under this statute it is plain that where the debt is due and payable the suit therefor must be commenced’ within five years from the death of the decedent, or the lien is lost; and where the debt is not due and payable within five years the creditor is bound to file a copy or particular written statement of the instrument of writing by which the debt is secured, within five years. These directions being statutory cannot be omitted. Two suits were commenced in the Courts of Common Pleas against the executors of John H. Jones, deceased, to recover arrears of interest due under this covenant. The first writ was issued on Dec. 1, 1876; the second on Jan. 4, 1888, and in both cases a narr. and bill of particulars were filed, but in neither was a copy of the covenant or instrument of writing filed, as required by the Act of 1834 when it is sought to hold, the lien for a debt not maturing within five years. The auditor and the court below held that to the extent that the arrears of interest were embraced in the first suit, which was brought .within five years of the testator’s death, the said suit continued the lien’thereof as to said arrears, and awarded the claimant a dividend out of the fund in court. But as to the second suit, inasmuch as said fund is the proceeds of real estate sold over eight years after the testator’s death, and no copy of the instrument had been filed in the proper office, it was held that the lien was gone and no further arrears could be recovered. It is difficult to see how any other conclusion could have been reached. The mere bringing of the second suit without a compliance with the Act of 1834 in filing a copy of the instrument could not prolong the lien beyond five years. This is too plain for argument. It was urged, however, on behalf of some of the appellants, that the will of the testator worked a conversion of the real estate. The learned auditor has found that the fund in court is the proceeds of real estate, and has distributed it as such. If this contention be correct, the fund must be regarded as personalty, and as such distributed. We are unable to see anything in the will of the testator from which an intent to convert can fairly be drawn. After giving a number of legacies to different persons and institutions, he devises and bequeaths all the residue of his estate to trustees in trust, “to let and demise the real estate, and invest and keep invested the personal estate ” for the purposes of the trust, and then follows a power of sale in these words: “To sell all or any part of the real estate, without liability on the part of the purchaser to see to the application of the purchase money, and the proceeds of sale to re-invest from time to time, if practicable, in irredeemable ground rents upon the same trusts.” There is no direction here to sell: only a power. It ought to be settled by this time that, in order to work a conversion, there must be either — 1st. A positive direction to sell; or 2d. An absolute necessity to sell in order to execute the will; or 3d. Such a blending of real and personal estate by the testator in his will as to clearly show that he intended to create a fund out of both real and personal estate, and to bequeath the said fund, as money. In each of the two latter cases an intent to convert will be implied. These propositions are settled by a line of authority. It is sufficient to refer to the late cases of Jones v. Caldwell, 1 Out., 42; Roland v. Miller, 4 Out., 47; Lindley’s Appeal, 6 Out., 235. We have neither of these requirements in the will of this testator. The most that can be said is that he made a mistake as to the extent of his estate, and a sale of his real estate became necessary in order to pay his debts. But this is not to the purpose. The scheme of his will did not contemplate this, and if by reason of the depreciation of his property or for other cause a necessity to sell the real estate arose which was not foreseen by the testator, it will not work a conversion, for the obvious reason that a conversion is always a question of intent. We are of opinion that all of the questions arising in this estate were correctly disposed of by the court below. The decree is affirmed and the appeals dismissed at the costs of the respective appellants.

Mr. Justice Paxson delivered the opinion of the court, November 20th 1882. This cause was argued here as upon a motion for a new trial, and two of the assignments of error are to the refusal of the court to grant it. We ought not to be called upon at this late day to say that it is not within the line of our recognized duties to correct supposed errors in the lower courts in this manner. Nor are capital cases an exception to this rule. We are not jurors, and are not called upon to weigh the evidence even when a human life is at stake, further than to say, when called upon to do so in an orderly manner, whether there is sufficient evidence to submit to the jury upon a particular question of fact. If the jury make a mistake the remedy is a motion for a new trial in the court below. If a new trial is refused where upon the evidence it ought to have been granted, and the judgment is affirmed here upon the law of the case, the only remedy is an appeal to the pardoning power. It is foreign to our duties to interfere in such cases, nor do we see that any practical good would result from our assuming such a jurisdiction. It is better for the administration of the criminal law that each department of the government concerned therein should confine itself to those duties which the law has assigned to it, and which long experience has shown to be wise and proper. The foregoing remarks are made without any reference to the merits of this particular case, and seemed to be called for by the manner in which it was presented. I will now proceed to discuss briefly the questions of law presented by the record. The principal points pressed upon the argument at bar were, 1st. That the corpus delicti was not sufficiently proved, and 2d. That in the absence of such proof evidence of the prisoner’s confession was improperly received. The 2d and 5th assignments of error were intended to cover the first proposition, but they fall short of it. They merely allege error in admitting the testimony of II. A. Rudolph and Mary McCready stating their belief, and the grounds of it, that the skull and jaw bone, produced before the jury, were those of Mrs. McCready, the deceased, for whose murder the prisoner was indicted. That this evidence was competent is too clear for argument. The witness Mary McCready was a daughter of tire deceased; the witness Rudolph knew her well; she had eaten at his table for over two years, and each testified to certain pecularities of jaw and teeth, from which they had respectively formed the opinion above referred to. It was no answer to this to say that Rudolph was not a credible witness, and that Mary McCready was mistaken as to some of the teeth in the jaw. These were questions affecting the weight of the evidence and were entirely for the jury. Witnesses were called to impeach Rudolph; others were called to sustain him. The jury evidently believed him, and we cannot say they were wrong. It would be a serious thing to impute perjury to a witness for the Commonwealth in a capital case. A jury would hesitate to do so, while they might think he was mistaken, or that his opinion or belief of a fact was not founded upon a sufficient basis. It was argued that Mary McCready’s testimony was unreliable; that in point of fact she proved the jaw was not her mother’s, because she said her mother had no back teeth; only front teeth. What she did say was this : “ There was no double teeth on either side above that I can remember, but there was some roots of decayed teeth back on each side . . . only decayed teeth, roots like, back.” Now, the fact, which appears to be conceded, that the deceased had three back teeth, would not affect the competency of the testimony of the witness, and might not impair her credibility with the jury. It is certainly not a question for our consideration upon a writ of error. The testimony referred to was not the only evidence of the corpus delicti, it had previously been shown that the deceased disappeared about the middle of February 1877 under circumstances which pointed strongly to her death by violence. She was a woman of about fifty years of age, in humble life, living with her son, a lad of about 12 years of age, in a small log cabin on the Kiskiminetas river in Westmoreland county. The little boy testified that he last saw his mother on the morning of her disappearance, at about 8 o’clock, that they ate breakfast together, and that, when he returned from school about 4 o’clock in the afternoon, his mother was not there, and that he never saw or heard of her since. Nothing about her house appears to have been disturbed; the fire was burning in the stove, but there were no indications of any preparation having been made for supper; everything about the house seemed to have been in order; all the furniture, carpet, bedding, chairs, and the wardrobe of the deceased, shawls, dresses and other articles of cloth ing were there. It further appeared that the deceased was not in the habit of going from home. The evidence showed that she was a home woman, and her sudden disappearance was a surprise and a mystery to all her neighbors, the more so when it became known that her humble home with its furniture and clothing were found in the precise condition as on that morning when her little son left for his school. Search was made for her, but it proved fruitless; inquiries were equally vain, nor Avas there anything shown which might allure her from her home or to raise a suspicion that she had committed suicide. Prior to her disappearance the prisoner on more than one occasion had threatened to take her life; he kneAV her and had several times visited her house, and it Avas proved that some time before her disappearance he had been in the neighborhood. On the 4th of April 1878 a human skull was found on the river shore near the house in Avhich Mrs. McCready lived. The hair attached to the skull was evidently that a woman; it was black and gray, corresponding to the hair shown to have belonged to her. The skull showed marks of violence; there were two Avounds, either of which Avould be sufficient to produce death. The jaw-bone found near the skull was identified by the witness Rudolph, and by Mary MeCready as the jaw-bone of the deceased, by reason of certain péeuliarities which they described. Under these circumstances we cannot say it was error to admit the prisoner’s confession. While it is familiar law that a confession is not evidence in the absence of proof of the corpus delicti, yet I am not aware of any case which holds that the corpus delicti must first be proved beyond the possibility of doubt. It is a fact to be proved like any other fact in the cause, and be found by the jury upon competent evidence. The true rule in such cases is believed to be this: when the commonwealth has given sufficient evidence of the corpus delicti to entitle the case to go to the jury, it is competent to show a confession made by the prisoner connecting him with the crime. Under such eircmnstances the jury should first pass upon the sufficiency of the evidence of the corpics delicti. If it satisfies them beyond a reasonable doubt that the crime has been committed, then they are at liberty to give the confession such weight as it is entitled to, taking into view the circumstances surrounding it, and the extent to which it has been co2Toboi’ated. There is no rule of the criminal law which requires absolute certainty about this or any other question of fact. If it were otherwise,'it wo2ild be impossible to convict of any offence in any case. All the laAV requires is that the corpus delicti shall be proved as any other fact, that is, beyond a reasonable doubt, and that doubt is for the jury. The identity of a human body, or even of a skeleton, may be proved by circumstances, as may any other fact: Hex v. Hindmarsh, 2 Leach’s Grown Cases 569; McCulloch v. The State, 48 Ind. 109. When all other means of identification fail, the hair and teeth form the chief means of recognition: Wharton’s Grim. Ev. § 804. In the case of Udderzook v. The Commonwealth, 26 P. F. S. 340, a mutilated body, whose, face was discolored and swollen, was found, having been apparently buried for some days; the witness who found it had never seen the person before. He was allowed to testify that the face resembled a photograph of a person alleged to be the one found : the question whether the witness could identify it was for the jury. So we say here, the question whether Hudolph, and Mary MeCready could identify the jaw found as that of the deceased was for the jury. It would have been bald error for the court below to have excluded their testimony. We are in no sense responsible for the view which the jury took of it, and it would be dangerous, feven if we had the power, to attempt to review their finding. The confession of the prisoner as detailed by the witness Dixon was corroborated in a remarkable degree; not only was the skull found in the immediate vicinity of the place‘where the prisoner said he threw the body, but the wounds correspond precisely with those the prisoner said he inflicted. From all that appeared, the locality was unknown to the witness; he had never seen the skull, and the facts could only have been known to him from the statements of the prisoner. This disposes of the 2d, 4th, and 5th assignments of error. The evidence referred to in the 1st assignment, even if incompetent, which is by no means clear, was immaterial, and could have done the prisoner no harm, while the evidence of the threats which is complained of in the 3d assignment was entirely competent. The 6th assignment is not sustained. While the testimony of Dr. McBriar, in regard to the hair, was not important, it was not error to admit it. The 10th and 11th assignments allege error in refusing a new trial, and do not require discussion. The remaining assignments refer to the charge of the learned judge and his answers to points. A careful examination of them fails to disclose any substantial error. The judgment is affirmed, and it is ordered that the record be remitted to the Oyer and Terminer for the purpose of execution.

BECK, Judge: This appeal and cross-appeal arise from a jury verdict against defendant-appellant United Penn Bank (the “Bank”) and for plaintiffs-appellees Robert C. Bolus, Key Brockway, Inc., t/a Key Freightliner and D.B. & B. Realty Co., Inc. (“Bolus”) in the amount of $375,000. Bolus cross-appeals. We affirm but remand for a hearing on the delay damages issue only in accordance with Craig v. Magee Memorial Rehabilitation Center, 512 Pa. 60, 515 A.2d 1350 (1986). The factual and procedural context of this case can be briefly summarized. Since 1970, Robert Bolus had been engaged in various trucking businesses. He sold trucks and parts for trucks, repaired trucks and towed trucks. In connection with these businesses, Bolus formed two corporations, Key Brockway, Inc. and D.B. & B. Realty Co., Inc., both of which were also plaintiffs below. In 1976, Bolus decided to expand his businesses by building a truck repair facility on a tract of land in Bartonsville, Pennsylvania (the “Bartonsville project”). Bolus contacted the Bank to obtain financing for the project. Bolus was referred to Emmanuel Ziobro, co-defendant below and an Assistant Vice-President of the Bank. Ziobro orally agreed that the Bank would provide the funding for the Bartonsville project. Bolus contended at trial that Ziobro assured him that the Bank would fund the purchase of the land, construction of the facility, equipment and inventory. In September 1976, the Bank lent Bolus One Hundred Thirty-Five Thousand Dollars ($135,000) and Bolus purchased the Bartonsville property and began construction. In January 1977, Bolus lost a truck dealership he was operating at a different location. He arranged to replace that dealership with another from Freightliner Corporation. Bolus alleges that he informed Ziobro of this fact and on Ziobro’s “direction” returned to Freightliner to obtain an additional dealership to be conducted at the Bartonsville location, which Bolus obtained. The acquisition of the additional dealership markedly changed Bolus’ plans as to the scope of the Bartonsville project. He needed additional parts and equipment as a condition of conducting the dealership. The total cost of these additional requirements was in excess of One Hundred Thousand Dollars ($100,000). Bolus approached the Bank for the additional funds and the Bank refused to provide them. However, shortly thereafter, the Bank did lend Bolus an additional Seventy-Five Thousand Dollars ($75,000) to fund construction cost overruns at the Bartonsville project. Bolus’ businesses began to collapse in 1978. He eventually lost both truck dealerships and fell behind in his payments to the Bank. The Bank confessed judgment against Bolus in the amount of Five Hundred Thousand Dollars ($500,000), the amount of a Small Business Administration guaranteed loan from the Bank to Bolus, and seized the proceeds of an auction salvage sale Bolus had conducted at another of his business locations. The Bank applied these funds to satisfy Bolus’ debt to the Bank as well as certain of his debts to others. Finally, Bolus was forced to sell his properties where he had formerly conducted the two dealerships and the proceeds of those sales were applied to satisfy the Bank’s loans. On April 3, 1980, Bolus and his two corporations instituted this action in trespass and assumpsit against the Bank and Ziobro. Bolus alleged the Bank had breached an oral contract to fund the Bartonsville project, had negligently misrepresented that it would fund the project, and was guilty of the torts of conversion and tortious interference with a contract. The latter two causes of action were terminated by the entry of a compulsory nonsuit against Bolus at the close of Bolus’ case. Bolus has not appealed the nonsuit. A jury trial of the remaining causes of action commenced on October 29, 1984 and ended on November 5, 1984. The jury returned a verdict in favor of all plaintiffs and against the Bank alone in the amount of $375,000. The Bank filed a timely Motion for Post-Trial Relief seeking judgment N.O.V. or, in the alternative, a new trial. The Motion was denied and the trial court molded the verdict to add delay damages pursuant to Pa.R.CJP. 238 on February 25, 1986. Judgment was entered on March 25, 1986. We can summarily dispose of Bolus’ cross-appeal. The sole ground of the cross-appeal is that the trial court erred in refusing to dismiss the Bank’s Motion for Post Trial Relief on the ground that the Bank violated Lackawanna County Rule of Procedure 211(h) by failing to file a timely brief in support of the Motion. First, we note that the cross-appeal was timely filed. Pennsylvania Rule of Appellate Procedure 903, relating to the time for filing appeals, states: (b) Except as otherwise prescribed in Subdivision (c) of this rule, if a timely notice of appeal is filed by a party, any other party may file a notice of appeal within 14 days of the date on which the first notice of appeal was filed, or within the time otherwise prescribed by this rule, whichever period last expires. Pa.R.A.P. 903(b). Since the Bank here did not file its appeal in this matter until April 14, 1986, Bolus had at least until April 28, 1986 to file its cross-appeal. The docket reveals that Bolus’ Notice of Appeal was filed on April 17, 1986. Thus, the Bank’s argument that Bolus’ appeal is untimely is clearly without merit in that it takes no cognizance of the expansion of time for filing cross-appeals provided in Rule 903(b). However, the Bank does have a meritorious response to the substantive ground of the cross-appeal. As we have noted, the sole contention Bolus raises is that the Bank’s post-trial motion should have been dismissed by the trial court because the Bank failed to file its brief in support of that motion within the briefing schedule set by the trial court. In support of this argument, Bolus cites us to Lackawanna County Rule of Procedure 211, concerning argument and briefing before the Lackawanna Court of Common Pleas. Sections (g) and (h) of Rule 211 provide that the trial court may establish a briefing schedule and that if it does so and the moving party fails to file a timely brief, “... the matter may be dismissed by the court as a matter of course.” Lackawanna Co. R.P. No. 211(g), (h). In this case, there is no dispute that the Bank’s brief was untimely. However, we do not agree that the trial court was therefore mandated by the provisions of Rule 211 to dismiss the Bank’s post-trial motion. Rule 211 says the matter may be dismissed by the court, but not that it shall be. Rule 211 vests discretion in the trial court and that court’s discretion was not abused under these circumstances. Although the Bank’s brief was late filed, it was filed prior to oral argument and Bolus was, therefore, able to review it prior to argument. Moreover, Bolus has not argued to us that it suffered any specific prejudice as a result of the Bank’s untimely brief. Thus, we affirm the trial court’s order denying Bolus’ motion to dismiss the Bank’s post-trial motion. In doing so, however, we do not sanction the Bank’s failure to comply with the local rules of the Lackawanna Court. As we have so frequently stated in the past, rules of court are absolutely necessary to the efficient operation of the judicial system and noncompliance therewith is to be condemned. Straff v. Nationwide Mutual Fire Insur. Co., 230 Pa.Super. 403, 326 A.2d 586 (1974). We simply hold that in this case, we will not interfere with the trial court’s exercise of the discretion the rule in question grants. We now turn to a consideration of the issues raised in the Bank’s appeal, which consist in six allegations of error that the Bank contends mandate the grant of a new trial. In reviewing these issues, we will not reverse the trial court’s denial of a new trial unless we find that the trial court’s denial constituted an abuse of discretion or was based upon an error of law. Baldino v. Castagna, 505 Pa. 239, 478 A.2d 807 (1984). The Bank’s allegations of error are as follows: (a) The evidence adduced at trial failed to establish an agency relationship between co-defendant Emmanuel Ziobro and the Bank; (b) The jury’s verdict finding only the Bank liable and exonerating Ziobro of liability is inconsistent in that the Bank cannot be liable for a tort based upon the actions of its servant under the doctrine of respondeat superior unless the servant is also found liable for the tort; (c) The trial court erred in not instructing the jury that a compulsory nonsuit had been entered against the plaintiffs on their conversion and tortious interference with a contract. causes of action; (d) The jury’s award of future and past profits damages was based upon speculation; (e) The testimony of plaintiffs’ expert on future and past profits damages was inadmissible; and (f) The delay damages award was erroneous. Since we find no merit in any of the Bank’s contentions on appeal, we affirm. 1. Agency of Ziobro First, the Bank argues that there was no evidence to show that Ziobro had express, implied or apparent authority to bind the Bank to a lending commitment of the size Bolus alleged that Ziobro made to Bolus on behalf of the Bank. The Bank points to the fact that there was testimony that Ziobro had express authority only to make $5,000 unsecured and $10,000 secured loans. The Bank, therefore, argues that since there was no evidence that Ziobro was acting as the Bank’s agent, the Bank cannot be liable either in contract or tort. The Bank draws this conclusion because absent a showing of Ziobro’s agency, the evidence of Ziobro’s acts is inadmissible against the Bank and without that evidence, the Bank contends that it cannot possibly be held liable. The Bank thus seeks a new trial because the verdict was against the weight of the evidence. In reviewing a denial of a new trial where the appellant argues that the verdict was against the weight of the evidence, we must award a new trial only where the verdict is so contrary to the evidence as to shock this Court’s sense of justice. Macina v. McAdams, 280 Pa.Super. 115, 421 A.2d 432 (1980). In this case, our review demonstrates that the evidence was clearly sufficient to support a finding of Ziobro’s agency relationship with the Bank and that as such, Ziobro was clothed with at least apparent authority to bind the Bank to the transactions with Bolus. It is true as the Bank urges that Bolus had the burden of proving an agency relationship before Ziobro’s actions could be attributed to and binding on the Bank. Girard Trust Bank v. Sweeney, 426 Pa. 324, 231 A.2d 407 (1967). Whether an agency relationship exists is a question of fact for the jury. Levy v. First Pennsylvania Bank N.A., 338 Pa.Super. 73, 487 A.2d 857 (1985); Breslin by Breslin v. Ridarelli, 308 Pa.Super. 179, 454 A.2d 80 (1982). There are four grounds upon which a jury can conclude that an agency relationship exists and that the principal is bound by a particular act of the agent and liable to third parties on the basis thereof. The jury may find that the alleged agent had 1) express authority directly granted by the principal to bind the principal as to certain matters; or 2) implied authority to bind the principal to those acts of the agent that are necessary, proper and usual in the exercise of the agent’s express authority; or 3) apparent authority, i.e. authority that the principal has by words or conduct held the alleged agent out as having; or 4) authority that the principal is estopped to deny. SEI Corp. v. Norton & Co., 631 F.Supp. 497 (E.D.Pa.1986). As the trial court has indicated in its thorough opinion, further refinements of the foregoing rule indicate that in this case, the jury could have found that Ziobro had at least apparent authority to commit the Bank to a financing obligation of the type that Ziobro made to Bolus. Without reviewing the evidence in its entirety, we point out that it clearly established that Ziobro was employed as an officer of the Bank authorized to make loans. Although there was testimony that his individual lending authority was limited in amount, there was no evidence that this fact was communicated to Bolus or that Bolus should have concluded that Ziobro’s authority was limited. In addition, certain facts of record indicate that one other employee of the Bank himself apparently thought that Ziobro was in charge of all commercial lending at the Bank. When Bolus initially contacted the Bank for financing on the Bartonsville project, this employee told Bolus to speak to Ziobro because he was in charge of commercial lending. Thus, the Bank itself held Ziobro out to Bolus as being clothed with authority to commit the Bank to provide whatever financing Ziobro reasonably determined to be appropriate under the circumstances. In fact, Ziobro was the only person at the Bank Bolus was ever required directly to deal with to obtain financing commitments for the project. Moreover, Ziobro told Bolus that although there was a loan committee at the Bank that would have to approve the loans, they would basically “rubber stamp” Ziobro’s own recommendation and approval and this proved to be true. Since in determining the apparent authority of an agent we must look to the actions of the principal, not the agent, we decide that the foregoing adequately established Ziobro’s apparent authority as to this transaction. Turnway Corp. v. Soffer, 461 Pa. 447, 336 A.2d 871 (1975); William B. Tanner Co., Inc. v. WIOO, Inc., 528 F.2d 262 (3d Cir.1975). The Bank responds that Bolus had to have known that Ziobro could not have bound the Bank simply to finance the entire Bartonsville project since "... Banks are not like streams which flow forever....More importantly, such a loan is illegally [sic] as there is no way it could be collateralized and supported as required.” Brief for Appellant at p. 14. However, the Bank has not chosen to provide us with any authority for this statement. Consequently, we have no way of knowing to what legal restriction on the Bank’s lending activities it is referring. As to what Bolus “had” to have known with respect to Ziobro’s authority, we point out that the true inquiry is whether Bolus reasonably interpreted the manifestations of the Bank when Bolus concluded that Ziobro had the authority to bind the Bank to a commitment to fund the Bartonsville project. An admitted agent is presumed to be acting within the scope of his authority where the act is legal and the third party has no notice of the limitations on the agent’s authority. The Trident Corporation v. Reliance Insur. Co., 350 Pa.Super. 142, 150, 504 A.2d 285, 289 (1986). A principal’s limitation on the agent’s authority in amount only that is not communicated to the third party does not limit the principal’s liability. Industrial Molded Plastics Products, Inc. v. J. Gross & Son, Inc., 263 Pa.Super. 515, 398 A.2d 695 (1979). Although a third party cannot rely on the apparent authority of an agent to bind a principal if he has knowledge of the limits of the agent’s authority, without such actual knowledge, the third party must exercise only reasonable diligence to ascertain the agent’s authority. Fishman v. Davidson, 369 Pa. 39, 44, 85 A.2d 34, 37 (1951). The third party is entitled to believe the agent has the authority he purports to exercise only where a person of ordinary prudence, diligence and discretion would so believe. Friedman v. Kasser, 332 Pa.Super. 475, 481 A.2d 886 (1984). Thus, a third party can rely on the apparent authority of an agent when this is a reasonable interpretation of the manifestations of the principal. Trident, 350 Pa.Super. at 150, 504 A.2d at 289. Given the evidence reviewed above, we conclude the jury here could have decided that Bolus acted reasonably in relying on Ziobro’s representations as to his authority. We reiterate that Bolus was never required to deal with any other representative of the Bank, that the loan for the purchase of the land and construction of the Bartonsville project that Ziobro promised to Bolus did in fact come through, and that several witnesses testified that Ziobro repeatedly represented his authority and made commitments on behalf of the Bank which proved to be binding without first obtaining the approval of other Bank representatives. Moreover, in order for Bolus to have believed that the Bank would fulfill the obligations to which Ziobro had committed the Bank, Bolus would not have had to believe that the Bank was agreeing to provide Bolus an endless source of funds. In fact, Bolus has consistently maintained that Ziobro committed the Bank to provide only the funds necessary to set up the project. Even after the Bartonsville project had expanded beyond its original scope, the estimated additional needs of Bolus were only approximately $100,-000, which is not an inordinately large sum in the context of commercial transactions such as this. We can dispose of the Bank’s remaining contentions in a more summary fashion. 2. Inconsistency of Verdict As to the Bank’s argument that it is entitled to a new trial because the jury’s verdict was inconsistent, we can only respond that there is no support either in law or logic for this proposition. The jury generally found the Bank alone liable to all three plaintiffs and found Ziobro individually not liable. No special interrogatories as to each of the two causes of action were submitted to the jury nor did counsel for the Bank request them. The Bank now argues that the verdict is somehow inconsistent because of the finding of no liability as to Ziobro. The Bank thus asserts that the only reasonable interpretation of the verdict is that the Bank breached an oral contract with Bolus but was not liable for negligent misrepresentation. The Bank posits that it could only be found liable for negligent misrepresentation on a theory of respondeat superior as Ziobro’s master and that its liability, being purely vicarious, completely depends upon a finding of Ziobro’s liability as the Bank’s servant. First, even if we were to accept the Bank’s argument as to the correct interpretation of the verdict, we would not find any inconsistency in the verdict. We would find only that the jury found the Bank directly liable for breach of contract and assessed damages against it on that theory. In any event, we do not accept the Bank’s argument. As the trial court has indicated, in this case there was an independent basis for the jury finding the Bank liable. The Bank’s citation to Section 217B of the Restatement (Second) of Agency does not compel a contrary conclusion. Section 217B states: Joinder of Principal and Agent (1) Principal and agent can be joined in an action for a wrong resulting from the tortious conduct of an agent or that of agent and principal, and judgment can be rendered against each. (2) If the action is based solely upon the tortious conduct of the agent, judgments on the merits for the agent and against the principal, or judgments of varying amounts for compensatory damages are erroneous. Restatement (Second) of Agency 217B (1958) (emphasis added). The Restatement clearly contemplates a situation such as this where there is an independent ground for liability of the principal. In such a case, there is no inconsistency in a verdict for the agent and against the principal. Pryor v. Chambersburg Oil & Gas Co., 376 Pa. 521, 103 A.2d 425 (1954). Moreover, we point out that Section 257 of the Restatement (Second) of Agency specifically addresses the liability of a principal for the tortious misrepresentations of his agent as follows: A principal is subject to liability for loss caused to another by the other’s reliance upon a tortious representation of a servant or other agent, if the representation is: (a) authorized; (b) apparently authorized; or (c) within the power of the agent to make for the principal. Restatement (Second) Agency § 257 (1958). Comment a to Section 257 explains "... the principal’s liabilities do not depend upon the theory of respondeat superior but upon the reason underlying liability upon authorized or apparently authorized contracts.” Id. comment a. Thus, in a case like this, the Bank’s liability, either in tort or contract, is not based upon tlie rules of vicarious liability of a master for the torts of his servant, but rather on the basis of the Bank’s own act in holding Ziobro out as the Bank’s agent with apparent authority to make financing representations on which a third party such as Bolus could justifiably rely. The Pennsylvania cases the Bank cites us regarding the necessity of finding the agent liable before the principal can be liable all relate to the liability of a master solely predicated upon the tortious conduct of the servant. Moreover, the cited cases do not involve the tort of misrepresentation. See Matkevich v. Robertson, 403 Pa. 200, 169 A.2d 91 (1961); Ferne v. Chadderton, 363 Pa. 191, 69 A.2d 104 (1949). Even if we were to conclude that there was an inconsistency in the verdict in this case, we would view granting a new trial to correct that inconsistency as superflous and unjust as Justice Musmanno, dissenting in Matkevich, supra, found it to be in that case. 400 Pa. at 205-11, 169 A.2d at 94 (Musmanno, J., dissenting). The jury found the Bank liable to Bolus on either one or both of the theories on which the case was submitted and based on a plethora of credible evidence. The lack of a finding of liability against Ziobro does not undermine the jury’s conclusion as to the Bank. Given the clear evidence of Ziobro’s agency and of his and the Bank’s acts, the Bank is unquestionably liable. See Aiello v. Ed Saxe Real Estate, Inc., 508 Pa. 553, 499 A.2d 282 (1985) (principal liable to third parties for misrepresentations by agent even though principal did not authorize or even know of the agent’s conduct and even if principal forbade such conduct). We will not give the Bank a second opportunity to present its case to a jury based on its technical objection to the verdict. 3. Instmction on Compulsory Nonsuit The Bank next contends that it is entitled to a new trial because the trial court refused to instruct the jury that a compulsory nonsuit had been entered against Bolus on his conversion and tortious interference with contract theories. The Bank so argues because without this instruction, the Bank contends the jury was allowed to consider evidence relevant to the dismissed causes of action, but irrelevant and prejudicial to the Bank as to the remaining causes of action. The specific evidence the Bank refers to is: a) evidence of the Bank’s confession of a $500,000 judgment against Bolus when Bolus defaulted on a $500,-000 Small Business Administration guaranteed loan from the Bank to Bolus; b) the Bank’s refusal to grant. Bolus an additional $75,000 loan in order to enable Bolus to keep the Freightliner dealership at the Bartonsville project; c) evidence regarding an auction sale Bolus conducted to generate cash flow and the Bank’s seizure of the proceeds thereof pursuant to its liens on the auctioned property. As we have so frequently reiterated, decisions regarding the admissibility of evidence are within the sound discretion of the trial court and we will disturb them only where the decision was both erroneous and harmful to the complaining party. Bessemer Stores v. Reed Shaw Stenhouse, 344 Pa.Super. 218, 224, 496 A.2d 762, 765 (1985). The Bank apparently believes that upon the entry of the nonsuit, the evidence described above became irrelevant and prejudicial and the jury should have been instructed to disregard it. Evidence is relevant only when it tends to establish facts in issue or in some degree advance the inquiry. Whistler Sportswear, Inc. v. Rullo, 289 Pa.Super. 230, 433 A.2d 40 (1981). However, even evidence that is relevant must be excluded when it would confuse, mislead or prejudice the jury. To be prejudicial, evidence must have an “undue tendency to suggest decision on an improper basis.” Id., 289 Pa.Superior Ct. at 243, 433 A.2d at 47. We do not find that the failure of the trial court to instruct the jury to disregard the evidence in question was an abuse of discretion sufficiently harmful, if at all, to warrant a new trial. The evidence was generally relevant to establish the relationship of the Bank, Ziobro and Bolus. In particular, the evidence of the Bank’s refusal to lend an additional $75,000 was directly relevant to the element of breach in Bolus’s contract claim and to establish the falsity of the Bank’s representation of continuing financing. The evidence of the auction and the judgment served to show the collapse of Bolus’ enterprise, allegedly flowing from the Bank’s conduct, and Bolus’ efforts to save his business and, thus, mitigate his damages. Nor was this evidence prejudicial to the Bank. The only degree to which it could have prejudiced the Bank would have been in swaying the jury’s sympathies toward Bolus, but the trial court did instruct the jury not to base its decision on sympathy. (R. 997, 1008). A new trial is not warranted on this ground. 4. Expert Testimony The Bank’s final two allegations of error directed at the trial of this matter go to the testimony of Dr. Reavy, Bolus’ expert witness, who testified as to Bolus’ damages. As with all of the arguments the Bank has made in this appeal, the discussion in the Bank’s brief of the alleged errors of the trial court as to Dr. Reavy’s testimony is unclear and unsupported by applicable precedent. The admissibility of expert testimony is a matter initially to be determined by the trial court and we will not disturb that determination unless the trial court clearly abused its discretion. Klyman v. Southeastern Pennsylvania Transportation Authority, 331 Pa.Super. 172, 480 A.2d 299 (1984); Mapp v. Dube, 330 Pa.Super. 284, 479 A.2d 553 (1984). In this case, Dr. Reavy’s qualifications as an expert on the subject matter of his testimony were not disputed by the Bank and, indeed, could not have been. Nor does the Bank apparently dispute the fact that damages for lost profits are recoverable in a case such as this either under a contract or tort theory. Taylor v. Kaufhold, 368 Pa. 538, 84 A.2d 347 (1951); Kosco v. Hachmeister, Inc., 396 Pa. 288, 152 A.2d 673 (1959); Delahanty v. First Pennsylvania Bank, N.A., 318 Pa.Super. 90, 464 A.2d 1243 (1983). Such damages are allowable where: (1) there is evidence to establish them with reasonable certainty; (2) there is evidence to show that they were proximately caused by the wrongful act; and (3) in contract actions, they were reasonably foreseeable. Delahanty, 318 Pa.Super. at 120, 464 A.2d at 1258 (citing, inter alia, R.I. Lampus Co. v. Neville Cement Products Corp., 474 Pa. 199, 378 A.2d 288 (1977)). As with all determinations of damages, the question of whether and what amount of lost profits are recoverable is for the jury, and a reviewing court must accord great deference to the jury’s determination. Id., 318 Pa.Superior Ct. at 117, 464 A.2d at 1257. Although the plaintiff bears the burden of proving damages by a preponderance of the evidence, he is required only to provide the jury with a reasonable amount of information so as to enable the jury fairly to estimate damages without engaging in speculation. Damages need not be proved with mathematical certainty. Id. (citing, inter alia, Greenberg v. McCabe, 453 F.Supp. 765 (E.D.Pa.1978), aff'd, 594 F.2d 854 (3d Cir.1979); Nemitz v. Reuben H. Donnelly Corp., 225 Pa.Super. 202, 310 A.2d 376 (1973)). With specific regard to prospective lost profits, the Supreme Court has specifically recognized the peculiar difficulties inhering in proving such damages. In Massachu setts Bonding & Insur. Co. v. Johnston & Harder, Inc., 343 Pa. 270, 22 A.2d 709 (1941), the Court stated that the following types of evidence are permissible to establish such damages: “(1) ... (2) evidence of past profits in an established business furnish a reasonable basis for estimating future profits. (3) Profits made by others or by a similar contract, where the facts were not greatly different may also afford a reasonable inference of the plaintiffs loss. (4) The evidence of experts if based on anything more than individual opinion or conjecture has also been admitted.” Id., 343 Pa. at 279-80, 22 A.2d at 714 (quoting Williston on Contracts). The Court concluded that the allowance of these types of proof demonstrate the “difficulty” or even “impossibility” of more certain proof of future lost profits. Thus, the law requires only that the “evidence shall with a fair degree of probability establish a basis for the assessment of damages.” Id., 343 Pa. at 280, 22 A.2d at 714. In this case, Dr. Reavy testified both as to the profits Bolus allegedly lost prior to trial and as to those he would lose in the future. Dr. Reavy based his testimony on both the actual records of Bolus’ business, including ledgers, financial statements and tax returns, and on trucking industry profit data. The Bank fully cross-examined Dr. Reavy and, as previously noted, did not object to Dr. Reavy’s qualifications. First, we reject the Bank’s general and unsupported assertion that Dr. Reavy’s testimony was too speculative to permit the judge to charge the jury that they could consider lost profits. The Bank does not explain why the testimony was speculative and we have independently found no ground for this assertion. Given the standards set forth above for proof of lost profits, both past and future, we find Dr. Reavy’s testimony to have been more than adequate. It was based upon precisely the types of evidence concerning Bolus’ business that the Massachusetts Bonding Court sanctioned. And since this case involves an established business of several years, it does not present the special difficulties found in cases where damages for the future lost profits of a new and untried business are sought. Delahanty, supra. We, therefore, respond to the Bank’s general assertion of speculativeness in the same manner as we responded to a recent, similar challenge in Standard Pipeline Coating Co., Inc. v. Teslovich, Inc., 344 Pa.Super. 367, 496 A.2d 840 (1985): .. .we do not find that [the expert witness’] testimony could be regarded as highly speculative. It had a clear factual basis and adequately supported the jury’s award of consequential damages. While it may be impossible to predict future business performance with total accuracy in a case such as this, an expert appraisal of probabilities is permissible testimony. The jury has discretion as to the weight such testimony is to be given. Id., 344 Pa.Superior Ct. at 378, 496 A.2d at 846. See also Emerick v. Carson, 325 Pa.Super. 308, 472 A.2d 1133 (1984) (contention that testimony of expert is flawed goes only to weight jury should accord it and not to its admissibility). We also reject the Bank’s more specific allegations of error. First, we are at a loss to understand the Bank’s difficulty with Dr. Reavy’s use of the business records of Bolus’ business in making his calculations. The Banks says these records were not admitted into evidence and are hearsay. They were admitted (N.T. 388), albeit apparently over the Bank’s objection, and the Bank has not preserved any objection to their admission on appeal. If it had, we would merely respond that the trial court clearly did not abuse its broad discretion in finding that these records were admissible under the Uniform Business Records as Evidence Act, 42 Pa.Cons.Stat.Ann. § 6108 (1982): In re Estate of Indyk, 488 Pa. 567, 413 A.2d 371 (1979) (when authenticating witness can provide sufficient information regarding preparation and maintenance of records to justify presumption of trustworthiness for the business records of a company, the hearsay character of the evidence is offset). We add that even if these records were technically inadmissible as hearsay, Dr. Reavy’s reliance on them in expressing his expert opinion would still be proper. Following the guidance of the federal rules of evidence, our courts have liberalized the permissible bases for an expert’s opinion testimony. Federal Rule of Evidence 703 permits an expert to base his opinion on facts or data not admissible in evidence if those facts or data are “of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject ...” F.R.E. 703. In Commonwealth v. Thomas, 444 Pa. 436, 282 A.2d 693 (1971), our Supreme Court applied the theory of Rule 703 in allowing medical witnesses to express an opinion on medical matters based in part on reports of others although the reports themselves were not in evidence if the reports were of the type the expert would rely upon in the practice of his profession. Id., 444 Pa. at 445, 282 A.2d at 698. Subsequent opinions of the Supreme Court and this Court reveal that the applicability of Thomas is not limited to the medical profession. See Commonwealth v. Daniels, 480 Pa. 340, 390 A.2d 172 (1978); Maravich v. Aetna Life and Casualty Co., 350 Pa.Super. 392, 400-401, 504 A.2d 896, 900-1 (1986) (in action on fire policy where arson is alleged, fire marshall giving expert testimony may rely on information supplied to him by firemen under his supervision); Steinhauer v. Wilson, 336 Pa.Super. 155, 158, 485 A.2d 477, 479 (1984) (construction expert may base cost estimates on figures provided by various contractors with whom he consulted). Dr. Reavy’s reliance on Bolus’ ledgers, tax returns and financial statements was, therefore, proper since it is beyond question that these are the types of data that an expert such as Dr. Reavy would reasonably and customarily employ in forming an opinion on the profits of a business. Indeed, since these records were admitted into evidence in this case, there is very little chance that Dr. Reavy’s reliance on them could have prejudiced the Bank since they were thus available to the jury to use in evaluating the credibility of Dr. Reavy’s testimony. Daniels, 480 Pa. at 351-52, 390 A.2d at 178. The Bank’s further objection to Dr. Reavy’s use of an eight percent (8%) interest factor in calculating Bolus’ past profits instead of a six percent (6%) factor is made with no citation to authority or explanation of why the Bank objects. In fact, at trial, in response to the Bank’s objection to the interest rate, Dr. Reavy recalculated Bolus’ past profits with no interest at all. Given this fact, and the fact that the jury ultimately awarded Bolus only approximately one-half of the total amount of damages Dr. Reavy had calculated Bolus had suffered, any error in Dr. Reavy’s calculation was clearly harmless. Harman v. Chambers, 358 Pa. 516, 522, 57 A.2d 842, 845 (1948) (error is harmless where jury awards reasonable amount of damages despite trial court’s error in failing to limit or restrict measure of damages). The Bank’s last objection to Dr. Reavy’s testimony is that he testified as to a matter not appropriate for expert opinion testimony. The Bank so states because at trial Bolus’ counsel posed a hypothetical question to Dr. Reavy that included the inference that Bolus had lost its Freight-liner dealership at Bartonsville because he had inadequate funding as a result of the Bank’s conduct. Dr. Reavy then testified that in his opinion, the overall decline in Bolus’ business was caused by lack of funding by the Bank. Although under Pennsylvania law an expert may not base his opinion on guess or conjecture, a hypothetical question posed to an expert may be based on an assumed set of facts and matters that appear in the record or are warranted by the evidence. Collins v. Hand, 431 Pa. 378, 246 A.2d 398 (1968); Murray v. Siegal, 413 Pa. 23, 195 A.2d 790 (1963). We have carefully reviewed this area of Dr. Reavy’s testimony and find that the hypothetical question posed to him was based only on facts reasonably supported by the evidence and reasonable inferences therefrom. There was more than sufficient evidence from which a reasonable inference that Freightliner terminated the dealership because of Bolus’ lack of funding could be drawn. Moreover, on cross-examination, the Bank had and took its opportunity to examine Dr. Reavy on this point and to suggest to him and the jury the other reasonable inferences that could be drawn from the evidence on this point. See Evans v. Thomas, 304 Pa.Super. 338, 346-348, 450 A.2d 710, 714-15 (1982) (errors in hypothetical question posed to expert adequately cured on cross-examination); Whistler Sportswear, Inc. v. Rullo, supra. As to the Bank’s objection to Dr. Reavy testifying as to the cause of Bolus’ financial loss, we do not find the question of the cause of the decline of a business to be one concerning a matter of such common knowledge as to preclude expert testimony. Expert testimony is appropriate on any subject that is “so distinctively related to some science, profession, business or occupation as to be beyond the ken of the average layman.” McCormick on Evidence at 33 (3d ed. 1984) (footnote omitted); Dambacher by Dambacher v. Mallis, 336 Pa.Super. 22, 35, 485 A.2d 408, 415 (1984). On the other hand, expert testimony is inadmissible when the matter can be described to the jury and the condition evaluated by them without the assistance of one claiming special knowledge on the subject. Collins v. Zediker, 421 Pa. 52, 218 A.2d 776 (1966) (“How fast does a man walk?” is not question as to which jury need expert assistance); Churbuck v. Union Railroad Co., 380 Pa. 181, 110 A.2d 210 (1955) (proper use of pick axe is subject properly addressed by expert). The reasons for the decline of a particular business can be and usually are complex and related to many factors involving the internal management and control of the business, its financial structure, its operational methods, and external influences on the business such as the financial climate and condition of the market. If the reasons of the decline of a business were a matter of such common knowledge as the Bank asserts, we doubt that businessmen faced with such declines would so frequently consult with financial and management experts for assistance in determining the cause and remedy therefor. We find that Dr. Reavy’s testimony was certainly of the type that would materially assist the jury in its search for the truth on this issue. Dambacher, supra. The Bank’s objections thereto are without merit. 5. Delay Damages Having determined that the trial court’s refusal to grant a new trial survives all of the foregoing challenges, we now turn to the Bank’s contention that the molding of the jury’s verdict to add delay damages under Pennsylvania Rule of Civil Procedure 238 was improper. In the body of its Brief, the Bank attacks the award of delay damages on numerous grounds, including an assertion that Rule 238 is unconstitutional in that it violates the procedural due process rights of defendants. During the pendency of this matter before this Court, the Supreme Court rendered its decision in Craig v. Magee Memorial Rehabilitation Center, 512 Pa. 60, 515 A.2d 1350 (1986). In Craig, appellant-defendant levied a constitutional challenge to Rule 238 despite the fact that the Supreme Court had decided that Rule 238 passed constitutional muster in Laudenberger v. Port Authority of Allegheny County, 496 Pa. 52, 436 A.2d 147 (1981). Upon reconsideration of the operation of Rule 238 in the factual context of Craig, where the record revealed that the plaintiff may have substantially contributed to the delay in disposition, the Supreme Court decided that the Rule ran “too tight a gauntlet through Due Process, by denial of a forum to assess fault for the delay sought to be avoided.” Craig, 512 Pa. at 65, 515 A.2d at 1353. Thus, the Craig Court suspended those mandatory provisions of Rule 238 that assess delay damages without regard to fault. The Court set forth a substituted procedure for the determination of entitlement to delay damages. The procedure contemplates the filing of a petition seeking such damages and an answer thereto, to be followed by a hearing where necessary to resolve factual disputes. The Craig Court further specified that the court or arbitration panel adjudicating the delay damages issue must consider such factual matters as the parties’ respective responsibilities for requesting continuances, compliance with the discovery rules and other factors pertinent to fault for delay. As to the retroactive applicability of the suspension of portions of Rule 238, the Craig Court said: Those parties whose cases are now in the appellate or post-trial process, who have not asserted attacks on the Rule 238 aspect of the damage award, may not now assert such challenges. However, in those cases where the issue has been preserved, the court before whom the case resides on or after this date is to resolve the issue in a manner consistent with this opinion. Id. We are aided in our interpretation of this portion of the Craig opinion by the Supreme Court’s recent decision in Morgan v. Monessen Southwestern Ry. Co., 513 Pa. 86, 518 A.2d 1171 (1986). In Morgan, a case brought under the Federal Employers Liability Act (“FELA”), appellant attacked the lower court’s imposition of Rule 238 delay damages on the ground that such damages could not be awarded in FELA cases. Id., 513 Pa. at 95, 518 A.2d at 1175. Writing for the majority, Justice Larsen indicated by way of footnote that the appellant in Morgan had not attacked Rule 238 on the ground that it offended due process. Thus, Justice Larsen concluded, Craig would not retroactively apply and no remand for the post-trial procedure set forth in Craig was required. Id., 513 Pa. at 99 n. 5, 518 A.2d at 1177 n. 5. We, therefore, read Morgan to at least impliedly require that Craig be applied retroactively only where an appellant has properly preserved a constitutional due process attack on Rule 238. In this case, the Bank repeatedly raised, both at trial and in post-trial motions, the precise constitutional due process challenge to Rule 238 that the Craig Court accepted. Since we cannot sit as a factfinder and do not have before us a record that contains those facts the Craig Court found to be relevant to this inquiry, we must remand this case to the trial court as to the delay damages issue only for the fault finding process the Supreme Court has mandated. In so remanding, we resolve the matter consistent with the Craig opinion. See Wilkerson v. Allied Van Lines Inc., 360 Pa.Super. 523, 538, 521 A.2d 25, 33 (1987) (remand under Craig ordered where appellant preserved Rule 238 issue at trial and in post-trial motions). We note that we express no opinion as to the Bank’s remaining non-constitutional challenges to the delay damage award in this case. Those issues may become moot depending on the results of the trial court’s fault finding process. If the decision is adverse to the Bank, it will of course have the right to appeal from the decision and renew its challenges at that time. Accordingly, we affirm the trial court’s denial of a new trial but remand for a determination of Bolus’s entitlement to delay damages in accordance with the Craig opinion. Jurisdiction is relinquished. . The remaining Pennsylvania case the Bank cites, purportedly in support of its contention that the verdict is inconsistent, is Nelson v. Duquesne Light Co., 338 Pa. 37, 12 A.2d 299 (1940). That case did not deal with a principal and agent or a master and servant. It deals with a situation of primary and secondary liability and is not pertinent here. . We note that the Bank’s brief is generally deficient and fails to comply with many of the briefing requirements of the Rules of Appellate Procedure. For example, the brief does not contain a Statement of Jurisdiction or a copy of the Order appealed from or Opinion of the trial court and the Statement of Questions and Summary of Argument both far exceed the length limitations the rules impose. See Pa.R.A.P. 2111, 2114-6, 2118. Given these deficiencies, we would certainly be justified in dismissing the Bank’s appeal under Pa.R.A.P. 2101. We do not do so only because the Bank’s brief does at least superficially raise certain issues on appeal which we deem to be of sufficient importance to merit our addressing them. . The jury’s verdict did not specify whether it included any interest factor and counsel for the Bank made no request at trial for the jury to do so. We, therefore, do not know whether the verdict in fact awarded Bolus any interest at all. Furthermore, we note that on appeal the Bank is specifically contending only that Dr. Reavy’s use of an eight percent (8%) interest factor made his testimony speculative and as a result the trial court should not have submitted the issue of lost profits damages to the jury at all. As noted above, this argument is clearly without merit. The Bank does not allege, as it might have, that the trial court should have instructed the jury as to whether any interest or what rate of interest it could assess against the Bank. If the Bank had so argued, we might well agree that six percent (6%) would be the proper rate. See American Enka Co. v. Wicaco Machine Corp., 686 F.2d 1050 (3d Cir.1982). We would, nevertheless, find the error to have been harmless.

OPINION ANNOUNCING THE JUDGMENT OF THE COURT FLAHERTY, Chief Justice. This case involves the question whether four drug transactions constituting a single criminal episode, committed in two counties, were within the jurisdiction of a single court; if they were, then 18 Pa.C.S. § 110 mandates that the charges be tried in a single proceeding. Appellant, Roosevelt E. McPhail, on two occasions in June, 1990, sold small amounts of cocaine to an undercover agent of the Pennsylvania state police in Washington County. On the second occasion, the trooper asked to buy a larger quantity, and appellant told him they would have to go to Allegheny County to obtain such a quantity. The following day, appellant and the trooper drove to Allegheny County, appellant went into an apartment, returned with the requested amount of cocaine, and sold the drug to the officer. Appellant made a final sale of a smaller amount of cocaine to the trooper in Washington County several weeks later. Charges were filed in the two counties for the offenses which took place therein. Appellant pled guilty to the offenses in Washington County, then moved to dismiss the Allegheny County charges on the basis of 18 Pa.C.S. § 110. The trial court granted the motion; the Commonwealth appealed, the Superior Court reversed, and we allowed the appeal to review the application of § 110 in this prosecution. Title 18 Pa.C.S. § 110 states: § 110. When prosecution barred by former prosecution for different offense Although a prosecution is for a violation of a different provision of the statutes than a former prosecution or is based on different facts, it is barred by such former prosecution under the following circumstances: (1) The former prosecution resulted in an acquittal or in a conviction ... and the subsequent prosecution is for: (i) any offense of which the defendant could have been convicted on the first prosecution; [or] (ii) any offense based on the same conduct or arising from the same criminal episode, if such offense was known to the appropriate prosecuting officer at the time of the commencement of the first trial and was within the jurisdiction of a single court unless the court ordered a separate trial of the charge of such offense____ (Emphasis added.) In this case, the issue in the second prosecution is whether all the offenses were “within the jurisdiction of a single court.” The trial court and the Superior Court agreed that all the offenses formed a single criminal episode. We recently addressed the determination of when multiple offenses are part of the same criminal episode for purposes of § 110 in Commonwealth v. Bracalielly, 540 Pa. 460, 658 A.2d 755 (1995), wherein we discussed at length how to apply the standard earlier set forth in Commonwealth v. Hude, 500 Pa. 482, 494, 458 A.2d 177, 183 (1983). Hude held that “where a number of charges are logically or temporally related and share common issues of law and fact, a single criminal episode exists, and separate trials would involve substantial duplication and waste of judicial resources.” Under both Bracalielly and Hude, the charges in this case bore a close logical and temporal relationship so that a single criminal episode existed and separate trials would involve substantial duplication and waste of judicial resources. The Commonwealth concedes that all the offenses arose from the same criminal episode. The only issue, therefore, is whether all the offenses were within the jurisdiction of a single court. The trial court held that they were but the Superior Court ruled they were not. The jurisdiction of the courts of common pleas is set forth in Article V, section 5 of the Pennsylvania Constitution, which states: “There shall be one court of common pleas for each judicial district ... having unlimited original jurisdiction in all cases except as may otherwise be provided by law.” In title 42 of the Pennsylvania Consolidated Statutes, the legislature has refined the constitutional grant of jurisdiction to the courts of common pleas: § 931. Original jurisdiction and venue (a) General rule. — Except where exclusive original jurisdiction of an action or proceeding is by statute or by general rule adopted pursuant to section 503 (relating to reassignment of matters) vested in another court of this Commonwealth, the courts of common pleas shall have unlimited original jurisdiction of all actions and proceedings, including all actions and proceedings heretofore cognizable by law or usage in the courts of common pleas. (c) Venue and process. — Except as provided by Sub-chapter B of Chapter 85 (relating to actions against Commonwealth parties), the venue of a court of common pleas concerning matters over which jurisdiction is conferred by this section shall be as prescribed by general rule. The process of the court shall extend beyond the territorial limits of the judicial district to the extent prescribed by general rule____ 42 Pa.C.S. § 931 (emphasis added). By constitution and by statute, the court of common pleas has unlimited original jurisdiction in all cases, actions, and proceedings, and is thus empowered, subject to a few statutory exceptions, to decide any matter arising under the laws of this commonwealth. To answer the question whether appellant’s alleged cocaine sale in Allegheny County was within the jurisdiction of the Court of Common Pleas of Washington County, it is helpful to examine the reasoning of the Supreme Court of the United States in Heath v. Alabama, 474 U.S. 82, 106 S.Ct. 433, 88 L.Ed.2d 387 (1985). The issue was whether a kidnap-murder carried out in two states was punishable in both states without violating the prohibition against double jeopardy. The Supreme Court premised its answer on the sovereignty of the two states, each of which had independent power to define crimes against the sovereign. The dual sovereignty doctrine, as originally articulated and consistently applied by this Court, compels the conclusion that successive prosecutions by two States for the same conduct are not barred by the Double Jeopardy Clause. The dual sovereignty doctrine is founded on the common-law conception of crime as an offense against the sovereignty of the government. When a defendant in a single act violates the “peace and dignity” of two sovereigns by breaking the laws of each, he has committed two distinct “of-fences.” As the Court explained in Moore v. Illinois, 14 How. 13, 19, 14 L.Ed. 306 (1852), “[a]n offence, in its legal signification, means the transgression of a law.” Consequently, when the same act transgresses the laws of two sovereigns, “it cannot be truly averred that the offender has been twice punished for the same offense; but only that by one act he has committed two offenses, for each of which he is justly punishable.” In applying the dual sovereignty doctrine, then, the crucial determination is whether the two entities that seek successively to prosecute a defendant for the same course of conduct can he termed separate sovereigns. This determination turns on whether the two entities draw their authority to punish the offender from distinct sources of power. Thus, the Court has uniformly held that the States are separate sovereigns with respect to the Federal Government because each State’s power to prosecute is derived from its own “inherent sovereignty,” not from the Federal Government---- The States are no less sovereign with respect to each other than they are with respect to the Federal Government. Their powers to undertake criminal prosecutions derive from separate and independent sources of power and authority originally belonging to them before admission to the Union and preserved to them by the Tenth Amendment. Id. at 88-89, 106 S.Ct. at 437-38, 88 L.Ed.2d at 394-95 (citations omitted; emphasis added). The logic of Heath leads to the conclusion that the offenses in this case were within the jurisdiction of a single court. The two counties are not separate sovereigns and do not derive their power to try felony drug cases from independent sources of power. Their subject matter jurisdiction flows from the sovereign Commonwealth of Pennsylvania and is not circumscribed by county territorial limits. Territorial applicability of the crimes code refers strictly to conduct occurring inside or outside Pennsylvania, not to the county in which conduct occurred. 18 Pa.C.S. § 102. A remaining difficulty is the Commonwealth’s reliance on the common law rule that a criminal court lacks jurisdiction to try an offense that did not occur within the county. This court stated in Commonwealth v. Boyle, 516 Pa. 105, 112, 532 A.2d 306, 309 (1987): The law is clear that “ ‘the locus of a crime is always in issue, for the court has no jurisdiction of the offense unless it occurred within the county of trial, or unless, by some statute, it need.not....’” Commonwealth ex rel. Chatary v. Nailon, 416 Pa. 280, 283, 206 A.2d 43, 45 (1965), quoting Commonwealth v. Mull, 316 Pa. 424, 426, 175 A. 418, 419 (1934). For a county to take jurisdiction over a criminal case, some overt act involved in that crime must have occurred within that county. Commonwealth v. Tumolo, 455 Pa. 424, 317 A.2d 295 (1974). Appellant’s response is that such a common law requirement is inconsistent with the Pennsylvania Constitution, adopted in 1968, Article V, section 1, which vests the judicial power of the Commonwealth in “a unified judicial system.” Moreover, appellant asserts, no such requirement exists in civil cases. The viability of Boyle’s statement that “the court has no jurisdiction of the offense unless it occurred within the county” depends on its constitutional underpinnings. Two constitutional precepts lead in opposite directions. On the one hand, the concept of the “unified judicial system” undermines the territorial stricture stated in Boyle. On the other hand, Article I, section 9, stating the rights of those accused in criminal prosecutions, guarantees the right to “trial by an impartial jury of the vicinage.” The exact meaning of this right, however, is not clear, as “vicinage” is not a precise term. Commonwealth v. Reilly, 324 Pa. 558, 188 A. 574 (1936), provides enlightenment. In Reilly, the district attorney of Fayette County and six prominent associates were indicted for murder, together with five others indicted as accessories. The Attorney General, prosecuting the case, moved for a change of venue, alleging that a concerted effort was being made by the defendants to create sympathy for the defendants and prejudice against the Commonwealth by means of litigation to quash the indictments, by public protest meetings, and by sensational, inflammatory newspaper headlines and articles. The issue was whether the Commonwealth was entitled to a change of venue in a criminal prosecution to secure a fair and impartial trial. The defendants opposed the change of venue pursuant to Article I, section 9 of the state constitution which guarantees to an accused a speedy trial before an impartial jury of the vicinage. The court gave this history: Blackstone states that at common law the accused traditionally had the right to be tried by a jury of the vicinage. When trial by jury began jurors were freeholders of the hundred who were familiar with the crime, the parties to it and the witnesses, but, as time advanced, it became apparent that the advantages derived from a jury so selected were overcome by the tendency of the juries “to intermix their prejudices and partialities in the trial of right.” For this reason courts and Parliament gradually extended the area from which jurors could be drawn, although they were still termed jurors of the vicinage. In this country and England, the common law right of trial by jury of the county or vicinage was not unconditional, but the trial might be removed to another county upon application of either the crown, the prosecution or the accused when it was thought to be necessary to assure a “fair and impartial trial.” Id. at 566-67, 188 A. at 578 (citations omitted). The court expounded on the meaning of the term “vicinage” in Article I, section 9: “Vicinage,” used in our Constitution, is found in few others and is of uncertain meaning. It is not coterminus [sic] with a county and may, in fact, embrace more than one county; this is clearly established by our case of Commonwealth v. Collins, 268 Pa. 295, 110 A. 738.... “The primary and literal meaning of vicinage is neighborhood or vicinity, but neither of these terms definitely indicates just what territory it embraces. What to one man might be the neighborhood or vicinity in which an act is committed, might to another be regarded as far distant from it. A county, on the other hand, is a definitely designated territory ..., and what is embraced within it cannot be a matter of doubt or uncertainty. In this respect its meaning is vitally different from that of vicinity.” While vicinage comprehends or includes the venue as is shown by Commonwealth v. Collins, supra, the two are not necessarily co-extensive. The main consideration is to give a speedy trial before an impartial jury drawn from an area broad enough to secure it. Therefore vicinage must expand itself to meet that situation and when, for potent reasons, the locality of the venue cannot produce such a jury, the venue must be moved within the vicinage to the place where an impartial jury can be obtained[ or, we might add, where a speedy trial can be had]. While we are not compelled, at this time, to define with exactness the extreme limits of “vicinage,” enough has been said to demonstrate the trial may be removed to another county or venue, without sacrificing this constitutional guarantee. Id. at 568-69,188 A. at 579. The court continued its discussion of the right of an accused to “an impartial jury of the vicinage” as follows: In the states where the constitution provides that the jury shall be drawn from the “county” or “district” in which the offense is alleged to have been committed the higher courts do not agree on the right of the prosecutor to have a change of venue____ Some jurisdictions limit the right to change of venue to the accused alone and deprive the prosecutor of such relief---- There are other states where, under constitutional provisions similar to the above, courts have held a change of venue may be permitted upon the petition of the prosecutor. The conclusions in these cases are more consonant with sound reason and support the institutions they are designed to protect. ... The preservation of society, the enforcement of law and order in great crises would be severely impeded if our constitution would be so construed as to prevent in any case the Commonwealth from having a change of venue. But that right cannot be abused. The accused cannot be dragged all over the Commonwealth at its suggestion to be weighted down with the burden of an expensive trial. For this reason the prosecution’s request for a change of venue should be much more strictly scrutinized than one by the accused; before the court is moved to act, there should be the most imperative grounds. Id. at 569-71, 188 A. at 579-80 (citations omitted; emphasis added). From the foregoing discussion, we derive several points necessary to our decision in this case. First, vicinage is not synonymous with county or venue, but may embrace more than one county. Second, the place of trial, whether within or without the county where the alleged crime occurred, is a matter of venue, not jurisdiction, notwithstanding the imprecise and confusing terminology used in Commonwealth v. Boyle, supra. Third, trial in a county other than the one where the offense occurred is not constitutionally prohibited. Fourth, trial outside the county is a mechanism which must be used sparingly, to prohibit dragging the accused all over the commonwealth and burdening him with an expensive trial at the whim of the prosecution. We emphasize that this case concerns only charges stemming from the same criminal episode under § 110. Under Bracalielly and Hude, an accused has substantial safeguards against prosecutorial forum-shopping or being “dragged all over the Commonwealth,” for a single criminal episode exists only when multiple charges bear a close logical and temporal relationship and separate trials would involve substantial duplication and waste of judicial resources. In summary, we hold that the Court of Common Pleas of Washington County had subject matter and personal jurisdiction over the offenses allegedly committed by appellant in Allegheny County. Appellant’s right to a speedy trial by an impartial jury of the vicinage, Pa. Const. Article I, section 9, is a matter of venue, and there is no constitutional deprivation occasioned by joining all charges stemming from á single criminal episode for trial in one county despite the fact that some of the charges arose in a different county. Under 18 Pa.C.S. § 110, then, all the charges were within the jurisdiction of a single court and should have been joined in a single trial; the pending Allegheny County prosecution is barred by the former Washington County prosecution and conviction. The order of the Superior Court, permitting a second trial, must be reversed. Order of the Superior Court reversed and appellant discharged. NIX, former C.J., did not participate in the consideration or decision of this case. CAPPY, J., files a concurring opinion. NIGRO, J., concurs in the result. NEWMAN, J., files a dissenting opinion in which CASTILLE, J., joins. . For statutory exceptions, see, e.g., 42 Pa.C.S. §§ 723, 725, 742, 761, 762, 763, 764. . Amicus curiae, the Pennsylvania Association of Criminal Defense Lawyers, filed a helpful brief which elaborates the argument. . It is important to distinguish jurisdiction from venue. Jurisdiction is the legal right by which judges exercise their authority to decide cases. Venue, on the other hand, is the right of a party to have the action brought and heard in a particular judicial district, or locality, and is related to the convenience of the litigants. Jurisdiction of subject matter can never attach nor be acquired by consent or waiver of the parties, while venue may always be waived. McGinley v. Scott, 401 Pa. 310, 316, 164 A.2d 424, 427-28 (1960). . Ironically, the arguments in this case underscore those safeguards. The Commonwealth, which should have, but did not, seek trial of the Allegheny County offense in the Washington County court of common pleas, now argues that the Washington County court lacks jurisdiction over the Allegheny County charges. Commonwealth v. Reilly destroys that argument. The accused himself, joined by amicus Pennsylvania Association of Criminal Defense Lawyers, argues that his constitutional right to trial before a jury of the vicinage is not offended by trial of the Allegheny County charges in Washington County. We agree. The purpose of joining all charges from the same criminal episode, pursuant to 18 Pa.C.S. § 110, is to shield the accused from duplicitous, sequential trials. Such trials promise unnecessary delay, unnecessary expense to the accused and the Commonwealth, unnecessary duplication of judicial resources, and unnecessary aggravation to the accused and witnesses. . Likewise, the Court of Common Pleas of Allegheny County had jurisdiction over the offenses committed in Washington County as well as those committed in Allegheny County, when all the offenses arose from the same criminal episode.

Opinion by Mb. Justice Heydbick, The defendants were retail dealers in clothing in the city of Philadelphia. The plaintiff, in company with his wife, visited their store for the purpose of purchasing a suit of clothes, having upon his person at the time a watch and chain. Having selected a coat and vest, and, being about to remove the corresponding garments for the purpose of trying on those selected, he took off his watch and chain, and was about to lay it on a pile of clothing, when the salesman who was waiting upon him said : “You had better put your watch here,” indicating a drawer from which the vest had been taken, and adding: “ It will be safe, I guess.” The watch and chain were accordingly put in the drawer, and the drawer was closed by the salesman. Plaintiff, his wife and the salesman, then went to another part of the store where there was a mirror, and the coat and vest having been tried on were found to be satisfactory. They next turned their attention to the selection of a pair of pantaloons, in doing which the plaintiff went twice to a dressing-room connected with the store. While he was thus engaged in trying on pantaloons, the salesman conducted his wife to a seat some distance from the drawer in which the watch and chain had been placed and to the vi cinity of which she had returned after the coat and vest had been selected, and there entertained her during the time her husband was in the dressing-room. When the entire suit had been selected and the plaintiff had replaced the garments which he wore when entering the store, he said to the salesman: “Now, we will take the watch.” The salesman opened the drawer into which it had been placed, but it was not there. Several persons who had been in the store during the selection of the suit, but who had left, were sent for and questioned by one of the defendants but the watch and chain were not found and returned to the plaintiff. While search was being made for the watch, the plaintiff asked the salesman whether they were in the habit of putting things like it in the drawers, and he replied that they had done so many times and nothing of the kind had happened before. Having paid for the suit purchased, the plaintiff asked one of the defendants whether he thought it was right that he, the plaintiff, should lose the watch. The reply was that he would have to lose it, but the defendants would do all they could to assist him in finding it. The watch has never been returned to the plaintiff. Upon proof of these facts the court below nonsuited the plaintiff, and its refusal to take off the nonsuit is the single error assigned. When the defendants opened a retail clothing store, they, thereby invited the public to come into their place of business and purchase clothing in the usual manner. And when they extended this invitation they assumed some duty to the people who should respond to it. Even the householder who permits the use of a path leading to his house is deemed to hold out an invitation to all people who have any reasonable ground for coming thither to pass along his pathway, and is, therefore, held responsible for neglecting to fence off dangerous places: 1 Add. on Torts, 203. So too a shopkeeper is liable for neglect on leaving a' trap door open without any protection by which his customers receive injury: Lancaster C. Co. v. Parnaby, 11 Ad. & E. 223. In like manner it cannot be doubted that if these defendants had maintained or permitted a danger of any kind in their store, and by reason of it the plaintiff had sustained bodily injury, they would have been answerable to him for the consequences. In such case, they would be said to have been guilty of negligence, guilty of a neglect of a duty which they owed to the customer; but I apprehend that the duty neglected would arise from an' implied contract that if customers would come to their store no harm that could reasonably be averted should overtake them, and the consideration for such promise would be the chance of profit from their patronage. Upon principle, the contract must be held to extend to the safety of such property'as”the customer necessarily* or habitually, in pursurance of an universal custom, carries ’ with him. Whatever thus necessarily, or, in common with” people generally, he habitually carries with him, and must necessarily lay aside in the store while making or examining his purchases, he is invited to lay aside by the invitation to I come and purchase, and, having laid it aside upon such invita- / tion and with the knowledge of the dealer, he has committed \it to his custody. And this being a necessary incident of the business upon which the customer was invited to come to the store, the care of the property would be within the authority of the salesman assigned to wait upon him; it would be part of the transaction in which he is authorized to represent his employer. This much was assumed without question in Bunnell v. Stern, 122 N. Y. 539, a case differing from the present in this only, that the article lost was a lady’s cloak, and the saleswoman took no care whatever of it. Assuming that the jury would have found that a watch is such personal belonging as men usually carry with them, and that in the selection of a suit of clothes it is necessary or usual to remove it from the person, and lay it aside, and farther that the plaintiff, by direction of the defendant’s salesman, placed his watch in a designated drawer in the store preparatory to the selection of a suit of clothes, to purchase which he visited the store, the defendants thereby became chargeable as bailees. The principles which govern that relation are briefly and clearly stated by Judge Story in his work on bailments thus: “ When the bailment is for the benefit of the bailor, the law requires only slight diligence on the part of the bailee, and of course makes him answerable only for gross neglect. When the bailment is for the sole benefit of the bailee, the law requires great diligence on the part of the bailee, and makes him responsible for slight neglect. When the bailment is reciprocally benefi cial to both parties, the law requires ordinary diligence on the part of the bailee, and makes him responsible for ordinary neglect. Manifestly the bailment in a case like the present is of the latter class, for, while the customer pays nothing directly, or eo nomine, for the safe-keeping of his effects, the dealer receives his recompense in the profits of the trade of which the bailment is a necessary incident. It was upon this principle that Lord Holt said, in Lane v. Cotton, 12 Mod. 483, an action was sustainable against an innkeeper for the loss of a guest’s goods, and that the court of appeals affirmed the judgment of the court of common pleas of the city of New York in Bunnell v. Stern et al., supra. In Massachusetts the proprietor of a liquor store who permitted an order-slate for an expressman to be kept in his store and allowed people to leave packages there to be taken away by the expressman, was held to be a bailee for hire on the theory that what he thus permitted brought him an increase of business: Newhall v. Paige, 10 Gray, 366. This, however, would seem to be pushing the principle to a dangerous extreme; it would render it unsafe for any business man to allow another’s property to be left about his premises; and would be in seeming conflict with our own cases of First National Bank of Carlisle v. Graham, 79 Pa. 106, and De Haven v. Kensington National Bank, 81 Pa. 95. The safer rule is to hold a bailment to be for hire, when no hire is paid, in such cases only as it is a necessary incident of a business in which the bailee makes profit; and such the jfffy'might have found the present case to have been. The remaining question is whether, upon the assumption that there was a bailment for hire, proof of failure of the defendants to return the watch and chain upon demand was, under the circumstances, sufficient to carry the case to the jury. If what was said by the plaintiff should be taken as proof that the property was lost we would be met with a conflict of authority elsewhere as to the effect of it, and find little in our own books to help us determine whether the burden was upon the plaintiff to prove negligence or upon the defendants to repel the inference of it. But the plaintiff’s evidence amounts to no more than that the salesman examined the drawer in which the watch had been placed and some others and did not find it, and that several persons not employees of the defendants who had been in the store and left were sent for and interrogated without result. All this did not prove-a-loas. nor even that the defendants said the watch was lost or had been stolen. In Logan v. Mathews, 6 Pa. 417, it was held that if a bailee for hire return the property in a damaged state and give no explanation how the injury happened, the burden of proof to show that there was no negligence is upon him. In harmony with this judgment, a bailee who fails to give any such explanation of his neglect to restore the property entrusted to him as will enable the bailor to test his good faith ought to be held to proof that he has exercised ordinary diligence in the care of it. Doubtless the defendants were entitled to the benefit of any inferences fairly deducible from their conduct when the watch was demanded, but such inferences were for the jury. If the case had been submitted to them and they had found as an inference from the facts proved that the watch had been stolen such finding would have been a complete exculpation, unless they farther found that the defendants had not exercised ordinary care. The judgment is reversed and a venire facias de novo awarded.

The opinion of the court was delivered by Coulter, J. — The charter or act of Assembly incorporating the city of Allegheny, was not produced or read on the argument; but I take it for granted that it contains no express authority to the corporation to issue such notes as those embraced in this action. But it does not follow that the corporators are therefore not answerable for them in their corporate capacity. They have received value for them in the various public works and improvements erected and made in the city, through their intrumentality, and it hardly comports well with fair dealing, that they should seek to exonerate themselves from a debt on this account, constructed by and through their accredited agents, and with their silent acquiescence. It is not universally true that a corporation cannot bind the corporators beyond what is expressly authorized in the charter. There is power to contract, undoubtedly, and if a series of contracts have been made openly and palpably within the knowledge of the corporators, the public have a right to presume that they are within the scope of the authority granted. A bank which has long been in the habit of doing business of a particular description, would not be exonerated from 'liability, because such business was not expressly authorized in its charter. The object of all law is to promote justice and honest dealing, when that can be done without violating principle. I cannot perceive that any principle is violated by holding a corporation liable for the contracts of its accredited agents, even not expressly authorized, when these contracts, for a series of times, were entered into publicly, and in such a manner, as by necessary and irresistible implication to be within the knowledge of the corporators. It was the acquiescence of the corporators, and the habit and custom of business of the corporation, which induced the public to give credit to the scrip or notes, which was evidence of contract. But when to this circumstance we add that the corporators themselves received the value of these notes or contracts in the erection of improvements in the city, and enjoyed and still enjoy the value of them, the conclusion is irresistible that the corporators ought to pay them by the assessment of taxes on the corporators, if it has no other available means. The debt is due by positive engagement — it is due ex equo et bono — in the forum of conscience, and the forum of law. One rule of law is often met and counterchecked by another of equal force, so that although the corporators are in general protected from unauthorized acts of their agents, yet at the same time a rule of equal force requires that they should not deceive the public, or lead them to trust and confide in unauthorized acts of their agents. If they receive the avails and value of those acts, it is implicit evidence that they consented to and authorized them. They adopt the act and are responsible to those who on the faith of such acquiescence and approbation trusted their agents. I speak now upon the basis of siich contracts not being prohibited by statute. It is contended, however, that the issuing of such contracts were positively prohibited by the statute of the 12th of April, 1828. That act in the first section prohibits corporations from issuing such contracts or notes, as those embraced in this action, and the second section imposes a penalty of $5 for so doing, so that according to the usual construction of such statutes, the notes would be void and irrecoverable, as the statute imposed a penalty on their issue, if there was not in the statute itself the seed and elements of a contrary conclusion. The third section, however, provides that no such notes or bills as described in the first section, shall be held or taken to be void or null by reason of the said statute, but that suit may be brought and sustained, notwithstanding any thing contained in the act, and a recovery be had for the principal sum due with interest, as provided in the fourth section, at the rate of 20 per cent, per annum from the date when such notes were issued. If the first and second sections are the bane of the note-holders, the other sections are its antidote, and these remedial provisions are in accordance with the principle stated in the commencement of the opinion, to wit: That although the issuing of the notes may not be authorized, yet the corporation is bound, having received value, and deluded the public into a belief that they were good and valid. The great object of these remedial provisions was to protect the public, whilst the first and second sections of this act was to deter corporations from such contracts. The second contained a penalty eo nomine, but if, in defiance of that, the corporation issued the scrip, still they were held liable for the amount, with a large additional interest, and this was the true policy. For if the notes had been made utterly void and irrecoverable, the statute would have played into the hands of the corporators, and enabled them to accomplish the very object which it was the design of the legislature to prevent, that is, to defraud the public. The provisions of the statute are very plain, and intelligible. They announce two propositions: First, you violate the law, and incur a penalty if you issue small notes under five dollars, and put them in circulation currently; but if you will violate the law, and issue them and incur the penalty, you shall pay the holder the uttermost cent you engage to pay on their face, and in addition, if he is compelled to bring suit, you shall pay interest at the rate of 20 per cent, per annum. We endeavor, proclaims the sovereign authority of the State, to prevent you and save you, but if we cannot, still we will not assist in defrauding the public, you shall pay the innocent holder of your contracts every cent you promise, and if you put him to trouble, and the delay of a law suit, you shall pay in addition 20 per cent, interest. Any other course on the part of the legislature, would have been like a man flaggellating himself because he had received injury from another.- The legislature did not choose to punish the public who had innocently received such notes, but endeavored to punish those who had unlawfully issued them, by compelling them to redeem their engagements with suitable interest; a very sensible and judicious policy, which we will endeavor fairly to carry out. The statute of 12th April, 1828, does not, therefore, make these bills or notes null and void in the hands of the holder, but, on the contrary, does expressly make them valid, and recoverable in the hands of the holder, and good against the corporation. It is alleged, however, by the corporation, that the act of 1828 is repealed by the resolution of the legislature, passed on the 1st of June, 1842. This act, however, does nothing more than increase the penalty for issuing the notes. The penalty in the act of 1828 is $5 for the issuing of every note — the penalty in the act of 1842 is $50. It is admitted that a subsequent act, covering the whole subject matter of a former one, superseding and supplying it, docs impliedly repeal the former. But implied or inferential repeals of former statutes are not adopted by the courts upon light grounds, because, if the legislature intended a repeal, nothing was more easy than to say it. It would be the most covert and most dangerous mode of judicial legislation, and the most susceptible of abuse. There is not a shadow of intent manifest in the act of 1842 to repeal the act of 1828; and what is decisive against its being a repeal by implication is, that it does not cover the whole ground, and therefore does not supply the act of 1828. It does not touch the remedial parts; it has no allusion to the validity or recoverability of the notes, worthless and valueless in the hands of the holders who had received them for value. It would have been a suicidal policy as it regarded the public, a wanton infraction of the remedial parts of the act of 1828, without motive, design, or effect, other ■ than that of assisting the corporation to evade the liability imposed upon them by that act, on the faith of which the public had received such notes. It would have the effect of an ex post facto law in its most odious features, by rendering that invalid which was made of value by a previous law. Whether the penalty in the act of 1842, which is its whole form and substance, absorbs the penalty in the second section of the act of 1828, I stop not to inquire. That is of no consequence in this proceeding. But it is very cigar, and so ruled that it does not repeal or impair the remedial parts of the act in favor of note-holders nor touch their remedies. It alters or increases the penalty as a crime, making it indictable, but alters not the civil liability. It is almost supererogatory to make any observation on the point which assumes that the act of 1828 does not reach or affect municipal corporations. Because, if we allow to the legislature of that year, any sense, any knowledge of the history of the times, we must be constrained to admit that municipal corporations were chiefly in the legislature’s mind. There were previous enactments on the subject in relation to banks. But a flood of these small notes, poured out, before 1828, from almost every municipal corporation in the State, had fairly deluged the commonwealth. Every man’s pocket had them, and every man’s fingers were made greasy by them. We doubt not the intent of the legislature. The words of the act are ample to embrace them. The existing evil required them to be embraced, and if they had not been embraced, the legislature would have been totally defective. They were clearly within the mischief, and as clearly within the enactment. The remaining point to be examined, is whether these suits are barred by any statute of limitations. It is not pretended that they are barred by the statute of limitations, properly so called, passed March 27, 1713. But it is contended that they are barred by the sixth section of the act of March 26, 1785, which provides that when a suit is brought to recover any forfeiture upon any penal act of Assembly, when the forfeiture is limited to the commonwealth only, it shall be brought within two years after the offence was committed, and when the forfeiture is limited to the commonwealth and to any one who shall prosecute in that behalf, such suits shall be brought within one year next after the offence was committed. This point assumes as a postulate, that the twenty per cent, is a forfeiture incurred when the offence was committed. But there was no forfeiture at the time of issuing the notes, except for the five dollar penalty, properly so called. The twenty per cent, would not accrue until time had run, and would never accrue if the notes had been honestly redeemed without suit. The act provides that in such suits or actions, (that is, those brought for the recovery of the bills,) if the same shall be determined in favor of the plaintiff, judgment shall be rendered for the principal sum due on such notes, together with interest, at the rate of twenty per cent., per annum. Here is no forfeiture, to the commonwealth alone, nor limited to the commonwealth and any person who shall prosecute for the forfeiture. The category of the statute of 1785 does not occur. There is no forfeiture of any sum to the commonwealth or anybody and the commonwealth, except as to the five dollar penalty. The additional rates of interest is a subsequent matter to the commission of the offence of issuing the notes, and accrues only upon the suit brought for the notes, and judgment being entered for the plaintiff therein. By the act of 30th March, 1821, regulating bills of exchange, accumulated or increased interest or damage is given in certain cases of protested bills. Thus five per cent., when the bill is drawn upon persons in any other State than Louisiana, and protested, in addition to the common interest and costs and charges, is given, and when it is drawn on Louisiana, ten per cent., and so when drawn on various other quarters of the world, there is a gradation up to twenty-five per cent. Yet it has never been held that this was a penalty, and brought the limitations of 1785 dowm upon the holders of the protested note or bills. Like the case in hand, it is a civil not a penal remedy, or proceeding; such as a qui tam action for a future penalty. It is given as compensation to the holders of the notes in either case for additional trouble, not contemplated in the original contract. But admitting that the limitation of the act of 1785 does apply, (which, for myself, I very much doubt,) it is ruled by this court that it is a limitation for two years, and that saves all the notes embraced in this suit, inasmuch as this suit is not brought in the name of the commonwealth, for the use of any one who prosecutes for a forfeiture. The limitation of one year in the act of 1785 cannot apply, unless we do violence to the words of the act, and substitute a phraseology of our own. But, instead of enlarging the construction, I would incline to the most rigid adherence of the words of the act. It was passed long before these exigencies had occurred, or were contemplated by the framers of our statutes, and if applied as contended for, would, in a great measure, frustrate the intents of the act of 1828. The limitation, therefore, of one year does not apply to these suits. The plaintiffs in error might have avoided this accumulated or increased interest, if they had provided for the payment by suitable means or actually paid the notes, as it was their duty to do by the tenor of their engagements. But instead of doing that, they recklessly folded their arms, whilst many a poor and worthy man and woman suffered by their acts. But having put on a bold and swashing defiance of the policy and laws of the State, and played their card, reckless as to who suffered, it remains for the man who has expended his toil and his sweat, and his means for these notes, to play his, and claim the benefit of the laws. We cannot permit our mind to be swerved by any mystification of legal principles or any refined subtlety of distinction. The corporation is bound by law to pay these notes, and they are bound by law, when suit is brought and judgment rendered against them, to pay twenty per cent, interest. I may add, however, that in the opinion of this court, although the plaintiffs are allowed by the act distinct remedies against those who issued their notes and gave them currency by their names, that, nevertheless, they are entitled to but one satisfaction — the face of the note and twenty per cent, interest, on the same principle that the endorser or holder of a negotiable note may bring an action against the maker and each of the endorsers, and recover against them severally, but can have only one satisfaction ; and so as to joint trespassers, although a suit may be maintained against each trespasser, only one satisfaction can he recovered. Judgment affirmed.

The opinion of the court was delivered by Gibson, C. J. A register of wills is certainly not bound to award an issue whenever it is demanded. “ Whenever a caveat is entered against the admission'of any testamentary writing to probate,” it is enacted, “ and the person entering the same shall allege, as the ground thereof, any matter of fact, touching the validity of such writing, it shall be lawful for the register, at the request of any person interested, to issue a precept to the Court of Common Pleas of the respective county, directing an issue to be formed on the said fact, and also upon such others as may be lawfully objected to the said writing.” The register is empowered, but not réquired, in every case to send every contested fact to a trial at law. The office of a jury is not to guess at the existence of circumstances, in the absence even of a presumption, for where there is no conflict of evidence, there is no contest of facts, and it would be absurd to incur the costs of a trial when there is nothing to try. But the register has not, on the other hand, an arbitrary discretion in the matter. Though the witnesses to establish a will swear all one way, their testimony may be encountered by evidence of bad character, or other matter, to raise a question for a jury; but where their testimony is consistent, and they are neither contradicted nor impeached, a jury would not be allowed to find against it: and it would be a vain thing to award a trial which must necessarily result in a particular way. When the evidence has been heard, it is for the register, in the exercise of a legal discretion, to decide upon it, or refer the decision to a jury: and the propriety of his determination may be examined on appeal. In the present case, there was no question depending on evidence in pais, positive or presumptive; issues were prayed to determine whether the sheets produced to the register were all that originally constituted the will, and whether they were fastened together when they were signed. There was not a particle of extrinsic evidence that any other sheets had at any time existed; and, in the absence of proof to the contrary, thé presumption was that none but those produced for probate were present at the execution. It is attempted to be rebutted, in the first place, that the name of one of Mrs. Stott’s sisters is not in the will, whence a conjecture that a provision must have been made for her on a leaf not now to be found : but conjecture is not a foundation for a verdict. There is, in the second place, some confusion in the order of arrangement. It occurred to Mrs. Stott, to number the devises and bequests in her will, as they were written from time to time on separate sheets; but the series became irregular and some of the numbers were misplaced, whence an inference that some of the sheets are missing; but there is enough on the face of the papers to show that it is unfounded. Number two is repeated, ahd number three stands in the place of number four, and each of the remaining numbers stands in the proper place of its successor. But no number is wanting toindicate the loss of a bequest, or sheet: on the contrary, there is one sheet too many. A jury was demanded, therefore, to find a verdict not only without evidence, but against a natural presumption. And what if the fact were as it has been surmised to be ? The presumption of innocence is favored by the law, and as it would be criminal in a stranger to filch and suppress a part of a will, the presumption would be, in this case, that the missing bequest had been cancelled or suppressed by the testatrix herself; and as the presumption would be that it might have stood separately from the other bequests, the cancellation of it would not be a cancellation of the rest. A testator may dispose of the several parts of his estate by distinct instruments, each being separately his will of the particular part, but all constituting together his whole will: Hitchens v. Basset, cited 1 Show. 545. Now, when a testator has two wills which may stand separately, it will not be pretended that a cancellation of the one would be a cancellation of the other. The very case which the appellant would establish, was ruled in Sutton v. Sutton, Cowp. 812, in which it was held that a will may be good in part, though other parts of it may have been obliterated by the testator subsequently to the execution of it. The demand of an issue, to try whether the sheets of which the will is composed were disconnected when it was executed, stands on the same untenable ground. It is a rudimental principle, that a will may be made on distinct papers, as was held in the Earl of Essex’s case, cited 1 Show. 69. It is sufficient that they are connected by their internal sense, by coherence or adaptation of parts. Were it otherwise, there is no evidence that the leaves were detached when the will was executed. They were sent to Mr. Binney for examination in Mrs. Stott’s lifetime, as “three papers or collection of leaves,” and they were found among her'valuable papers in the same state ,at her death. In the absence of evidence to the contrary, the presumption is that they had always been so. As to the interlineations proved to be in Mrs. Stott’s handwriting, yet insisted on in the appellant’s argument, though not included in his specifications, it satisfactorily appears from the cases cited on the other side, that they are of no account. The presumption is, that they were made at or before the time when the will was prepared for the final act. Even had the preceding objections been solid when the will was executed, they would be obviated by the subsequent republication of it. Mrs. Stott declared by a codicil that her will and codicils were written on three collections of leaves or sheets of paper—the will subscribed by particular persons, and the codicils bearing particular dates; that they contained her last will and testament; that she thereby republished the same, and desired them to have full effect, according to their substantial meaning, without regard to their dates, and as if they were all dated of that day. And these papers, as she described them, were found fastened together at her death. ■ What more could she do to make them her will ? Mr. Binney, who prepared the codicil of republication, identified them, after which there could be no doubt that no more were republished. Nor can it be doubted that republication by a codicil is good, though the will were not present at the time. This was, at one time, more than doubted by the English judges, by reason of a peculiar provision in their statute of frauds; but, as there is no such provision in our statute of wills, it has not been doubted here. It is argued, however, that the memorandum immediately below the signature to what was originally the will, avoided it on the principle of Hays v. Harden, because the signature by it ceased to be in the words of the statute at the end of the will. If this memorandum, which is without date, actually preceded the codicil of republication in point of time, it became incorporated in the body of the will, and the signature to the codicil became the signature at the end of the will. The presumption is that it did; but suppose that it did not. The matter in it bore neither on the contents of the will nor on its interpretation. It was not testamentary ; and it was no more a part of the will than was the label on the back of it. “This will,” subjoined the testatrix, “was commenced in the year of our Lord 1843, and added to as occasion required.” Very different the additional matter in Hays v. Harden, which consisted, not only of reasons for a precedent devise which might have influenced the construction of it, but an additional substantive devise, which showed that the preceding part had not disclosed the testator’s whole counsel. The report of the case is imperfect; and it is necessary to say here, that the additional matter was expressed in the following words:—“ 3d. For the satisfaction of all concerned, and others: for many years I made my home and residence with my brother, residing on my farm, township as above; while laboring under the infirmities of life, his treatment towards me was of such a nature as to compel me to leave the house and find an asylum in the house of my nephew, Abraham Hays, as above; in consideration of his hospitality towards me, I will and bequeath to him the above described farm.” This was, subscribed by witnesses, but not signed by the testator; and it was as distinctly testamentary as the memorandum before us is otherwise. The last objection is to the probate of the codicil in favour of Mrs. Minigerode. It is doubtful whether the date at the head of it is referable to it or to a preceding codicil, and whether it was executed before or after the codicil of republication. If the former, it would undoubtedly be valid, as an independent addition to the will; if the latter, the omission of it in the act of republication might be an implied revocation of it. The law of the case has been clearly laid down in Smith v. Cunningham, 1 Addams 448, cited in the argument. In that ease, as in this, a codicil had confirmed and republished the will, and several codicils specified by their dates, but not the codicils in contest; and, in pronouncing sentence of probate, Sir John Nicholl said that the revocation alleged, if so at all, was an implied one, because there was no general clause of revocation; that all questions of revocation are in a greater or less degree questions of intention, because the very fact of revocation is said to be equivocal; and that the fact in that ease was peculiarly equivocal, instead of being, as it ought to be, clear and unequivocal. And the animus revocandi was rebutted by the place in which the codicils had been kept, and by the company in which they were found; by the improbability of an intention to revoke, by proof of confidential intercourse with an executor and trustee nominated in one of them, till the testator’s death; by the fact that they contained the only adequate provision for the testator’s housekeeper; and by the fact also, that they contained a provision for the illegitimate children—circumstances far less indicative of intention than those in the case under consideration. One of the witnesses, who had been an attendant of Mrs. Stott seventeen years, testified that she was grieved that the legacy to Mrs. Minigerode was not in her will, and bade the witness see whether there were any papers about it in the portfolio; that the witness found them all there, the codicil included, and that they were found in the same place the day after the funeral. A niece of the testatrix testified that she always spoke affectionately of Mrs. Minigerode, who was her great-niece, and corresponded with her; that an affectionate intercourse was kept up till the parties were separated by death; that when Mr. Minigerode called to see her on her sick-bed, she said she was glad she had done what she had for his wife; that she spoke of this bequest several times during the spring, after the date of the codicil; that, on one occasion, she had the paper in her hands, and, in answer to a question, whether it were not best to insert it in the will, replied, it was the same thing, as it had her signature; and that she then placed it in the portfolio, where it was found at her death. No declaration of intention could be stronger. We are of opinion, therefore, that all the papers were properly admitted to psobate. Sentence affirmed.

The opinion of the court was delivered, November 28th 1868, by Agnew, J. Positive acts tending to mislead one ignorant of the truth, which do mislead him to his injury, are a good ground of estoppel, and ignorance of title on part of him who is estopped will not excuse his act: Robinson v. Tustin, 2 Penna. R. 22; Commonwealth v. Moltz, 10 Barr 530; Vanleer’s Appeal, 12 Harris 228; Beaupland v. McKean, 4 Casey 131; Keeler v. Vantyle, 6 Barr 253. Mrs. Allen married John Y. Chapman’s father at John’s earnest solicitation. David H. Chapman, the father, was to convey to her one-half of his village property as an inducement to her to accept him. John, while endeavoring to obtain her consent, professed his willingness that his father should give her the half, or even the whole of it. Mrs. Allen was the mother of his wife, and his own hope was that his father would give him a portion of his farm. He pressed her most anxiously, saying he had nothing of his own, and if she did not marry his father, the latter would squander his property, and give him nothing to raise his children upon. He told her of his father’s intention to deed her one-half of his village property, and brought the subscribing witness and the justice who took the acknowledgment. He then lived in the house with his father. Mrs. Allen became Mrs. Chapman, and now John seeks to enforce against her a title made known to her only since her marriage, an unrecorded lease to John instead of his father. The marriage proved to be a source of unhappiness to her, and she has indeed been misled to her injury. Marriage is a valuable consideration. Surely no clearer case of estoppel could be made to appear. It was argued that John did not know that the deed was for the half of the lot in suit, because the evidence does not show it was read in his presence. But suffice it to say the evidence leaves no doubt in our minds of his knowledge that it was this property. All the circumstances conspire to prove it, and his conversation with Mrs. Chapman about the mortgage to his uncle, Moses Chapman, which embraces this lot, telling her in this conversation that his father and uncle would deprive her of her property by means of this mortgage, is ample evidence of his knowledge of its identity. The question of estoppel in favor of Jos. Gansamer, the purchaser of the lot under this mortgage, is perhaps not so clear as that in her case, but it is sufficiently supported by the evidence. As to Gansamer, there was no such positive act, but there was a silence so suggestive, so pregnant with ill to him, the court was justified in leaving its effect to the judgment of the jury. Sileneé will postpone a title when one should speak out, when, knowing his own right, one suffers his silence to lull to rest, instead of warning of danger; when, to use the language of the books, silence becomes a fraud. Such a silence, though negative in form, is operative in effect, and becomes suggestive in the seeming security it leads to. He who is led by such a silence, ignorantly and innocently, to rest upon his title, believing it to be secure, and to expend money and make improvements upon his property without the timely warning he should have had to dispel his illusion, will be protected by estoppel against recovery: Crest v. Jack, 3 Watts 239; Keeler v. Vantyle, 6 Barr 253; Commonwealth v. Moltz, 10 Barr 531; Woods v. Wilson, 1 Wright 383-4; Miranville v. Silverthorn, 12 Wright 149. The evidence shows very clearly that John V. Chapman knew of his father’s having mortgaged the lot in question to Moses Chapman, and knew of the proceeding by scire facias upon it. He repeatedly recognised his father’s title to the lot, suffered him to have the possession and to mortgage the whole of it, without denying his father’s right, or setting up his own title. That he knew of Gansamer’s purchase at sheriff’s sale, is very evident, not only from the testimony of Mr. Woodruff, but from all the surrounding circumstances. There is no pretence of ignorance on his part, and yet, during the whole of the proceedings, and after Gansamer bought, and also while he was making his improvements, he gave no notice of his title. When Gansamer was engaged in improving, John disclaimed his title to W. W. Eaton, who communicated' this fact to Gansamer. While Gansamer was thus expending large sums upon the property, in evident ignorance of all claim of title on part of John Y. Chapman, lulled into security, as the jury might well find from his whole conduct, John Y. Chapman lived within a mile and a half of the village, was frequently there; passed the property, which was on the main street, in full view of the work while in progress; and had every opportunity of knowing what was taking place upon the property. The jury could scarcely fail to find his actual knowledge of the improvements thus being made by Gansamer. Woods v. Wilson, 1 Wright 383 (opinion by the present Chief Justice), was not so strong in its circumstances as is this case. We think the court was justified, therefore, in submitting the question of estoppel to the jury on the evidence before them. We discover no error in admitting the offers contained in the bills of exception. The evidence all tended to show the plaintiff’s conduct in reference to the property, and the relation he himself chose to assume toward it. His disclaimers of title were such as were quite likely to come to the ears of Gansamer. Judgment affirmed.

Chief Justice Sharswood delivered the opinion of the court, February 14 th 1881. Boyd v. Boyd, 16 P. F. Smith 283, established a general principle of the highest importance for the protection of persons who call in professional or other advisers to assist them in making their last wills. That principle may be briefly stated thus : Where the alleged testator is shown by evidence to be weak in mind, whether arising from age, bodily infirmity, great sorrow, or other cause tending to produce such weakness, though not sufficient to create testamentary incapacity, and the person whose advice has been sought and taken receives a large benefit under the instrument propounded as a will, it must be shown affirmatively that the alleged testator had full understanding of the nature of the disposition contained in it. The general rule undoubtedly is that testamentary capacity and knowledge of the disposition made are presumed. Where the testamentary capacity is perfect, fraud or undue influence must be shown. In such case the undue influence must be such as to destroy the freedom of will of the party, or at least very much to impair it. But not so in the case of an old, infirm and mentally weak man, disposing of his estate in favor of his confidential adviser. These principles were all affirmed ana recognised in Frew v. Clarke, 30 P. F. Smith 170. That case did not in the least shake the principle of Boyd v. Boyd, which was fully supported by the authorities, and is founded on sound principle and the wisest policy. Wills are generally prepared according to instructions given to the scrivener privately, when no one else is present; and to hold that in the case supposed it is sufficient to prove the formal execution of the paper in the presence of witnesses, and then throw upon the contestants the burden of proving fraud, undue influence, misrepresentation or mistake, would open the door wide for the arts of the cunning and designing to succeed in their nefarious purposes. Every man who draws a will in his own favor, under such circumstances, should know that he will be required to prove affirmatively all the circumstances connected with the drawing of the will, and that it must appear that the alleged testator was laboring under no mistaken apprehension as to the value of his property and the amount he was giving to his confidential adviser. It has been decided that the beneficiary himself is a competent witness to 'prove the will. ■ He cannot complain, then, that the rule is hard or unjust which requires him to make it clearly appear that the gift to him was the free, intelligent act of the testator. In truth, we were not called on in Erew v. Clarke to re-examine the decision in Boyd v. Boyd. In the latter case it was held merely that upon the evidence there given the judge below was right in submitting the case to the jury. In Frew v. Clarke, upon the trial of the issue of devisavit vel non below, the question had been submitted to the jury, and the verdict sustained the instrument propounded as a will. Mr. Justice Mercur says, in the opinion of the court delivered by him: “ If the mental capacity of McCully (the testator) had been impaired, if he had become weak from age or bodily infirmity, although not to such an extent as to destroy his testamentary capacity, it might have shifted the burden of proof, and required the defendant in error (the legatee) to negative by evidence a presumption of undue influence. It is shown, however, that McCully’s mental capacity was not impaired.” Of course, upon the principle of Boyd v. Boyd, the judgment of the court below had to be afiirmed. There were other questions in the case. Whether the paper propounded was a will or an obligation sealed and delivered inter partes, and whether, conceding it to be testamentary, Clarke, the legatee., was a competent witness to prove it. Upon these questions the court was divided, but not upon the general principle settled in Boyd v, Boyd. We consider that the case presented on these appeals is entirely within that principle. Had the only question been on the testamentary capacity of John L. Neill there would be reason to hold that there was not sufficient evidence to justify a jury in setting aside the codicil. Had it been drawn without advice and suggestion by Neill himself, as was the original will, it must have stood. But it cannot be disputed that there was evidence, we think enough to carry the case to a jury, that the testator was not the same man physically and intellectually when he executed the codicil as when he made the original will. A jury might reasonably so conclude from the evidence. Then the onus was thrown on Yardley to prove that Neill fully understood the value of his property and the probable residue after paying all his legacies. It would not be proper for us to express any opinion upon the weight of the evidence as bearing upon this question. Upon the issue to be granted, it must be submitted to a jury under proper instructions from the court. There may be a case where the alleged undue influence is applicable only to a single independent provision in a will, and that provision may fail, leaving the rest of the will to stand. It is certainly not this case, where the clause objected to is a residue, and that residue made up or largely increased by alterations made, as a jury may conclude, under the same influence for that purpose. It may be, however, that if the bequest of the residue in the codicil fail and the rest stands, the general direction of the will in the fourteenth item will apply to the legacies in the codicil as taking the place merely of the legacies from item 20 up to item 39 in the original will. Upon this point we express no opinion. In either case the appellants have an interest to contest the codicil. Decree reversed. And it is ordered and decreed that the issue prayed for in the court below be granted, and the record remitted fijr further proceedings.

Opinion by Ervin, J., Defendant, Robert Randall, was found guilty under the Act of June 3, 1953, P. L. 277, §1, 18 PS §4532, which provides: “Whoever, being- of the age of twenty-one years and upwards, by any act corrupts or tends to corrupt the morals of any child under the age of eighteen years ... is guilty of a misdemeanor. . . .” Defendants, Robert Randall and Sophie Wofsy, were also found guilty of violating Paragraph 1, §493, of the Liquor Code, 47 PS §4-493, which provides: “It shall be unlawful (1) For any licensee or the board, or any employe, servant or agent of such licensee or of the board, or any other person, to sell, furnish or give any liquor or malt or brewed beverages, or to permit any liquor or malt or brewed beverages to be sold, furnished or given, to any person visibly intoxicated, or to any insane person, or to any minor, or to habitual drunkards, or persons of known intemperate habits.” The cases were tried together, the charges against both defendants having arisen out of the same circumstances and at the same time. Defendants’ motions in arrest of judgment and for new trial were denied and sentences were imposed upon the defendants, whereupon the instant appeals were taken by both defendants. Defendant Randall argues that the above referred to act of 1953 is so vague and indefinite that it violates the due process clause of the 14th Amendment to the United States Constitution, which provides: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” It is undoubtedly the law that to comply with this requirement of the Constitution “a statute must be sufficiently certain and definite to inform the citizen of the acts it is intended to prohibit. A statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must guess as to its meaning and differ as to its application lacks the first essential of due process of law.” 14 Am. Jur., Criminal Law, §22; Com. v. Klick, 164 Pa. Superior Ct. 449, 453, 65 A. 2d 440. In support of his position, defendant Randall relies heavily on the case of Musser v. State of Utah, 333 U.S. 95, 68 S. Ct. 397, which involved a statute of the State of Utah prohibiting a conspiracy on the part of two or more persons “To commit any act injurious to the public health, to public morals, or to trade or commerce, or for the perversion or obstruction of justice or the due administration of the laws . . . .” Thirty-three persons were charged under this act with conspiring to encourage and practice polygamy. The entire statute was stricken down for being too vague and unenforceable. The court, in its opinion, stated: “It is obvious that this is no narrowly drawn statute. . . . Standing by itself, it would seem to be warrant for conviction for agreement to do almost any act which a judge and jury might find at the moment contrary to his or its notions of what was good for health, morals, trade, commerce, justice or order.” It is apparent that the Musser case is not authority for defendant’s position that the phrase “corrupt the morals” is so vague and indefinite that it offends the due process clause of the Constitution. The statute in the Musser case related to acts deemed injurious not only to “public morals” but also to “public health ... or to trade or commerce or for the perversion or obstruction of justice or the due administration of the laws.” In the case at bar we are concerned only with the word “morals” as related to children under the age of 18 years. This is a much more definite and restrictive area than that which was involved in the Musser case. We believe that the word “morals” has a definite and well-settled meaning. Defendant Randall also placed great reliance upon the case of Hallmark Productions, Inc. v. Carroll, 384 Pa. 348, 121 A. 2d 584. In this case the Pa. State Board of Censors had refused to approve display of a motion picture, “She Should’a Said No,” involving the enticement of people into the sale and use of marijuana. The board, under this statutory authority, found that the film was “indecent and immoral” and, in the judgment of the board, tended to debase and corrupt morals. In the majority opinion of the Supreme Court the language of the statute was found to be vague and indefinite and therefore unconstitutional. In the majority opinion written by Horace Stern, then Chief Justice, there will be found a review of the decisions of the Supreme Court of the United States on this subject. The first case reviewed is Joseph Burstyn, Inc. v. Wilson, Commissioner of Education of New York, 343 U. S. 495. In that case a New York statute provided for the banning of a motion picture film if it or a part thereof was “obscene, indecent, immoral, inhuman, sacrilegious, or is of such a character that its exhibition would tend to corrupt morals or incite to crime.” The New York State Board of Regents determined that a certain film examined by them was sacrilegious and ordered a rescission of the license to exhibit it. An affirmation of that order by the New York Court of Appeals was reversed by the Supreme Court of the United States. The appellant there argued (1) that the statute was a violation of the right of free speech and (2) that the term “sacrilegious” was so vague and indefinite as to constitute a denial of due process. The Burstyn opinion ends with a statement that “Since the term ‘sacrilegious’ is the sole standard under attack here, it is not necessary for us to decide, for example, whether a state may censor motion pictures under a clearly drawn statute designed and applied to prevent the showing of obscene films. That is a very different question from the one now before us. We hold only that under the First and Fourteenth Amendments a state may not ban a film on the basis of a censor’s conclusion that it is ‘sacrilegious.’ ” Chief Justice Stern then reviews the following cases: Gelling v. Texas, 343 U.S. 960; Winters v. New York, 333 U.S. 507; Superior Films, Inc. v. Department of Education, and Commercial Pictures Corp. v. Board of Regents of University of State of New York, 346 U.S. 587. In all of these cases censorship under state acts was stricken down by per curiam opinions citing merely the Burstyn case. At the very end of his opinion in the Hallmark case (p. 358) Chief Justice Stern states: “It need hardly be added that even if all pre-censorship of motion picture films were to be held invalid this would not in and of itself affect the right to suppress objectionable films if exhibited, or to punish their exhibitor.” (Emphasis added) In his dissenting opinion, Mr. Justice Musmanno, at p. 367, states: “After the decision of the Majority will have been handed down, those same shameful, shameless, degrading films may be projected anywhere in Pennsylvania publicly, the distributors and exhibitors being subject only, after the showing, to the penalty provided under criminal law.” (Emphasis added) We think it is clear that the Supreme Court in the Hallmark case intended to leave open the question of whether the legislature, by the use of clear language, could make it a crime to commit any act which would corrupt or tend to corrupt the morals of our youth. In this connection the language of Mr. Justice Musmanno in his dissenting opinion in the Hallmark case, at p. 371, is significant. He said, “However, there is nothing vague or uncertain about the words, ‘obscene,’ ‘indecent,’ and ‘immoral.’ There is nothing ambiguous about ‘debasement and corruption of morals.’ Any citizen with a fairly good education, excellent character, good religious upbringing, social consciousness and devotion to the ideals of democracy, can pass with satisfactory results on whether certain motion pictures are moral and proper.” In the censorship cases the courts were concerned not only with the question of whether the language in the statute was so vague and indefinite as to constitute a denial of due process but also with that part of the Constitution which has to do with the right of free speech. In the present case we are not concerned with the freedom of speech provision. We are concerned only with the question of whether the statute which prohibits any acts which corrupt or tend to corrupt the morals of a child under 18 years of age is sufficiently clear and definite to advise the public of the proscribed conduct. It is interesting to note that appellant Randall did not question the sufficiency of the evidence relating to the charge made against him. Without going into great detail, that evidence reveals that a party was held in defendant Randall’s home, in the course of which some of the six minor children, whose ages ranged from 12 to 17 years, were served beer, whiskey and vodka and that'the defendant Randall, clad only in the bottom of a pair of torn pajamas through which his private parts were visible to the minor children, invited several of the minors to sit on his lap, kiss him and have intercourse with him. It should be remembered that we are not here dealing with a moral concept about which our people widely differ; corrupting the morals of children is condemned throughout our land. According to common understanding, the term “morals” must be taken to refer to the moral standards of the community, the “norm or standard of behavior which struggles to make itself articulate in law.” Cardozo, Paradoxes of Legal Science, pp. 17, 41, 42. “Sound morals as taught by the wise men of antiquity, as confirmed by the precepts of the gospel. . . are unchangeable. They are the same yesterday and today.” We see no reason to retreat from those ideas. “We are a religious people whose institutions presuppose a Supreme Being.” Zorach v. Clauson, 343 U.S. 306, 313, 72 S. Ct. 679, 684, 96 L. Ed. 954. Our Federal and State Constitutions assume that the moral code which is part of God’s order in this world, exists as the substance of society. The people of this State have acted through their legislature on that assumption. We have not so cast ourselves adrift from that code nor are we so far gone in cynicism that the word “immoral” has no meaning for us. Our duty, as a court, is to uphold and enforce the laws, not seek reasons for destroying them. The comprehensive words of the statute, “Whoever, being of the age of twenty-one years and upwards, by any act corrupts or tends to corrupt the morals of any child under the age of eighteen years” certainly convey concrete impressions to the ordinary person. The common sense of the community, as well as the sense of decency, propriety and the morality which most people entertain is sufficient to apply the statute to each particular case, and to individuate what particular conduct is rendered criminal by it. It is obvious that the mandates of the statute are salutary measures designed to protect children. “The ways and means by which the venal mind may corrupt and debauch the youth of our land, both male and female, are so multitudinous that to compel a complete enumeration in any statute designed for protection of the young before giving it validity would be to confess the inability of modern society to cope with the problem of juvenile delinquency.” State v. McKinley 202 P. 2d 964, 967, 53 N.M. 106; State v. Harris, 141 S.E. 637, 105 W. Va. 165. The general language of the statute, therefore, is not a valid objection to it on constitutional grounds. Unless words of such seeming generality as “moral” and “immoral” were valid in statutes, government itself would become impossible. Manifestly, there can be no objection to the use, in a statute, of words like “corrupts the morals” or “tends to corrupt the morals of any child,” which include many things, all of which are intended by the legislature to be covered; otherwise, there would be barred from statutory use such customary verbiage as “fraudulent,” “due,” “negligent,” “arbitrary,” “reasonable,” etc. It is not a valid criticism that such generad moral standards may vary slightly from generation to generation. Such variations are inevitable and do not affect the application of the principle at a particular period in time: Parmelee v. U. S., 72 App. D.C. 203, 113 F. 2d 729. The highest court in the land has recognized that the “Use of common experience as a glossary is necessary to meet the practical demands of legislation” and that the “requirement of reasonable certainty does not preclude the use of ordinary terms to express ideas which find adequate interpretation in common usage and understanding.” Sproles v. Bin- ford, 286 U.S. 374, 393, 52 S. Ct. 581, 587, 76 L. Ed. 1167. The constitutionality of similar statutes defining crimes in general terms has been upheld by many courts where the general terms used in the particular statute get precision from common standards of morality prevalent in the community. The validity of statutes making it a crime to contribute to the delinquency of minors has been upheld in our own State and other jurisdictions: Com. v. Jordan, 136 Pa. Superior Ct. 242, 7 A. 2d 523; Com. v. Wink, 170 Pa. Superior Ct. 96, 84 A. 2d 398; Com. v. Stroik, 175 Pa. Superior Ct. 10, 102 A. 2d 239; People v. Friedrich, 52 N.E. 2d 120 (Ill.); State v. Montalbo, 110 A. 2d 572 (N.J.); State v. Roessler, 266 P. 2d 351 (N.M.). The term “moral turpitude” has been held adequate to satisfy even the strict rule applicable to criminal statutes: Jordan v. DeGeorge, 341 U.S. 223, 232, 71 S. Ct. 703, 708. The term “good moral character” as used in the immigration and nationality laws has frequently been applied by the courts. The measure applied is the “common standard of morality” prevalent in the community: Estrin v. U.S., 2 Cir., 80 F. 2d 105; or the “common conscience” of the community: Johnson v. U.S., 2 Cir. 186 F. 2d 588, 590. We are convinced that the statute here involved was couched in language sufficiently clear and definite to proscribe the conduct of defendant Randall. Section 493, subparagraph 1, of the Liquor Code of 1951, supra, provides: “It shall be unlawful (1) For any licensee or the board, or any employe, servant or agent of such licensee or of the board, or any other person, to sell, furnish or give any liquor or malt or brewed beverages, or to permit any liquor or malt or brewed beverages to be sold, furnished or given, to . . . any minor. . . .” (Emphasis added) The defendants argue that under the ejusdem generis rule, the words “any other person” refer to persons in the same class as those enumerated, i.e., licensees or board or any employe, servant or agent of licensee or the board, and that defendants do not fall within any of these classes. The doctrine does not require that the general term “or any other person” be limited in its scope to the persons specifically enumerated. “The doctrine of ejusdem generis is but a rule of construction to aid in ascertaining and giving effect to the legislative intent, where there is uncertainty, and does not warrant the court in subverting or defeating the legislative will by confining the operation of a statute within narrower limits than intended by the lawmakers. If, on consideration of the context and whole law upon the subject, and the purposes sought to be effected, it is apparent that the legislature intended the general words to go beyond the class specially designated, the rule does not apply.” 50 Am. Jur., Statutes, §250; see also Endlich on Interpretation of Statutes, §410; Com. v. Klucher, 326 Pa. 587, 591, 193 A. 28. In this connection we quote with approval from the excellent opinion of President Judge Barthold : “When the above tests are applied to the statute in question it is obvious that there is no uncertainty in the meaning of the words employed by the legislature. “The purpose of the Liquor Code is set forth in sec. 104(a), 47 P.S. sec. 1-104, as follows: ‘This act shall be deemed an exercise of the police power of the Commonwealth for the protection of the public welfare, health, peace and morals of the people of the Commonwealth and to prohibit forever the open saloon, and all of the provisions of this act shall be liberally construed for the accomplishment of this purpose.’ “Sec. 102, 47 P.S. sec. 1-102, defines the word ‘person’ to mean ‘a natural person, association or corporation.’ “Secs. 491, 492 and 493, 47 P.S. secs. 4-491, 4-492, 4-493, set forth in separate paragraphs the ‘Unlawful acts relative to liquor, alcohol and liquor licensees,’ the ‘Unlawful acts relative to malt or brewed beverages and licensees,’ and the ‘Unlawful acts relative to liquor, malt and brewed beverages and licensees.’ We deem it noteworthy that the legislature carefully differentiated between ‘persons’, ‘licensees’, ‘manufacturers’, etc., in its enumeration of prohibited acts. In some instances all ‘persons’ are prohibited from doing certain things; in other instances the prohibition applies only to licensees of various types or their ‘servants, agents or employes’ etc. This is a clear indication that the legislature intended that some of the prohibitions were to apply to all persons while others were to apply only to ‘licensees’, or ‘their servants, agents or employes’. “It is particularly significant that sec. 493 sets forth 25 prohibited acts relative to liquor, malt and brewed beverages, and that the words ‘or any other person’ are included only in the sub-paragraph which makes it unlawful to sell, furnish or give any liquor or malt or brewed beverages to minors. It is significant also that minors are not the only class of persons to whom liquor or malt or brewed beverages may not be sold, furnished or given. Visibly intoxicated persons, insane persons, habitual drunkards and persons of known intemperate habits are similarly protected. “We think that the legislature in using the words ‘or any other person’ deliberately selected these words in order to prohibit minors, visibly intoxicated persons, insane persons, habitual drunkards, and persons of known intemperate habits, from obtaining liquor, malt or breived beverages, whether by purchase or gift, from licensees or any other persons. The intention of the legislature to protect the classes of persons named is the underlying consideration. If we were to restrict this section of the Act to ‘licensees’ or their ‘servants, agents or employes,’ we would nullify the very purpose of the Act.” We are convinced that both defendants were properly convicted under this portion of the Liquor Code. The defendants also complain as to the restriction imposed by the lower court on the cross-examination of Homer Smickley as to his arrest, plea of guilty and sentence on charges similar to those made against the defendants. Homer P. Smickley was called as a Commonwealth witness. He had been indicted on two counts, the first charged him with corrupting the morals of children and the other charged him with furnishing intoxicating beverages to minors. The charges arose out of the same set of circumstances as the charges against defendants. When the cases were called for trial the district attorney asked leave to “withdraw” the indictment on corrupting morals on the ground that the only evidence against Smickley was that he furnished liquor or beer. This motion was granted by the court. On examination by the district attorney, Smickley admitted that he was an inmate of Northampton County Prison on a parole violation and that he had pleaded guilty to a liquor violation in connection with the Randall case. When defendants’ counsel attempted to cross-examine Smickley to show that he was also charged with “corrupting the morals” and that the charge had been withdrawn, and to question him on the circumstances under which the charge had been withdrawn, the court sustained objections to the cross-examination. It might have been better if the lower court had permitted a wider cross- examination. In Com. v. Mulroy, 154 Pa. Superior Ct. 410, 416, 417, 36 A. 2d 337, we said: “Of course, if tlie witness is under indictment for the same crime, or for a crime growing out of, or closely related to, the very offense for which the defendant is being tried, so as to form a part of the same occurrence or transaction, it is proper for the jury to know it, as bearing on the witness’s interest in the immediate matter. . . . ‘When the co-indictee testifies for the accused, his situation here also may be considered as tempting him to exonerate the other accused and thus help towards his own freedom’: 3 Wigmore on Evidence (3d Ed.), §967. So, too, if the witness, thus under indictment, testifies for the Commonwealth, it may be that his testimony was biased because given under promise or expectation of immunity or leniency from the officers conducting the prosecution being tried: . . .; and the jury are entitled to know it.” The questions and answers and comments of counsel in connection with the testimony of Smickley clearly portrayed to the jury the nature of Smickley’s connection with the cases under trial so that the jury could not have been under any misapprehension as to Smickley’s interest, possible bias or prejudice or that his testimony may have been given with expectation of immunity, clemency or leniency. Moreover, the jury was adequately instructed that it should be satisfied upon the point of the truthfulness of his testimony and “should carefully and closely scrutinize his testimony, accept it Avith caution, not only because of any interest that Homer Smickley might have but because his testimony is evidence from a corrupt source, in view of the fact that he was an accomplice and pleaded guilty to the charge.” The court also pointed out in its charge Iioav the testimony of Smickley was corroborated by other evidence if the jury should believe that evidence. We are, therefore, of the opinion that the court’s action constituted error in the abstract and that it is not sufficient to warrant a retrial where the conclusion is inescapable that this error did not influence the jury against the accused or deprive them of their right to a fair trial. Com. v. Barnak, 357 Pa. 391, 423, 424, 54 A. 2d 865; Com. v. Linkowski, 363 Pa. 420, 424, 70 A. 2d 278; Com. v. Felgoise, 129 Pa. Superior Ct. 74, 79, 194 A. 751; Com. v. Oldham, 178 Pa. Superior Ct. 354, 358, 115 A. 2d 895. The judgments are affirmed and it is ordered that appellants appear in the court below at such time as they may be there called and that they be by that court committed until they have complied with their sentences or any part of them which had not been performed at the time the appeal was made a supersedeas.

Opinion by Hoffman, J., This is an appeal from the order of the court below granting defendant’s motion for judgment n.o.Y. following a jury verdict in favor of the plaintiff. Wayne-Weil Company, a retail carpet outlet, sold and installed wall-to-wall carpeting in appellant’s home. When payment was not forthcoming, Wayne-Weil instituted an action in assumpsit in the Common Pleas Court of Allegheny County. Appellant raised the defense that the carpet was defective and unmerchantable. Mr. Thompson, further counter-claimed for damages incurred during the installation of the carpets. After taking testimony, the trial court, sitting without a jury, found in favor of Wayne-Weil, stating in its opinion, that the evidence demonstrated that the carpet was “of proper quality and merchantability.” Appellant did not appeal from the final order of court, but instead, brought a second action against the manufacturer-supplier, Karastan Rug Mills, alleging that the rugs were delivered in a defective condition. Although Karastan was not a party in the first action, it raised by way of New Matter the previous adverse judgment against the appellant, noting that “[pjlaintiff in this action is bound by the ruling in No. 4187 to the effect that the carpeting is not defective, and may not try this issue anew in the instant litigation.” Thereafter, on September 2, 1971, Karastan filed a motion for judgment on the pleadings for reason that “[pjlaintiff is barred from maintaining the present action by res judicata. . . .” Said motion was denied, and the matter was listed for trial. After an unsuccessful arbitration proceeding, the appellant ap pealed to the common pleas court, where a jury returned a verdict in his favor in the amount of $2300.00. Karastan then moved for judgment non obstante vere-dicto on the ground that “[t]he issue before the jury in the present case [whether the carpets were defective] had been previously litigated ... in a proceeding in which the above plaintiff was a party.” In its motion for a new trial, Karastan alleged that the trial court had erred in failing to instruct the jury that “the plaintiff was barred from recovery in the present case by the doctrine of collateral estoppel.” (Emphasis added). Despite Karastan’s reference to both the doctrine of collateral estoppel and res judicata, the court en banc, in granting defendant’s motion for judgment n.o.v. addressed itself only to the question of res judi-cata. Recognizing that, previous case law had not held that res judicata applied where the parties were different, the court nevertheless concluded that res judicata barred the present suit saying in its Opinion: “Inasmuch as the prior litigation . . . decided as a fact, that the carpeting was of proper quality and merchantability, it is our opinion that the within litigation by Thompson against Karastan, the within defendant, alleging the same carpeting to have been defective and unmerchantable, was barred by the findings in the prior litigation.” Despite what we believe to be a correct ruling by the court below in granting Karastan’s motion for judgment n.o.v., the apparent confusion of the parties and the equivocal basis for the court en banc’s decision demand a clarification of the distinct concepts of res judicata and collateral estoppel. I. Collateral Estoppel As to legal actions, “collateral estoppel” is defined in Black’s Law Dictionary (4th Edition), as: “Conclusiveness of judgment in prior action where subsequent action is upon a different cause of action.” This defense may not be invoked in an unlimited range of situations. As one court held, in distinguishing res judicata from collateral estoppel, the prior judgment operates as an “estoppel” only as to matters actually in issue or points controverted in the first action. See, Aetna Life Ins. Co. of Hartford v. Martin, 108 F. 2d 824, 827 (8th Cir. 1940). Invocation of the doctrine of collateral estoppel need not necessarily terminate in a bar to a subsequent action involving the same subject matter. This broad concept may, where numerous issues of fact are raised in a subsequent action, operate to bar only a single issue of fact if that sole issue was previously determined in a prior action. On the other hand, where the sole issue in the case on which judgment hinges was previously litigated, the doctrine will then bar the second action. As our Supreme Court said in Thai v. Krawitz, 365 Pa. 110, 112, 73 A. 2d 376 (1950): “The question involved is not one of res judicata. Several of the identities between the former and present action, requisite to a plea of res judicata . . . are wanting [see discussion below]. The matter involves, rather, a question of collateral estoppel. ‘Where a question of fact essential to the judgment is actually litigated and determined by a valid and final judgment, the determination is conclusive between the parties in a subsequent action on a different cause of action . . Restatement, Judgments, §68. This rule is applicable to suits in equity as well as actions at law. .. .” Parties to a¡ subsequent action need not be the same as those in the prior suit in order to raise the question of collateral estoppel. Collateral estoppel may be used as either “a sword or a shield” by a stranger to the subsequent action, as long as the party against whom the defense is invoked is the same. Lawlor v. National Screen Service Corp., 349 U.S. 322 (1955); Ashe v. Swenson, 397 U.S. 436 (1970). Briefly then, the only requirements to the doctrine of collateral estoppel are: (1) that the issue or issues of fact determined in a prior action be the same as those appearing in a subsequent action, there being no necessity that the eause of actions be the same; (2) that the party against whom the defense is invoked is identical to or in privity to the party in the first action. II Doctrine of Res Judicata “To support a claim of res judicata, the party asserting this defense must show the concurrence of four conditions; (1) identity of the thing sued upon; (2) identity of the cause of action; (3) identity of persons and parties to the action; and (4) identity of the quality or capacity of the parties suing or sued.” Callery v. Municipal Authority of Blythe Township, 432 Pa. 307, 311-312, 243 A. 2d 385 (1968). While not a single case in this Commonwealth has made exception to the necessity of establishing these four identities, our cases have judicially determined that the third requirement of the identity of the parties may be met whenever the parties are the same or where “their privies” appear on the same cause of action. Stevenson v. Silverman, 417 Pa. 187, 190, 208 A. 2d 786 (1965); Hurtt v. Stirone, 416 Pa. 493, 206 A. 2d 624 (1965). Once it is determined that the concurrence of four identities exist, the only remaining inquiry of the court should be to determine “whether the ultimate and controlling issues have been decided in a prior proceeding in which the present parties had an opportunity to appear and assert their rights.” Callery, supra at 312. It should be noted that while the plea of res judicata always results in a bar to a subsequent suit, it is limited to a relitigation of issues on the same cause of action involving the same subject matter and concerning the same parties or their privies. The doctrine of collateral estoppel, is by its very nature, a broader concept requiring only the same issue of fact and the same party or privy against whom the defense is invoked. The cause of action need not be the same nor need the parties have the balance of identity. Ill The Instant Case In the instant case, the subject matter of the dispute is the qualify of the rugs sold and delivered to the appellant. The questions of merchantability and defective goods involve the application of the Uniform Commercial Code (12A P.S. §§1-101 et seq.). In the first action, the trial court determined that the carpets were “of proper quality and merchantability.” The issue in the second suit, while against a different party, is the same. Appellant alleges that the goods sold and delivered to the retailer, Wayne-Weil, were defective. The court en banc properly concluded that the “within litigation . . . was barred by the findings in the prior litigation.” As defendant’s post-trial motions concerned only the defense of collateral estoppel, the matter could have easily been determined under that doctrine alone. The court below had determined that the sole issue raised in the second suit had been previously litigated and determined against the plaintiff. Karastan, though not a party to the first action, could as a “shield” raise collateral estoppel to preclude relitigation of this issue. Undoubtedly, as the ambiguity of the concept under which the defendant was moving and the identification of the doctrine of res judicata in its motion for judgment on the pleadings clearly indicate, the defendant was at all times claiming that the doctrine of res judi-cata was equally applicable in the instant case. It may be that, despite description of the defense as collateral estoppel in post-trial motions, the defendant at oral argument relied heavily upon res judicata causing the court en banc to rely solely on the latter concept in its opinion. An examination of the relationship of the parties to the first and second actions discloses that the parties satisfied the identities necessary for the utilization of res judicata. The parties admit to the identity of three of the requirements, but challenge the satisfaction of the third identity, i.e., the identity of the parties to the action. As pointed out above, the appellant was a party in both actions. Bes judicata does not require absolute identity, but permits the persons and parties or their privies to be the same. The law of Pennsylvania recognizes that a manufacturer-supplier of goods stands in “vertical privity” in the “chain of sale” to the retailer and purchaser. This is true whether the action sounds in tort or in contract. Kassab v. Central Soya, 432 Pa. 217, 246 A. 2d 848 (1968). Under the facts of this case, we believe that Eurasian could bar litigation between itself and a party which had unsuccessfully defended a claim brought by its privy. Both collateral estoppel and res judicata were applicable and justified the granting of defendant’s motion for judgment n.o.v. Order affirmed. It appears that defendant’s sole reference to res judicata expressly came by way of a pre-trial motion for a judgment on the pleadings. In all succeeding applications, the defendant raised the defense of collateral estoppel. At trial, Karastan raised both res judicata and collateral estoppel, seeking binding instructions on the latter doctrine. Our research discloses a single ease decided on dubious and unclear grounds that may portend either the liberalization of the concept of res judicata or the merging of res judicata with collat eral estoppel. On the other hand, the case may reflect a confusion as to the applicability of the two concepts. In Posternach v. Am. Cas. Co. of Reading, 421 Pa. 21, 218 A. 2d 350 (1966), plaintiff sued two insurance companies for fire loss. The companies were unrelated, but in their Answers denied that the policies had been lawfully issued in that a common agent for both companies had received the applications for insurance from an unlicensed broker subsequent to the date of the fire loss. One of the cases terminated in a verdict in favor of one of the companies. The other defendant moved to amend its Answer to include the defenses of collateral estoppel and res judicata. The Pennsylvania Supreme Court reversed the lower court’s refusal to permit the proposed amendment, holding that the facts needed “enlargement”. The Court concluded that res judicata was not necessarily inapplicable to the facts in the case, and that the relationship of the common agent for the two companies had to be clarified before a determination could be made if the issues decided in one suit precluded relitigation.

The opinion of the Court was delivered by Woodward, J. Subrogation is founded on principles of equity and benevolence, and may be decreed where no contract or privity of any kind exists between the parties. Wherever one not a mere volunteer discharges the debt of another, he is entitled to all the remedies which the creditor possessed against the debtor. Actual payment discharges a judgment or other encumbrance at law, but where justice requires it we keep it afoot in equity for the safety of the paying surety. These principles, settled in numerous cases, which will be found collected in 2 Wharton’s Digest 612, are decisive against this appellant. There is nothing in the argument that Hershey’s judgment had been extinguished. It was paid to be sure, and this was necessary to entitle the surety to subrogation, for substitution of a surety is never allowed where anything remains due to the principal; Keyner v. Keyner, 6 Watts 221; Bank of Pennsylvania v. Potius, 10 Watts 148; but it was not satisfied on record, and was finally assigned voluntarily by Hershey to Pusey, who acquired, thus, a legal title as well as an equitable right to it as a means of indemnity. We are of opinion the Court were right in confirming the distribution made by the auditor, and the decree is accordingly affirmed. Lewis, J., dissented.

The opinion of the court was delivered, by Thompson, C. J. There could be no question but that the alteration made in the note in this case would avoid it as between the maker and payee, the consent of the latter to it being wanting, and there being neither an implied nor express authority for making it. But how is it with the plaintiff, an innocent holder for value in the usual course of business ? There was a blank in.the body of the note (a printed note) between the words “ one hundred” and “ dollars,” when the maker signed and delivered it. 'The payee afterwards filled the blank with the words “ and fifty,” which made the note read “ one hundred and fifty,” instead of “one hundred dollars,” the sum for which it was drawn. In this condition it was taken by the plaintiff without the least grounds existing for any doubt of its entire genuineness. “ By inspection of the note,” says the learned judge -in his opinion on the reserved question, “ the most skilled expert would have failed to detect any alteration in its make.” There was no difference in the handwriting between the words added and those which preceded them; no difference in the ink, and no crowding of words, to put the most careful man on inquiry, or to raise a suspicion that all was not right. The note thus clear on its face, was taken on the credit of the drawer, and now shall he be discharged from his obligation by reason, or on account, of his own negligence in delivering a note that invited tampering with ? He could have saved all difficulty by scoring the blank with his pen. It would have been impossible almost to have written over this without leaving traces of the alteration. In that case a purchaser of the note would take it at his own risk. This is, therefore, one of the cases in which it is a maxim, “ that where one of two innocent persons must suffer, he shall suffer who by his own acts occasioned'the confidence and the loss:” Story’s Eq., ss. 387. “ If a bill or check be drawn in so careless a manner as thereby to enable a third person to practise a fraud, the customer and not the banker must bear the loss:” Chitty on Bills, s. 60; Byles on Bills 332; 22 Eng. L. and Eq. 516; 31 Barb. 100; 41 Ib. 465. “ A party who intrusts another with his acceptance in blank is responsible to a bond fide holder, although the blank be filled with a sum exceeding that fixed as a limit by the acceptor. Though the filling of the blank in violation of the agreement of the parties be a forgery, the acceptor is estopped from setting up the fact: 7 Smith (N. Y. Rep.) 531. Denio, J., in delivering the opinion of the Court of Appeals in this case says, among other things, “ that the principle which lies at the foundation of these actions, Í think, is, that the maker who by putting his paper in circulation has invited the public to receive it of any one having it in possession with apparent title, is estopped to urge the actual defect of title against a bond fide holder.” The doctrine of the point is ably discussed by the learned judge, and the easés touching the subject are noticed and discussed. The doctrine is, however, but an elaboration of a. great principle of justice, that if one by his acts, or silence, or negligence, misleads another, or in'any manner affects a transaction whereby an inno cent person suffers a loss, the blameable party must bear it: Story’s Eq. 386-87. In Young v. Grote, 4 Bing. 253, and also reported in 12 Moore 484, the very case in principle with the one,in hand may be found. It was an alteration by filling spaces or blanks negligently left in a check, and filled by the holder so as to increase the amount and not be detected by inspection of the paper. The bank paid it, and the drawer was held chargeable for the full amount on the ground of his negligence. The same doctrine was held in two Scotch cases, viz.: Ragore v. Wylie, and Graham v. Gillespie, to be found in full in Ross on Bills and Promissory Notes, 104-95. It is true, in 1st Allen (Mass.) 561, the case of Wade v. Whittington seems to limit the doctrine to cases where the alteration is made hy an agent, clerk or confidential party; but this, in my opinion, is against an earlier decision in that state — I refer to Putman v. Sullivan, 4 Mass. 45, in which no such restriction appears. It seems an impracticable limitation. In Hall v. Puller, 5 B. & C. 750, the case was that of an alteration of a bill perceptible on its face. The bankers paying it were allowed only to charge the drawer with the original amount put in the draft, for it was negligence on their part to pay the face of it in its altered aspect. Such seems to have been the doctrine applied by this court in Worrall v. Gheen, 3 Wright 388; although the case of Hall v. Fuller, asserting the same doctrine, does not seem to have been cordially approved in that opinion. I regard this case as depending on the principles of the other cases cited above, and not on Worrall v. Gheen. That was a case of a perceptible alteration, and the plaintiff was allowed to recover only to the extent of the original unaltered note (the plaintiff), being entirely innocent of the alteration, or of knowing anything about it. But in the case in hand there was no perceptible alteration on the face of the note whatever. The handwriting was all the same, and no crowding of words to effect the insertion — all was natural and regular in appearance. The words “ and fifty” were inserted in the space between the words “ one hundred” and the word “ dollars” in the note, by the same hand that filled up the note originally. It had been delivered to plaintiff in this condition. The authorities I have referred to hold the drawer of such a note answerable for the full face of the note as altered, to any bond, fide holder of it for value, on the ground of the negligence of the maker in leaving the blank in the note which was thus filled up after its execution, and so we now hold, notwithstanding, as between the maker and payee or other person making the alteration, it would be a forgery and void. We think this rule is necessary to facilitate the circulation of commercial paper, and at the same time increase the care of drawers and acceptors of such paper, and also of bankers, brokers and others in taking it. This rule will not apply to cases where the alteration is apparent on the face of the paper. There it is possible the rule in Worrall v. Gheen may apply. The only error, therefore, which we discover in the judgment on the reserved question, was against the defendant'in error. By the rule which I have endeavored to deduce from the cases, he was entitled to judgment for the face of the note and interest. But the defendant in error is not a complainant here, and the plaintiff in error makes no complaint that the judgment against him is too small, and therefore the judgment is affirmed.

The opinion of the Court was delivered, January 9th 1872, by Williams, J. This was a bill for an injunction to restrain the defendants from cutting timber on a tract of land which they had sold the plaintiffs. The bill alleged that the land had been conveyed to them by the holder of the legal title, in pursuance of the contract of sale, and that they had taken possession of it prior to the commission of the acts complained of. Upon the filing of the bill, .the court awarded a preliminary injunction, which was made perpetual on final hearing. The defendants have appealed from the decree, and ask its reversal on two grounds:— 1st. That the complainants’ case is not within the equitable jurisdiction of the court, but their remedy, if any, is by an action at law. 2d. That the contract under which they claim title is within the Statute of Frauds, and equity will not enforce its specific execution. These questions will be considered in their order. Is, then, the plaintiffs’ cause of complaint within the equitable jurisdiction of the court ? Cutting down timber to the prejudice of the inheritance is undoubtedly waste, and may be restrained under the equity power conferred on the courts, by the Acts of the 16th June 1836, and 14th February 1857, for the “prevention or restraint of the commission or continuance of acts contrary to law and prejudicial to the interests of the community or the rights of individuals.” It was so decided in Denny v. Brunson, 5 Casey 382, where the lessee of a tenant at will, upon a bill filed by the owner, was restrained by injunction from cutting down timber and ornamental trees to the prejudice of the owner’s reversionary interest. It cannot be doubted that the complainants’ case is within the chancery jurisdiction of the court if they had such right or title to the land as would enable them to invoke its exercise for the prevention of the acts complained of. Whether they had such title, or not, is the main question presented by the record. If the contract, on which their title depends, is within the Statute of Frauds, they had no right to the remedy invoked, and’ their bill should have been dismissed. But if the contract is not within the statute, and equity would enforce its specific execution, they were clearly entitled to the injunction prayed for. The defendants insist that the contract is within the statute, because it was not signed by the plaintiffs, and because the notice of their election to take the land, under the option contained in the contract, was not given in writing. But the statute, while it requires the contract to be in writing, does not require it to be signed by both parties. It is sufficient if it be signed by the vendor — the party to be charged — if the vendee has accepted it: Lowry v. Mehaffy, 10 Watts 387; McFarson’s Appeal, 1 Jones 503; Shofstall v. Adams, 2 Grant 209; Simpson v. Breckenridge, 8 Casey 287. Nor was it necessary that notice of the plaintiffs’ election to take the land, under the option given in the contract, should be in writing. By the express terms of the contract the defendants agreed to sell the land to the plaintiffs for $6000, the plaintiffs “ to have the refusal ten days from date.” It is by no means certain that the contract would not have been binding on the defendants if the plaintiffs had given no notice whatever of their election to take the land in accordance with its terms. If it would have been binding on the plaintiffs if they had remained silent, apd had given no notice of their refusal, why should it not be binding on the defendants? But whether binding on them without notice of the plaintiffs’ election or not, there is nothing in the terms of the contract or the provisions of the statute which requires that the notice should be in writing. The verbal notice given by the plaintiffs was sufficient, and their election to take the land, like the happening of any other contingency on which performance of the agreement rests, rendered the contract as absolute and binding as if no option had been given to the plaintiffs. Nor is it so devoid of mutuality, on account of the option, as to prevent a court of equity from decreeing its specific execution. This question is so satisfactorily discussed in Corson v. Mulvany, 13 Wright 88, where the agreement for the purchase of the land was at the option of the vendee, that we need do no more than refer to the opinion without repeating or attempting to supplement the argument. Equally unfounded is the objection that the contract is incomplete in its terms. It sets out the parties and the consideration, and sufficiently describes the subject-matter— “ said land is all that piece bought of Rose by Thomas Smith and Porter Fleek” — oertum est quod certum reddipotest. If the subject of the contract is described, parol evidence is admissible to apply the description to the land: Ferguson v. Staver, 9 Casey 411. But it is further objected that the plaintiffs are not entitled to specific execution of the contract, because they did not tender performance within the time limited by the agreement. It is a sufficient answer to the objection that by the terms of the contract no time is fixed for its performance. The agreement provides that four thousand dollars of the purchase-money shall be paid at the time the deed is made, and two thousand in one year. But no time is fixed for the making of the deed, and therefore the law implies that it was to be made within a reasonable time. Can there be a doubt that if the defendants had tendered the plaintiffs a deed within a reasonable time after notice of their election, they would have been bound to accept it, and pay the purchase-money in accordance with the terms of the agreement, though more than ten days had elapsed from its date ? If so, is it not equally clear that they would have been bound to make the plaintiffs a deed on tender of performance of the contract on their part? It is evident that time was not intended to be of the essence of the contract as respects its performance; it is only material as it respects the option given for its refusal, and, therefore, the plaintiffs were not bound to perform, or offer to perform it within ten days after its date, on pain of its forfeiture. Nor was tender of performance absolutely essential to the maintenance of a bill for the specific execution of the agreement by the defendants. It would be sufficient to aver the plaintiffs’ willingness and readiness to perform. It is clear that the plaintiffs would he entitled to a decree for the specific execution of the contract, if they had not obtained the legal title from Rose, and if they had filed a bill for the purpose, the court would have awarded an injunction, pendente Hie, restraining the defendants from cutting timber or committing other acts of waste to the prejudice of the estate, and made it perpetual on final hearing. But even if the parties were bound to perform the contract within ten days from its date it was competent for them to extend the time by a verbal agreement, and to fix such subsequent time for its performance as might suit their convenience. If then “ the defendants did agree with the plaintiffs, on the 12th of May 1868, to meet them in Meadville on the 18th of the same month, to receive payment on their contract with the plaintiffs, dated May 6th 1868, and otherwise consummate the trade specified in said contract; and did agree that the plaintiffs might pay to Peter Rose whatever balance was due from the defeAdants to him for the land in question, and that a deed should then be made directly by the said Rose to the plaintiffs for the land, and if the plaintiffs have performed or tendered performance of the contract and agreement between the parties,” as shown by the evidence, and as the jury have found, then the plaintiffs under their deed from Rose, have not only the legal title to the land, hut the equitable title of the defendants. Having then the whole title to the land, and having taken possession of it under their contract with the defendants, the plaintiffs were entitled to maintain their bill for an injunction to restrain the defendants from committing the acts of waste complained of. Nor have the defendants any reason to complain that the court, instead of dismissing the plaintiffs’ bill and compelling them to bring ejectment, awarded an issue for the trial of the facts in dispute between the parties. Substantially the same questions were submitted to the finding of the jury in the issue directed by the court as would have arisen on the trial of the ejectment. The burden of proof was on the plaintiffs, and the defendants were deprived of no right or advantage that they would have had in the trial of an ejectment. It is not alleged that the court committed any error in its rulings in the trial of the issue, or that the verdict of the jury is against the evidence. If, then, the plaintiffs have both the legal and equitable title to the land, under the facts found by the jury, why should not the decree restraining the defendants from cutting and removing the timber thereon be allowed to stand ? Decree affirmed at the costs of the appellants.

The opinion of the court was delivered, January 9th 1872, by Agnew, J. Kerr & Smith, the plaintiffs below, were contractors for laying a pavement of flag-stones. They laid up several piles of stones in the street along the curbstone, ready to begin work. The defendant Fairbanks got upon one of these piles, and began to make a political speech. A crowd gathered around, and some of the bystanders mounted another one of the piles, and by their weight caused several of the stones to crack and break. Kerr & Smith sued Fairbanks for this injury. There was no evidence that Fairbanks requested, or in anywise induced these bystanders to stand upon the pile, excepting so far as his speech drew them together, and they mounted the pile to hear and see more conveniently. The court below held that if the persons, whose combined weight broke down the stones, were collected together by the act of the defendant in making the speech in the street, he would be responsible in an action on the case for the consequential damages. This instruction was not qualified. The court told the jury that a proximate cause is one which is a first and direct power producing the result, and a remote cause is one removed from the direct, and may be called the secondary cause; but said nothing upon the character of the act which caused the injury, and gave no instruction to ascertain whether this act was a natural or probable consequence of making the speech in the street, or one which might have been readily foreseen by the defendant. In effect, such an unqualified instruction would expose the defendant to all the consequences of his street-speech— the accidental and even the wilful acts of the .bystanders gathered there by it, as well as the natural and probable consequences which he might have foreseen. Thus, if one of the crowd should by accident thrust his elbow through a window-pane, or inadvertently tread upon and break an article of show beside a do'or, or even if one had his pocket picked, the unfortunate speaker would be held liable for all these consequences of his speech. The court, therefore, really decided as a question of law a matter of fact properly belonging to the jury, to wit: that the mounting of the pile of stones by the bystanders was the natural and probable consequence of the speech in the street, which the defendant ought to have, or might have, foreseen. This was an error: the question was a fact dependent on all the circumstances. For example, had the second pile been two hundred feet or a square away from the speaker, no one could say that by any fair reasoning he might have expected such an accident to happen. The maxim causa próxima non remota speclatur governs cases of this kind, and yet its application is not always easy. Many cases illustrate, but none define, what is an immediate or what is a remote cause. Indeed, such a cause seems to be incapable of any strict definition which will suit in every case. It was said in Morrison v. Davis & Co., 8 Harris 171, the general rule is, that a man is answerable for the consequences of a fault only so far as the same are natural and proximate, and .as may, on this account, be foreseen by ordinary forecast, and not for those which arise from a conjunction of his fault with other circumstances that are of an extraordinary nature. Of the first branch of this proposition, Scott v. Hunter, 10 Wright 192, is an illustration. Therefore a defendant who unnecessarily occupied the passageway to the locks of one of the dams of the Monongahela slack-water, from the afternoon of one day till the afternoon of the following day, holding the boats of the plaintiff into the stream, while it was rising rapidly, until the flood carried them over the dam, was held to be liable for the injury. The court below thought the flood was the proximate cause of the injury, and the occupancy of the access to the locks by the defendant was too remote; but this court reversed the judgment. The question whether the defendant ought not to have apprehended the danger to the plaintiff’s boats when the stream was rising rapidly was not submitted to the jury, and hence, said Mr. Justice Strong, here, we think, the court erred in assuming to decide as a matter of law that the wreck of the boats was not the natural consequence of the wrongful act of the defendant in blocking up the locks and channel of the river, and holding the boats of the plaintiff so long exposed to the force of the current. It was a natural consequence, he says, if it should have been foreseen, or if it would have been guarded against by men of ordinary prudence, using their own rights with proper regard to those of others. On the other hand, Morrison v. Davis & Co., supra, is an illustration of the second branch of the proposition. There the accident happened in consequence of the boat being overtaken and sunk by an extraordinary flood at Piper’s dam, on the Juniata, but which the boat would have passed safely had it not been delayed by the defendants using a lame horse. This court held that the proximate cause destroying the boat and cargo was the flood, and that the use of the lame horse which led to the unforeseen conjunction of the- happening of the flood and of the boats being at the dam at the same time, was too remote a cause to create a liability for the loss of the plaintiff’s goods. Doubtless the delay produced by using the lame horse was a cause pf the accident, but it was not a probable cause, for it could not be foreseen that it would unite with the flood at a place of danger to produce it. In McGrew v. Stone, 3 P. F. Smith 441, it was said by myself, as the result of the cases, that the maxim causa próxima non remota spectatur means but this: We are not to link together, as cause and effect, events having no probable connection in the mind, and which could not, by prudent circumspection and ordinary thought-*" fulness, be foreseen as likely to happen in consequence of the act in which we are engaged. It may be true that the injury would not have occurred without the concurrence of our act with the event which immediately caused the injury; but we are not justly called to suffer for it, unless the other event was the effect of our act, or was within the probable range of ordinary circumspection when engaged in the act. But when we are engaged in an act which the surrounding circumstances indicate may be dangerous to others or their interests, and when the event whose concurrence is necessary to make our act injurious, is one we can readily see may occur under the circumstances, and unite with the act to inflict an injury, we are culpable if we do not take all the care which prudent circumspection would suggest to avoid the injury. This subject of near and remote consequences has been largely discussed by the present Chief Justice in the recent case of Pennsylvania Railroad Co. v. Kerr, 12 P. F. Smith 353. It is certain, he says, that in almost every considerable disaster, the result of human agency and dereliction of duty, a train of consequences generally ensues, and so ramify as more or less to affect the whole community. Indemnity cannot reach all these results, although parties suffer who are innocent of blame. In that case the railroad company was held not to be responsible for the ulterior consequences to other houses caused by the negligent burning of a warehouse on the line of their road from the sparks of one of their engines. In Fleming v. Beck, 12 Wright 313, remarks pertinent to this subject may be found. Among other things it was there said, that in strict logic it may be said that he who is the cause of loss should be answerable for all losses which flow from his causation. But in the practical workings of society the law finds in this, as in a variety of othér matters, that the rule of logic is impracticable and unjust. It is impossible to compensate for all losses, and the law, therefore, aims at a just discrimination which will impose upon the party causing them the proportion that a proper view of his acts and the attending circumstances would dictate. In view of these principles it would be difficult to decide, as a legal conclusion, that the defendant is .liable for the breaking of the stones in question by the bystanders. It cannot be said with judicial certainty, that when he stopped to make his speech in the street he must have foreseen, as the natural and probable consequence of his'act, the persons collecting together to listen to him would mount the pile of stones, and even, if some of them would, that so many would as by their collected weight might break some of the stones. The lowermost stones in the pile were already trusted by the plaintiff with the weight of the uppermost. Height of pile, strength of grain, distance from the speaker, number of bystanders, and perhaps other circumstances, all would enter into the question of the probability of injury. The question was, therefore, one of fact for the jury, and not of law for the court. Much stress was laid in the argument on the fact that the defendant was guilty of a nuisance, by collecting a crowd, and the case of Barker v. The Commonwealth, 7 Harris 412, is relied on. But, conceding that the defendant might have been indicted for a nuisance, it adds nothing to the civil injury complained of here. The question would still remain, whether the defendant’s making his speech in the street was the probable and proximate cause of the injury. The nuisance and the civil injury are different things. It was not because the crowd obstructed the highway, and was therefore a nuisance, that the plaintiffs’ stones were broken; but because some of the crowd mounted the pile of stones. But it cannot be conceded, in the broad sense in which it was contended, that making a speech in the street is ipso facto and y>er se a public nuisance. The indictment against Barker was for obstructing the streets of Pittsburg, through crowds collected by means of violent, loud and indecent language addressed to those passing by; and by this means collecting assemblages of men, boys, and idle, dissolute and disorderly persons. A street may not be used, in strictness of law, for public speaking: even preaching or public worship, or a pavement before another’s house may not be occupied to annoy him ; but it does not follow that every one who speaks or preaches in the street, or who happens to collect a crowd therein by other means, is therefore guilty of the indictable offence of nuisance. His act may become a nuisance by his obstruction of the public highway, but it will not do to say it is a nuisance per se. Such a stringent interpretation of the case of Barker is scarcely suited to the genius of our people or to the character of their institutions, and would lead to the repression of many usages of the people now tolerated as harmless, if not necessary. Those who draw crowds together in the street by window displays, music, .parades, and the like, might be made answerable for many misfortunes if the doctrine of nuisance be so extensive in its consequences. Judgment reversed, and a venire facias de novo awarded. -

Mr. Justice Paxson delivered the opinion of the court, January 6th 1879 The plaintiffs filed their petition in the court below praying for a writ of mandamus to compel the commissioners of Crawford county to provide suitable buildings for the courts of said county, in the city of Titusville. The relators set forth, in said petition, that they are citizens and taxpayers of Crawford county, resident inhabitants of the city of Titusville, and suitors in the Court of Common Pleas of said county; that by the Act of Assembly of 18th of April 1828 (Pamph. L. 29), it was provided, inter alia, “ that in all counties of this Commonwealth where there is a population of more than sixty thousand inhabitants, and in which there shall be any city incorporated at the time of the passage of this act with a population exceeding eight thousand inhabitants, situate at a distance from the county seat of more than twenty-seven miles by the usually travelled public road, it shall be the duty of the president judge or of the additional law judge, or of either, to make an order providing for the holding of one week of court, after each regular term of court for said county, for the trial of civil or criminal cases in said city.” The petition further avers that at the time of the passage of said act the county of Crawford had a population exceeding sixty thousand ; that the city of Titusville was, a,t that time, and is now an incorporated city with a population exceeding eight thousand, and situate more than twenty-seven miles from the county seat of said county by the usually travelled public road; that by reason of the premises the said act applies to Crawford county, and that the city of Titusville is within the provisions thereof; that by the fifth section of said act it is made the duty of the commissioners of the county to provide and furnish suitable rooms for the accommodation of the court and its officers; that the said commissioners had neglected and refused to perform this duty, &c. Upon the filing of this petition, the court awarded an alternative mandamus, and at the same time granted a rule on the commissioners to show cause why a writ of peremptory mandamus should not issue as prayed for. The respondents appeared and filed a return to the alternative writ, denying some of the material allegations of fact in said petition, and averring, in the fifth paragraph of said answer, that the said Act of Assembly is unconstitutional and void, for the reason that it is repugnant to that portion of the Constitution (art. 8, sect. 7), which declares that the General Assembly shall not pass any local or special law regulating the affairs of counties, cities, townships, wards, boroughs and school districts; changing the venue in civil and criminal cases ; locating or changing county seats, &c. The relators filed a traverse to this return, and upon the cause being placed at issue, the parties waived trial by jury, and the court below proceeded to dispose of the case both upon the law and the facts. The learned judge among other facts found the, following : 1. That the county of Crawford had a population exceeding sixty thousand at the time of the passage of the act. 2. That the city of Titusville had at that time a population exceeding eight thousand; that it was then and is now incorporated, and is situate more than twenty-seven miles from the county seat by the usually travelled road; and 3, that Crawford is the only county in the state to which the said act would apply. The court upon hearing denied the writ. The vital and controlling point in the case is whether the said act is obnoxious to the Constitution as being special legislation within the terms of the constitutional prohibition. It was contended for the relators that the case came within the ruling in Wheeler v. The City, 27 P. F. Smith 338, and that the act was general inasmuch as it applies to certain counties in the state as a class. A comparison of the act in question with the Act of 23d May 1874, under which the case of Wheeler v. The City arose, will show some marked features of dissimilarity. The Act of 1874 provided for the classification of the cities of the Commonwealth. Eor the exercise of certain corporate powers, and having respect to the numbers, character, powers and duties of certain officers thereof, the cities then in existence or thereafter to he created in this Commonwealth, were divided into three classes. It is true that in that classification the city of Philadelphia was the only city of the first class. But as was said in Wheeler v. The City, legislation is not intended for the present merely; it provides for and anticipates the wants of the future. The Act of 1874 classifies cities by their population. The Act of 18th April 1878, can hardly be said to be a classification of counties. It is true it speaks of all counties ol more than sixty thousand inhabitants. But it goes on to say, “ And in which there shall be any city incorporated at the time of the passage of this act with a population exceeding eight thousand inhabitants, situate at a distance from the county seat of more than twenty-seven miles by the usually travelled public road.” This is classification run mad. Why not say all counties named Crawford, with a population exceeding sixty thousand, that contain a city called Titusville, with a population of over eight thousand, and situated twenty-seven miles from the county seat? Or all counties with a population of over sixty thousand watered by a certain river or bounded by a certain mountain ? There can be no proper classification of cities or counties except by population. The moment-we resort to geographical distinctions we enter the domain of special legislation, for the reason that such classification operates upon certain cities or counties to the perpetual exclusion of all others. The learned judge finds the fact that Crawford county is the only county in the state to which the Act of 18th April 1878 can apply at the present time. Said act makes no provision for the future, in which respect it differs from the Act of 1874, which, in express terms, provides for future cities and the expanding growth of those now in existence. That is not classification which merely designates one county in the Commonwealth, and contains no provision by which any other county may by reason of its increase of population in the future, come within the class. Wo need not pursue the subject further. We are of opinion that the legislation referred to is special and within the prohibition of the constitution. This is decisive of the case, and renders a discussion of the other points involved unnecessary. Judgment affirmed.

The opinion of the court was delivered by Huston, J. — The case stated was to he considered as a special verdict. The following is an abstract of the facts: On the 15th of May, 1822, ThomasCarson, the plaintiff, took out letters of administration on the estate of John Huston, deceased. He filed an inventory in due time, and held a vendue of the personal property, which personal property amounted to above four thousand dollars. Ori the 14th of March, 1823, Thomas Carson paid to the defendant two hundred and twenty-three dollars, and forty-six cents, being the amount of a single bill given by John Huston, in his life time, to the defendant. John Huston was one of the sons of James Huston, deceased, and had shortly before his death taken, under a decree of the Orphans’ Court of Franklin county, a part of his father’s estate, at an appraisement, and entered into recognisances to pay to his brothers and sisters their shares of the said lands. In Jlugust, 1823, his administrator, Mr. Carson, applied in due form of law to the Orphans’ Court, for an order to sell the lands of John Huston, deceased, to enable him to pay the debts. Not being able to. obtain a satisfactory price, the order was continued at several subsequent courts; and, in February, 1825, the land was sold for eight thousand four hundred and fifty dollars, and in Jlpril following, the sale was confirmed. It now appeared, that the proceeds of the whole real and personal estate would not pay the debts of the deceased; and, on application of the administrator, the court appointed auditors' to apportion the money among the creditors. In Jlpril, 1827, their report was made and confirmed by the court. By this report, the whole proceeds were required, to pay debts of a higher degree than specialties: in fact, the recognisances were not all paid, but the conusees each received something less than their whole debts. The plaintiff then brought this suit to recover back from<7b/m M‘Farland,'the defendant, the sum of two hundred and twenty-three dollars and forty-six cents, alleging it was paid him under á mistake as to the solvency of the estate. There was no allegation of any actual wasting by the administrator; the deficiency arose from the accumulation of interest, and the depressed price of lands. - It will be observed, that, in this case the administrator paid the money within the year, and to a person undoubtedly a creditor of the estate; and that, if there was any mistake as to the solvency of the estate, such mistake arose not from any statement or representation of the defendant, but from some other cause. The law, as it regards the liability of administrators or executors, and how far, and under what circumstances, they may become personally liable for the debts of the estate they represent, is not an unimportant part of our jurisprudence. I do not moan to go out of the present case, or even to hint an opinion on some of'the topics discussed, and which must present themselves to the mind. In England, after some variance of decision, it seems to have been settled atone time, that a creditor, or even another legatee, could, in some cases, compel a legatee, who had received his legacy, to refund, in case of a deficiency of assets. .This is, however, with some restriction; for, if the assets were sufficient at the decedent’s death, but were wasted by his executor, there was no refunding in favour of the legatee, or perhaps of the creditor; and a further distinction seems to have existed, as to refunding in favour of the legatee or creditor,, when the executor was insolvent, and in favour of the executor, who would lose, unless he could compel those who had received to refund. See 1 Vern. 94, 460, 469. 1 P. Wms. 495. 1 Anstruther, 112. Com. Dig. 630. Chancery, Legacy, (3 G. 3.) 1 Vern. 162. 2 Johns. Chan. 626, 627. But even there, on reading carefully the cases cited, there will be found some reason to believe it was only where refunding receipts were taken, or in, consequence of the peculiar jurisdiction and authority of the Court of- Chancery, (hat any one, who had received only what'was át the time supposed due to him, would be compelled to refúnd. 2 Com. Dig. Chan. (3 G. 3.) 2 Ventris, 360. There is in 1 P. Wms. 355, (Pooley et al. v. Ray,) a dictum of the Master of the Rolls, that a creditor who has received money due him from the estate, may be sued, and compelled to refund in favour of another creditor; but, on a rehearing of the case, nothing is said..on this subject. 2 P. Wms. 291, 297, Coppin v. Coppin. 2 Ves. 192. There is not, it is believed, in the English authorities before our Revolution, any direct decision, that a creditor, who has been paid a debt due him, can be compelled to refund in favour of another creditor; though it must, have often happened, that one received all the assets, and another received nothing, or was paid out of the estate of the executor; an.d thei-e are express decisions to the contrary. See 2 Ventris, 260. Com. Dig. Chancery, 393. In this case, the administrator paid money justly due, and paid it within the year allowed by our law, to ascertain the situation of-the estate. The assets were, or ought to have been,- better-known to the administrator, than any body else. No accidental failure of the fund occurred, to any material extent; ihe defendant has no money to which in honesty and conscience he is not entitled, as against the estate of the deceased. The hardship on the plaintiff may be great. The hardship on the defendant, if called on to refund, would not be small; and the confusion, inconvenience, and general uncertainty which would follow from a decision, that, an honest creditor, who had gotten 'an honest debt, was liable to be sued, and compelled to repay, would be so great — would make the settlement of estates so uncertain, and so interminable, that we think " the plaintiff ought not to recover. judgment affirmed.

Opinion by Mr. Justice Kephart, This is an appeal from an order of the court below discharging a rule to open a judgment entered upon a lease. August 4, 1917, appellant, by a judgment-ejectment lease, acquired from John Stafford, Sr., for a term of three years, the first floor and basement of 1114 Chestnut Street, Philadelphia. A few days later, August ,8th, it received a paper from the owner, reading: “It is mutually understood between us that in consideration of your signing a lease covering the first floor store and basement of No. 1114 Chestnut Street for a period of three years from November 1, 1917, that the option of an extension of either two or seven additional years is hereby given to you, with the provision that, in the event of the option being exercised, notice shall be given me to that effect in writing at least three months prior to the expiration of the above-mentioned three years from November 1,1917. JnO'. Stafford.” This was approved by appellant. It is appellee’s contention that prior negotiations were merged in the written contract of lease and the option, was but an oral promise to alter or vary the terms of the written instrument, and, being contemporaneous with the original agreement and not having been omitted therefrom through fraud, accident or mistake, evidence of the oral promise cannot be received. Undoubtedly, had the latter been incorporated in the lease or delivered with the lease, there could be no question but it was a part of that instrument; an examination of the paper shows, though dated four days after, the interval of time made no difference and it was intended to be a part of the instrument under which appellant took the property. It is complete in itself, having in it all that is necessary to make it clear and explicit. Appellee urges there was no consideration for the option as the lease had been executed and grantor’s act in giving the option was a mere gift; or, if other consideration existed, it must be shown by parol, and, being an essential ele ment of the contract, it is within the statute. The option speaks in this language: “In consideration of your signing a lease.” John Stafford was not called to testify the paper was given as an after-thought or a gift, and that there was no real consideration moving to him; effect must be given the option in the light in which the then owner regarded it. The inference is strong it came as the result of an understanding between the parties, arrived at during the negotiations for the lease, to be executed and given in the manner indicated above; the real consideration, then, was the signing-of the lease. Moreover, the testimony bears out the conclusion and presents such a meritorious case that it is difficult to understand how a contrary inference could have been reached. The option, including the consideration, is not parol evidence; it is written evidence, complete in itself, and would require other evidence to destroy its effect. “In consideration of your signing this lease” expresses an adequate consideration, and, in connection with the written lease already in existence, sufficient to move the owner to act. To conclude otherwise, evidence should be produced to show that there was no consideration moving to the owner. Without such proof, a written instrument cannot be made of no effect simply because there is a slight difference in the date of another paper of which it unquestionably is a part, and this without the testimony of the only person then affected. The mere interval of time does not destroy the concrete fact, reduced to writing, “in consideration of your signing this lease, I give you this option.” An oral promise, unenforceable because of the statute of frauds, may be made good by a subsequent writing. “The statute does not declare the contracts upon which those promises were made either illegal or void. It simply refuses to enforce them unless proved by a writing. When the defendant put his promise to pay in writing he obviated all difficulty from the statute. The original promises could not have been recovered upon, but this judgment is not on the original promises but on the written undertaking to pay”: Anderson v. Best, 176 Pa. 498, 502. We need not consider the statute of frauds in connection with the option; it has been thoroughly treated in Title G. & S. Co. v. Lippincott, 252 Pa. 112, 116 et seq., by our present Chief Justice. We are of opinion the option related back to and was part of the lease; it evidences Stafford knew about the transaction between his son and appellant, and, as appears from the testimony, the lease and option carried out precisely his idea and the agreement the parties made. Indeed, if necessary to the decision, the moral obligation arising from the evidence in connection with the negotiations would support the written option as sufficient consideration: Anderson v. Best, supra, 502. When the lease was executed, the property was subject to a mortgage held by John Cadwalader, who foreclosed and purchased it at sheriff’s sale, taking an assignment of the lease. He made no effort to learn from the tenant the character of his holding but continued to receive the rent from him. Cadwalader knew there was an outstanding option. Just when he learned of it does not appear, but a year later he notified lessee he disaffirmed it. This was too late. A purchaser at sheriff’s sale has the right to affirm or disaffirm the lease, and, if he elects the former course, may require the rent to be paid to him as assignee of the reversion. If he disaffirms it he has a summary remedy to obtain possession under our present laws, and when he affirms it he has all the remedies of a landlord, subject to all the advantages and disadvantages of that relation. The existence of the lease gives ■ notice of all its provisions, but possession apart from the lease is notice of the possessor’s claim of title, whatever it may be: Anderson v. Brinser, 129 Pa: 376, 404. Had inquiry been made of the tenant in possession, his claim under the lease would have been developed. Cadwalader, having this constructive notice, not only affirmed the lease by accepting the rent under it for a year, but when he sold the property he assigned it to the plaintiff, who is now acting under it by a confession of judgment: Farmers’ and Mechanics’ Bank v. Ege, 9 Watts 436, 439; Tilford v. Fleming, 64 Pa. 300, 302; Braker v. Deuser, 49 Pa. Superior Ct. 215, 217. The affirmance of the lease carried with it the affirmance of the option. Once having accepted attornment, neither Cadwalader, nor plaintiff as assignee, could subsequently disavow it. The present plaintiff, as purchaser of the property and assignee of the lease through a straw man from Cadwalader, was affected with this knowledge; but he also knew of it in another way. He was subtenant under appellant, holding with knowledge of the option. Appellant notified him, and all parties necessary, of his purpose to exercise his option for the period of seven years. There is nothing in the record to deny him this right; immediately upon receipt of the notice within the option, the lease became a lease for ten years from the 4th of August, 1917. It should have been so held by the court below. Having a lease for ten years, the lessor, before the end of the term, entered a judgment in ejectment under it and proceeded to issue a writ for possession. No rent was due, no covenant broken, but appellee sought to sustain his act and evade responsibility under certain clauses of the lease. If his view is correct, then the time-honored judgment-ejectment-waiver leases have a meaning never contemplated by the parties nor heretofore pressed on this court as the law. A lease for ten years may be at the will of the lessor, and any outlay made on account thereof lost. The paragraphs in the lease depended on are as follows: (11th) “And lessee hereby releases to lessor all errors and defects whatsoever in entering such action or judgment, or causing such writ of habere facias possessionem to be issued, or in any proceeding thereon or concerning the same; and hereby agrees that no writ of error or objection or exception shall be made or taken thereto........” (12th) “The lessee waives all right of appeal from, or writ of error to, any judgment, order or decree that may be entered against it by any court or magistrate for rent, damages, possession or otherwise. All rights, remedies and liabilities herein given to, or imposed upon, either of the parties hereto shall extend to the heirs, executors, administrators, successors, and, so far as this lease and the term or terms thereby created is assignable by the terms hereof, to the assigns of such party.” It is not our purpose to depart from the legal principle which holds that an agreement not to appeal or take out a writ of error, or which releases all errors, if based on sufficient consideration, is valid and binding, constituting a bar to proceedings taken in violation thereof. As to the original parties and those who follow, such agreement will be given effect in all matters lawfully entitled. Parties to a controversy have the right to select the forum in which to settle their differences and to determine matters which arise in the course of the execution of a contract, but where, under such provision, an effort is made to use it in fraud of one of the parties’ rights, such waiver, being at best in derogation of highly important rights, will, as in this instance, receive a very strict construction. Here the owners of the property have twice assigned the lease and it is now proposed the waivers and releases shall operate for the last assignee’s benefit directly contrary to the terms of the agreement. The judgment in this case is not entered for the use of the present plaintiff but in his oym name; though this may not be error, it should have been entered in Stafford’s name to plaintiff’s use, as he was merely equitable owner of the power to confess judgment. Paragraph 11, quoted above, is for the benefit of the lessor and those who follow him. It is not a waiver of the right to have inquiry made into the power of the lessor to enter the judgment at all. What it does is to release to the lessor all errors or defects in the judgment or in causing the writ to be issued. Under it defendant could not take an appeal from the judgment in ejectment thus amicably entered, without'more; he could not secure a stay of execution, thus delaying the appeal, nor could he take advantage of any procedural errors on the part of the lessor. As said' in an early case, “These are not mere errors and defects in the entry of the action or judgment, to which, by its terms, the release is confined” : afterwards reiterated in Phila. v. Johnson, 23 Pa. Superior Ct. 591, 596, and affirmed by this court in 208 Pa. 645, 647, wherein it is said, “The release of errors in connection with the warrant of authority operates only on irregularities in the proceeding apparent on the record. It does not reach the defect of a lack of authority to proceed.” See also Fogerty v. Dix, 75 Pa. Superior Ct. 214, 218. This paragraph did not contemplate judicial errors in the proceeding when the lessor’s right to enter the judgment is inquired into. Rules to open and to strike off judgments are illustrations, and the rest of the paragraph is germane to that immediately preceding. Plaintiff here appears as assignee and obtains whatever right he acquires to the waiver of appeal in the ne?:t paragraph as such assignee. A waiver, though not an estoppel, is said to belong to that family, and has many of its elements. It is the abandonment or relinquishment of a known right. It is variously defined and applied (see Words and Phrases, 2d series). The waiver of the appeal does not create a right in the landlord; it is but a restriction or an abandonment of a right by the lessee, the observance of which may be enforced in the courts by the lessor: Watson v. Wetter, 91 Pa. 385, 386; Seagrave v. Lacy, 28 Pa. Superior Ct. 586, 587; Groll v. Gegenheimer, 147 Pa. 162. By such covenant he estops himself from asserting his preexisting right to the contrary. The point we wish to bring out is that a waiver of appeal does not create in the lessor such a right as is brought within the “rights, remedies and liabilities.” Nor is a waiver a remedy. It may be a part of a rem edy, in the nature of a protection, but it does not constitute, in itself, a remedy; so that, in either event, to have the assignee receive the benefit of this waiver, it should be carried through the lease into subsequent assignments by clear and explicit language, evidencing an intention to have it run with the lease. No property right, real or personal, is affected by such waiver. It is merely intended to insure the honest exercise of a remedy by the lessor against an attach from the lessee. It should not be made to insure against a dishonest effort. Moreover, appellee claims as an assignee under the lease. Whatever right he may have is found in this language, “so far as this lease and the term or terms thereby created is assignable by the terms hereof to the assigns of such party.” No doubt the lessor could assign the lease, but he attaches to the assignment “the term or terms thereby created,” having in mind, evidently, that when, as lessor, he assighed the lease, the term was assigned. A term does not mean only the time in the lease, but it is an interest or estate created in the lessee and conveyed to him by the lessor and vesting in him under the lease by possession: Sanderson v. Scranton, 105 Pa. 469, 472-478. How could the lessor assign the lessee’s term? Of course he could not; so that the liability imposed on the lessee, to wit, to be silent when a judgment for possession has been entered, or the right in the assignee of the lessor to avail himself of this silence, has not been assigned to him under the terms of this lease. See Fogerty v. Dix, supra. Since no provision appears in the lease authorizing defendant to assign it or the “term or terms thereby created,” and Stafford’s right to assign to plaintiff the “rights, remedies and liabilities” given by the lease is permissible only “so far as this lease and the term or terms thereby created” is concerned, plaintiff obtained no right, defendant’s waiver being to Stafford alone, who is not a party to the suit. This irremediable defect appears of record, and may be reviewed on certiorari, which has not been waived, even if it could be, which is more than donbtfnl: Duquesne City v. Fincke, 269 Pa. 112. For these reasons the motion to quash is denied; the order of the court below discharging the rule is reversed; the rule is reinstated and it is ordered that the same be made absolute; the judgment is directed to be opened, the court below to make the usual orders that the proceeding may be duly prosecuted to final determination. Writ stayed meanwhile, pending final-determination; appellee to pay costs.

Tilghman C. J. The question in this case is, whether a judgment's a lien on lands purchased by the defendant after the' judgment, and aliened before execution issued. I am well satisfied that by the English common law such lands are bound. But it seems to have been differently understood in this state. In the case of Rundle and Murgatroyd v. Etwein, in this Court, (December Term 1795) it was the opinion of all the Court, as appears by a manuscript note .of Judge Teates, that after purchased land was not bound. I feel myself obliged to pay great respect to this opinion, particularly as the late Chief Justices MiKean and Shippen. were then on the bench, who from1 their age and long experience were well acquainted with the practice of early times. It is certain that in many instances the common law of England has been departed from in this country, from a sense of inconvenience, which has produced a silent practice, not now to be traced to its origin. In truth it is of no great importance how the point is settled, so that it be but settled; and I am induced to abide by the decision in Rundle v. Etwein, because I perceive that it has been acted upon in different parts of the state, so that to overturn it now might be injurious to purchasers who have relied upon its authority. I find by notes of the late Judge Smith, in my possession, that the law was laid down in conformity to Rundle v. Etwein, in the case of the Canal Company v. Nicholson in this Court, (March Term 1798,) and in Pleasants v. Boyer, Circuit Court, Westmoreland county, November 1802. There has been some difference of opinion respecting the common law on this point; but I have reason to suppose from a conversation which I once had with Judge Smith, that both he and Chief Justice Shippen founded themselves on the understanding which had long prevailed in this state. Be that as it may, my opinion is bottomed solely on the decisions which I have mentioned, and therefore I forbear from entering into any discussion of the common law principle. I am of opinion that the judgment should be affirmed. Yeates J. The question before the Court is, whether lands purchased by a defendant after judgment had against him, and sold by him bona fide before execution, be bound by the lien of the judgment, so that the same may be taken in execution, in the hands of the fair purchaser. This subject has presented itself to my consideration, both at the bar and on the bench, and I have given it all the reflection in my power. I shall now consider it upon principle, upon the English authorities, and how far such lien would be consistent with our laws and customs. Upon principle, it seems to me that* whatsoever may be the efficacy of a judgment per se, it must take place at the time the same is rendered. The lien attaches at the moment of entry, and I can have no idea of its shutting at one period and opening at another, so as to embrace, of itself merely, property not originally bound. Its effects are immediate, and must be known and ascertained, when the judgment is given, and cannot depend upon subsequent events, unless it has been so provided by positive law. In a writ of debt, a man shall not have recovery of any lands but of those which the defendant hath the day of the judgment yielded; and of chattels, a man shall have execution only of the chattels which he hath the day of the execution issued. Termes de la Ley, Voc. Execution. In point of authority, I fully agree that several of the elementary writers lay down the law, that execution may be sued of any land which the defendant had by purchase after the judgment, though he had aliened it before execution. 1 Rol. Abr. 892. pl. 16.; 10 Vin. Abr. 563. pl. 16.; 3 Danv. Abr. 317. pl. 16.; Sugden’s Vendors 306. The position in the first three writers rests on the single authority of the Year Book of 30 Edw. 3.24. The note subjoined to Sugden has enumerated some other cases, none of which upon inspection will be' found to warrant the doctrine in the extent laid down. Rolle seems to have been followed by the other authors, but how far he is himself supported by the authority he relied on, must be collected from 30 Edw. 3. 24., a -literal translation whereof follows: “ A man had recovered “ a certain debt against Sir John de Moleyns, and had an “ ele git.The sheriff returned that he had nothing. Mowb. “ prayed the capias. Fish. When you have execution at w your election, and you choose the elégit, you cannot now “ have another execution. Mowb. After fieri facias, if the “ sheriff returns that he has nothing, a man shall have “ elegit. Seton . Every elegit includes a fieri facias. “ Finch. If at the time of the judgment rendered, he had “ any land, but had aliened afterwards; you might have “ execution of this; and if he had purchased lands after- “ wards, you have execution of this, for you have the “ elegit, sicut alias et pluries; and if he had no lands at the “ time of the judgment rendered, this would be your own “ folly that you would pray an elegit, and then when you “ were apprized that he had nothing; therefore there isr no “ mischief, but you shall not. have the capias &c.” ' Now it appears to me that this case not only does not support the-inference of the abridgers, but is directly opposed thereto; because the Tear Book s.ays, if at the time of the judgment rendered, the defendant had lands, but had aliened aftertvards, of this you may have execution. If he had purchased lands afterwards, of this you may ihave execution by alias or pluries elegit. It cannot be denied that one may fairly sell his lands, pending a writ sued out against him, before judgment; but that he cannot defeat a judgment by a sale of the lands of which he was seized when the judgment was given. As to after purchased lands, the previous judgment in my idea does not affect them, but they are bound by the delivery of the writ to the sheriff. Sir Nicholas Statham first attempted to methodize the law. It has been remarked that this venerable abridgment contains many original authorities, which are not extant at large in the Tear Books. It is difficult to make out his law French from the frequency of his abreviations; but the following is supposed to be a correct translation of the case reported by him, title Execution, page i. “ Mich. 30 Edw. 3, one prayed éxecútion by elegit, and “ had it, to which the sheriff returned that he had nothing; “ wherefore he prayed a capias, and he could not have it. “ But it was said to him that he might sue sicut alias, if the “ tenant came to the lands or goods afterwards, but he shall “ never have capias, nor fieri facias. And Thorpe said “that the reason is, because the entry is that such a “ one comes and elegit his execution of the moiety &c. tí which is the plaintiff’s high execution Sic.” Fitzkerbert in his Grand Abridgment, tit. Execution, 126, is almost a literal copy of it, and has assisted me in my translation. It is obvious on comparison that Statham and Fitzkerbert did not abridge this casé from the Tear Booh; aiid that they put the after purchased lands and goods uptín the same footing, as to the effect of the alias elegit. Respectable as the name of Rolle may be, I cannot avoid observing, that when he cites an authority for his doctrine, we are bound to examine the accuracy of his extract. The plaintiff’s counsel have urged another argument from the usual form of writs of elegit, which directs the sheriff to deliver one half of the defendant’s lands which he had at the time of the judgment given, or ever after, (or at any time since) upon a reasonable price or extent. At common law, lands could not be taken in execution on a judgment for debt or damages, unless in special cases. The Stat. of Westm. 2. c. 18. (13 Edw. 1,) was the first act which subjected lands to the execution of a judgment or a recognizance. 3 Co. 11 b. 12 a., Wright’s Tenures 170, 171. The statute directs that “ Cum debitum fuerit recupe- “ ratum, quod vicecomes libe ret ei medietatem terree sues, “ quousque debitum fuerit levatum per rationabile pretium “ vel extentam, et si ejiciatur de illo tenemento, hdbeat re- “ cuperare per breve novee disseisince, et postea per breve “ redisseisince si necesse fuerit.” 1 Ruff. Stat. 93. Ed. Coke in his 7 Rep. 39 a, states that by construction of law the medietatem terree is of all the lands which the debtor had at the time of the judgment given, or at any time after. If either he or the writ had gone further, and said “ though “ the lands after acquired, had been sold by the debtor sub- “ sequent to the judgment,” I should hatfe thought the argument conclusive as to the law of England; but as I have before asserted, I understand the law to be, that the after purchased lands of which the debtor stood seized at the time of the delivery of the elegit to the sheriff, became thereby subject to the debt, in the same manner that all his personal property would then become. Lord Coke too, in his 2 Inst. 395, commenting on the words medietatem terree suce in the statute, lays it down expressly “ this is to be understood of “ such lands as the defendant had at the time of the judgment “ given, or of the recognizance knowledged, unless it be coiv u veyed away by fraud and covin to deceive his creditors.” So in Co. Litt. 102 a. upon judgment in debt, the plaintiff shall not have execution but only of that land which the defendant had at the time of the judgment, for that the action was brought in respect of the person, and .not of the land. And again in 7 Co. 171 a. the freehold and inheritance which a common person has at the time of judgment, is bound thereby, but in the king’s case from the time the party becomes the king’s debtor. It has been objected by the plaintiff’s counsel, that these different passages in Lord Coke’s works, mean nothing further than that lands sold bona fide pending the writ, are not bound by the judgment, but that his intention did not extend to after purchased lands. I cannot accede hereto, thinking as I do, that it would be using an unwarrantable freedom with plain language. Sir W. Blackstone likewise, in his 3 Comm. 418. 419., speaking of the stat. of 13 Ed. 1. c. 18, says, if the goods are not sufficient to pay the debt, then the moiety or one half of the defendant’s lands which he had at the time of the judgment given, is also to be delivered to the plaintiff. And to this point he cites 2 Inst. 395, above stated.' On a recovery in personal actions, execution shall be of any land which the party had on the day of the judgment rendered; but for chattels, only those which he had the'^day of the execution sued. Finch of Law, 471. If debt be brought at common law on a recognizance, he shall have only judgment of the lands die judicii redditi on the original writ; but if by scire facias founded on the record, then he shall have execution of the lands which the conusor had on the day of making the recognizance. Dyer 306. a. b. Execution shall only issue of the lands had at the time of the judgment rendered. 6 Edw. 3. fol. 15. pl. 14. Scire facias. Per Shard; you shall have execution but of the lands which he had on the day of the judgment rendered. 6 Edw. 3. fol. 17. pl. 23. Scire facias. Besides the several authorities which have been already ’ cited, many Others may be shewn, restricting the liens of judgments under the Stat. of 2 West. c. 18.; but I shall refer generally to 2 Bac. Abr. 363. 364., Wood's Inst. 607 (edit. of 1738.), Cro. Car. 149., Cro. Fac. 451, 452., Keilw. 87 a., F.N.B. 267.fol. 597., 2 Hen. 4. 14 a. It is moreover worthy of observation that though Id. Ch. Bar. Corny ns, in his 3d Dig. 307. (1st edit.) tit. Execution, D. 1., cites the case of 30 Ediv. 3. 24., in two instances, yet he wholly omits the deductions drawn from it in 1 Roll. Abr. 892. pl. 16, and confines the liability of the lands to •those which the defendant had at the time of the judgment rendered. The case of the King v. Death, Cro. Jac. 513. Mich. 15 Jac. in the Exchequer, which was not cited upon the argument, has been put into my hands by a learned friend, who observed that it required an answer. It is short, and runs thus: — “ It was found by inquisition that one York had reco- “ vered in an action upon the case for words against John “ Allen, five hundred pounds. Afterwards John Allen and Ed- “ ward Allen purchased land in fee, and aliened it to John “ Death. York was outlawed, and so his debt became for- “ feited to the king. The question was, whether the king “should have execution of the moiety of the moiety of “ John Allen, or the entire moiety; and it was resolved, that “ he should have the entire moiety, although York should “ have had but the moiety of the moiety; but the debt com- “ ing to the king, he shall by prerogative have execution of “ the entire moiety. And it was adjudged accordingly.” This case is supposed to bear upon the question now before the Court, in as much as after stating the recovery, it proceeds to say, that afterwards the two Allens bought the lands, and aliened them. Of this circumstance no notice whatever is taken by the Court. It will be found, that this case is incorrectly reported; and that the only particular wherein it may be supposed to be analogous to that under consideration, is stated differently in other books, and even by Sir George Croke himself. I have endeavoured to trace it through all its different branches, and will give the full result of my'researches. It first appears in Cro. Eliz. 50, under the names of Allen v. York, 28 and 29 Eliz. in B. R., wherein it is stated that York had recovered 4000/. damages against Allen, and had died, having been satisfied of 1000/. part thereof; and the question raised was, whether his executor could support a scire facias for the residue of the judgment. Of this the Court doubted, and no decision is stated to have been given. It then in the following year in the same book, page 72, assumes the shape of a scire facias upon a recognizance by Mary York v. Allen; when it was resolved, that if a pardon relates back to a day before the exigent was awarded, the outlawry is thereby discharged. It appears again in the Exchequer, Pasch. 36 Eliz. Saville 133; and it is there stated that York had recovered 5000/. damages against Allen, that York was outlawed, and the queen had granted to Francis Anger the profits due on the outlawry; and it was held that the patentee might sue in his own name, or in the name of the queen at his election. Attaint having been brought in C.B. of the verdict in B. R., the record was removed into B. R., and there affirmed; and it was resolved that B. R. should award execution on the first verdict. Cro. Eliz. 371. Hil. 37 Eliz. In Lane 20. Pasch. 4 Jac. in the Exchequer, York and Allen is exhibited with very different features from those disclosed in the report in Cro. Jac. 513. It is there said that a man recovered damages in an action upon the case against B, who at the time of the judgment was jointly seized in fee with C; and that after that, B and C aliened, and the king eight years after the outlawry extended the moiety for the damages recovered against B. And the barons were clear in opinion that the king should have it in extent; for it was liable to the extent of the party outlawed before the alienation, and when it comes to the king by the outlawry, although it be after the alienation, it continueth extendable to the king, although the alienation was before the outlawry. The reasoning of the Court here, strongly fortifies the sentiment I have adopted. Why should the barons rely on the liability of the lands to the judgment previous to the alienation, if independently thereof, the premises in the hands of a fair purchaser were legally subject to the extent? The King v. Twine and others, in the Exchequer, Trin. & Jac, Cro. Jac. 179., furnishes the fullest detail of the whole case. It contains the recovery of 4000/. damages, the outlawry of Tork in a personal action, the grant to' Anger by queen Elizabeth of all his goods, chattels, and debts to the use of Mary Tork, 34 Regni sui, and the assignment by Anger of that debt and judgment to Twine, and then proceeds thus: And notwithstanding, an extent issued in the king’s name, to extend all the lands which the said fiohn Allefi had at the time of the judgment, and the lands in the possession of Ttvine (which he purchased after the judgment) were extended. The terre-tenant pleaded the assignment made by the queen, and that he was not chargeable to the king. Upon demurrer thereto, it was adjudged, that the king might by his prerogative assign a chose in action, and that the assignee might sue either in his own name or the king’s, and that the land should remain in extent for the king. In 2 Rol. Abr. 807. pi. 7, the same case is shortly mentioned, and ruled that if a recoveror of damages be outlawed in a personal action, the king shall have them, and. shall have execution on the judgment. Mich. 5 Jac. in Exchequer inter Tork and Allen. Per Cur. I have been thus minute, and I fear tedious, in recapitulating all the views wherein this case presents itself in the different books,' from being told that it is much relied upon by the advocates opposed to my doctrine. I think it will be found, upon the most careful examination, that the case in Cro. fac. 513, decides no other principle, than what must be admitted upon all hands to be clear law, vizNthat where a subject is outlawed, the king shall seize all the land of the conusor or obligor to such outlaw, although a private individual upon a judgment can take only a moiety. The distinction is founded on the prerogative of the crown. 5 Co. 56 a. Plowd. 243. In no ramification whatever of the case, which I have been able to discover, in any book, has any stress been laid either by the bar or Court, on the doctrine that a judgment per se will bind lands, purchased afterwards, though aliened bona fide. Under this review then of the different authorities, I trust, that without hazarding too confident an opinion, I may venture to assert, that the doctrine contended for by the plaintiff in error, is at least highly questionable in the English law. I now proceed to consider the subject upon another ground, which appears to me more material in our present inquiry, how far that doctrine would be consistent with our munici-' pal laws and customs, and conducive to the public weal. We have two acts of assembly in force, directing the taking of lands in execution for the payment of debts; the first passed in 1700, (1 Smith’s Laws 7.) the other in 1705, (Ib. 5 7.) which as to the point before the Court pursues the words of the first law. It recites that “ to the end that no creditors “ may be defrauded of their just debts, due to them from “ persons who have sufficient real if not personal estates to “ satisfy the same, Be it enacted that all such lands, tene.- “ merits and hereditaments whatsoever, within this province, “ when no sufficient personal estate can be found, shall be u liable to be seized and sold upon judgment and execution “ obtained.” And by the 4th section it is provided, “ that “ the vendee of the sheriff shall hold and enjoy the lands “ sold as fully and amply, and for such estate and estates, u and under such rents and services, as he or they for whose “ debt or duty the same shall be sold, might, could, or ought u to do at or before the taking thereof in execution.” It is the obvious meaning of the legislature herein, that the lands directed to be sold, should be such lands as the debtor had at the time of the judgment, in defect of his personal property. But it is also a reasonable construction, that if the lands to which the debtor was then entitled, should be insufficient to pay the debt and costs, other lands which he might acquire afterwards either by descent or purchase, should be subject to the execution of the creditor; provided that no injury was done thereby to third persons, and that the lands belonged to the debtor at -the time of the taking thereof in execution. If after purchased lands should happen to be sold by the debtor, before an execution issued upon the judgment, they would no longer be his property, and would cease to be such lands as were subjected to his execution. No creditor could rely on lands as a fund for the payment of his debt, which did not then belong to his debt- or. In 3 Black. 418, 419, before cited, it is said that if the goods are not sufficient to pay the debt, then the moiety of the defendant’s freehold lands, which he had at the time of the judgment given, whether held in his own name, or any other in trust for him, are also to be delivered to the plain tiff to hold till the debt be levied: And yet we find in Hunt v. Coles et al. Comy. Rep. 226, that when a trustee had conveyed lands before execution issued, though he was seized for the defendant at the time of the judgment, the lands could not be taken in execution. According to my apprehension, there is a much stronger ground for the exemption of after purchased lands, from the lien of a judgment, under the words and spirit of our law of 1705; for such lands are not the defendant’s property, either at the time of the judgment, or the execution sued out. Our local circumstances differ materially from those of an old settled country, where lands being improved for many years, their prices are not subject to great fluctuation. In Great Britain the transfers of lands are comparatively few to what they are amongst us. There through the rights of primogeniture, the instrumentality of strict settlements, and other local causes, real estates continue in ancient families for generations. It is much otherwise here, where lands rapidly rising in price, are treated as a specious of merchandize. Admit for argument’s sake the position of the plaintiff’s counsel to be correct, as to the law of England., where the moiety of the land is held by the creditor until his debt be paid, the land is afterwards restored to the fair purchaser from the defendant; but if that principle was adopted here, the whole estate would pass to the sheriff’s vendee, freed and discharged from all claim or pretence of right by such purchaser. . The strong ground however, upon which I rely as to this branch of the case is, the practical construction of our acts of assembly, since they were passed, by the common usage of the country. I have never known or heard it suggested, that upon sales of lands the public offices have been searched for judgments against the purchasers prior to the sale, or against, the sellers, except from the time that their title commenced. It is observed in Sugden 306, that it is not usual to search for judgments against the vendor, except from the time he purchased the estate: which by the by furnishes proof of the general opinion in England.as to the point in question. If the rule should be adopted here, that judgments themselves bind after purchased lands, though transferred bona fide, the situation of both seller and buyer is rendered most highly perilous, under the usual mode of transacting such business. Judgments against the seller antecedent to'his acquisition of the property, are let in against the unsuspicious buyer; and as to the seller, he is not rendered secure as to his consideration money, by taking either a mortgage or judgment. The estate must necessarily be for a moment in the buyer before he can execute a valid mortgage, or confess a judgment, which may become a lien on the property bought; but eo instanti that the conveyance .by the seller is sealed and delivered, the lien of the old judgment against the buyer attaches, as the inevitable consequence of the doctrine contended for. These would be serious evils, and must have been severely felt, if that doctrine had prevailed. No other mode for the security of the vendor presents itself to me, where the old judgments have not been searched for, except a_ conveyance of the lands subject to the payment of the consideration money, so that the estate cum onere should vest in the vendee at the same moment; and yet in the whole course of my experience, I have known or heard only of two instances wherein this precaution has been used. These considerations fully satisfy my mind as to the general understanding of the people upon this subject. General gross negligence and inattention to individual interest, are not the marked characteristics of mankind in a social state. But the question is not undecided amongst us. In Rundle and Murgatroyd v. Etwein, it was adjudged by á full Court in bank, that mere judgments did not bind after purchased lands, when aliened before execution. I will not say that the point was fully argued, though there were counsel of great ability on both sides; but I have no difficulty in asserting, from the note 1 took 'of the case at the time, that. M'-Kean Chief Justice pronounced what was then understood to be the unanimous opinion of the other judges. It has been' truly said, that our brothers Shippen and Smith afterwards expressed doubts upon the English law, respecting the liens of such judgments; yet I think I have abundant reason to conclude from copies of their own papers now in my possession, that their minds were not changed as to the law and usage of Pennsylvania on this point. The inconveniences of a different doctrine struck them in full force. I wholly omit any remarks on the danger and impolicy of changing a solemn decision, Unless the interests of society should imperiously require it. We know that the judgment of the Court of Common Pleas here, was grounded on our former decision. It remains'only, that I should consider a difficulty raised by the plaintiff’s counsel, as to holding inquisitions upon lands seized in execution, and the security of sheriffs upon sales. It has been asked how an inquest can possibly ascertain the time when the defendant’s title accrued, in or'der to distinguish between the different judgments binding on his land? I answer, by the public records, if the title is derived under a deed or will; but if by descent, it is as susceptible of proof as any other fact whatever. And as to sheriffs, their conduct may be regulated in the same manner; and it is obvious, that the fewer judgments they- have to discharge, there is the less danger as to the misapplication of the money arising upon the sales. Upon the whole, I am of opinion, that the judgment of Samuel Calhoun, the plaintiff in error, did not continue a lien upon the house and lot of Michael Immel; and therefore that the judgment of the Court of Common Pleas of Franklin county be affirmed. Brackenridge J. I understand the question in this case to be, whether a judgment binds lands purchased after the judgment, and aliened before execution. If this was to be taken up upon principle, I should find no difficulty; for ideo consideratum est per curiam quod recuperet, is the entry of the judgment. This judgment by force of the Statute Westminster 2., 13 Ed, 1. c. 18, charges the land of the debtor, and is in the nature of a general security. The lands are but in the nature of a pawn or pledge to secure the payment of the debt. 2 Black. Comm. 289. In the same manner lands descending to the heir were a pledge for the debt of the ancestor, and where no assets existed it might be levied of them, and they might be sold for the debt; and this was the only case in which the land could be sold, unless upon a recognizance in the case of the king. Can any one be supposed to pledge a thing of which he has not the property ? It would be an absurdity, and inconsistent with the notion óf a pledge. A mortgage is always spoken of under the idea, that it is a specific security, whereas a judgment is but a general. But as under a mortgage .one can only be considered as pledging what he specifies, so under a- judgment whatever property he has at the time. It is impossible that the judgment can attach to more. It cannot enlarge itself beyond the sum recovered. The execution must pursue the judgment as to the sum. Costs are included in(the execution as an appendage of the judgment. Interest is added by the Court under the idea of damages for the detention of the debt after judgment; that is, it is endorsed on the execution writ, but subject on motion to the Court to allow or modify. Can the judgment enlarge itself as to the subject ' of itf It can bind only that for which it was a security, or what was pledged under it. It is contrary to the nature of a lien, and cannot be done. But lands may be taken in execution under a levari facias at common law, as to present profits, or1 under an elegit by the statute. — Doubtless, but it is by virtue of the execution, and not'of the judgment. This is the ground of all the error. For the books speak of the judgment’s binding after purchased lands; but they mean no more than that lands purchased after may he taken in execution under the judgment. It is the same in the case of goods and chattels. If a cloak is pledged to one, or put into his possession, and he obtains judgment under k f.fa., he may levy not only the cloak in his possession, but the coat which he has not. It does not follow that 'the coat was pledged, because he can also take this. The precedent of the execution shews, that he may not only take the lands that were the debtor’s the day of the judgment, but since. A scire facias must for this very reason be to the terre-tenants of the land, at the day of the judgment rendered or afterwards, because the lands are liable to be taken-in execution. Yet why a scire facias to them, but to give an opportunity of shewing .that the debt is satisfied; for by virtue of the statute, these lands are liable to be taken in execution, being the property of the debtor at the time of the elegit sued out. But may they not shew, not only that the debtor had not these lands at the day of the judgment, but also that he had them not at the day of suing out the elegit? This is the question that we are to examine. There are authorities that seem to look as if execution could be laid upon lands bound by the judgment only. 2 Inst. 395. Et medietatem terree sues. This says the commentator,is tobe understood of the one half of such land as the defendant had at the time of the judgment, or at the recognizance knowledged, unless it be conveyed away by fraud or covin to deceive his creditors. This exception under the unless, shews that the words respect lands conveyed away before the judgment, and have no relation to lands conveyed away after. It proves therefore nothing upon this point, though it may be cited for it. It means that no fraudulent conveyance of lands before judgment shall bar the lien. Cro. Car. 149, is sometimes cited; this means nothing as to this point. It is only that goods are bound by the execution, but lands by the judgment. But it does not follow that lands are not bound by the execution also, when levied upon them. Coke Lyttleton 102 is cited as conclusive; it concludes nothing. It is only that judgment cannot have a retrospect to lands aliened before the judgment. The diversity proves this, taken between lands by descent to the heir, bound before the judgment in right of the land. Other judgments are in right of the person, and cannot bind before. I discard these authorities as having no application to the point. But I put it upon the principle, that the judgment cannot extend itself, though the execution may take more; and it is with a view to this only, and in this sense, that the judgment is said to bind. This is said abundantly in the books. 2 Cruise on Real Property 73. “ A “judgment binds all the freehold lands whereof the person “ against whom it is obtained is seized at the time; and no “ subsequent act of the debtor, not even an alienation for a “ valuable consideration to a purchaser who has no notice of “ the judgment, will avoid it. A judgment also binds all the “ lands which are afterwards acquired by the debtor.” He cites no authority. He is not correct. It is not the judgment that binds after purchased lands, but the execution that may be levied, and this is all that I take it he can mean. If he means more, he will be an authority so far as he goes. It is an hypallage, the effect for the cause. The writ of ele git takes, and therefore the judgment is said to bind. But the elegit takes by force of the statute the posssession of the lands, just as the levari facias at common law would have taken the present profits; and the levari facias would not be confined to lands bound by the judgment, but-the profits of land not bound might be taken as chattels under a fieri facias; but the ownership must be in the debtor., A judgment as against the defendant and his heirs, binds a moiety of all the freehold lands and tenements of which he or any person in trust for him were seized, at or after the time to which the judgment l-elates. Tidd 850. Will it be too much to say that Tidd is incorrect in attributing to the lien of the judgm ent, - what was the effect of the execution, or that he means no more? Let him be supposed to mean what he seems to state, -and to. attribute to the judgment virtute lien, what it appears to me the statute 13 Ed. l.-c. 18, which he cites, by no •means warrants. I say let him be supposed to lay it down totidem verbis, that after purchased lands, though aliened before execution, are bound by the judgment. It is no more than Rolle in his Abridgment 892, totidem verbis, has already said. “ It may be laid (execution) upon any land that he has' by purchase since the judgment, although he hath aliened it before execution.” This is the bull by the horns, that I take. What is his authority? He cites the Year Book, 30 Ed. 3. The point there was whether having taken an ele git, and the sheriff returned nihil, a capias Gould afterwards be sued out. It was decided that after the elegit taken, he could have no other execution; a decision perfectly erroneous. Hob. 57, holds the law to be clear\Contrary, and speaks of this year book and some others, as that “concerning them ' there was never a judgment but one.” Whether after purchased lands aliened before the execution, .could be taken by the elegit, was not in view; nor is there any thing said from which a colour of inference can be drawn, save a dictum, of Finch. The inference would seem- to have been drawn by Rolle, even though but a dictum; but having the words before me, I could not draw it. I will give the words in the Norman law French, so that others may judge: “ Si, al “ tempus del judgement rend, il avera aucune terre, mes que il “ av alien puis, home pouvoit aver execution de Celle. Et si il “purchase ierres apres, homme avera execution de celleY Which I translate, “ if a man at the time of the judgment “ rendered, shall have any land, but hath aliened it since, he “ shall have execution of that; and if he purchases land after. “■he shall have execution of that.” It is but an inference from this dictum, to say that after purchased lands aliened before execution shall be taken by elegit; and whether this inference is just, there is no other evidence but that of Rolle having made it; and yet this is the foundation of the whole law upon it. For from Rolle it is handed down through all the reports, and 30 Edit). 3. is cited, because he cites it. But it may be a just inference, since Rolle seems to have thought it so; and if it is a just inference, it will prove that it is not by force of the elegit, that after purchased lands are taken, but by virtue of the judgment; a principle I cannot comprehend as grounded upon the analogy of law, that like a scorpion a judgment can expand its claws, and contract so as to fix what it has embraced, that is, bind the pledge originally given it, and open to take more, and shut again. But can it be presumed that Rolle would have made this inference, had he not understood this in practice to be. an artificial rule of law at the time he wrote, independent of the dictum of Finch; that understanding it to be the rule of law, he had the more readily refered to the dictum as evidence of it, or the more hastily made the inference from the dictum? It may have been the law as under- • stood, though contrary to the analogy of pledging; and if so, I would account for it having come to be so understood, from what was done in taking all land under a recognizance to the king, that had been in the debtor at the time or since the taking the recognizance, even though not at the time, but since the recognizance, and aliened before execu-v tion. Whether this was so or not, we have no evidence as to what was the law before the Year Book, or before the time of Rolle, further than these dicta support. But supposing it to be the law, I would resolve it into that all grasping principle, the prerogative of the king. For at the common law, independent of lands coming to the heir by descent, which might be sold for the debts of the ancestor, the recognizance to the king was the only judgment under which lands could be sold. The king having this prerogative, it might be considered but an incident to the prerogative to take after purchased lands, though aliened before execution; and this having become a principle,' it was applied in the case of common persons, when by the statute of Westminister 2. they came to- have the power to charge lands for debt, and to take execution by the elegit. Another consideration may have led to the having given this extent to the judgment, even by the' adjudication of the Courts. Subjecting to debts under the júdgment was favourable to alienation; and the greatest extent that could be given to the effect of a judgment, was within the policy. The king was favourable .to this, and the judges would seem to have had the same bearing. “ A free power of aliena- - “tion tended to reduce the power of the nobility, and pro*“portionably to increase that of the crown.” 4 Reeve 135. “ The barring an estate tail, induced the judges to give way “ to a subtle finesse of construction, (for such it undoubtedly ££ was) in order to shorten the duration of those conditional -“ estates. Courts had' so long before as the reign of Edtvard “III., very frequently hinted their opinion that a bar “ might be effected upon these principles.” 2 Black. Comm. 111. For upon the introduction of the feudal tenures into England, the feudatory was not only prohibited from alienating his land, but also from charging it with the payment of his debts, because this might tend to disable him from performing his military services. The goods and chattels of the debtor therefore, and the profits of his lands, were the only fund which the law allotted for the payment of his debts. Although this law was well suited to the situation of a warlike nation, yet it was noways for a -trading people, where it is a material object to create an extensive credit, which can only be done by making lands and profits subject to the payment of debts; and therefore when about the reign of Henry III., the English began to acquire some little foreign trade, the inconvenience of this doctrine began to be felt. 2 Cruise 59. Hence it is, that the spirit of the people, and the sense of the nation, together with the policy of the crown, could not but give a determination to the jurisprudence of the country. “ Alienation of real estate was “'always resisted by the feudal lords, but favoured by the “ prince and the people. The increase of liberty, and the “ growth of commerce, pushed the spirit of unshackling “ estates, and the judges also leaned to the unfettering trans- “ mission. In the case of the power of devising lands, so “ loose was the construction put upon the stat. 32 Hen. 8. “ ch. 1., that bare notes in the handwriting of another, were ' “ allowed to be good evidence within the statute.” 2 Black. 375. With the like leaning it was decided by the judges, that “ no after purchased lands will pass under a devise, “ unless subsequent to the purchasé or contract, the devisor “repüblishes his will.” 2 Black. 378. It had been a long struggle on the part of the king, judges, and people, to get lands subjected to debts in any way, and this had been accomplished in part by the slat, of 13 Ed. 3.; and the more the lands would be subjected, it was in advancement of the policy. This might have led to follow the prerogative, and as in the case of the king, to take 'all lands before or after, in the case of private creditors. Be this as it may, it would seem to have been the understanding of the law commentators; for Viner takes it as Rolle has done, and under the head of execution lays it down, 10 Vin. 568. lett. Z. pl. 16., that “ if a man recovers debt, he may sue execution of any “land which he had at the time of the judgment, though he “ had aliened it before execution.” What is more, under the head of Lien, vol. 15, lett. A. pl. 1., he cites a case, Carey 11, Crompton 63, which would appear the strongest of all possible cases. “ A was bound in a statute to B, and one C lent “ 100/. to A, with which A bought lands and assured the “ same to C for his 100/. A failed in payment, B extended “that land, C was denied help in chancery, although the “land was bought with'his money.” It would seem therefore to be the law of England, whether originating in error, or founded in policy. But we come now to consider it as the law of Pennsylvania. What is there to justify a contrary decision? If in England it has become a rule of property, and estates are holden under it, it cannot there be changed without inconvenience. It may affect those who have taken the after purchased lands aliened before execution; who have taken possession by elegit. It may affect creditors, who looking to this principle, may have counted upon the fund of all lands being bound, that at any time come to the. debtor after judgment, even though he aliens them before execution. The elegit, giving but a temporary possession for the extinguishment of the debt by the issues and profits, cannot affect much. But still it is something as a rule of property, and renders it less easy to change the rule, than where no such understanding exists, or rule has been known to be established. The reason and policy of the rule also in some degree fail, if there has been any thing in the idea that it was the.offspring of a more shackled sale of lands for the payment of debts. If there has been any thing also in the notion, that it received countenance from the example set in the prerogative of the king, it will not be continued in a Commonwealth where kingly prerogative is not favoured. But these are small considerations. I do not know how it is under a recognizance sued, whether after purchased lands aliened before execution are taken; nor is it material. The principal consideration must be that of no impediment existing in Pennsylvania to the sale of the whole-lands for debt, but 'that of the- law of seven years extent; there is therefore less reason to extend the lien of a judgment. But the tying up by a judgment shackles alienation, which the policy of our law favours, and this may lay a substantial ground of distinction that cannot be disputed in this case. But how will it work in practice, under the law of the seven years extent? Before land can be sold an inquisition must be held. But the inquisition must be held upon the land levied on. All judgments may be shewn to condemn it. What is there in that argument? I can see nothing. The lands levied on are compared with the judgments, and none other. But land after purchased and aliened before execution, may be levied on. It is the very question we make, whether they can or not. But it will behove the creditor to distinguish between after purchased lands, and lands after purchased but sold before execution. On a scire facias sued, the terre tenant will shew this, or if levied on under the judgment, the court on motion may set aside the levy. .But if not, it is at the risk of the creditor to take such lands, and it is his look out. He can as well ascertain this as what lands were sold before judgment. A conveyance from the debtor, will as well appear upon the books of the register, as a conveyance to him. If adjudgment creditor has not such constructive notice from a registry, it may be an answer to the purchaser why the lands may be taken in execution. But the sheriff must look to the lien of every judgment, and on the sale pay over the purchase money according to the priority. What then? I can see nothing in the supposition that bears upon this point. It is supposing him to be bound to take the distinction between after purchased lands, and lands after purchased but sold before the execution, that he may know what judgments are a lien on this or that land. It is the date he must look at, and the sum. The land that he sells, must be considered bound by judgments prior to the' date of that judgment on which he sells. But I deny that he has any thing to do with judgments. He is to sell according to the exigency of his writ, and afterwards pay debt and costs,, if the sale comes up to that, if not, what it produces, and the surplus to the debtor, except in the case of a sale under a first judgment,' where the surplus may be claimed by a subsequent, and on notice to the sheriff, and application to the Court, it will be so applied. It is ihe purchaser that is to look to the incumbrances. Caveat emptor. It is his affair to examine the lien of every judgment, and the amount of debt and costs, and to bid for the premises, what over and above they may be worth. For it is to the land- that every prior judgment creditor will look, and is not affected by a sale under a judgment subsequent to his. Under these considerations it can make no difference whether the rule prevails as it is in England,, or is changed. But-it -has been changed in Pennsylvania by a decision, or rather the decision is an evidence that it never was a rule here. Rundle v. Etwein, December 1795, banco Philadelphia, it was decided. It was not the only point in the case, but it is reported to have been decided, Chief Justice M-Kean on the bench; a great authority. Having therefore an anchor to windward,. I am disposed to swing round with it, more especially as the decision best accords with the inclination of my mind upon principle, as may be collected from what has been suggested. I will acknowledge, that not a single authority, cited for that decision as reported, when it comes to be examined, gives the least countenance to the decision; and there is no argument by the counsel nor reasons given by the Court. I must therefore suppose that it must have been upon other grounds than those authorities that the Court went. It must have been upon the equivocal evidence of entry and precedent in the English books, and the obscurity of reports, or dicta of winters-conflicting with principle, analogy and all reason, or it must have been from an examination of the Tmr Books from whence all would seem to have sprung, or it must have been from something in the law of Pennsylvania, that would not admit of giving such extent tb the lien of a judgment here as. in England• There is one principle which would seem to make a difference. A judgment there is a lien upon estates'at law, but not as with us “ on every kind of equitable interest in lands, every kind “ of right vested in the debtor at the time'of the judgment.” Chief Justice Tilghman. 3 Binn. 9. As this makes the lien longer in one way, it would be but reasonable that it should be lopped in another. If it takes all lands in which the debtor has the least possible interest, it might be confined to the taking only those where at the time of the judgment or the execution only, he had an interest. I cannot comprehend how they manage matters in England, as on this principle a case must be supposed sometimes to occur, where a vendee against whom there is a judgment, takes a grant and gives a mortgage in security of payment; it must be that no unan can. purchase against whom there is a judgment, and give such mortgage, for the judgment must intercept the mortgage and cut it out. There is. in the nature of this thing a punctum temporis, as in articulo mortis where the jus accrescendi cuts out the devisee. In the order of time, as in cbm templation of law, there must be a priority. The taking the grant in the first instance, and then the conditional regranting, cannot be concurrent acts, or considered such. It is an argument against the extent of this lien in England, that we find no case in the books where such difficulty has been raised. Is it because there have been few instances where a person bound by a judgment, has purchased lands and given a mortgage? In Pennsylvania, where the settlement of the country has led to so much buying and selling in lands, it would be in the way of this, that the law should be so understood that no one having a judgment against him could purchase lands and give a mortgage, or at least that no one could sell to such, for he could not secure himself by taking the mortgage. The judgment would come in and cut out his security. Whether that case turned upon the law therefore as *our Judges may have taken it to be in 1795, in England, or whether upon the law as inapplicable to our situation, is not -apparent,-there having'been no argument before the Court oh tliis point in the manuscript report which I have had the advantage of consulting, and the reasons not appearing'Upon which the decision went.' Nevertheless I am willing to abide by the decision, for I think it right upon principle, and were it even a new case, I should be disposed to decide the same way. For as to all that can be collected from the English books, I am not clear that it was originally the common law, and much less that it was a principle carried with us in our colonization. That trading in lands, by which they have become almost a species of merchandize like goods and chattels, renders it inapplicable to our circumstances. I think so the more especially, as I feel a repugnance to a principle which would not seem to have had originally a foundation to support it, and would seem from what has been hinted, to have crept in surreptitiously, and been propagated from one reporter to another until it came to be taken for law. Supposing it to be the law of England, it may not be practicable to eradicate it in that country, it having become a rule of property, and estates having passed under it, even though upon investigation it should be evident that it has got into the system, though it did not originally belong to it; as flies, or other insects, which have been embodied when the gum or mineral oil was liquid, and cannot be got out when become hard without breaking the amber. For as the poet sings, Pretty in amber to observe the forms Of hairs, or straws, or dirt, or grubs, or worms; The things we know are neither rich nor rare, But -wonder how the devil they got there. Judgment affirmed. John de Mowbray, a Serjeant at Law. Lugd. Chron. Seri. 47. THU. de FisMde, Serjeant at Law. Lugd. Ghron. Ser. 49. Seton, a ¡judge of B.B. Ib. 4G. and appointed Chief Justice, 31 Edw. 3. Ibid. 43. Be was appointed second Baron of the Exchequer. Bugd. Chron. Ser. 68., Will, de Thorpe vjus appointed Chief Justice of B. R. 20 Edw. 3.

Opinion by Mr. Justice Allen M. Stearns, The question presented by this appeal is whether the court below abused its discretion in refusing to open a judgment. Upon the termination of a written lease, appellee entered judgment by confession against appellant for possession of real estate in Philadelphia. Appellant filed a petition for a rule to open judgment, alleging that the parties had entered into a subsequent oral lease. Appellee’s answer denied the allegation; thereafter depositions were taken. On consideration of the depositions the court in banc discharged the rule, stating that it “. . . did not believe the evidence submitted by the defendant but believed the evidence submitted by the plaintiff . ". .”. Appellant contends that his evidence would support a finding in his favor if believed by a jury, and that the court had no basis for its disbelief. Appellant has confused the controlling principles of law. Courts are not required to open judgments merely because the defendant produces evidence which, if true, would constitute a defense: Schuylkill Trust Co. v. Sobolewski, 325 Pa. 422, 190 A. 919; Keystone Bank of Spangler v. Booth, 334 Pa. 545, 6 A. 2d 417; St. Clair S. & T. Co. v. Hahne, 345 Pa. 420, 29 A. 2d 21. An application to open judgment is addressed to the court’s sound discretion, and, on appeal, the order of the court below will only be reversed for clear abuse of discretion: Earley’s Appeal, 90 Pa. 321; Kelber v. Plow Co., 146 Pa. 485, 23 A. 335; Augustine v. Wolf, 215 Pa. 558, 64 A. 777; Horn v. Witherspoon, 327 Pa. 295, 192 A. 654; Perri v. Perri, 335 Pa. 394, 6 A. 2d 775; Kweller v. Becker, 338 Pa. 169, 12 A. 2d 567; St. Clair S. & T. Co. v. Hahne, supra; Machalicka v. Lukasevic, 346 Pa. 487, 31 A. 2d 164; Quaker City C. & C. Co. v. Warnock, 347 Pa. 186, 32 A. 2d 5. No abuse of discretion appears here. Appellant’s testimony was vague and inconsistent. It was merely evidence of oral negotiations and an intention to enter into a binding written agreement in the future. He admits that a written lease was drawn as a result of the negotiations, but never executed. In such a case, the preliminary negotiations do not constitute a contract: Upsal St. Realty Co. v. Rubin, 326 Pa. 327, 192 A. 481; Williston on Contracts (1936 Ed.), Vol. 1, sections 28, 28 A. The court stated that it did not believe the testimony of defendant’s witnesses. Such disbelief did not have to be based on hearing them personally testify. They were cross-examined when the depositions were taken. Improbabilities and contradictions in their testimony might have justifiably caused disbelief. Indeed an independent reading of the depositions brings us to the same conclusion as that reached by the court below. In view of the conclusion that there was no abuse of discretion by the court below, it is unnecessary to consider the point now raised by appellee that the terms of the written lease barred this appeal. The order discharging the rule is affirmed at appellant’s cost.

Opinion by Hirt, J., The defendant had sexual intercourse with Agnes Jandres, the nineteen-year-old prosecutrix, on June 15, 1946, and on no other occasion. She gave birth to a child on February 25, 1947. Defendant in this prosecution was charged with fornication and bastardy and was found guilty of both. The testimony clearly convicts him of fornication. The question in this appeal is whether the evidence is sufficient in law to support the finding of the jury that the child is the fruit of the coition of June 15, 1946, the only date on which defendant was intimate with the girl. The difficulty with the Commonwealth’s proofs is the admission of the prosecutrix of sexual intercourse with another man. On the first day of the trial she testified that she had intercourse with one Joseph Freeman on each of three successive Saturdays following Easter Sunday in 1946. She was positive in her testimony to that effect. Easter fell on April 21 in that year. Re: ferred to that date, she admitted intercourse with Freeman on April 27, on May 4 and on May 11, 1946, which are 304, 297 and 290 days respectively from the subsequent date of the birth of the child. There is other testimony, notably of the Justice of the Peace who issued the warrant, of her admissions to him of intercourse with Freeman on three occasions in May, 1946. On the second day of the trial she changed her unequivocal testimony of the day before, and stated that all three intimacies with Freeman occurred in the month of April 1946. Her testimony then was indefinite, however, and she did not fix any specific dates in April, although she again insisted that the sexual acts occurred on three successive Saturdays. It is a reasonable inference from the testimony given by her on the first day of the trial that Joseph Freeman is the father of her child. And it is at least doubtful that her changed testimony on the following day excludes that possibility. Medical authority in general is in agreement to this effect: that while on the average the normal duration of pregnancy in the human female is 280 days, yet the period of gestation may last only 240 days or extend to 300 days or longer. The child, if of the defendant’s parentage, was born after a period of gestation of but 255 days. A protracted or a shortened pregnancy often has its effect on the physical development of the child at birth and “as a rule, the longer the gestation, the larger the infant. However, this is not invariably so, for it is by no means unusual to find rather large infants occurring in short periods of gestation, and for cases of protracted pregnancy to give rise to comparatively small infants. The average weight of full term infants is seven and one-half pounds, but they may vary from three pounds to fifteen pounds”: Gonzales, Vance and Helpern, Legal Medicine and Toxicology, page 313, (1940). There is no evidence in this case of the physical aspects of the child at birth, whether under, or over, normal weight and size. Cf. Souchek v. Karr, 78 Neb. 488, 111 N. W. 150. But lack of such evidence is not important for on medical authority it would not be controlling. In the celebrated English case of Gaskill v. Gaskill, L. R. [1921] Prob. 425, reported in 21 A. L. R. 1451, the husband in seeking divorce charged adultery on the sole evidence that a child was born to his wife 331 days after his last possible contact with her. Otherwise there was not the slightest evidence of misconduct of the wife. The Lord Chancellor, who heard the evidence in the first instance, adjourned the hearing, and because of the importance of the question to the young couple involved directed the attorney general to appear as amicus curise. At the suggestion of the court, the attorney general called “three specialists, stated to be amongst the greatest living English authorities on the subject”. From their testimony the court concluded that “having regard to the present state of medical knowledge and belief” it was not impossible for the husband to be the father of the child. One of the experts, who was called, referred to four reported instances, which he accepted as authentic, of pregnancy lasting 323, 324, 331 and 336 days respectively. In the present case the prosecutrix testified that her last menstrual discharge was in June 1946. That fact is not inconsistent with conception from intercourse with Freeman either in the prior April or May. Gonzales, Vance and Helpern, Legal Medicine and Toxicology, supra, p. 313. In the Gaskill case, the wife gave evidence of menstruation one month after the departure of her husband. One of the specialists whose testimony was accepted by the court considered that point of little importance and gave it as Ms opinion that two or even three subsequent discharges are not inconsistent with pregnancy. All of the works on medical jurisprudence, available to us, indicate the possible duration of pregnancy so protracted as to cast more than a reasonable doubt on defendant’s parentage of the child. In 3 Wharton & Stille’s Medical Jurisprudence, 5th Ed., Chap. Ill, §66, p. 39, following a recital of accepted data, it is said: “From the foregoing facts we can but come to the conclusion that, though the normal period of gestation is 275 to 282 days from the end of the last menses, or 270 days from a single coition, the pregnancy may be protracted to 334 days after coitus, or 344 days after the menses . . .” In section 62 at page 34, of the same chapter reference is made to authenticated instances where the periods of gestation were 311, 313, and 317 days respectively. Alfred W. Herzog in his Medical Jurisprudence, Chap. NLIY, §966, p. 677, refers to a case “reported by von Winckel, in which delivery occurred 321 days after coitus and another in which a child was born 336 days after the first day of her last menses”. In Witthaus & Becker, Medical Jurisprudence, Yol. 2, 2nd Ed., p. 508, it is said: “We learn from experience, however, that the average apparent duration of pregnancy is ten lunar (nine calendar) months, or forty weeks, or two hundred eighty days from the beginning of the last menstrual period, or two hundred and seventy-two days from the date of conception”. But “In England and America we find no absolute limit laid down. Each case is determined upon its merits. In America a liberal view is taken, and the legitimacy of birth at the completion of 313 and 317 days” has been recognized. The text books relied upon by medical men are to the same general effect. One of the most notable authorities, perhaps, is DeLee-Greenhill, Principles and Practice of Obstetrics, Eighth Edition, (1943). In the chapter discussing the subject it is said, p. 96: “The most reliable datum from which to estimate the beginning of pregnancy is the date of fruitful coition, and, reckoning from this day, pregnancy has been found to vary from two hundred and twenty to three hundred and thirty days, the average being two hundred and seventy days”. The applicable principles of law are well defined. Juries are prone to accept a woman’s testimony as to who is the father of her child. But a prosecutrix may not be permitted to select one of. two men as responsible if both of them had intercourse with her about the time that conception may have occurred. Com. v. Eaby, infra. The present appeal is ruled by the principles to which we referred in Commonwealth v. Rex, 147 Pa. Superior Ct. 121, 24 A. 2d 98, thus: “Where bastardy is charged, a fact extremely important in the inquiry .is whether the mother of the child had connection with others than the defendant at or about the time the child was begotten. If so, it is impossible ■ for her to determine to which of them her conception is to be imputed. Com. v. Fritz, 4 Clark 219. The admission of a number of connections at about the time of conception destroys her competency as a witness to prove that the defendant is the father. It is only where such relations with others are denied by the mother and the proof of them rests upon the testimony of other witnesses that an issue for the jury is presented. Com. v. McCarthy, 2 Clark 351; Com. v. Eaby, 52 Pa. Superior Ct. 619”. From the admissions of this prosecutrix, the father of her child might have been either Freeman or the defendant, and she cannot be permitted to choose between them. The Commonwealth’s testimony therefore falls far short of proof of bastardy beyond reasonable doubt and does not rise higher than a mere balance of probabilities as to which of the two was responsible for her conception. Under the circumstances, certainly, defendant is entitled to a new trial at least. But in view of the fact that we could not permit any subsequent con viction of bastardy to stand because of tbe testimony of the prosecutrix at the present trial, we will make final disposition of the charge. The judgment of sentence as to bastardy is reversed and the record is remitted for sentencing of the defendant on the conviction of fornication alone.

Opinion by Rhodes, P. J., This is an appeal from the decision of the Unemployment Compensation Board of Review denying benefits to claimant under section 402 (e) of the Unem ployment Compensation Law of 1936, as amended, 43 PS §802 (e), which provides: “An employe shall be ineligible for compensation for any week — (e) In which his unemployment is due to his discharge or temporary suspension from work for willful misconduct connected with his work. . . .” Both the bureau and the referee had rendered similar decisions. Claimant had been employed by the Freyn Engineering Company, Morrisville, Pennsylvania, as a steamfitter. He was paid $3.17% an hour. His last day of work was Saturday, March 21, 1953. He had been employed for approximately two weeks. During this employment claimant boarded in Morrisville during the week while his wife and two children (aged eighteen months and two months) resided in Shenandoah, Pennsylvania. Claimant remained away from work during the entire week next succeeding his last working day. This constituted a loss of six working days. He did not notify his employer of his intentions to remain away from work nor did he receive permission to do so. During his absence he did not contact his employer in any way. The Freyn Engineering Company had a rule whereby an unreported absence of more than three days results in an automatic discharge. Upon claimant’s reporting for work on Monday, March 30, 1953, he was informed that he was discharged because of his unreported absence. Claimant denied knowledge of the existence of this rule. At the referee’s hearing claimant offered this explanation of his absence: “We got an apartment. We had to move. I had to go and get the furniture. I didn’t think it would take so long to move. ... I had to stay home, get my wife moved. ... I came home, she [claimant’s wife] said the apartment was going to be ready. We had to buy furniture, clean.” When asked why he had not requested time off before leaving his job, he replied: “I didn’t know this apartment was going to be open.” When further asked as to why he had not called the company to report his absence and future working intentions, he stated: “I didn’t think we had to report off. ... I didn’t know where to call. I just started there. The foremen are from Philadelphia.” “Willful misconduct” is not defined in the Law, but it has been held to comprehend an act of wanton or willful disregard of the employer’s interest, a deliberate violation of the employer’s rules, a disregard of standards of behavior which the employer has a right to expect of an employe, or negligence indicating an intentional disregard of the employer’s interest or of the employe’s duties and obligations to the employer. Detterer Unemployment Compensation Case, 168 Pa. Superior Ct. 291, 294, 77 A. 2d 886; Sopko Unemployment Compensation Case, 168 Pa. Superior Ct. 625, 82 A. 2d 598; Krawczyk Unemployment Compensation Case, 175 Pa. Superior Ct. 361, 104 A. 2d 338; Weimer Unemployment Compensation Case, 176 Pa. Superior Ct. 348, 354, 107 A. 2d 607. In Williams Unemployment Compensation Case, 169 Pa. Superior Ct. 396, 82 A. 2d 674, we held that, where a claimant had absented himself from work, without notice to his employer and without valid reason, for a period of over fifteen days, in violation of the rules of the company, he was properly discharged for willful misconduct and became ineligible for unemployment compensation benefits. In the present case the absence was for six days. We shall not attempt to establish a mathematical formula for defining willful misconduct based upon unreported and inadequately explained absence from work. It has been held, however, that a single instance of misconduct is sufficient, under certain circumstances, to justify discharge and to make a claimant ineligible for benefits. Butchko Unemployment Compensation Case, 168 Pa. Superior Ct. 618, 82 A. 2d 282; Wilsey Unemployment Compensation Case, 169 Pa. Superior Ct. 368, 82 A. 2d 503; Krawczyk Unemployment Compensation Case, supra, 175 Pa. Superior Ct. 361, 104 A. 2d 338. The findings of the Board are clearly in conformity with the evidence and supported thereby. Claimant did not act in good faith or use reasonable diligence to preserve and maintain the employment relationship. He did not show why it would take a whole week to move, or that it was imperative to move at that particular time as distinguished from some other time when satisfactory arrangement might have been made by him with his employer. Claimant’s failure to notify his employer of his intended absence was without a substantial reason which the Board was obliged to accept. In these days of modern communication this delinquency was inexcusable. His statement that he did not know where to call is incredible. Although he only worked for two weeks he must have known the name and address of his employer. His failure to send a letter or telegram or to make a telephone call to his employer explaining his absence constitutes a disregard of standards of behavior which the employer had a right to expect from an employe. This is especially true of claimant who had been working for only two weeks for this employer. His subsequent absence from work for six days without notice or permission was unjustified under the circumstances and disclosed a reckless disregard of his employer’s interest. The decision is affirmed.

Opinion by Mr. Justice Stewart, The appellant, Mike Minnich, was jointly indicted in the Court of Oyer and Terminer of Beaver County with one Harry Green, for the murder of Mary Pupek Stoica. In the indictment Green was charged as principal and Minnich as accessory before the fact. A severance was granted and Green was first tried, his trial resulting in a verdict of guilty of murder of the second degree, returned 22d December, 1913. Four days later, on 26th December, 1913, the trial of Minnich was entered upon, and on the 30th December a verdict of guilty of murder of the second degree was returned against him. A motion in arrest of judgment and for a new trial in his case having been overruled this appeal followed. The assignments of error, forty-six in number, are so unduly multiplied, considering the very limited number of questions involved, as to make it if not impracticable, certainly unprofitable, to give separate consideration to each. In our discussion of the case'we shall therefore confine ourselves to the several propositions advanced by counsel for the appellant in his brief of argument. The assignment to which our attention is first directed' charges error in the admission of the record of the conviction of Green, to prove his guilt as principal in the crime, against the objection that the record is not definitive inasmuch as it does not show any judgment entered. To this assignment we have given the serious attention it demands. There can be no conviction of one charged as an accessory except as the guilt of the principal be first established. “The leading doctrine in respect to an accessory is that he follows, like a shadow, his principal. He can neither be guilty of a higher offense than his principal, nor guilty at all, as accessory, unless his principal is guilty.” Bishop on Criminal Law, Vol. I, page 611. Therefore, it is that on the separate trial of one charged as an accessory, the same burden rests on the Commonwealth to establish the guilt of the principal as would have rested upon it were the principal himself being tried, and the same measure of proof is required in one case as in the other. In both the evidence to convict must exclude all reasonable doubt. While on trial of an accessory the Commonwealth is not confined to any one mode of proof of the principal’s guilt, the mode generally adopted, not only because most convenient and direct, but because of the effect allowed it in law, is to produce and offer the record of the principal’s conviction. As a judicial record it is of course, conclusive of the fact of conviction. While not conclusive with respect to the fact of the principal’s guilt, it is, nevertheless, by settled rule of law, allowed exceptional weight as matter of evidence, in that, standing alone and unexplained, it is sufficient to warrant the conclusion in support of which it is introduced; in other words, that it establishes a prima facie case of guilt which continues until the contrary is shown. 2 Starkie on Evidence, 9 Com. v. Knapp, 27 Mass. 477. The sole and exclusive purpose of the offer of the record in the present case was to prove the principal’s guilt. How far was it sufficient to this end? If it was such record as the law contemplates under the rule we have stated, then it was not only proper evidence, but its effect was to establish a prima facie case of guilt on part of the principal; if not such record, then it was improperly admitted, and serious error was committed in allowing it evidential force that it was not entitled to. The one significant fact that suggests doubt as to its sufficiency, and upon which appellant’s case rests, is, that it does not recite either judgment or sentence on the verdict. Whatever difficulty we may encounter here will be found due to the fact that the word conviction is of equivocal meaning. It has a popular as well as technical meaning. As popularly used it implies nothing more than a finding of guilty by a jury, and this meaning has been allowed it in several of our cases, notably in York County v. Dalhousen, 45 Pa. 372; Wilmoth v. Hensel, 151 Pa. 200; while in others, as technically understood. it means the ascertainment of the guilt of the accused and judgment thereon by the court, implying not only a verdict but judgment or sentence thereon, as in Smith v. Com., 14 S. & R. 69; Cumberland County v. Holcomb, 36 Pa. 349. The difficulty becomes more apparent than real if we are content to apply the ordinary rules of construction. Technical legal terms are to be taken, in the absence of countervailing intent, in their established common law significance, for the reason that they have a definite meaning which is supposed to have been understood by those who were or ought to have been learned in the law. “Record of conviction” is a common law term; it follows that it is both legal and technical. Why then shall it not have its legal technical meaning imputed to it when we find it employed in a rule relating to a subject matter as to which it has acquired such meaning? Rules of construction require such meaning to be given technical terms wien they appear in enactments, whether civil or criminal in their character, except where a contrary intent is disclosed. “A word which has a settled common law meaning, when used in an act upon the subject matter as to which it has acquired such meaning, is to be so understood. So in dealing with criminal or penal matter, the statute is presumed to use its language with reference to the ascertained meaning of the language of the criminal law. The word steal then implies larceny, the word murder malice aforethought, and the word robbery its technical significance.” Endlich on Inter. Sec. 75. The fact that we are here construing a rule of law, and not a statute, affords ground for distinction ; but for reasons which will at once occur to the professional .mind, the distinction only emphasizes the greater necessity for the application of the rule of interpretation above quoted when, instead of a legislative enactment, it is an ancient and established rule of law that is under consideration. The rule requiring the same measure of proof on the trial of an accessory with re spect to the principal’s guilt as is required to establish the accessory’s guilt, affords reason for resolving the apparent difficulty by the method indicated. If it be essential to show the principal’s guilt beyond reasonable doubt, why allow a record that shows nothing more than a verdict of guilty by a jury to measure up to that standard? A verdict of a jury, without more is but the expression of the collective opinion of twelve men which concludes nothing, and supports nothing, except as it is followed by a judgment; and then it is the judgment and not the verdict that marks the conclusion of the issue and gives it efficiency. The present case furnishes an apt illustration. When it was tried it was not known and could not have been foretold what effect was to attach finally to the verdict of guilty in the case against the principal. In view of this element of uncertainty that attaches to every verdict of guilty, it is hardly to be supposed that it was the purpose of the law to make a simple verdict the evidential equivalent of proof beyond reasonable doubt. The rule of the common law touching this matter is thus stated by Mr. Bishop in his work on Criminal Law, Section 612. “The accessory is so completely, at common law, attached to his principal, that if for any cause, however far from the merits of the case, there is an omission to pass actual sentence on the principal’s conviction, called in English law attainder, no judgment can be pronounced against the accessory.” The clear implication here is that the record of conviction to show guilt must recite judgment or sentence. An examination of our cases will show that this court has strictly adhered to the common law meaning of the term conviction, except where such construction would defeat the apparent intention in using it. In all such cases, whether the word appear in legislative enactment or in contract between private persons, the term has been given its popular signification in accordance with settled rules of construction that the intention is to govern. But this indulgence has extended no further. In Smith v. Com., 14 S. & R. 69, 70, it is said by Tilghman, C. J.: “When the law speaks of conviction, it means a judgment and not merely a verdict which in common parlance is called a conviction.” In Buck v. Com., 107 Pa. 486, the defendant was tried as an accessory. To prove the guilt of the principal the Commonwealth offered the record of his conviction showing a plea of nolo contendere, but no sentence. The offer was admitted under objection and the defendant was found guilty. This court in reversing the judgment said, speaking by Mr. Justice Paxson (page 490), “That a confession by thé principal is not admissible upon the trial of the accessory to prove the guilt of the principal, is settled law. What more is the plea of nolo contendere than a confession? Had judgment been entered upon the plea the record would have been competent evidence of the conviction. But there was no judgment; only a plea which was at best but a qualified admission of guilt, and which might have been withdrawn the next day. We are of opinion that the plea was improperly received.” Instances are not infrequent where it has been sought, but without success, to apply the rule of technical construction where the word has been employed in statutes or by individuals in their contract. These cases are without bearing in the present contention. We are here not dealing with statutes or contracts of individuals, but with a rule of the common law, and this distinction must be constantly borne in mind. The contention of the Commonwealth overlooks it. In York County v. Dalhousen, supra, a case much relied on by the Commonwealth, the question was, in what sense, popular or technical was the word conviction used in the Act of Assembly of March 28, 1814, 6 Sm. L. 228, which provided that in all cases of conviction the costs should be paid by the party convicted, but when the parly should be discharged according to law without payment of costs, they shall be paid by the county. It was there held that conviction applied to the verdict of the jury finding the defendant guilty, and meant conviction before sentence and judgment. But this was simply applying the general rule which requires that in the construction of statutes, the terms and language thereof are to be taken and understood according to their usual and ordinary signification, as they’are generally understood among mankind, unless it should appear from the context and other parts of the statute to have been intended otherwise. School Directors v. Carlisle Bank, 8 Watts. 289; Philadelphia & Erie R. R. Co. & Penna. R. R. Co., v. Catawissa R. R. Co., Western Cent. R. R. Co., & Atlantic & Great Western Ry. Co., of the States of Ohio, N. Y. & Penna., 53 Pa. 20. So too in Wilmoth v. Hensel, 151 Pa. 200. There the action was to recover a reward offered by the defendant for the prosecution and conviction of persons for violating the statutes against bribery and corruption at elections. On the trial plaintiff could show no more than that he had arrested and brought to trial one charged with the offense; that this person was bound over, that he was accordingly indicted and that to the indictment he had pleaded guilty. The record showed that sentence had been suspended, that the prisoner had been allowed to go without day, and that no punishment had ever been imposed. The plaintiff notwithstanding, recovered in the action. On appeal it was held by this court that in conditioning the reward upon conviction of the party charged, the word conviction was used in its popular sense which meant no more than a verdict of guilty. And so in every case where the popular meaning of the word has been allowed to prevail it will be found that the decision has rested on the manifest understanding of the party employing it, whether it be the legislature or a private individual. The recent case of Com. v. McDermitt, 224 Pa. 362, in which the opinion is written by the present chief justice, is nothing to the contrary. What that case decides is that where one is charged in the indictment with’ a prior conviction for a similar offense, and the statute makes his alleged repetition of the offense a distinct offense for which, severer penalties are to be imposed, the word conviction must be given its strict legal meaning of judgment on a plea or verdict of guilty. Neither directly nor by implication is it anywhere in the opinion suggested that a principal’s guilt can be established on trial of one charged as an accessory by a record which shows nothing more than -a verdict of guilty returned by a jury. For the reasons we have thus stated the assignment of error which has regard to this feature of the case must be sustained and the judgment reversed. Since the case must go back for another trial it is necessary to rule upon the remaining questions. The supposed errors to which our attention has been directed in the argument relate to the admission of evidence. First, evidence offered for the purpose of showing that at the late hour of night when the offense was said to have been committed, between 12 and 1 a. m. defendant was found but a few feet from the place of the crime. This assignment calls for no consideration. The fact that the defendant offered evidence which to the mind of his counsel was a satisfactory explanation consistent with innocence of his being where he was, has nothing to do with the admissibility of the evidence. The effect was for the jury. Its admissibility is too evident to call for discussion. Second, evidence of threats made by the defendant. With respect to this latter it need only be said that threats and all declarations of personal hostility are admissible in evidence as showing malice and tending to show the criminal intent charged. To this end the evidence in the case was directed and it was properly admitted. The judgment is reversed, and it is now ordered that the record be remanded to the Court of Oyer and Terminer of Beaver County, together with this opinion containing the cause of such reversal, for further proceedings according to law.

Opinion by Mr. Justice Walling, This is a workmen’s compensation case. On the morning of May 3, 1920, plaintiff’s husband, Harry C. Riley, while at work for defendant as a clerk, complained of pain in his left chest and about three hours later coughed up blood, but continued at his work until evening. On returning home, Riley made light of his wife’s suggestion that he looked ill; but after supper he called on the family doctor to whom he related his symptoms and also stated that while lifting an adding machine (weighing from forty to fifty pounds) that morning at his work he felt something give way in his left chest, followed by the pain to which we have referred, and later that evening made a like statement to his wife. The hemorrhages continued until Riley’s death therefrom twelve days later. No one saw the deceased lift the adding machine on the day in question, but he had sometimes done so on former occasions, and, while he told those about him in the office that morning, including the plant’s physician, of the pain and later of the appearance of blood, he said nothing about the adding machine or of any strain or accident. The referee rejected the claim for lack of proof, but the compensation board allowed it; the court of common pleas reversed the decision of the board, to whom the record was returned for a rehearing, where, after taking additional evidence, the claim was again allowed, but was again rejected and judgment entered for defendant by the court of common pleas; hence this appeal by plaintiff. While it was not necessary to prove the injury arose out of the employment (Clark v. Lehigh Valley Coal Co., 264 Pa. 529; Dzikowska v. Superior Steel Co., 259 Pa. 578), it was incumbent upon plaintiff to show her husband died from an accident sustained in the course of his employment (see sec. 301 of Act of June 2, 1915, P. L. 736, 738; Marsh v. Groner, 258 Pa. 473). This she sought to do by his declarations made to the doctor and also to herself, over ten hours after the accident; while in the meantime he had worked many hours, talked with many people, including his wife, ate his supper and gone to the doctor’s office. There is no ground upon which such declarations were competent as evidence. To be admissible as part of the res geste, declarations must be the spontaneous utterances accompanying or immediately succeeding or immediately preceding the act in question, so near in point of time and place as to be in reality a part of it, and not the designed statements of the actors, nor the recital of a past event. In other words, where the declarations “are made under such circumstances as will raise the reasonable presumption that they are the spontaneous utterances of thoughts created by, or springing out of, the transaction itself, and so soon thereafter as to exclude the presumption that they are the result of premeditation and design, they will be admissible as part of the res gestæ”: 21 Am. & Eng. Encyc. of Law (1st ed.) 101; Eby v. Travelers Ins. Co., 258 Pa. 525, 532, 533; and see Leonard v. Balt. & O. R. R. Co., 259 Pa. 51, 58; Eline v. Western Maryland Ry. Co., 262 Pa. 39; Bausbach v. Reiff, 244 Pa. 559, 566, 567; Greed v. Manufacturers’ L. & H. Co., 238 Pa. 248; Coll v. Easton Transit Co., 180 Pa. 618; Com. v. Werntz, 161 Pa. 591, 597. In Van Eman v. F. & C. Co., 201 Pa. 537, we did not decide that declarations made by an injured husband to his wife several hours after the accident were admissible as part of the res gestae, but that their admission was there immaterial as the opposite party had put in evidence like statements made by the injured party to a physician. In Smith v. Stoner, 243 Pa. 57, the declarations, held part of the res gestae, were made by the injured party within a half hour of the accident, while he lay in agony where he had fallen, and to the first person who appeared upon the scene. To like import are Tomczak v. Susquehanna C. Co., 250 Pa. 325, and Penna. R. Co. v. Lyons, 129 Pa. 113. Moreover, what a man states to his wife or a physician as to the cause of his injuries is not competent as evidence unless part of the res gestæ: McCauley v. Imperial W. Co., et al., 261 Pa. 312; Eby v. Travelers Ins. Co., supra. Excluding the declarations of Riley, as to the adding machine, there is nothing to support the finding of an accident, as the only one suggested was the strain resulting from that cause and there is not a word of competent evidence tending to show he lifted the machine; hence, it cannot be assumed he was hurt thereby. Furthermore, there is no evidence Riley met with any accident while in such employ; the mere fact of a pain in the chest, or of coughing up blood, does not prove an accident; all the medical evidence is to the effect that those symptoms might result from an injury or from a natural cause. True, the symptoms indicate a hemorrhage of the lungs, but that does not prove an accident; it often results, and in this case may have resulted, from tuberculosis, or the erosion of an artery, or a ruptured blood vessel, quite probably the latter. An enlarged blood vessel, or aneurism, not infrequently forms in the lungs of a man of the age (35 years) and apparent good health of Riley and will cause a pulmonary hemorrhage when ruptured, but, as such rupture may result from a natural as well as from an accidental cause, its occurrence does not prove an accident. The medical evidence is that while an aneurism is often ruptured by some extra strain, it does at times occur without such strain and even in sleep. There was no autopsy held; so, conceding that death was caused by pulmonary hemorrhage, there was nothing to support a finding that the hemorrhage was caused by an accident; this, in connection with the lack of any competent evidence of an accident, necessitated the rejection of plaintiff’s claim. It is the duty of the common pleas to ascertain whether there is evidence to support the findings- of the board and if, on such findings, the law has been properly applied; Kuca v. Lehigh Valley Coal Co., 268 Pa. 163; Stahl v. Watson Coal Co., 268 Pa. 452. Here the controlling finding of the board was properly rejected by the court below because not supported by any competent evidence. True, the cause of death may be shown by circumstances (Flucker v. Carnegie Steel Co., 263 Pa. 113; Wolford v. Geisel M. & S. Co., 262 Pa. 454; Dannals v. Sylvania Twp., 255 Pa. 156), but any finding of such cause in the instant case, beyond the fact that it resulted from the hemorrhage, would be a mere guess. The provision in sec. 427 of article IV of the Act of June 26, 1919, P. L. 642, 666, that, “If such court [of common pleas] shall sustain the appellant’s exceptions to a finding or findings of fact and reverse the action of the board founded thereon, the court shall remit the record to the board for further hearing and determination,” is to afford the claimant a full opportunity to prove every fact favorable to the claim, but that object is attained when the record has been once remitted, and the common pleas is not called upon to continue remitting the record on subsequent appeals, nor was the failure to do so in the present case error; see Kuca v. Lehigh Valley Coal Co. supra. The judgment is affirmed.

The opinion of the court was delivered by Rogers, J. This is an action on the case for the continuance of a nuisance, to which the defendant has pleaded not guilty, license, and the statute of limitations. Replication, No license, actio non ac~ icrevit infra sex annos, issues, and rule for trial. To maintain the issue on his part, the plaintiff gave in evidence, among other things, the record of a suit in the Common Pleas of Lancaster county, to the April term, 1815, No. 308, Christian Kilheffer v. Benjamin Herr, in which the pleas were not guilty, license, and the act of limitations, issue, &c. There were the same parties, the same pleas, and, it appears most satisfactorily to the court, the same matter in controversy. The defence relied on, in each .case, rested on an indenture between John Kilheffer and John Stoner, which contains a license for the erection of a dam not exceeding the height of six feet seven inches, to be measured in the middle thereof from a certain rock, whereon the same now is, and stands erected and built. The location of this rock appears to have been the bone of contention in both suits. This defence, which, in all probability, would have availed the defendant, had the facts been ¡known at the first trial, has been passed upon by the jury, who have negatived the defendant’s plea by a general verdict for the plaintiff. The first question which presents itself is the conclusiveness of the record of the verdict in the first suit; and on this part of the caáe the court entertain no doubt. A verdict for the same cause of action, between the same parties, is conclusive; for when a court of competent jurisdiction has adjudicated directly upon a particular matter, the same point is not open to inquiry in a subsequent suit, for the same cause, and between the same parties. It may be a great misfortune, as in this case, that from causes ovér which he had no control, the party may not have been properly prepared for trial. It is, however, a misfortune which this court cannot remedy, as the rule is settled on the principle, that there must be an end of litigation, and to provide against the loss of testimony, and as the defendant had an opportunity of showing the truth of the fact, he shall not afterwards be permitted to contradict a record to which he is a party. He is estopped to deny that which has been solemnly ruled against him. We shall, therefore, take it as settled, that the erection of the dam, complained of in the first suit, is not open to inquiry, in an action for the continuance of the nuisance. All the plaintiff was bound to do, was to give in evidence the former recovery, to prove, that the dam had undergone no alteration, but continued the same, and his right of action was complete. From a variety of cases, says Chief Justice De Grey, in delivering his celebrated judgment, in the case of, the Duchess of Kingston, relative to judgments being given in evidence in civil suits, it seems to follow as generally true, that the judgment of a court of competent jurisdiction, directly upon the point, is, as a plea in bar, or as evidence conclusive, upon the same parties, upon the same matter directly in question in another court.' The verdict must be considered as conclusive between the same parties, in regard to the same matter; otherwise .it would be, in effect, permitting one jury to review the decision of another. These principles are supported by the whole current of cases in England and in this country, as will be seen by reference to Brookway v. Kinney, 2 Johns. Rep. 210. Rice v. King, 7 Johns. Rep. 20. Platner v. Best, 11 Johns. Rep. 530. Shelton v. Barbour, 2 Wash. Rep. 64. Preston v. Hamey, 2 Hen. & Munf. 55. In Baxter and others v. The New England Insurance Company, 6 Mass. Rep. 277, 286, the law is summed up in this manner: “ This proposition I think to be universally true, that a person, in all cases is concluded by a decree, sentence, or judgment of a court of competent and exclusive jurisdiction, in a suit in which he w.as a party, in all future trials of the same question, and whether that question arises directly or collaterally, provided there be ño contract between, the parties to the contrary. It is conclusive, hot only of the right which it establishes, but of the fact which it directly decides.” This was established, and well known as a prinple of English law at, and long previous to the revolution. The same principle was recognised in Ross v. Heble, 6 Serg. & Rawle, 57. Indeed, the dpctrine does not seem to have been questioned; as it appears to have been admitted, that if the matter had been res judicata, it could not be reheard. To apply these cases to the present, — in.the first suit, the point in contest was the license, alleged by, the .defendant for the erection of the, dam. This was passed upon, and directly decided, and the defendant now seeks a re-examination of that question, on thé ground of new-discovered testimony. It is said, that this is an equitable defence, and that a Court of Chancery would, in such cases, afford relief to the defendant; and it would have been well if the counsel had shown some authority to sustain the position. The truth is, a Court of Chancery cannot relieve against the law. They are as much bound by these principles as any other tribunal. Their jurisdiction is not an arbitrary jurisdiction, but is governed by precedent and adjudged casespand however a chancellor may have lamented the misfortune of the defendant, in not having the necessary proof at the first trial, he could have afforded no relief. As soon as it was discovered, that the matter was res judicata, he would have been equally bound, as a court of common law. .It is better that an individual should suffer, than that the great land marks of the law should be overturned. No prudent man would, I think, be willing to invest any judicial tribunal with so formidable a power. Thus in Ex parte Goodwin, 2 Vern. 696, a bankrupt having his certificate allowed, and having slipped his time of pleading it at law, to a debt precedent to the bankruptcy, is not to be relieved in equity. The chancellor says,-a Court of Chancery is not to alter the law. Again, a Court of Equity is not to relieve either mispleading, or where thereis neglect, or want of plea, or no proper plea put in in time. It is in vain to talk of fraud. This does not come within that class of cases, but is the discovery of testimony which it vfas not in the power of the defendant to produce on the first trial. Taking it then as proved, that a court of competent jurisdiction has adjudicated upon the very point in controversy, it remains next to inquire, whether' the record of the former recovery be in this case conclusive evidence. It is admitted to be prima facie, but it is strenuously contended, that the jury are not concluded from inquiring into the truth of the fact. In this part of the case, it becomes important to attend to the pleadings. The gravamen of the plaintiff’s suit is said to be the continuance, and not the.erection of the nuisance, and so far as damages are claimed, the position of the plaintiff’s counsel is correct. It is impossible, however, to continue a nuisance unless a nuisance existed; and to maintain the plaintiff’s action, the record of the former suit must have been given in evidence, or the plaintiff must here become nonsuit. The defendant’s plea of license, I do not understand as extending only to the continuance, but is co-extensive with the allegation in plaintiff’s declaration, that there was a nuisance, which had been continued. It is impossible to separate the continuance of a nuisance from the original erection. The whole difficulty arises from our short mode of pleading. Had the defendant been called on to spread his plea on the record, it would, I take it for granted, have contained a statement of facts which were given in evidence to thejury. Had that been done, the plaintiff might demurred, by which the whole matter would have been referred to the court, pleaded the former recovery, by way of estoppel, or have taken issue on the fact, license or no license. He has not thought proper to do so; but, as the defendant has pleaded generally, a license, he has replied in the same manner, that there was no.license. He has elected to refer the matter to" the jury, and the question then is, whether the jury are precluded fróm inquiring into the truth of the case. If a party will not rely on estoppel when he may, but takes issue on the fact, the jury will not be bound by the estoppel, for they are sworn to find the truth of the' fact. They cannot, it is true, find against any thing which the parties themselves have affirmed, or admitted on the record, for that would be going out of the issue, although such admission be contrary to the truth; but in other cases, though the parties be estopped to say the truth, the jury are not. 1 Salk. 276. Bull. N. P. 298. And of this the defendant cannot complain, as instead of praying judgment of the court, whether the defendant ought to be admitted, or received to his plea of license, &c. contrary to the record, he takes issue on the fact of the existence of the license.- The former verdict was powerful evidence to. guide the jury, in the second suit, but that they were not absolutely bound by if, is apparent from adjudged cases in England, and in our sister states. Slight grounds would not justify the jury in disregarding the first finding, but we are to presume, that circumstances were, shown, sufficient to warrant the second verdict, that a license had been gi-ven, to authorize the erection of the dam of the defendant. These principles only apply where special pleading is required, for I grant, that where the parties are not bound to plead or reply, specially, the record of a former recovery is conclusive evidence, binding the plaintiff, the court and the jury, as in actions of assumpsit and debt. In such case the party has no choice, and shall not be considered as having elected to have a reinvestigation of the facts. And this is the meaning of Chief Justice De G-bev, when he says, “this is, as a plea in bar, and as evidence conclusive, between the same parties.” In order to make the former recovery conclusive, it is necessary,yvhere special pleading is required, that it be pleaded by way of estoppel. By this plea, he prays judgment of the court,, whether the defendant ought to be admitted, or received to his plea of license, contrary to the record. Upon the same principle, says Phillips, in his Treatise on Evidence, page 223, it is presumed, a judgment will be as evidence conclusive between the same parlies, in those eases where it can be given in evidence without being specially pleaded. The rule has been expressly declared, with reference to the judgments of courts of concurrent jurisdiction, and it seems to be equally applicable in principle to a former judgment of the same court. Thus, in an action of assumpsit, the defendant may either plead a judgment recovered, or give it in evidence, under the general issue; and it is difficult to assign a reason, why the judgment should not have the same conclusive operation, if given in evidence without pleading, as it would -be admitted to have, if pleaded in bar. In Bull. N P. 298, it is stated, the jury cannot find any thing against that which the parties have affirmed and admitted of record, though the truth be contrary; but in other cases, though the parties be estopped to say the truth, the jury are not; as in Goddard’s case, where the bond was dated nine months after the execution, and after the death of the obligor. 2 Co. 4, b. Thus Goddard, as administrator of James Newton, brought an action of debt against John Denton, upon a bond made to the intestate, bearing date the 4th. of April. 24 Eliz. The defendant pleaded, that the intestate died before the date of the bond, and so concluded, that the said writing was not his deed, upon which they were at issue; the jury found specially, that the defendant did deliver it as his deed, the 30th of July, 23 Eliz., and that the intestate was living the 30th of July, and that he died before the date of .the bond; and prayed the advice of the court, whether this was the defendant’s deed. And it was adjudged by Anderson, Chief Justice, Windham, Ferian and Walmesrey, that it was his deed; and.the reason of the judgment was, that although the obligee, in pleading, cannot allege the delivery before the date, because he is estopped to take an averment against any thing expressed in the deed, yet the jurors, who are sworn to say the truth, shall not be estopped, for ah estoppel is to conclude them to say the truth; and, therefore, jurors cannot be estopped, because they are sworn to say the truth. In Trevivan v. Lawrence, 1 Salk., the court-held, that not only the parties, and all claiming under them, but the court, and jury, were bound by an estoppel, and that the jury could not find .against the estoppel; but the court took this distinction, which is immediately applicable to the question now under review, that where the plaintiff’s title is by estoppel, and the defendant pleads-the general issue, the jury are bound by the estoppel; for here is a title in the plaintiff) that is a good title in law, and a good title if the matter had been disclosed and relied on in pleading; but if the defendant pleads the special matter, and the plaintiff vvill not rely on the estoppel when .he may, (which is this case,) but takes issue on the fact, the jury shall not be bound by the estoppel, for they are to find the truth of the fact. Thus in debt for rent, on an indenture of lease, if the defendant plead nil debet, he cannot give in evidence, that the plaintiff had nothing in the tenement; because, if he had pleaded that specially, the plaintiff might have replied, the indenture, and estopped him; but, if the defendant plead nihil habent, and the plaintiff will not rely on the estoppel, but reply, habent, &c., he waives the estoppel, and. leaves-it-at large, and the jury shall find the truth, notwithstanding his indenture. And here, let it be noticed, that this case not only establishes the general principle, but. the distinction taken, that the rule applies only where the defendant is bound to plead specially. When he elects to go before the jury, he waives the estoppel, and refers the truth of the fact of the'license, to be determined by the jury at large. This doctrine, thus early recognised, has continued, and now is the law of England, 1 Starkie, 206. The same doctrine has been taken in our sister states, Kentucky and Connecticut; nor.can I perceive that it.has ever been infringed in any adjudged case. Church v. Leavenworth, 4 Day, 274. Canaan v. Greenwood, 1 Con. Rep. 1. Turnpike and Edwards v. M‘Connell, Cooke’s Rep. 205. The cases of Shelton v. Barbour, 2 Wash. Rep. 64, Preston v. Harvey, 2 Hen. & Munf 55, turned on the conclusive nature of the judgment, without reference to the pleadings. Their attention does not appear to have been drawn to the point; and, however I may respect the opinion of these courts, I do not consider these cases as affecting this question. It will be seen, that we do not entirely agree with Chief Justice Swift, in the case of Church v. Leavenworth, where he says, that verdicts are never conclusive, unless they are pleaded specially, by way of estoppel. The rule must be taken with the qualification before stated. .The cases onwhich he relies do not, I conceive, support the position in the broad manner laid down, as I apprehend, could be easily shown, were the cases open to examination. I, however, must cheerfully concur with him in the opinion, that we may,as well question any other principle of the common law as this. If the ground is to be taken, that because we doubt the reason, or propriety of. an established rule, wé are ¿t liberty to reject it, and substitute another for it, then.all principles are again thrown afloat on the ocean of uncertainty, without any compass but the discretion of the judge.. The, foundation of the law is not laid on such a fluctuating basis. It has been pronounced, by the greatest jurists,-to be the perfection of .reason, not of every man’s natural reason, but an artificial perfection of reason, gathered by long study, observation, and experience. Co. Lit. 97, b. Two other bills of exceptions have been pressed upon the attention of the court. The first is the declaration of Godfrey Blyth, which becomes evidence, in consequence of the presence and assent of the plaintiff. ■ The second, w'e consider as the ascertainment of a fact, which can be done without the presence of the parties. Although Kilheffer may not have been within eaV-shot at the time, yet he, with others, had gone there for the purpose of ascertaining the mark, and the admeasurement of the height of the dam, from that mark. His accidental, or intentional absence, is no reason for rejecting the testimony. It is-the opinion of the court, that the judgment be affirmed. Huston, J. The question -how far, and in what cases a trial and judgment, in a court of competent jurisdiction, is conclusive of the same matter, coming directly or incidentally before another court, and not by appeal or writ of error, is one of general consequence. The law seems not to.be disputed, but under what circumstances it will avail a party, has become a question. In England, before the year 1776, and long after, in Neiv York, Massachusetts, Virginia, Pennsylvania, and in the Supreme Court of the United States, it is held to be equally available, whether pleaded in bar, or givén in evidence, when the rules of law permit it, under the general issue, as in assumpsit, and in ejectment; but, in some late elementary writers, we find it laid down on the authority of a distinguished English judge, (.who has introduced more changes into Westminster Hall than any other ancient or modern judge,) that it is only available when pleaded as an estoppel. On full consideration, I incline to the opinion, that this latter change is not an improvement, but an error. It seems to be supported first, by the cases which say, that a jury is not bound by an estoppel; and, secondly, which say, that a Court of Equity is not. An estoppel is always something personal — the party is estopped from recovering his claim, or proving his defence, by some act in law, or in deed, or in pais, which precludes him from going beyond it, and proving all the cáse. . It always arises from the act of the party estopped by it; but if the opponent,, instead of relying on this act, will go beyond it, and pufthe cause at issue on other, and especially anterior facts, the estoppel being waived by him who had a right to avail hiinself of it, ceases to operate. For example, a man sues in debt for rent on an indenture, the defendant pleads, that the plaintiff had no title to, nor possession of, the premises demised; if the plaintiff, instead of relying.on the indenture, which in ' law estops the defendant, will reply, and go to issue and trial on the facts pleaded by the defendant, the jury, who are always to try the facts in issue, are not estopped by ah indenture, not relied on by the plaintiff, from finding the truth. So, in equity — a suit is brought at law on a bond executed by three, and judgment obtained; on application tó chancery, státing, that at the execution of the bond, it was expressly agreed, that each obligor should only be liable for one-third, and that the defendants being estopped by their deed from availing themselves of this agreement at law, the plaintiffs had issued execution, and levied the whole on the goods of one, — equity will grant an injunction and stay of execution against any one on his paying in one-third of the debt, interest, and 'costs; because the plaintiff is using, against justice and consciénce, a judgment fairly obtained, and equity is not bound by the estoppel, arising from the act of the obligors, in sealing the deed. ■ But a former trial, verdict and judgment is not the- act of the party, but of the tribunal which decided it, and to call it an estoppel, is a misapplication of.terms; it has not the distinguishing mark of an estoppel;' it is not the consequence of some act of the party bound by it; it is a bar to a future recovery in any court, on the same point, between the same-parties, or privies, until reversed on appeal, or writ of error; and it is as much a bar in c-hancery, where an attempt is made to re-examine a matter once decided at law, as it is in a court of law; it is as much a bar in actions where ive cannot plead specially, as ejectment, as in any other action,' and as much a bar in an inferipr tribunal, where there are no pleadings, as in one where the pleadings are, or may.be drawn out at length. Such are my impressions on this point, believing that the courts in this, and tlie other states, and the Supreme Court of the United States, have put the matter on its true ground, viz. that the order and peace of society, the structure of our judiciary system, and the. principle's of our government, are the true grounds why such a judgment is conclusive. 'I am not willing to leave this ground and. rest it on the narrow and inapplicable one of estoppel. I also incline to the opinion, that even on a plea of a former trial, on the same point, &c., the issue is always to the country; for although it is pleaded with a proferí prout patet per recordum, yet the plea must go on, and put in issue, whether the parties are the same, the point the same, &c., and if plea does not do so, the replication, may put these matters in issue, and thus there will be no bar arising from a former decision. / There are, however, cases in which it may not be possible that this, whether pleaded or given in evidence, will apply, as in a suit for continuing a nuisance of the kind now considered. The former verdict and judgment may have proceeded on the ground, that the license was void, but we can hardly suppose this, and in fact, this was not the issue, which if license, had been set out, and plea found, would have been, that-the'dam was not raised more than six feet seven inches. The former verdict and judgment will be conclusive that it then was; but in this suit for a continuance, perhaps instead of relying on vague testimony, that the dam was continued from 1815 to 1820, at nuisance height, the,true cause would be for-the jury to áscertain that it, in 1820, was or was not higher than six feet seven inches dear of the rock; and if it was, find for the plaintiff, if not, for the defendant. I say, this was perhaps the true course, for as the issue was not made up at length, we cannot tell whether that.verdict was given on the. ground, that there was no license, or on the ground, that the defendant had exceeded ithe height allowed by his deed. Whatever máy be made certain by the record, ought to appear by the record, but where that cannot be, as in ejectment, it may, nay must be made out by parol: as the plaintiff in this case might have had on the record the very point on which the former trial turned, and did not. I think the judge was riot wrong in permitting the evidence to go to the jury. The other points I am not disposed to reverse for. In such a case, the previous-testimony must have so much effect in determining, whether a particular act or declaration of a party, is to be admitted .or rejected, that without it we cannot form a correct opinion. Gene» rally when men claim together by some contract, and are together discussing it with' an opponent, the declarations of one, in presence of the other, is evidence against that other; but, where á trespass against one, is also, in some respects, alleged .to be a trespass against another, it would not be universally true, that the declarations of one trespassed on, would be. evidence to affect the other, though he was present and heard the expressions and did not dissent’: nor would it be universally true in all cases, that expressions in such circumstances, must be rejected by the court: something arises in almost every trial, some expressions are-used by many witnesses not legal evidence; and it often happens, that in the course of a trial, evidence comes out,- which, if known before, would have induced the judge to reject part of what had been previously received. The court will and dd explain this to the jury, and it seldom does any harm. I would not agree to reverse for any such hairbreadth mistakes. I agree the judgment should be affirmed, but have thought the first point of sufficient importance to express my opinion on it. Judgment affirmed.

Chief Justice Sharswoojd delivered the opinion of the court, March 24th 1879. Adoption in the Roman law was an act by which a person undertook to rear the child of another, and appoint such child as his heir. The Eleventh Title of the first book of the Institutes of Justinian is “De Adoptionibus,” and the first placitum of that title declares that “ adoption is made two ways, either by imperial rescript or authority of the magistrate. The imperial rescript empowers us to adopt persons of either sex who are sui juris, and this species of adoption is called arrogation. But it is by the authority of the magistrate that we adopt persons actually under the power of their parents or grandparents.” Before the times of the empire, arrogation was authorized only by a vote of the people, and ordinary adoption by an edict of the praetor: Encycl. Univ. ad verbum. It is evident that, even according to this system, some special authority of law was necessary to-constitute an adoption. So also by the Code Napoleon, it can only be effected by the intervention of the judge: Code Civil, liv. 1, tit. viii., see. 2. It never was in the power of an individual, by the common law of England or this state, to adopt the child of another as his own until the Act of Assembly of May 4th 1855, Pamph. L. 430, by the seventh section of which it was authorized by the decree of the Court of Common Pleas of the county where the person desirous of adopting such child may be resident. The plaintiff in error, Mrs. Ballard, was not adopted by Mr. Ward according to the provisions of this act. He died on the 14th May 1870, and the premises immediately descended to his two children, the defendants in error. An Act of Assembly was subsequently passed, April 2d 1872, Pamph. L. 31, which declared “ that in all cases heretofore, as well as hereafter, where the common-law form of adopting a child by deed has been practised or done, it shall he lawful, on proof of due execution of the deed, to have the same recorded in the proper office for the recording of deeds, in the county where the adopting parent resides at the date of its execution; and a duly certified copy thereof shall be received in evidence, with the same force and effect as the record of adoption "would have in the mode provided in the act to which this is a supplement.” This act was plainly intended to be retrospective, and whatever might have been its operation in giving effect to the instrument of August l'lth 1863, assuming that to have been “ the common-law form of adopting a child by deed,” it is too plain for argument that a proceeding under it could not divest the estate of the defendants in error, which had vested by the death of their father; Shonk v. Brown, 11 P. F. Smith 320. As to the alleged parol gift by Mr. Ward to Mrs. Ballard, there Avas nothing to,take it out of the Statute of Frauds. Possession delivered or taken in pursuance of it was clearly insufficient under all the cases. Besides such possession, there must be improvements not capable of compensation in damages: Stewart v. Stewart, 3 Watts 253; Moore v. Small, 7 Harris 461; Miller v. Hartle, 3 P. F. Smith 108. The letter of Mr. Ward to Mr. Hoffman, dated August 25th, was no memorandum in Avriting of a gift, but merely declared that he had no objection to Mrs. Ballard’s taking possession at any time Apart from the parol evidence, it tended to prove nothing beyond its terms. Judgment affirmed.

Opinion by Mr. Justice Eagen, The appellant, Bobert McCray, after indictment was tried before a judge without a jury for: (1) Conspiracy; (2) Statutory rape; (3) Assault and battery; (4) Contributing to the delinquency of a minor. He was convicted on all four indictments and sentenced to the Eastern State Correctional Institution for an indeterminate term of from five to ten years. An appeal was timely filed to the Superior Court, pro personam, which was eventually quashed because of failure to properly perfect it. Subsequently, a petition for habeas corpus was filed in the Court of Common Pleas of Philadelphia County which was dismissed. On appeal, the Superior Court in a four to three decision affirmed this order. We granted allocatur and this appeal is presently before us. At the above trial, the defendant, McCray, was unrepresented by counsel. The single legal question in issue is whether or not he understandingly and intelligently waived his constitutional right to the assistance of counsel. We conclude that he did not. One McWarren was tried jointly with McCray on the same charges. When the case was called for trial, a representative of the Philadelphia Defenders’ Office appeared on behalf of Me Warren, but declined to represent McCray because he believed a conflict in interest existed. The assistant district attorney then questioned McCray as follows: “Q. McCray, stand up. Do you have a lawyer? A. No, sir. Q. Can you afford a lawyer? A. I have tried unsuccessfully to retain counsel. I was talking to Mr. Cain. However, since it is listed for this morning, I am willing to go along with it for trial to be disposed of, sir.” The court then entered the discussion with a single question: “Q. You are willing to proceed without an attorney? A. Yes, sir.” The trial, without more, then proceeded with McWarren’s counsel attempting to prove that the crimes involved, if committed, were the acts of McCray. The sole factual witness for the prosecution was the victim, a fifteen-year old girl, who had given birth to a child out of wedlock some months before. Both defendants were found guilty. In Gideon v. Wainwright, 372 U. S. 335, 83 S. Ct. 792 (1963), the Supreme Court of the United States ruled that indigent defendants in criminal trials in state courts involving felonies have the right to the assistance of counsel, and that a trial and a conviction without such counsel is void and in violation of the Fourteenth Amendment to the United States Constitution. In Commonwealth ex rel. Craig v. Banmiller, 410 Pa. 584, 189 A. 2d 875 (1963), we construed Gideon to apply prospectively. However, in three subsequent decisions, the Supreme Court of the United States apparently indicated the ruling was retroactive. See, Weigner v. Russell, 372 U. S. 767, 83 S. Ct. 1104 (1963); Vecchiolli v. Maroney, 372 U. S. 768, 83 S. Ct. 1105 (1963); Garner v. Pennsylvania, 372 U. S. 768, 83 S. Ct. 1105 (1963). In United States v. Myers, 220 F. Supp. 762 (1963), the United States District Court of the Eastern District of Pennsylvania specifically so held. The United States Third Circuit Court of Appeals subsequently affirmed this decision, 329 F. 2d 856 (1964). However, the Supreme Court of the United States has also decided that counsel need not be forced upon a defendant and that, under appropriate circumstances, he may waive the right to be so represented. Carter v. Illinois, 329 U. S. 173, 67 S. Ct. 216 (1946). However, for the waiver to be valid and effective, it must be the competent and intelligent act of the accused: Johnson v. Zerbst, 304 U. S. 458, 58 S. Ct. 1019 (1938); Moore v. Michigan, 355 U. S. 155, 78 S. Ct. 191 (1957). In determining whether or not the right to the assistance of counsel is “intelligently” waived, all of the facts and circumstances of the particular case, including the background and conduct of the accused, must be examined and considered, Johnson v. Zerbst, supra. Further, when a judgment of conviction is collaterally attacked in habeas corpus proceedings on the ground that the defendant did not have the benefit of counsel, it is his burden to establish that the right to the assistance of counsel was not competently and intelligently waived: Moore v. Michigan, supra. By the same token, courts should indulge every reasonable presumption against waiver of fundamental constitutional rights and not presume acquiescence in their loss: Johnson v. Zerbst, supra. What constitutes a competent and intelligent waiver to the assistance of counsel and the trial court’s responsibility in determining if such exists was indicated in the case of Von Moltke v. Gillies, 332 U. S. 708, 724, 68 S. Ct. 316 (1948), wherein at 323, the court stated: “To be valid such waiver must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter. A judge can make certain that an accused’s professed waiver of counsel is understandingly and wisely made only from a penetrating and comprehensive examination of all the circumstances under which such a plea is tendered.” (Emphasis supplied.) In the present case, the crimes charged were of a very serious nature. The defendant McCray’s position was difficult even if properly represented. The possible defenses available were involved and in some instances highly technical. Despite this, the trial court made no attempt to acquaint him with an apprehension of the charges or the possible defenses thereto. He was not asked if he understood the substantial differences in the various indictments. The possibility of the defense of reputation for prior unchasity by the victim to the rape indictment was unmentioned. Likewise, the right to subpoena witnesses and the very important factor involving the possible effect of the adverse position of the co-defendant and his counsel were not alluded to. In fact, the trial court made no analysis at all. McCray was confronted, not only with the efforts of the district attorney to convict, but also the determination of counsel for the co-defendant to ¡dace the blame upon him. Under the circumstances, it is difficult to conclude that a fair hearing ensued or that an extremely important and fundamental right was intelligently forfeited. In any event, the trial court took no steps to make sure that the latter was the case. If proper inquiry had been made, it would have been ascertained, that the defendant had attempted to secure his own counsel without success; that as a result he was depending upon the services of the Defenders’ office and was not advised until the last moment that such would be denied; and, all important ly, that he was inadequately prepared to meet the serious challenge presented. In support of its position that the waiver was made with complete understanding, the Commonwealth asserts that McCray is a mature, intelligent individual with a professional background. Also, that he had prior court experience. The record does not disclose the extent of his education. An examination by the court should have disclosed this. The assertion that he is a “professional man” stems from his claim that he is an ordained minister. The truth is that his ordination was based upon training received at a local church and is hardly the type that one associates with the term “professional.” Finally, the fact that the defendant cross-examined witnesses and actively participated in the trial, while important, is not in itself persuasive. A reading of the record indicates that his limited skills were inadequate for the occasion. Also, in Gideon, supra, the defendant actively participated in the trial, but this did not prevent invalidation of the conviction. In Glasser v. United States, 315 U. S. 60, 62 S. Ct. 457 (1942), where the accused was a former United States Attorney, the opinion indicated that the trial court should not consider lightly the question of waiver of the right to counsel. In the present case, the inquiry by the trial court was too superficial and inadequate to insure that fundamental rights were protected. Order reversed and record remanded with directions that the writ issue and a new trial ordered. Mr. Chief Justice Bell dissents.

OPINION Justice NEWMAN. This Court is called upon to decide the appropriate mechanism by which a workers’ compensation claimant can institute proceedings to amend a Notice of Compensation Payable (NCP) to add additional injuries. In the instant matter, Shawn Hass (Appellant) was employed by Jeanes Hospital in Philadelphia (Employer) for about ten months as an intensive care nurse when, on August 31, 1995, she was injured while attempting to relocate a ventilator-dependent patient by means of a Hoyer lift. The Employer accepted responsibility and she received benefits for total disability pursuant to an NCP, which described the work-related injury as “low back.” On July 19, 1999, nearly four years after the injury, Appellant was examined by Dr. Barry Lipson, a specialist in orthopedic surgery, at the request of Employer, following which Dr. Lipson certified Appellant’s full recovery from her August 31, 1995 “lumbar strain and sprain”. Employer filed a Petition to Suspend or Terminate Benefits on September 1, 1999, alleging that Appellant was fully recovered from her work-related injury as of August 23, 1999. Appellant then filed a Petition to Review Compensation Benefits on September 21, 1999, seeking attorneys fees and amendment of the description of the work related injury contained in the NCP. Appellant wished to amend the NCP to cover work-related shoulder injuries, fibromyalgia, thoracic outlet syndrome , and depression. A workers’ compensation judge (WCJ) conducted hearings during which Appellant testified in support of her Petition and in opposition to that of Employer. Specifically, Appellant described the circumstances of the injury to her back and shoulder. She testified that she was attempting to move a ventilator-dependent patient by means of the Hoyer lift with the assistance of two other nurses. The lift caught on a chair and the patient began to slide. She stated that she caught the entire weight of the patient and held her until the two other nurses were able to properly position the chair. Appellant reported the incident to her supervisor and went directly to the emergency room complaining of back pain. The Business Health Department of Employer provided follow up treatment for the six months following the injury. Appellant stated that her shoulder began to hurt within two days of the incident, which she disclosed to the physicians in Business Health. Subsequent treatment included initial conservative measures, instrumented spinal surgery performed by Dr. Richard Balderston in September of 1996, shoulder surgery by Dr. Gerald Williams (Dr. Williams) in January of 1996 , further treatments by Dr. Carla Rodgers (Dr. Rodgers), a psychiatrist concentrating in pain management, beginning in April of 1998 and continuing to the date of the hearing, as well as treatments by a rheumatologist, Dr. Michael Franklin (Dr. Franklin), because the surgeries failed to alleviate her pain. Further, Dr. Williams diagnosed Appellant with Thoracic Outlet Syndrome in November of 1997. Appellant also described her unsuccessful, one-day, attempt to return to work for the same employer in October of 1995, her unsuccessful three-month return to work, and her continuing symptoms of pain, loss of mobility, and depression, which, in her view, prevented any return to work as a critical care nurse. She disclosed a previous work-related back injury in 1993 that had completely resolved and that, aside from irritable bowel syndrome and polycystic ovarian disease, she had been physically and emotionally healthy until this work accident. She also acknowledged prior psychiatric problems and two previous suicide attempts in her early adult years. Dr. Rodgers, Appellant’s psychiatrist, testified by deposition that her examination of Appellant included the administration of various psychological tests from which she concluded that Appellant continues to be disabled by “pain disorder with associated psychological and physical factors.” (Deposition of Dr. Carla Rodgers dated March 20, 2000, at 13.) She elaborated that Appellant has chronic unremitting pain causing depression and feelings of being overwhelmed. Id. In the opinion of Dr. Rodgers, Appellant’s medical prognosis is guarded at best and she remains totally disabled by psychiatric infirmities that are directly connected to the work-place injury in 1995. Id. at 16. Although Appellant sees more than one physician, Dr. Rodgers prescribes all of her pain medications and coordinates Appellant’s pharmaceutical regimen to ensure that no contraindicated drugs are prescribed. On cross-examination, Dr. Rodgers conceded that she had reviewed few of the notes of Appellant’s previous physicians, and was unaware of Appellant’s previous suicide attempts. Dr. Franklin, Appellant’s rheumatologist, examined her on October 21, 1998, and concluded that she is disabled by fibromyalgia syndrome, a set of associated symptoms of unknown etiology including a recognized symmetrical distribution of locations on the body that produce pain when touched. He provided a detailed recitation of Appellant’s medical history and conducted a battery of tests (both blood and muscle), thereby ruling out Thoracic Outlet Syndrome, autoimmune disorders, metabolic disorders, and thyroid problems. (Deposition of Dr. Michael Franklin dated April 26, 2000, at 16.) On physical examination, Dr. Franklin noted multiple tender points in the shoulder area, the lateral epicondyles outside the hips, the medial fat pads of the knees, and the bursa below the knee. Dr. Franklin thus concluded that Appellant is totally disabled by Fibromyalgia Syndrome and that her prognosis is poor to guarded. It was his opinion that Appellant’s fibromyalgia is a direct result of her work-related shoulder injury. Employer presented the expert testimony of its orthopedic specialist, Dr. Lipson, and psychiatric expert, Susan Fenichel, M.D. (Dr. Fenichel); the former opining that Appellant was fully recovered from her workplace injury and could return to her previous position without restrictions, and the latter that Appellant remained disabled by chronic pain and depression but that these conditions were not related to the work incident of August 1995. Dr. Lipson testified that Appellant’s complaints of pain did not correlate with the results of his objective examination or diagnostic testing, and he opined that Appellant was being prescribed excessive amounts of narcot ics. Dr. Fenichel testified that Appellant suffered from no disabling psychiatric condition and required no further psychiatric treatment because of the work place injury. She also expressed concern as to the quantity of narcotics being prescribed for Appellant by Dr. Rodgers. The WCJ credited the testimony of Appellant arid Drs. Franklin and Rodgers. Specifically, he credited Appellant’s testimony that she had injured her shoulder in the August 1995 work incident and that she had not fully recovered from her injury. He found the testimony of Dr. Franklin credible because Dr. Franklin had reviewed all of Appellant’s medical records, had treated Appellant over time, and had credibly determined that Appellant suffered from fibromyalgia. The WCJ concluded that the testimony of Drs. Lipson and Fenichel was less credible, and determined that Appellant was not fully recovered as of August 23, 1999, from the fibromyalgia and “pain disorder with associated psychological and physical factors” sustained as a result of the August 1995 workplace injury. The WCJ decided that, based on the medical evidence, the NCP, in describing the injury solely as a “low back” injury, contained a material factual misstatement. The WCJ granted Appellant’s Review Petition and ordered correction of the NCP to add the shoulder injury, fibromyalgia, and pain disorder with associated psychological and physical factors, denied Employer’s Petition to Suspend or Terminate benefits, and rejected Appellant’s demand for penalties. On appeal to the Workers’ Compensation Appeal Board (Board), Employer argued that Appellant had incorrectly filed a Petition to Review, rather than filing a Claim Petition. The Board acknowledged that the decision of the Commonwealth Court in AT & T v. Workers’ Compensation Appeal Bd. (Hernandez), 707 A.2d 649 n. 2 (Pa.Cmwlth.1998), required the filing of a Claim Petition to add additional injuries. However, it noted that the Commonwealth Court had also held that the “form of the petition is not controlling where the facts warrant relief to a claimant.” Coover v. Workmen’s Compensation Appeal Bd. (Browning-Ferris Inds.), 140 Pa. Cmwlth.16, 591 A.2d 347, 350 (1991). Finding the credibility determinations unassailable, and that substantial evidence supported the conclusions of the WCJ, the Board held that “the Judge correctly determined that [Appellant] met the burden of proof necessary to add the conditions to the Notice of Compensation Payable, regardless of the form of the petition filed.” (Board Opinion dated January 10, 2002, at 6.) Employer next argued that there was no evidence demonstrating that Appellant’s work injury continues and that the WCJ erred in concluding that it had not met its burden of proof for termination. The Board noted that the WCJ specifically credited the opinions of Dr. Franklin and Dr. Rodgers, which supported the contention of Appellant that disability had not ceased. Because it was Employer’s burden to prove that all disability had ceased, the credited evidence did not enable Employer to meet its burden. Accordingly, the Board affirmed the decision of the WCJ. Employer appealed to the Commonwealth Court, which affirmed in part and reversed in part in a published decision. Jemes Hospital v. Workers’ Compensation Appeal Bd. (Hass), 819 A.2d 131 (Pa.Cmwlth.2003). The court stated that, while a WCJ has the authority to amend an NCP when a material mistake occurs, the material mistake must exist at the time that the NCP is issued for Section 413 to apply. The court noted that none of the additional injures alleged by Appellant existed when the NCP was issued and there was no material mistake. It opined that, for injuries that arise subsequent to the work injury and that are not accepted by the employer in its NCP, Section 413 does not apply and a claimant must file a claim petition subject to the limitations of Section 315, 77 P.S. § 602. The court reasoned that the only exception to this scheme is when the additional compensable injuries arise as a natural consequence of the accepted injury. See Campbell v. Workers’ Compensation Appeal Bd. (Antietam Valley Animal Hospital), 705 A.2d 503 (Pa.Cmwlth.1998). The court went on to address the precept that the form of the petition is not controlling when a claimant is entitled to relief, which formed the basis for the Board’s affirmance of the WCJ. It noted that its decision in Coover was interposed with concerns of prejudice where the claimant was unfairly blindsided when he expected to address one matter and the WCJ decided another. In Coover, the WCJ terminated a claimant’s benefits based on the evidence presented, even though the employer had not sought termination before the close of the hearing process. The court reasoned that, even though the Act permits a WCJ to fashion appropriate relief, it was highly prejudicial to a claimant for a WCJ to terminate benefits where a claimant was unaware that benefit termination was an issue. The court observed that the unfair prejudice concern present in Coover was lacking in the instant matter where the Petition filed by Appellant adequately set forth the relief that she was seeking. Finally, in the case at hand, the court reviewed the claim of Employer that the WCJ should have granted its Termination Petition. It recognized that the WCJ credited the testimony of Appellant that she continues to have low back pain and specifically rejected the testimony of Dr. Lipson that Appellant had fully recovered from her work injury. The court opined that, based particularly on these distinct factual findings, the WCJ believed that Appellant had not fully recovered and that she had sustained additional injuries. As such, there was no credible evidence to support a finding that all disability had ceased to sustain Employer’s Termination Petition. Appellant sought allowance of appeal asserting that: (1) the Commonwealth Court had deviated from this Court’s holding in Commercial Credit Claims v. Workers’ Compensation Appeal Bd. (Lancaster), 556 Pa.325, 728 A.2d 902 (1999); (2) the court erred in determining that a claim petition must be filed to add additional injuries; and (3) if a claim petition was required, whether it was time barred. We granted her Petition, limited to the issue of whether the appropriate filing is a Claim Petition or a Petition to Review. DISCUSSION It is fundamental to the sequence of events in a workers’ compensation matter, that the process is initiated by injury to the employee and notice to the employer. Like a flow chart, the path taken following this notice depends on whether voluntary acceptance of liability for the injury is assumed by the issuance of an NCP, or a Claim Petition is filed to adjudicate liability. The paths converge when liability is established, and the employee receives medical and wage loss benefits, as applicable, for the established and accepted injury. Problems arise, however, when the injured employee develops additional physical or psychological maladies, because an employer is responsible not only for the direct and immediate consequences of a work-related injury, but also for injuries that are causally related to the accepted work injury. 77 P.S. § 411. The essence of this controversy is whether a claimant who develops a subsequent physical or psychological condition is required to file a Claim Petition seeking an adjudication that the condition is compensable or a Review Petition seeking to amend the NCP to reflect further injuries. The same dilemma is faced when the NCP does not reflect all of the injuries sustained by the claimant. The Commonwealth Court has been less than consistent in addressing this issue. Beginning with AT & T v. Workers’ Compensation Appeal Bd. (Hernandez), 707 A.2d 649 (Pa.Cmwlth.1998), the Commonwealth Court determined that the only way to correct an NCP to add an injury, was to file a Claim Petition. There the court stated: We note that the [Act] makes no provision for a claimant to amend a notice of compensation payable to include an additional injury not admitted to by the employer at the time the employer initially issued the notice of compensation payable. A notice of compensation payable is not an agreement between the parties, but, rather, is a voluntary admission by the employer; in an effort to avoid litigation, the employer admits responsibility, and assumes liability, for the employee’s injury as specifically described in the notice of compensation payable. Because there is no right to appeal from a notice of compensation denial, and because there exists no authority that would permit any entity other than the employer itself to add to the employer’s admission in the notice of compensation payable, Claimant here should have filed a claim petition in order to receive benefits for the hip injury which he alleges also resulted from his April 8, 1989 work incident. We now take this opportunity to caution practitioners against the inappropriate filing made here.... Id. at 650 n. 2. In AT & T, Ruben Hernandez (Hernandez) sustained a work-related injury when a cabinet full of computers fell on his hip and side, pinning him to the floor. The employer accepted liability for a “back sprain” and Hernandez collected benefits for a little over three months. During this timeframe, Hernandez developed bilateral aseptic necrosis of his hips. The employer then filed a Termination Petition alleging that Hernandez had recovered from his “back strain” and could return to work except for his non-work-related aseptic necrosis. Hernandez filed a Petition to Review, seeking to amend the incomplete description of the work injury contained in the NCP. The Commonwealth Court permitted the amendment and treated the filing as a claim petition because the employer failed to challenge the legitimacy of the Petition to Review. In doing so, the court cautioned future claimants that filing a claim petition was the appropriate action when seeking benefits for conditions other than those delineated in the NCP. The following year, this Court decided Commercial Credit Claims v. Workmen’s Compensation Appeal Bd. (Lancaster), 556 Pa.325, 728 A.2d 902 (1999). There, an employee fell twenty-eight feet from a catwalk while taking photographs in his occupation as a claims adjuster. The employer accepted liability for the physical injuries and, three years later, sought to terminate benefits because of full recovery. In opposition, the employee testified that he continued to experience pain. The employer’s medical expert stated that the original injuries could not justify the continued level of pain as expressed by the employee, and that, in his opinion, the cause of the continuing pain was psychological. The WCJ concluded that, because the employer’s medical expert could not rule out a connection between the work injury and the disabling psychological condition, the employer was not entitled to a termination of benefits. The Board and the Commonwealth Court affirmed. This Court granted allowance of appeal in that case to determine whether an employer attempting to terminate workers’ compensation benefits must disprove a causal relationship between the injury and the subsequently alleged psychiatric overlay where the employer had accepted liability only for physical injuries. After reviewing the modification procedures provided by the Act, the Court determined that the psychiatric overlay could form the basis for continued benefits only if the NCP had been properly modified. We noted that either party may file a Petition to Modify pursuant to Section 413(a) of the Act, and the party so moving has the burden of proving the grounds for modification. In dicta, the Court observed that the claimant was not without a remedy as he could file a Petition to Modify the NCP to add the additional injury. In effect, our decision in Commercial Credit Claims disapproved of the concepts expressed by the Commonwealth Court in footnote two of AT & T. Subsequently, the court followed Commercial Credit Claims in such cases as Westinghouse Electric Corp./CBS v. Workers’ Compensation Appeal Bd. (Korach), 829 A.2d 387 (Pa.Cmwlth.2003), and Westinghouse Electric Corp./CBS v. Workers’ Compensation Appeal Bd. (Burger), 838 A.2d 831 (Pa.Cmwlth.2003), yet AT & T in the instant matter, prompting our review. Appellate review in workers’ compensation matters is limited to determining whether constitutional rights were violated, whether an error of law was committed, whether the practices and procedures of a Commonwealth agency were followed, and whether the findings of fact made by the WCJ and necessary to support its decision were supported by substantial evidence. 2 Pa.C.S. § 704; Gunter v. Workers’ Compensation Appeal Bd. (City of Philadelphia), 573 Pa.386, 825 A.2d 1236, 1238 (2003). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Bethenergy Mines v. Workmen’s Compensation Appeal Bd. (Skirpan), 531 Pa.287, 612 A.2d 434, 436 (1992). Because this appeal raises questions of law, our standard of review is plenary. Rossa v. Workers’ Compensation Appeal Bd. (City of Philadelphia), 576 Pa.349, 839 A.2d 256, (2003). Modification of the NCP to reflect further injuries is governed by Section 413(a) of the Workers’ Compensation Act (Act). Section 413(a) of the Act reads in pertinent part: A workers’ compensation judge may, at any time, review and modify or set aside a notice of compensation payable ... or upon petition filed by either party with the department, or in the course of the proceedings under any petition pending before such workers’ compensation judge, if it be proved that such notice of compensation payable or agreement was in any material respect incorrect. (77 P.S. § 771.) A workers’ compensation judge designated by the department may, at any time, modify, reinstate, suspend, or terminate a notice of compensation payable ... upon petition filed by either party with the department, upon proof that the disability of an injured employe has increased, decreased, recurred, or has temporarily or finally ceased .... Such modification, reinstatement, suspension, or termination shall be made as of the date upon which it is shown that the disability of the injured employe has increased, decreased, recurred, or has temporarily or finally ceased ... Provided, That, except in the case of eye injuries, no notice of compensation payable, agreement or award shall be reviewed, or modified, or reinstated, unless a petition is filed with the department within three years after the date of the most recent payment of compensation made prior to the filing of such petition.... And provided further, That where compensation has been suspended because the employe’s earnings are equal to or in excess of his wages prior to the injury that payments under the agreement or award may be resumed at any time during the period for which compensation for partial disability is payable, unless it be shown that the loss in earnings does not result from the disability due to the injury. (77 P.S. § 772.) The workers’ compensation judge to whom any such pétition has been assigned may subpoena witnesses, hear evidence, make findings of fact, and award or disallow compensation, in the same manner and with the same effect and subject to the same right of appeal, as if such petition were an original claim petition. (77 P.S. § 773.) 77 P.S. §§ 771, 772, 773 (emphasis added). The import of these paragraphs is clear. The WCJ may amend an NCP if it is materially incorrect or if the disability status of the injured employee has changed. An NCP is materially incorrect if the accepted injury (or injuries) does not reflect all of the injuries sustained in the initial work incident. Conversely, and also covered by Section 413(a), injuries that result or flow from the original injury, represent an increase in disability. The often overlooked third paragraph of Section 413(a) requires that petitions filed pursuant to this section be treated the same “as if such petition were an original claim petition.” 77 P.S. § 773. It is, therefore, unnecessary, as the Commonwealth Court held, for a claimant to file a new claim petition for additional injuries not accepted by the employer, because the WCJ is empowered to and must treat a modification petition alleging those additional injuries as if it were a claim petition. Stated another way, a Petition to Modify an NCP functions as a claim petition for the purpose of adding additional injuries. Because it functions “in the same manner and ■with the same effect,” the burdens of proof for the respective parties are the same as if an actual claim petition had been filed. This provision is critical because the employer has not heretofore accepted liability voluntarily for the additional injury. Despite the concept espoused in AT & T, and followed in the instant matter, that the Act provides no mechanism for amending an NCP, Section 413(a) establishes the limits of authority for amendment by the WCJ and the burdens of the respective parties. With the foregoing in mind, we turn to the specifics of the matter under review. Having established that the appropriate filing to seek a modification of the NCP to correct the description of the work injury is a Petition to Review, we note that Appellant made the correct filing. The Petition alleges a material mistake of fact in that “The NCP fails to reflect claimant’s work-related shoulder injuries, fibromyalgia, Thoracic Outlet Syndrome and depression.” (Original Record, Petition to Review dated September 21, 1999, side 1.) The burden belonged to Appellant to satisfy her burden that there was a material mistake as to the work injury description. To that end, Appellant testified that she injured her shoulder during the same incident and sought treatment within two days of the injury. The record also reflects that Dr. Williams treated Appellant conservatively with physical therapy and site injections before performing surgery five months after the injury. The WCJ found the testimony of Appellant completely credible and sufficient evidence supports the conclusion of the WCJ that the NCP was materially incorrect when it was issued and subject to modification to add the shoulder injury. Dr. Franklin, who is currently treating Appellant, testified that he diagnosed fibromyalgia based on his examination, her medical history, and her symptomology in October of 1998. The WCJ credited this testimony, which was unequivocal. Employer argues that the NCP could not have been materially incorrect at the time it was issued for failing to include this condition because Appellant’s fibromyalgia developed some time after the initial incident. While Employer is correct, Section 413(a) permits the WCJ to modify an NCP whenever it is shown that disability increased. Appellant’s increasing-levels of pain as evidenced by the difficulty that Dr. Rodgers and Dr. Franklin have experienced in finding a treatment regimen that will restore her quality of life, make reinstatement of Appellant’s earning capacity less than likely. Further, Dr. Franklin’s credible testimony established that Appellant’s fibromyalgia flowed directly from her work-related shoulder injury. We see no error in modifying the NCP to include fibromyalgia. Appellant sought to modify the NCP to add coverage for Thoracic Outlet Syndrome. Notably, the WCJ made no findings as to whether Appellant satisfied her burden of proving this condition. However, the WCJ did not include this condition in the modification and Appellant has not cross-appealed this determination. Finally, Appellant sought to have the NCP reflect the depressive state that has developed as a result of, and is now a part of, the work injury. Both Dr. Rodgers and Dr. Fenischel testified that Appellant was depressed; the difference was in the degree. The WCJ credited the testimony of Dr. Rodgers, which was sufficient to undergird the conclusion of the WCJ that Appellant’s depression was a direct result of the work injury. Further, Appellant testified that she was depressed because she could not return to work as a critical care nurse. Based on the foregoing, we find that the WCJ properly amended the NCP to add Appellant’s shoulder injury, fibromyalgia, and psychiatric overlay. CONCLUSION Within the workers’ compensation scheme, we have recognized a number of important public policies. Among those are the positives attendant to the voluntary payment of medical expenses, the appropriateness and desirability of limiting, through statutes of limitations and repose, the time during which claimants must act, and the humanitarian goals that are realized when the system works as intended. When an NCP description of injury does not correctly reflect the actual injury or enumerate all of the injuries sustained in a work-related incident, Section 413(a) sets forth the procedure by which the NCP is modified. Pursuant to Section 413(a), a claimant must file a Petition to Review Notice of Compensation Payable, which is treated like a claim petition. As in a claim petition, the claimant has the burden of proving all elements to support the claim for benefits. In the instant matter, Appellant filed a Petition to Review Notice of Compensation Payable and sustained her burden of demonstrating a material misstatement of fact. Accordingly, the Order of the Commonwealth Court is reversed. Justice BAER concurs in the result. Justice EAKIN files a dissenting opinion. . A Hoyer lift is a brand name used to refer generically to a mechanical (hydraulic or electric) lift device that provides total lift to a patient and prevents injury during transfer. A sling is placed underneath the patient's body, which can be either manually or electrically elevated. This lift is used when a patient cannot provide any assistance in his or her transfer or when his or her body cannot be manipulated in a manual lift. A Hoyer lift transfer requires at least two people to assist in the transfer: one to operate the mechanical lift and the other to guide the patient, as in the instant matter, into the chair. . Fibromyalgia is a syndrome of unknown etiology characterized by chronic pain, both generalized and located at one or more identifiable "tender points.” Other symptoms that frequently accompany this painful condition include depression, irritable bowel syndrome, tingling and numbness in the hands and feet, urinary frequency, and menstrual problems. Especially affected are the occiput, low back, neck, and shoulders. The Merck Manual 1369-70 (16th Ed. 1992). . According t'o the National Institute of Neurological Disorders and Stroke, " 'Thoracic outlet syndrome' consists of a group of distinct disorders that affect the nerves in the brachial plexus (nerves that pass into the arms from the neck) and various nerves and blood vessels between the base of the neck and axilla (armpit). For the most part, these disorders have very little in common except the site of occurrence. The disorders are complex, somewhat confusing, and poorly defined, each with various signs and symptoms of the upper limb.” National Institute of Neurological Disorders and Stroke, Health Information, Disorders, Thoracic Outlet Syndrome at http://www.ninds.nih.gov/healtli_and_medical/disorders/thoracic_doc. htm (last visited August 3, 2004). . Appellant’s testimony apparently describes the shoulder operation incorrectly as “in January of 1995.” (Notes of Testimony dated May 31, 2000 at page 22.) She later testified that the surgery occurred in January of 1996, prior to her back surgery in September of 1996. Because Appellant testified that she treated with Business Health for the first six months after the injury and did not seek outside treatment until after her care by Business Health ended, the timeframe gets a little murky. No records from Business Health were entered into evidence to enable us to corroborate the dates independently. However, Employer has not disputed this factual information, and we will accept it for purposes of this Opinion. . Section 315 states in pertinent part: In cases of personal injury all claims for compensation shall be forever barred, unless, within two years after the injury, the parties shall have agreed upon the compensation payable under this article; or unless within two years after the injury, one of the parties shall have filed a petition as provided in article four hereof.... Where, however, payments of compensation had been made in any case, said limitations shall not take effect until the expiration of two years from the time of making of the most recent payment prior to date of filing such petition.... 77 P.S. § 602. . The record does not show that formal notice of the additional injuries was provided to the employer prior to the filing of the Petition to Review on September 21, 1999, particularly the advent of fibromyalgia and depression, although there is some evidence that Employer was made aware of Claimant's shoulder injury. However, Employer has not raised an issue of lack of notice and we will not pursue it. At the same time, we find the prevailing custom of delaying notification of additional injuries, such as the fibromyalgia and depression, until the employer files a Termination or Suspension Petition troubling. . Section 411 defines the covered events and states in pertinent part: The terms ‘‘injury" and “personal injury,” as used in this act, shall be construed to mean an injury to an employe, regardless of his previous physical condition, arising in the course of his employment and related thereto.... 77 P.S. 411(1). . The work injury in Commercial Credit Claims occurred in 1983. The WCJ stayed the proceedings because of the employee's illness and the matter was not resumed until approximately 1995. As a result, sixteen years elapsed between the date of the work injury and the decision of this Court. . Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4; 2502-2626. Section 413(a) has been divided by Purdon’s Pennsylvania Consolidated Statutes Annotated into three separate sections, 77 P.S. §§ 771, 772, and 773, representing each of the three paragraphs contained in the actual Section 413(a). . Within the workers’ compensation scheme, disability is the loss of earning power as expressed in diminished earning capacity. Woodward v. Pittsburgh Engineering & Construction Co., 293 Pa. 338, 143 A. 21 (1928). An increase in the extent or severity of the injuries increases the length of impairment that will be reflected in an overall reduction in earnings and, therefore, the increase, decrease, recurrence, or cessation of the injury has a direct impact on earning capacity, viz. disability. . Our review of the record discloses that Appellant produced no expert medical testimony that she suffered from Thoracic Outlet Syndrome.

The opinion of the Court was delivered by Kennedy, J. If the attorney had directed the lots on his bids to have been returned by the sheriff as sold to himself, and the sheriff had accordingly done so, and had made and delivered the deeds of conveyance therefor to him, upon his undertaking to settle the amount of the purchase money with his clients, it could scarcely admit of a question, that the plaintiffs in the judgment would have had a right to have claimed that his purchase was made in trust for them. The attorney in such case being employed by his clients to collect the amount of the judgment and to do the best he can for them in this respect, it is altogether incompatible with those motives of action which ought to govern him, and which alone are suited to secure a faithful discharge of the trust, to pérmit him to become the purchaser of the property for his own benefit, unless it be for a sum sufficient to cover the whole amount of his clients’ demand. To permit him to buy for his own use for a less sum, without the consent of his clients, would be enabling him to make a gain or profit by sacrificing their interests; because the lower the price for which he should purchase the property, the greater his advantage in doing so; such a principle, therefore, is not to be tolerated. And indeed no rule seems to be better settled, than that whenever confidence is reposed in a person, who, from his being placed in such situation, has it in his power to gain an advantage, without the certainty of discovery, by sacrificing the interests of those he is bound to protect, he shall not be suffered to enjoy it except by their consent, and not even then unless they be competent to part with their right to protection in this respect. Neither is this rule to be understood as applicable only where it is shown that some advantage has been actually gained by the party acting in the character of an agent or trustee, by making a purchase in his own name, in order to give those alone whose interest he was bound to consult , and promote, the benefit of the purchase. It would in many cases be of little avail, if it were so; it arises from the nature of the relation between the parties, and is alike applicable, however honest and fair the purchase may be; and it is not necessary to inquire whether the purchase is an advantageous one or not: because, the fact may be so, and yet not susceptible of being distinctly and clearly proved at the time; or there may even be fraud in it, and the party against whom it has been committed, not able to prove it. The rule therefore is founded in principles of public policy; and with a view to protect the interests of those for whom the party has undertaken to act, all temptation to do any thing in opposition thereto, is removed, by giving them the right of claiming the benefit of tbe purchase. And there is perhaps no relation, in which the confidence is greater between the parties than that of attorney and client,' and where the influence over th.e mind and interests of the client is greater, than that possessed by his attorney. The most implicit confidence is reposed in the integrity, skill, and discretion ot the latter, and that all these will be exerted to the utmost of his ability, so far as may be necessary, to accomplish the end for which he is retained. And although the sheriff is the agent of the law in making sales of property taken in execution, and in doing so, may very properly be considered as acting under the authority thereof, yet the attorney of the party, at whose suit the property is about to be sold, has a control in regard to it, that may in many instances be exercised either to the advantage or prejudice of his clients as he pleases. It may be advisable, for instance, on the part of the attorney, after the property has been advertised for sale, or after it has been exposed to sale, for some good reason, to postpone or countermand the sale, in order to obtain a better price and make the amount of his client’s claim, by offering it. for sale at a future time; or he seeing, at the time first appointed for the sale, that the property was likely to be sold for a price greatly below its real value and the amount of his client’s debt, might, instead of countermanding it, urge the sheriff to go on and make the sale, and he become the buyer himself for his own use; but if his clients have the right to claim the benefit of such purchase, the attorney will not be likely to permit the sheriff to sell under circumstances that might prove injurious to their interests. If the attorney then cannot become a purchaser of the property for his 'o,wn use at a price or prices insufficient to pay the amount of his client’s judgment, because inconsistent with those principles and motives upon which he is required to act in order to ensure a faithful discharge of his duty towards his clients, is it not .equally apparent that where he has undertaken to act as tbe attorney of two in a matter where they are jointly concerned, as in this case, and to do the best he can for the common benefit of both, that he cannot, consistently with the duty he owes to them, become the agent of one exclusively without the knowledge or consent of the other, and purchase the property for him at the sheriff’s sale, upon the most favourable terms or lowest prices that it can be had. To permit the attorney to serve and promote the wishes of the one in this respect, may very readily tend to prejudice the interest of the other, and therefore ought not to be sanctioned. In short he ought not to assume any .agency for one, that might tend to excite a feeling on his part, which would conflict in the slightest degree with the faithful discharge of the duty which he owes to the other. But his undertaking to buy the property for one, may incline him to wish to get it at reduced prices, while his paramount duty to the other, requires that he should do all he can to make it bring its full value, in order to satisfy the judgment. It would therefore seem to be just and equitable, as well as agreeable to the dictates of sound policy, that the other plaintiff should, have the right at his option to claim a joint and equal interest in the purchase. Let us suppose that one, of two plaintiffs in a judgment, should undertake by agreement with his partner, of which agreement his action and interference in the matter might be sufficient evidence, without any direct proof of it, to collect the amount, would it be considered consistent with a faithful discharge of such agreement, for him, having a control over the sheriff, so far at least, as to countermand the sale at one time and to renew the order for it at another, when all the property of their debtor was levied on and about to be sold under this judgment, to buy it at reduced prices, leaving more than one half the amount of their judgment still unsatisfied, and having by a resale afterwards made the whole amount of the judgment out of the property, to refuse to account to his partner for more than one half the aggregate bidden by him at the sheriff’s sale, under the plea that he had bought exclusively for his own use? It appears to me that it would not be in good keeping with his agreement, and that it would be a direct violation of the doctrine and rule stated above, which prevails in and regulates all cases of trust or confidence. In such case the acting plaintiff must be considered as acting for the benefit of both, and when the property is purchased for the purpose of securing the debt, or as much of it as possible, it ÍS' nothing but just and equitable that it should be held and taken to have been bought in trust for the use of both. Under this view we think that the purchase of the lots in question must be deemed to have been made in trust for both the plaintiffs in the judgment, there appearing to have been no consent either express or implied on the-part of William C. Black, that it should be made exclusively for the defendant here. Besides, it would rather seem that the lots were bought with the joint funds of the two, which would of itself alone be sufficient to create a resulting trust in favour of William C. Black. This is a fair inference, because it does not appear that the defendant ever accounted to him in any way for his half of the purchase-money or prices bidden for the property at the sheriff’s sales. If, however, the fact be, that William C. Black and the defendant were partners in trade, and the judgment against James Black, was for a partnership debt, and upon settlement of the partnership accounts, the whole amount of this debt should be found to be absorbed in payment of or wanting to pay partnership debts, then the interest of William C. Black in the property may amount to nothing; for if he were living, he could only claim for his exclusive use one-half, or whatever his proportion, according to the terms of the partnership agreement might be, of the surplus of the partnership stock or property, remaining after the payment of all debts and claims existing against it. The defendant being the surviving partner, has, therefore, a claim or lien on the property for the purpose of paying such debts and claims, if not already satisfied, and of the partnership funds; and the separate creditors of William C. Black could therefore only levy on and sell such separate and exclusive right as should remain after payment of the partnership claims; whatever that may be, the purchaser at sheriff’s sale will ultimately be entitled to hold it. And in the mean time he is entitled to recover the possession of an undivided moiety of the lots, and to hold it until it shall be made to appear, as has been suggested, by a settlement with the personal representatives of William C. Black, that it will be required for the payment of the partnership debts, or the reimbursement of the defendant, if she shall have paid to that amount out of her separate funds. We therefore think that the court below erred in advising the jury as they did, that from the evidence the plaintiff was not entitled to recover, and that their verdict ought to be in favour of the defendant. Judgment reversed, and a venire de novo awarded.

Opinion by Mr. Justice Ladner, From the findings of the learned chancellor supported by adequate evidence and approved by the court en banc, we state the following facts: The defendants, Anna M. Kiesel, William Kiesel, Jr., and Ruth R. Kiesel, hereinafter referred to as individual defendants, being owners of premises 101 Montgomery Avenue, Bala Cynwyd, Pa., engaged Louis Traiman Auction Company of Pa., hereinafter referred to as Traiman Company, to act as their agent in advertising and selling their property at public auction. Traiman Company prepared a handbill advertising the property which contained among other statements, the following: “An unusually desirable property, ideal as a private home, excellent for a professional man, also splendid for apartments which would bring in a handsome income in addition to providing beautiful living quarters for the owner.” William Kiesel, Jr., one of the owners, informed Traiman Company that the property was zoned R-5 which permits apartments, that there were apartments in the property and that other properties in the area, including the adjoining property were apartment houses. The handbill prepared by Traiman on this information, among others, was read to prospective bidders by representatives of Traiman at the auction sale held June 29, 1948, on the premises. The plaintiffs, A. J. LaCourse and Benjamin M. Snyder, Jr., attended the auction sale, had examined the handbill advertising the sale and heard it read by. the auctioneer. They also made an inspection of the premises and then entered into competitive bidding and tbe property was knocked down to them as the highest bidder at $33,000. The vice president of the Traiman Company then presented a form of agreement of sale to plaintiffs for execution which was executed by Traiman as agent for the owners and by the purchasers, who paid a deposit of $5,000 at that time. The agreement of sale, among other things, contained a clause that the property was sold “free and clear of all liens and encumbrances, except as otherwise herein stated, but to be subject to all existing restrictions, easements, zoning regulations, and, ordinances, statutes and regulations of any constituted public authority, now in force or which may be passed prior to final settlement.” The agreement also contained the provision that the title should be “good and marketable and such as will be insured at regular rates by any responsible Title Insurance Company” etc. Thereafter the plaintiffs applied to the Commonwealth Title Company of Philadelphia, and from the information certificate sent them learned for the first time that the restrictions prohibited the use of the property other than as a single residence. Prior to the receipt of this information the plaintiffs had engaged an architect to prepare plans for the conversion of the property into apartments, which services were discontinued later, because of the restriction and a bill for $215 paid him. Upon learning of the restriction plaintiffs promptly offered to rescind the agreement of sale or to allow the defendant owners additional time to remove the restrictions. Defendants were not able to have the restrictions removed and called upon plaintiffs to make settlement subject to the restriction. Plaintiffs then brought a bill in equity against the defendants for cancellation of the agreement of sale and return of the deposit money as well as the sum of $215 paid to the architect and $30 paid to the title company. The chancellor found for the plaintiffs and entered a decree nisi against the individual defendants which requires them to return to the plaintiffs the $5,000 deposit money with interest and the further sum of $245 above mentioned, to which decree nisi exceptions were filed as well as to the adjudication and findings, all of which were considered by the court en banc and dismissed, and the decree nisi confirmed absolutely. From said action of the court we have this appeal. The appellants argue first that the representation in the auctioneer’s circular read to the bidders was not a material misrepresentation. The learned court held that it was material. We find no difficulty in agreeing with the court below. The language of the circular was equivalent to a statement that there were no legal obstacles in the way of the use of the property being sold for apartments. Any fair-minded person would naturally assume from the statement that the property was “splendid for apartments which would bring in a handsome income in addition to providing living quarters for the owner,” that the restrictions mentioned did not prohibit such use. Otherwise, neither the auctioneer nor the sellers would have been justified in making the statement complained of. Counsel for the appellants argues that neither the owners nor the auctioneer knew that the restrictions prohibited said use and therefore made the misrepresentation innocently. But the owners were bound to know what the restrictions provided. Moreover, whether the auctioneer or the owners lonew that the representation was false has been repeatedly held in this jurisdiction to be a matter of ho consequence. A vendor has no right to make such a statément of which he has no knowledge: Braunschweiger et al v. Waits, 179 Pa. 47, 36 A. 155 (1897); Jack v. Hixon, 23 Pa. Superior Ct. 453, 456 (1903); 3 Pomeroy’s Equity Jurisprudence, 5th ed., sec. 889. So also we have repeatedly lield there is no obligation on the part of the purchasers to examine public records before purchase: see Lake v. Thompson, 366 Pa. 352, 77 A. 2nd 364; Merritz v. Circelli, 361 Pa. 239, 64 A. 2d 796 (1949); Suraci v. Ball, 160 Pa. Superior Ct. 349, 51 A. 2d 404 (1947). Next the appellants’ learned counsel argues there was no evidence to warrant the chancellor’s finding that the plaintiffs relied on the misrepresentation. To this argument it may be answered that not only is it to be presumed from the very materiality of the misrepresentation that the person deceived relied upon it (Restatement, Contracts, Sec. 479) but there is abundant other evidence to support the chancellor’s conclusion. Both plaintiffs testified they discussed with William Kiesel, Jr., the adaptability of the property into apartments and Mr. LaCourse testified that Mr. Traiman, Sr., stated to him just before the auction commenced that the property “could be readily converted into 6 beautiful apartments.” To which may be added the fact that plaintiffs engaged an architect, John B. Thompson, August 6th or 7th, to prepare plans for converting the property into apartments, which, according to the testimony of the title officer was about a month before the information certificate was issued from which the plaintiffs learned of the restrictions against such use. Next it is argued that because there was no “clear indubitable proof” that defendants had actual knowledge of the restrictions limiting the use of the property to a single residence the defendants were innocent of fraud and plaintiffs without showing fraud could not rescind the contract of sale because defendant could not be restored to status quo. The defendants here were not innocent of fraud. A material misrepresentation of an existing fact confers on tbe party who relies on it the right to rescind whether the defendants here actually knew the truth or not, especially where, as here, they had means of knowledge from which they were bound to ascertain the truth before making the representation. Misrepresentations made under such circumstances are fraudulent and have been variously called implied, constructive or legal fraud or fraud in Equity: see 37 C. J. S. pp. 209 and 214; 8 Pomeroy’s Equity Jurisprudence, 5th ed., p. 482 and p. 489; but even where innocently made, if material, are nevertheless grounds for rescission: Restatement, Contracts, sec, 476, comment b. Finally it is argued that the plaintiffs, having signed a written agreement of sale, their evidence of the material misrepresentation is inadmissible to contradict the writing because of the parol evidence rule as laid down in Gianni v. Russell and Co., Inc., 281 Pa. 320, 126 A. 791 (1924). The learned chancellor was correct in ruling that the purpose of the evidence here was not to alter or vary the terms of the written instrument, but to strike the writing down just as though it had never been in existence. In this he followed Suraci v. Ball, 160 Pa. Superior Ct. 349, 51 A. 2d 404 (1947), where Judge Reno said at page 353, “ ‘It is always competent to aver and prove that an engagement in writing was induced by fraudulent oral representations of material facts that affect the consideration.’ ” In so ruling he followed Feuerstein v. New Century Realty Co., 304 Pa. 271, 275, 156 A. 110 (1931), where the matter was definitely settled. See also Merritz v. Circelli, 361 Pa. 239, 242, 64 A. 2d 796 (1949); Zettlemoyer v. Bloch, 329 Pa. 205, 198 A. 80 (1938); Sutton v. Morgan, 158 Pa. 204, 27 A. 894 (1893). And in Ohlbaum v. Mayer, 285 Pa. 260, 131 A. 858 (1926), the right to rescind was upheld even though the misrepresentation made by an agent was unauthorized by his principal, for a principal by accepting the benefits of a contract cannot disavow the means by which his agent procured it. These cases, and others which may be cited to the same effect, the appellants’ counsel seeks to distinguish because the representations there made were referred to as “false and fraudulent,” and that as in this case there was no fraud, the principle does not apply. But the word “fraud” is a generic term which embraces a great variety of actionable wrongs. As hereinbefore pointed out the fraud may be actual or constructive, accordingly as it is knowingly or innocently made, 37 C. J. S. p. 209, and where, as here, it is made by one having means of knowledge at hand, he cannot be heard to say he did not know what he should have known. Misrepresentation under such circumstances is fraud in law as well as in equity. The so-called “integration clause” which appears on the reverse side of the agreement does not by its terms preclude proof of the misrepresentation here complained of because such representation does not “contradict, vary or add to the terms of the agreement.” The evidence thereof was admissible to justify the rescission. At the bar the learned counsel argued also that the restrictions against use of the property for apartments are no longer effective because they have become obsolete by reason of the changed character of the immediate neighborhood. We are well aware of the fact that it has been held that a court of equity may refuse to enforce restrictions when they become obsolete or cease to be of any advantage to those for whose benefit they were imposed due to the resistless evolution of time: Henry v. Eves, 306 Pa. 250, 255, 159 A. 857 (1932); Peoples-Pittsburgh Trust Co. v. McKinley-Gregg Automobile Co., 353 Pa. 110, 44 A. 2d 295 (1945). But the defendants agreed to convey a marketable title and “such as will be insured at regular rates by any responsible Title Insurance Company.” The evidence shows that, the Commonwealth Title refused to insure against these restrictions. Moreover if the plaintiffs took a deed subject to them they might be exposed to the hazard of a law suit and this renders a title not marketable: Reighard’s Estate, 192 Pa. 108, 43 A. 413 (1899). According to the record the plaintiffs before rescinding the sale, gave an opportunity to defendants to have the restrictions released but they were apparently unable to do so. , Decree affirmed at costs , of appellants.

Opinion by Mr. Justice Mitchell, The statute of Westminster has not been repealed, nor has it become obsolete. Bills of exception, even in the old form as established by it, may fill the same place in regard to trials that they always have, and to those who prefer accuracy to rapidity, even at the expense of some time and labor, they are still deserving of use and will receive recognition by this court. Changes of practice however have become necessary to accommodate the requirements of the statute to modern ways. In this there is nothing unprecedented. The statute contemplated the making up of the complete bill when the exception was taken, at the trial; but nearly two hundred years ago this practice had been modified, and it was held in Wright v. Sharp, Salkeld, 288, that the bill need not be drawn up in form until a reasonable time after the trial. See also Buller’s Nisi Prius, 316. And such has always been understood as the practice in this state. Morris v. Buckley, 8 S. & R. 211; Stewart v. Huntingdon Bank, 11 S. & R. 267. The more recent changes in practice consequent upon the introduction of stenographers under the statutes making them officers of court, have been fully set forth in Rosenthal v. Ehrlicher, 154 Pa. 396, and Connell v. O’Neil, Id. 582. In the latter case the distinction established by the recent statutes between exceptions to evidence etc. and exceptions to the charge, and the true limits of the decision in Janney v. Howard, 150 Pa. 339, were definitely pointed out. The generality of the language used in Janney v. Howard had led to much misapprehension in the professional mind as to the requirement of bills of exception in regard to evidence and other matters at the trial, and even as to the charge. These erroneous views were corrected in Rosenthal v. Ehrlicher and Connell v. O’Neil, in which it was held that the record must show affirmatively that the charge was filed by direction of the judge, and without such affirmative showing no act of the stenographer in filing his notes etc. could supply the place of a bill of exceptions. In the last two cases however it was said, in deference to Chase v. Vandegrift, 88 Pa. 217, that if the judge’s direction to file the notes distinctly appeared, he need not personally sign the bill of exceptions or the notes of his charge. The judge is the constitutional head of his court, and no labor saving device can relieve him from the duties of that office, among which is that of seeing and certifying that the record is absolute verity according to the facts as they actually took place. The statute of Westminster of course contemplated the actual sealing of the bill with the judge’s own seal, which he was subsequently called upon to acknowledge or deny, unless the bill was tacked to the record and came up with it, in which ease the seal was assumed to be that of the judge. Buller’s Nisi Prius, 316; Withers v. Gillespy, 7 S. & R. 15. With the-changes of custom and the diffusion of education, the written signature has in practice taken the place of the seal, as the important element of the certification. The act of February 24, 1806, was the first statutory change that opened the entire charge to exceptions though not taken at the trial, but even under this act it was the judge himself who reduced his charge to writing and put it on the record. In Bassler v. Niesly, 1 S. & R. 431, Chief Justice Tilghman said, referring to the practice under this act, “ that a judge should write his own opinion is proper,” but he was not obliged to make a transcript of the evidence; When the act of May 24, 1887, P. L. 199, required the stenographer to take notes of the charge and file them of record, and put the charge, thus filed, on the same footing as a charge filed under the act of 1806, it did not intend, nor could it, even if intended, dispense with the necessity of the judge’s personal examination and certification of the correctness of the notes filed. The charge is his charge and the filing is his act, and the statute of Westminster, still in force, the act of 1806 and. the act of 1887 alike require that he should do it in person and certify his so doing by his own signature. This saves all dispute, and shows conclusively the performance of his duty. This view is not new, nor is it a departure from settled practice. In Taylor v. Preston, 79 Pa. 436, the judge below had refused to correct the stenographer’s notes on the ground that the statute had made them the official and best authority, but this court held that he not only might but should do so, and Woowabd, J., said, “ The administration of the law has been committed to the courts by the constitution, and the same constitution has provided that judges, and not clerks, shall compose those courts. Responsibility for the conduct of legal business must rest where it' has been constitutionally lodged. The legislature would have no power, as they could have had no intention, to impose upon the clerk, who records the details of the trial, the duties of the judge who tries the cause.” This language was used with reference to the duty of the judge to make personal examination of the notes to be filed under the stenographer’s act of 1874, but we are of opinion that it is equally applicable to the subsequent acts on the same subject, and that under the law as it is now, the duty to examine the exceptions when they are merely noted by the stenographer, and the charge filed of record, and to certify them by his own proper signature, is a personal duty of the judge which cannot constitutionally be delegated by him or transferred by the legislature to any subordinate. In Chase v. Vandegrift, 88 Pa. 217, it was held that the judge need not sign the bills of exceptions, but the case did not intend to decide that the judge himself was relieved from the necessity of personal supervision and certification, nor could we under the constitution have so held. The decision in that case must not be carried beyond what was intended to be decided by it, which as read by a majority of my colleagues is only that the judge need' not duplicate by formal bills of exceptions the notes of the stenographer and formally affix his seal to the bills. So understood, it is going beyond the scope of that decision, to claim that it is no longer necessary for the judge to examine and certify the verity of the stenographer’s notes. We are not disposed to stand on mere forms. That the record is true and the judge so declares, is the substance, the form is not very material. He may so declare by formal bills with his seal, or he may adopt the notes of the stenographer,as verity, and so declare by his ‘ certificate at the end of the stenographic report certifying to its correctness as a whole. If he chooses to multiply his certificates by affixing one with his seal appended to every exception to the admission or re jection of evidence, that certainty will not affect the verity of the record. But the distinct assent of the judicial mind to the truth of that part of the record made up by the stenographer must appear of record, by the certificate of the judge under his own hand. He may make as many certificates as he pleases, but he must make at least one which discloses his belief that the stenographic notes are verity and that he so declares. The necessity for such supervision is demonstrated by the present case. We have before us two copies of the charge, one furnished to counsel by the stenographer under the provisions of the statute, and the other filed in the court below and sent up with the record. Both are certified by the stenographer in exactly the same terms, yet they do not agree and the certificate that “ the charge of the court has been approved by the judge who delivered the same ; and that the interlineations were made by me, and marked with my initials,” is plainly incorrect as to both. In the first type written copy there are more than forty corrections and additions in manuscript, not a single one of which is attested by initials, and most if not all of which are in the handwriting of the judge and not of the stenographer as the certificate incorrectly sets forth. The second copy is manifestly re-type written with greatly increased care, but even it fails to observe more than twenty of the judge’s corrections in the first. Most of them it is true are what may be called printer’s errors which do not seriously affect the sense, but some of them, such as “ that damage being incurred by the water in the mill having become let loose, and running over the machinery,” for “ being increased bjr the water,” etc., or “ the items of damage, the rebuilding of the roof and floors,” instead of “ the rebuilding of the tvall, roof and floors,” etc. may be material. Should they become so how are we to know which is correct? The stenographer’s certificate is that both are correct, which is impossible; and if we are to be guided by the fact of the judge’s handwriting, it is the copy filed of record and sent up on the certiorari, that is wrong. It is plain that the judge did personalty examine one of the copies, and correct it. If he had then put his name to it he would have ended all doubt or question on the matter. In making this detailed criticism we desire only to say that the art of stenography is not yet perfect and to illustrate the tendency of mere ly clerical certificates to become formal and perfunctory, and the necessity that the judge should perform this duty in person under the responsibility of his office. The officer of the court below is well known to the profession as an intelligent, competent and experienced stenographer, but even his notes have not escaped the necessity of personal examination and correction by the judge. Upon the general question therefore we are of opinion that the stenographer’s notes of evidence, exceptions, and the charge when filed of record, should be certified by the signature of the judge, and have no doubt the practice thus indicated wül be conformed to by the learned judge below without any necessity for further action on our part. The petition in the present case however goes a step farther, and seeks to have the judge mark certain parts of the charge as specifically excepted to, by inclosing them in brackets or similar device. This was the correct practice formerly, to show the exceptions when they were required to be made specifically in the court below at the time of the trial. But since the change introduced by the recent acts making the whole charge when filed by the judge open to the assignment of errors, that practice though still convenient and commendable is not obligatory, and the judge below is entitled to use his own discretion about it. Nor is the judge after having certified and filed of record in his court the transcript of the evidence showing the exceptions, and the charge, under any obligation to sign a second or separate bill for the party. The purposes which these things formerly served are no longer necessary, having been supplied or rendered superfluous by the recent statutory changes. As these are practically the only matters of relief sought by the petition in the present case, the rule must be discharged.

OPINION OF THE COURT POMEROY, Justice. Joseph LeNoir, the appellant, and Patricia LeNoir Costello, the appellee, were divorced in 1966. They have one daughter, Jane, aged 14, who is residing with her mother. The proceedings from which this appeal arises commenced when Patricia filed on May 18, 1972 in the court below a petition for Jane’s support. No answer to this petition was filed. At the hearing upon the petition, Patricia testified that while she and Joseph were married he had been employed as an electrical engineer, earning between $8,000 and $20,000 a year, and that since their divorce Joseph had worked at various times as a carpet layer, earning $30 per day, and had worked also as a bartender. Mrs. Costello testified further that at the time of the hearing Joseph was making no contribution to Jane’s support. She said that she herself was employed as a waitress, and was earning approximately $110 per week. Joseph, who was not represented by counsel at the hearing, testified that approximately a year previously he had been involved in an automobile accident in which he suffered two broken arms, two crushed elbows, a broken shoulder, and a broken wrist. He said also that he had lost his job as a design draftsman with an engineering firm as a result of his physical condition following the accident; that he had worked temporarily as a carpet layer and bartender; and that despite earnest efforts he had been unable to find permanent employment, and was presently unemployed. Finally, he testified that for the past six months he had been receiving public assistance, and that his hospital bill of $5,000 had been paid by the welfare authorities. At the close of the hearing the court ordered Joseph to pay appellee twenty dollars per week towards the support of Jane. On appeal, the Superior Court affirmed, per curiam. We granted allocatur, and this appeal followed. It is beyond question that every parent has a duty to support his or her minor children. This duty of support rests upon both mothers and fathers; each parent is obligated to contribute to the support of his or her children in accordance with the parents’ respective abilities to pay. Conway v. Dana, 456 Pa. 536, 318 A.2d 324 (1974). Each parent’s ability to pay is dependent upon his or her property, income and earning capacity, Conway v. Dana, supra at 540, 318 A.2d at 326, and is to be determined as of the time at which support payments are sought, Lindenfelser v. Lindenfelser, 396 Pa. 530, 153 A.2d 901 (1968); Jones v. Jones, 348 Pa. 411, 35 A.2d 270 (1954); Commonwealth ex rel. Simmler v. Simmler, 134 Pa.Super. 339, 4 A.2d 215 (1938). A support order must be fair and not confiscatory and must make due allowance for the reasonable living expenses of the parent, Commonwealth ex rel. Goodman v. Delara, 219 Pa.Super. 449, 453, 281 A.2d 751, 753 (1971). We recognize that the amount of a support order is largely within the discretion of the trial court, and its judgment should not be disturbed on appeal absent a clear abuse of that discretion. See Commonwealth ex rel. Marvin v. Marvin, 193 Pa.Super. 179, 164 A.2d 128 (1960); Commonwealth ex rel. Scarpato v. Scarpato, 190 Pa.Super. 45, 151 A.2d 783 (1959); Commonwealth ex rel. Schofield v. Schofield, 173 Pa.Super. 631, 98 A.2d 437 (1953). In this case, we are satisfied that such a clear abuse of discretion did occur. The record is barren of evidence that Joseph is financially able to contribute at this time to the support of his daughter. At the hearing, Patricia testified as to Joseph’s earnings at various times in the past but offered no information as to his income at the time of the hearing. Joseph’s testimony that he has been searching without success for a job and that he was receiving public assistance was uncontradicted. The record contains no evidence of Joseph’s assets or of his living expenses, nor any indication that his failure to find a job was in any way his own fault. The trial court apparently based its decision upon Joseph’s past earnings and a belief that his financial situation could be improved. Evidence of past earn ings has no bearing on the determination of present income; while it does have relevance to earning capacity, it must be considered in the light of the father’s uncontradicted testimony that his efforts to obtain employment had been fruitless. The court’s apparent belief that petitioner was able to contribute to his daughter’s support in larger measure than the evidence indicated was speculation and is insufficient to sustain a support order. The order of the Superior Court is reversed and the case is remanded to the Court of Common Pleas for further proceedings consistent with this opinion. JONES, C. J., filed a concurring opinion. EAGEN, J., did not participate in the consideration or decision of this case. . Appellant’s brief in this Court asserts that the appellee’s petition was filed pursuant to the Act of May 23, 1907, P.L. 227, § 1, as amended, 48 P.S. § 131. The appellee has filed no brief and her petition below does not reveal the legal basis for her claim. The fact that the docket entries and opinion of the court below are captioned “Commonwealth ex rel. Costello v. LeNoir” and “Commonwealth v. LeNoir”, respectively, is an indication that the action may have been treated as having been brought under the Act of June 24, 1939, P.L. 872, § 733, as amended, 18 P.S. § 4733. That Act imposes criminal penalties for desertion and nonsupport. (The Act of 1939 was repealed by the Act of December 6, 1972, P.L. 1482, No. 334, § 5. The same subject matter is now covered by the Act of December 6, 1972, P.L.1482, No. 334, § 1, 18 Pa.C.S. § 4322.) Whether either the Act of 1907 or the Act of 1939 is applicable to the instant case is dubious, since they pertain to married men who desert their families. The appellant is, however, under a common law duty to support his minor children, see Conway v. Dana, 456 Pa. 536, 318 A.2d 324 (1974), and this duty is enforceable under the Civil Procedure Support Act, Act of July 13, 1953, P.L. 431, § 1 et seq., 62 P.S. § 2043.31 et seq. For a summary of the statutes pertinent to child support in Pennsylvania, see generally W. E. Sell & T. O. White, 2 Pennsylvania Keystone, Child Support (1974). . Although the amount of appellant’s public assistance is not a part of the record before us his petition for allocatur to this Court states the figure to be $138 per month. His brief in this Court asserts that on April 13, 1974, these payments were raised to $149 per month. These figures stand uncontested, appellee having filed neither an answer to the petition for allocatur nor a brief in this Court. . Act of July 31, 1970, P.L. 673, No. 223, art. II, § 204(a), 17 P.S. § 211.204(a) (Supp.1974). . The appellee has not filed a brief or participated in oral argument in this appeal. . The appellant’s weekly income, (derived only from public assistance) was about $33, Appellee’s weekly income was approximately $110. Payment of the support order of $20 per week, almost two-thirds of appellant’s income, would leave him $13 per week with which to defray personal living expenses. . The opinion of the court below, filed after appeal was taken to the Superior Court, reads as follows, in its entirety. “This is an appeal from an order of support entered against the defendant for the support of his fourteen year old daughter in the amount of $20.00 per week. “The petitioner testified that her expenses for the support of the child were about $89.00 a week. The defendant testified that he was unable to support his daughter because he was out of work because of an injury he sustained in an automobile accident which occurred approximately one year ago. He also testified that he was seeking employment but there were no positions available for design draftsmen. “Petitioner testified that during their marriage, the defendant was making between eight and twenty thousand dollars per year. “It was the position of the Court that despite the testimony of defendant, he has a sufficient earning capacity to pay an order of $20.00 a week for the support of his child.” There was no direct evidence that appellee’s expenses for the support of her daughter amounted to $89 per week. Appellee’s counsel stated that she would so testify, but there is no testimony to this effect. The transcript has attached to it a breakdown of expenses which total .$89 per week, but it is apparent that many of the major items of these expenses, such, for example, as rent, relate to both mother and daughter. . See Lindenfelser v. Lindenfelser; Jones v. Jones, and Commonwealth ex rel. Simmler v. Simmler, supra. . See Commonwealth ex rel. Goodman v. Delara, supra; Commonwealth ex rel. Baylinson v. Baylinson, 191 Pa.Super. 51, 155 A.2d 203 (1959). See also Commonwealth ex rel. Steacker v. Steacker, 217 Pa.Super. 382, 272 A.2d 216 (1970). . Orders in support cases are ambulatory in nature and therefore are suspectible to modification in later proceedings. See the Act of June 19, 1939, P.L. 440, No. 250, § 1, 17 P.S. § 263; Bell v. Bell, 228 Pa.Super. 280, 323 A.2d 267 (1974). Thus, even when a petition for support is dismissed, a new petition may be filed based upon circumstances different from those existing at the time of the hearing upon the original petition.

OPINION OF THE COURT ROBERTS, Justice. This is an appeal from a decree in equity granting a preliminary injunction to enforce a restrictive covenant contained in an employment contract. Appellant asserts that the preliminary injunction was improperly issued. We do not agree and therefore affirm. Appellee, Sidco Paper Company (Sidco), is a Pennsylvania corporation which sells odd lots of low grade printing paper. The area served by the company includes Virginia, West Virginia, Maryland, Delaware, Pennsylvania, New Jersey, New York, Connecticut, Rhode Island, Massachusetts, New Hampshire and the District of Columbia. Grant Paper Company (Grant), a defendant in the action, is a Pennsylvania corporation engaged in the same business, and is a direct competitor of Sidco in the northeastern portion of the United States. Appellant Eugene Aaron (Aaron) was an employee of Sidco until he left to accept employment with Grant. Aaron was first employed by Sidco at will, under an oral contract, in 1967 when he was seventeen years of age. His initial salary was $60.00 per week. Following a two-year apprenticeship, during which he was exposed to all aspects of Sidco’s business and was trained by Sidco salesmen, Aaron executed a written employment contract with Sidco which contained the restrictive covenant at issue here. This contract provided for a term of employment of one year with automatic renewal from year to year, subject to termination by either party upon sixty days’ written notice. The covenant provided: “7. That the Employee agrees during the term of this contract, and for a period of two (2) years thereafter, that he will not be engaged in the same or similar type of business as the Employer is engaged in, in any area of which Richmond, Virginia, is the southern point, Pittsburgh, Pa., the western point, and Boston, Massachusetts, the northern point, and should he do so, the Employer shall be entitled to an injunction to be issued by any Court of competent jurisdiction enjoining and restraining the Employee and each and every other person, firm, associates or corporations concerned therein from the continuance of such employment, service, or other acts in aid of the business of such rival company or concern.” When Aaron ended his employment with Sidco, his territory included Richmond, Virginia; Washington, D. C.; Maryland; Delaware; and Pennsylvania as far west as Chambersburg, excluding Philadelphia, Montgomery, Bucks, Delaware and Chester counties. His salary at this time was $65,000.00 per year, plus expenses which amounted to $18,000. Following his resignation from Sidco, Aaron immediately took a position as a salesman with Grant. Grant instructed Aaron to solicit business from the same cus tomers he had dealt with on behalf of Sideo. Aaron did so successfully. Sidco’s business in the territory formerly served by Aaron fell from $490,000.00 in April 1974, the last month of Aaron’s employment by Sideo, to $90,-000.00 in May 1974. The chancellor granted a preliminary injunction enjoining Aaron from serving as a salesman throughout an area described as follows: “a. Pennsylvania: From the City of Chambers-burg, directly north to the New York state boundary, continuing east-southeast along the Pennsylvania-New York state boundary, and then south along the Pennsylvania-New Jersey state boundary; continuing then southwest along the Pennsylvania-Delaware state boundary to its end; from there due west along the Pennsylvania-Maryland state boundary until an intersect is established with the city of Chambersburg, by a line drawn directly south from said city to the Pennsylvania-Maryland state boundary. b. Maryland: From the city of Hagerstown, directly north until the Maryland-Pennsylvania border, then due east along said border until the state of Delaware, then directly south along the Maryland-Delaware border until a horizontal line can be drawn from Washington, D.C., intersecting the Delaware-Maryland border, then from Washington, D.C., southwest along the Potomac River until a straight line can be drawn due south from Hagerstown to the Potomac River. c. District of Columbia: Entire area. d. Virginia-Maryland: From the city of Richmond directly south [sic, north?] until the Potomac River, from said River due east until the Atlantic Ocean. Starting again from the city of Richmond, due east until the Atlantic Ocean. Notwithstanding, the above enumerated restricted areas and for the purpose of this Interlocutory Decree, the defendant is entitled to engage in the aforementioned business in the following areas: a. The states of New York, New Jersey, Delaware, Massachusetts and all other states of the Union. b. The city of Philadelphia, Pennsylvania. c. The counties of Bucks, Chester, Delaware, Montgomery in the Commonwealth of Pennsylvania.” Our courts will permit the equitable enforcement of post-employment restraints only where they are incident to an employment relation between the parties to the covenant, the restrictions are reasonably necessary for the protection of the employer, and the restrictions are reasonably limited in duration and geographic extent. Girard Investment Co. v. Bello, 456 Pa. 220, 318 A.2d 718 (1974); Bettinger v. Carl Berke Associates, Inc., 455 Pa. 100, 314 A.2d 296 (1974); Jacobson & Co. v. International Environment Corp., 427 Pa. 439, 235 A.2d 612 (1967). Before we can determine whether a preliminary injunction was properly issued here, we must first consider appellant’s claim that this test was not met. Specifically he attacks both the necessity for protection and the territorial reasonableness of the covenant. I An employer’s right to protect, by a covenant not to compete, interest in customer goodwill acquired through the efforts of an employee is well-established in Pennsylvania. See, e. g., Bettinger v. Carl Berke Associates, Inc., 455 Pa. 100, 314 A.2d 296 (1974); Jacobson & Co. v. International Environment Co., 427 Pa. 439, 235 A.2d 612 (1967); Hayes v. Altman, 424 Pa. 23, 225 A. 2d 670 (1967); Albee Homes, Inc. v. Caddie Homes, Inc., 417 Pa. 177, 207 A.2d 768 (1965); Seligman & Latz of Pittsburgh, Inc. v. Vernillo, 382 Pa. 161, 114 A. 2d 672 (1955). The nature of this interest is well stated by Professor Blake: “In almost all commercial enterprises contact with customers or clientele is a particularly sensitive aspect of the business. ... In most businesses ... as the size of the operation increases, selling and servicing activities must be at least in part decentralized and entrusted to employees whose financial interest in the business is limited to their compensation. The employer’s sole or major contact with buyers is through these agents and the success or failure of the firm depends in part on their effectiveness. . . . [t]he possibility is present that the customer will regard, or come to regard, the attributes of the employee as more important in his business dealings than any special qualities of the product or service of the employer, especially if the product is not greatly differentiated from others which are available. Thus, some customers may be persuaded, or even be very willing, to abandon the employer should the employee move to a competing organization or leave to set up a business of his own. . “The employer’s point of view is that the company’s clientele is an asset of value which has been acquired by virtue of effort and expenditures over a period of time, and which should be protected as a form of property. Certainly, the argument goes, the employee should have no equity in the custom which the business had developed before he was employed. Similarly, under traditional agency concepts, any new business or improvement in customer relations attributable to him during his employment is for the sole benefit of the principal. This is what he is being paid to do. When he leaves the company he should no more be permitted to try to divert to his own benefit the product of his employment than to abscond with the company’s cashbox.” Under our case law, and in view of the factors discussed by Professor Blake, Sidco clearly has a protectible interest in customer goodwill. II Appellant contends (1) that the covenant is unenforceable because its territorial scope is excessive and (2) that it may not properly be enforced in a narrower territory. If accepted, this argument would deny enforcement, not because of any defect 'in the substance of the covenant which is before us, but rather because the covenant attempted to secure to the employer flexibility in where appellant was to be employed. Our law permits equitable enforcement of employee covenants not to compete only so far as reasona bly necessary for the protection of the employer. Bettinger v. Carl Berke Associates, Inc., 455 Pa. 100, 314 A.2d 296 (1974); Reading Aviation Service Co. v. Berolet, 454 Pa. 488, 311 A.2d 628 (1973). However, where the covenant imposes restrictions broader than necessary to protect the employer, we have repeatedly held that a court of equity may grant enforcement limited to those portions of the restrictions which are reasonably necessary for the protection of the employer. Jacobson & Co. v. International Environment Corp., 427 Pa. 439, 235 A.2d 612 (1967) (unanimous); Albee Homes, Inc. v. Caddie Homes, Inc., 417 Pa. 177, 207 A.2d 768 (1965); Barb-Lee Mobile Frame Co. v. Hoot, 416 Pa. 222, 206 A.2d 59 (1965) (unanimous); Morgan’s Home Equipment Corp. v. Martucci, 390 Pa. 618, 136 A.2d 838 (1957) (unanimous) ; Seligman & Latz of Pittsburgh, Inc. v. Vernillo, 382 Pa. 161, 114 A.2d 672 (1955) (unanimous); see Bettinger v. Carl Berke Associates, Inc., 455 Pa. 100, 314 A. 2d 296 (1974) (by implication); Plunkett Chemical Co. v. Reeve, 373 Pa. 513, 95 A.2d 925 (1953) (unanimously reaching same result by strained construction of contract) ; Harris Calorific Co. v. Marra, 345 Pa. 464, 29 A.2d 64 (1942) (same); Fisher v. Hager, 310 Pa. 398, 165 A. 655 (1933) (same); Monongahela River Consolidated Coal & Coke Co. v. Jutte, 210 Pa. 288, 59 A. 1088 (1904) (unanimous) (covenant incident to sale of business) ; Smith’s Appeal, 113 Pa. 579, 6 A. 251 (1886) (unanimous) (same). The commentators also endorse this rule. 6A A. Corbin, Contracts §§ 1390, 1394, at 104 (1962); 14 S. Williston, Law of Contracts §§ 1647B, 1647C (3d ed. Jaeger 1972); Blake, Employee Agreements Not to Compete, 73 Harv.L.Rev. 625, 683 (1960). The reason for this policy is a refusal to allow the employee to profit, at the expense of his former employer, from his wrongful and inequitable conduct. This may readily be seen from the opinion of Mr. Justice EAGEN writing for the Court in Albee Homes, Inc. v. Caddie Homes, Inc., 417 Pa. 177, 186, 207 A.2d 768, 773 (1965): “[W]e conclude that the wide-spread prohibition envisioned by this restrictive covenant is unrelated to the protection of the employer, and that, therefore, as written, the covenant is unenforceable to the full extent claimed by Albee. [citation omitted]. On the other hand, it is also clear that inducing Albee’s employees to terminate and violate their employment contracts and then to work for Caddie within 50 miles of their actual former employment was wrongful and conduct from which Albee should be protected. We also consider the covenant divisible and enforceable when restricted to reasonable geographical limits.” Appellant acknowledges the propriety of partial enforcement but only where the restriction is “divisible.” He contends that a covenant is “divisible” for this purpose only when the covenant may be narrowed without adding language not originally contained in the covenant. Indeed our cases have sometimes spoken in terms of divisibility. Reading Aviation Service, Inc. v. Bertolet, 454 Pa. 488, 492, 811 A.2d 628, 629 (1973); Albee Homes, Inc. v. Caddie Homes, Inc., 417 Pa. 177, 186, 207 A.2d 768, 773 (1965); Barb-Lee Mobile Frame Co. v. Hoot, 416 Pa. 222, 225, 206 A.2d 59, 61 (1965). However, appellant ignores our many cases granting partial enforcement of territorial restrictions even when the covenant was not divisible without adding language. In Jacobson & Co. v. International Environment Corp., 427 Pa. 439, 235 A.2d 612 (1967), the defendant employee had covenanted not to compete in New York, Connecticut, New Jersey, Pennsylvania, or Delaware. The chancellor granted an injunction against breach of the covenant limited to a territory in which defendant had been employed — the eastern half of Pennsylvania, the southern half of New Jersey, and New Castle County, Delaware. This Court in an unanimous opinion by Mr. Justice O’Brien affirmed: “There can be no doubt that a court can properly reduce the geographical scope of a covenant.” Id. at 453, 235 A.2d at 620. Most recently, in Bettinger v. Carl Berke Associates, Inc., 455 Pa. 100, 314 A.2d 296 (1974), the employee had covenanted not to compete within a radius of 50 miles from City Hall, Philadelphia. The employer sought an injunction effective only within the City of Philadelphia. This was granted and we unanimously affirmed. The opinion of the Court, written by Mr. Justice O’BRIEN, relied heavily on the limitation of the injunction to Philadelphia in sustaining its reasonableness. Thus, Jacobson, Plunkett Chemical and Bettinger offer strong authority for partial enforcement of a covenant which is not “divisible” in appellant’s sense. To counter this authority, appellant offers only Trilog Associates, Inc. v. Famularo, 455 Pa. 243, 314 A.2d 287 (1973), and Reading Aviation Service, Inc. v. Bertolet, 454 Pa. 488, 311 A.2d 628 (1973). These offer no support for appellant’s position. Trilog is not authoritative for this proposition, because five members of this Court concurred only in the result without joining any opinion, and the two members of the Court who did write opinions differed on the precise point here at issue. Reading Aviation Service is distinguishable from the present case. There the covenant had no territorial limitation, although the nature of the business involved (the operation of an airport) was such that the relevant geographical area could have been readily specified at the time the contract was formed. This sort of gratuitous overbreadth militates against enforcement because it indicates an intent to oppress the employee and/or to foster a monopoly, either of which is an illegitimate purpose. An employer who extracts a covenant in furtherance of such a purpose comes to the court of equity with unclean hands and is, therefore, not entitled to equitable enforcement of the covenant. Here, on the other hand, the covenant was limited to the territory in which Sidco operated. While it was known that Aaron would not cover the entire territory, it was not known when the contract was formed precisely what territory he would cover, so that it was impossible to define in advance any narrower territory which would insure full protection for Sidco. Ill Sidco properly used a restrictive covenant to protect its customer relationships against appropriation by former employees such as Aaron. The remaining question is whether the preliminary injunction was properly issued in this case. Our standard of review is well established. “In Pa. P.U.C. v. Alleg. Co. Port Auth., 438 Pa. 495, 499, 252 A.2d 367, 369 (1969), we stated that: ‘It has long been the rule in this Court that on an appeal from a decree, whether granting or denying a preliminary injunction, we will not inquire into the merits of the controversy, but will, instead, examine the record only to determine if there were any apparently reasonable grounds for the actions of the court below. [Citing cases.] Moreover, we will not “pass upon the reasons for or against such action unless it is plain that no such grounds existed or that the rules of law relied on are palpably wrong or clearly not applicable. Credit Alliance Corp. v. Philadelphia Minit-Man Car Wash Corp., 450 Pa. 367, 370-71, 301 A.2d 816, 818 (1973); accord, Zebra v. Pittsburgh School District, 449 Pa. 432, 436-37, 296 A.2d 748, 750 (1972); Sameric Corp. v. Goss, 448 Pa. 497, 499, 295 A.2d 277, 278 (1972); Community Sports, Inc. v. Denver Rigsby Rockets, Inc., 429 Pa. 565, 569, 240 A.2d 832, 834 (1968); Alabama Binder & Chemical Corp. v. Pennsylvania Industrial Chemical Corp., 410 Pa. 214, 215, 189 A.2d 180, 181 (1963). We must decide whether there are “apparently reasonable grounds” upon which the trial court could have concluded that equitable enforcement of the covenant was necessary to protect Sidco against wrongful appropriation of its customer relationships by Aaron. The record reveals that Grant’s president told Aaron to “go see the customers that he used to see for Sidco” and that prior to issuance of the preliminary injunction Aaron was, in fact, soliciting the business of those customers. There was also uncontradicted testimony that Sidco’s business in the territory formerly served by Aaron had fallen from $490,000 in April 1974, the last month of Aaron’s employment by Sidco, to $90,000 in May 1974, when he began soliciting for Grant. When these two facts are taken together, they provide “apparently reasonable grounds” for a finding that injunctive relief was necessary to prevent irreparable harm to Sidco’s customer relationships. Moreover, the record strongly suggests that Grant’s purpose in hiring Aaron was precisely to gain the advantages resulting from his relationships with Sidco’s customers. The following exchange occurred during the cross-examination of Grant’s president: “Q Therefore, you could very well hire Mr. Aaron to cover territory outside of the territory I just mentioned, could you not ? A I may not want him for a different territory. Q But you could if you wanted to ? A I can’t answer what I would do if he asked for a different territory. I hired him specifically for what he can do. Q But the territory your company covers is so vast that you could easily keep him in employment outside of the territory where he served Sidco Paper Company? A I don’t know. I don’t know whether he would he good in any other territory. You’re trying to make me say something which I don’t know. I don’t know if I would be interested in hiring him for any other territory.” (emphasis added) If Grant were concerned solely with Aaron’s energy, innovativeness, dynamic personality and other inherent in dividual qualities, there would seem little reason to be so concerned with his connections in the particular territory. Aaron’s customer contacts, developed on behalf of Sidco and at its expense, appear to be a primary factor motivating Grant to offer him employment. This is an additional basis for the chancellor’s decision to grant a preliminary injunction. Because there are “apparently reasonable grounds” on which the chancellor could have concluded that the preliminary injunction was necessary for the protection of Sidco’s legitimate interests, we affirm the decree. Decree affirmed. Each party pay own costs. JONES, C. J., and POMEROY, J., join in this opinion. POMEROY, J., filed a concurring opinion in which JONES, C. J., joins. NIX, J., filed a dissenting opinion. MANDERINO, J., filed a dissenting opinion. . The chancellor denied the prayer for a preliminary injunction to restrain Grant. No appeal has been filed questioning that portion of the decree. . In Bettinger, Mr. Justice O’Brien, writing for the Court, identified the protected interest as follows: “When asked if Bettinger’s company had regularly placed temporary held with the customers on its list, Berke replied: ‘Not regularly. It’s a constant going-back repetitive process in order to keep your contacts, to maintain it, because if you’re not doing it, your competition is; and if you’re not there and your competition comes in there and talks to these people; the next time they have business is going to be with your competition. So nothing is regular situation unless you keep it regular.’ Thus, Berke was admitting the crucial importance of customer contact in the business. “Bettinger also testified that it was his experience that if close personal relationships were kept with his customers, they would for the most part turn their entire temporary-help needs over to him. Thus, it is reasonable for Bettinger to seek protection for competition from former employees, like Berke, whose sole job was to maintain the close affiliations with prospective employers of temporary help.” 455 Pa. 104, 314 A.2d at 298. The covenant was specifically enforced. . In Jacobson, Mr. Justice O’Brien wrote for a unanimous court: “The evidence makes clear Jacobson’s need for the protection. The radiant heating business is one in which the close personal contact of the sales representative with prospective buyers is crucial to success. As appellee points out in his brief, for a number of years, to the builders, engineers and architects in the area described by the limited covenant, Kiley was Jacobson & Co.” 427 Pa. at 453, 235 A.2d at 620 (emphasis in original). This Court affirmed the grant of an injunction enforcing the covenant. . In Hayes, both employer and employee were optometrists and there was no special training or confidential information involved. To protect the employer against employee exploitation of customer contacts acquired during his employment, a restrictive covenant prohibited the employee from engaging in a competing business in the same city (or its environs) for one year after termination of the employment. When specific enforcement was sought, the chancellor denied relief on the ground that the employer had no protectible interest. This Court reversed the decree and held the covenant enforceable. . In Albee Homes, Mr. Justice Eagen wrote for the Court: “The nature of Albee’s business is such that the covenantor is in a position to know only a very few customers in a limited area. The testimony shows that the identity of customers was gained by personal contacts between them and the salesman at the model home location. That these contacts, gained for instance in Cleveland, Ohio, could be of no use to a salesman moving to Trenton, New Jersey, is clear beyond question. No doubt the covenant is enforceable as to an area within 50 miles of the place of employment by the covenantee, for we can see a direct and reasonable connection to the protection of business in such a restriction . . . 417 Pa. at 185-86, 207 A.2d at 773. The grant of an injunction was affirmed, although only as to a more limited territory than that in the original decree. . In Vernillo, the employee was a hairdresser and the covenant forbade her for one year after termination of the employment to be employed in or associated with in any way “any beauty or hairdressing establishment or salon . . . which is or may be conducted . . . within a radius of one (1) mile from” her employer’s establishment. This Court unanimously affirmed an injunction against violation of this covenant (except as to employment in a capacity other than that of hair stylist or beauty operator) in order to protect the employer’s relationships with its customers. . Blake, Employee Agreements Not to Compete, 73 Harv.L.Rev. 625, 653-54 (1960); accord, 6A A. Corbin, Contracts § 1394 at 98 (1962): “Salesmen and solicitors are generally hired and paid a salary in order that they may help to build up custom, getting acquainted with customers and acquiring their good will. A promise to forbear to solicit such customers and to deprive the employer of the advantage of that good will is reasonable.” (footnote omitted) . The point was expressed colorfully in Barb-Lee Mobile Frame Co. v. Hoot, 416 Pa. 222, 224, 206 A.2d 59, 60 (1965): “The fact that there was no evidence that Barb-Lee enjoyed such an extensive franchise did not deprive it of protection in the area the Court believed to be reasonable and sustainable. The man who wildly claims that he owns all the cherry trees in the country cannot be denied protection of the orchard in his backyard. A restrictive covenant, when it comes under the scrutiny of a court of equity, will be held to reasonable geographical and chronological boundaries, according to the realities of the situation.” . Appellant seeks to distinguish Jacobson on the ground that “the chancellor in that case did not have to construct an area of restraint; the employee’s oral contract, which had preceded his written contract, had related to the ‘Philadelphia office’ (427 Pa. at 442, 235 A.2d 612), which was the exact and specific area encompassed by the Order of the Court. That area was known and understood by both parties to be the area of the employee’s activity at the time the restrictive covenant was executed.” Brief for Appellant, at 18-19. We hardly see how this distinction aids appellant’s argument. The proposed criterion of “divisibility” focuses solely upon the language of the covenant and not at all on the understanding of the parties. Moreover, the proposed distinction actually cuts against appellant. In Jacobson, the employee’s area of activity was known at the time the covenant was executed and, therefore, the covenant could have been appropriately limited at that time. Here Aaron’s territory was not fixed at the outset and, in fact, continually expanded throughout the term of the agreement. Thus, it would not have been possible for Sidco to draft a geographical limitation which would both adequately protect its interests and omit all territory - which was unnecessary for its protection. Jacobson is therefore solidly opposed to the position advocated by appellant. See also Plunkett Chemical Co. v. Reeve, 373 Pa. 513, 95 A.2d 925 (1953) (covenant not to engage in the same line of business for one year with no limitation on the territorial coverage of the retraint enforced only in territory in which the employee operated as a salesman); Harris Calorific Co. v. Marra, 345 Pa. 464, 29 A.2d 64 (1942) (covenant not to sell competitive goods to customers of manufacturer enumerated on list construed to prohibit competition only as to particular plants enumerated and not other plants operated by same firms); Fisher v. Harger, 310 Pa. 398, 165 A. 655 (1933) (covenant not to engage “in the furniture busi ness at any place within a radius of twenty-five miles from any point . . . where . . . [plaintiff] may be engaged in such business” construed to refer only to places of business in operation at the time of contracting). . Although the vote was unanimous, Mr. Justice MANDERINO did not join the opinion but simply concurred in the result. . Appellant also cites Smith's Appeal, 113 Pa. 579, 6 A. 251 (1886); Monongahela River Coal & Coke Co. v. Jutte, 210 Pa. 288, 59 A. 1088 (1904); Barb-Lee Mobile Frame Co. v. Hoot, 416 Pa. 222, 206 A.2d 59 (1965); and Albee Homes, Inc. v. Caddie Homes, Inc., 417 Pa. 177, 207 A.2d 768 (1965). These cases, however, provide no support for appellant because in each of them partial enforcement was granted, though the area of enforcement was defined simply by striking words from the covenant. Any comment on those cases upon a situation where a reasonable area could not be defined in that fashion was thus necessarily dictum. . Not only does Trilog lack any opinion expressing the view of more than one Justice, but it was also decided that same day as Bettinger, an opinion joined by six Justices and inconsistent with appellant’s analysis. To the extent of any conflict, it is clear Bettinger must control. But there may be no conflict. It is unclear that the conduct involved in Trilog would have been actionable under the most narrowly drawn covenant. Mr. Justice Manderino’s opinion specifically concluded that defendants had used no confidential customer information belonging to plaintiff and the situation does not appear to have involved appropriation of trade secrets or goodwill. If these were not involved, then the employer had no legitimate interest justifying equitable enforcement of the covenants there involved. If this view of Trilog is correct, then it is consistent with Betiinger, but offers no support for appellant’s position. . It is undoubtedly true that some of this loss would have resulted simply from Sidco’s loss of Aaron’s services even had he not begun soliciting his former customers for Grant. But the impossibility of separating the two sources of injury precludes any adequate remedy in damages. Since the injunction does not purport to require Aaron to return to Sidco’s employ, it simply prevents misappropriation of Sidco’s customer relationships. Thus the remedy is narrowly tailored to prevent wrongful injury to Sidco without reference to any injury caused simply by Aaron’s termination of his employment.

OPINION OF THE COURT O’BRIEN, Justice. The instant controversy concerns the competitive bidding process and award of a contract for the supply of equipment and technology to be used for the Daily Numbers Game operated by the Bureau of State Lotteries. On February 19, 1976, the Bureau of State Lotteries issued a request for proposal, inviting companies to submit bids for a computerized daily numbers game. Appellant, American Totalisator Company, Inc., and intervenor-appellee, Control Data Corporation, were the only companies to submit bids. The request for proposal stated that the contract would be awarded in “conformity with the concept of the lowest responsible bidder,” and further provided: “Innovative Suggestions and Recommendations : The Bureau welcomes and invites innovative suggestions and recommendations from bidders who feel the operation of the proposed daily lottery can be improved. Such suggestion and recommendations may not be substituted for, but should be in addition to bid provisions required in this RFP. No bid will be disqualified or rejected for failure to submit such suggestions and recommendations. In the event that the evaluation committee determines that any such suggestion or recommendation is worth further exploration, all bidders will have an opportunity to conform their proposals in accordance with the revised provisions.” (Emphasis added.) On March 26,1976, both American Totalisator and Control Data submitted technical proposals, which were reviewed by an evaluation committee. To review said technical proposals, the committee divided its inquiry into eight areas: internal control systems, management reports capabilities, security, training, terminal, central computer facility, maintenance capabilities and general ability of company to perform. The committee found no significant disparity between the two proposals in six of the eight areas; however, in the areas of terminal and training, Control Data received significantly higher grades because, pursuant to the request for proposals’ invitation for innovative suggestions, Control Data had included the use of a cathode ray tube at the agents’ terminals. (American Totalisator, however, was never given a chance to amend its proposal to include cathode ray tubes at the agents’ terminals. On June 2, 1976, the cost proposals of American Totalisator and Control Data were opened at a public meeting. It immediately became apparent that the cost proposals were calculated on different bases; American Totalisator had used an effective rate basis while Control Data’s bid was based on an accumulative rate. Acting Secretary of Revenue Charles Seligman sent letters to both bidders seeking clarification of their cost proposals and asking whether the bids were based on effective rate or accumulative rate. American Totalisator responded that its bid was indeed calculated on an effective rate basis. Control Data confirmed that it had used an accumulative rate basis; subsequently a bid based on the effective rate was submitted. In effect, Control Data was allowed to amend its cost proposal after seeing the supposedly secret bid of American Totalisator, which was not given a chance to amend its bid. On the basis of Control Data’s amended cost proposal, which was lower than the bid of American Totalisator, Control Data was awarded the contract on June 23, 1976. On July 2, 1976, American Totalisator filed a petition for review in the Commonwealth Court, seeking to enjoin the Commonwealth from entering into a contract with Control Data. The petition named as respondents the Department of Revenue, the Bureau of State Lotteries, Secretary of Revenue Milton Lupes, Deputy Secretary (and at times Acting Secretary) Seligman and Bureau of State Lotteries Executive Director Lynn R. Nelson. Appellee Control Data was permitted to intervene. On August 6, 1976, following a hearing, the Commonwealth Court denied American Totalisator’s request for a preliminary injunction. Control Data and the Commonwealth executed a contract, effective October 1, 1976. The Daily Numbers Game has been in operation since March 1, 1977. American Totalisator filed an amended petition for review, requesting the Commonwealth Court to stay the Bureau’s decision to award the contract to Control Data. Both the Commonwealth and Control Data filed preliminary objections, alleging that American Totalisator lacked standing to sue and that its petition failed to state a cause of action. The Commonwealth Court overruled the preliminary objections. American Totalisator Co., Inc. v. Seligman, et al., 27 Pa.Cmwlth. 639, 367 A.2d 756 (1976). Control Data and the Commonwealth then filed, in March of 1977, answers and new matter to American Totalisator’s amended petition for review. American Totalisator responded to the answers containing new matter and requested the case be listed for trial. In its response, American Totalisator requested the Commonwealth Court to order, inter alia, (1) the Commonwealth to award it the contract in question and (2) Control Data to disgorge any profits received under the allegedly illegal contract. A trial was held by the chancellor from June 15, 1977 to June 21, 1977. The chancellor issued his decree nisi on October 18, 1977, decreeing (1) the contract with Control Data void as of March 2, 1978, and (2) the Commonwealth to solicit new bids. The chancellor, however, refused to award the contract to American Totalisator or to order disgorgement of Control Data’s profits. Both companies filed exceptions. American Totalisator Co., Inc. v. Seligman, 34 Pa.Cmwlth. 391, 384 A.2d 242 (1977). On November 17, 1977, the Commonwealth issued a new request for proposal. When both companies sought to en join the issuance of the request, the chancellor ordered it withdrawn. On December 2, 1977, the chancellor postponed the cancellation of the existing contract, extending the date from March 2, 1978 to July 2, 1978; he further allowed the issuance of a third request for proposal. Both companies submitted bids which were opened on December 28, 1977. Control Data was once again the low bidder and was awarded the contract, which was to run from July 2, 1978 until July 1, 1980. On March 15, 1978, the Commonwealth Court, sitting en banc, dismissed all of the exceptions filed by American Totalisator and Control Data and directed the prothonotary to enter the chancellor’s decree nisi as a final decree. American Totalisator Co., Inc. v. Seligman, et al., 34 Pa.Cmwlth. 436, 384 A.2d 266 (1978). Both companies, filed appeals and the matter is now before us for final disposition. Control Data, in its cross-appeal, would have us reverse the Commonwealth Court and reinstate the original contract. Control Data first argues that American Totalisator, as a disappointed bidder, had no standing to bring this action. This argument is meritless, as we have held that a taxpayer has standing to enjoin the improper award of a public contract and such standing is not defeated by the fact that the complaining taxpayer is also a disappointed bidder. Lutz Appellate Printers Inc. v. Commonwealth, 472 Pa. 28, 370 A.2d 1210 (1977). As there is no dispute concerning American Totalisator’s status as a taxpayer, it clearly has standing to maintain the instant action. Control Data further argues that the chancellor erred in failing to conclude that the procurement procedure in the instant case was exempt from the requirements of competitive bidding. Control Data argues that the request for proposal sought a contract for highly technical professional services, thus exempt from competitive bidding. We need not decide, however, whether the instant contract is exempt. The request for proposal stated: “The bidders should understand that the criteria used in the selection process are both objective and subjective and that cost is not the only determining factor. Financial resources and the capability of the bidder, among other things, are taken into consideration in order for the contract to be awarded in conformity with the concept of the lowest responsible bidder.” As the Commonwealth elected to use the competitive bidding process, Control Data has no ground for complaint. Finally, Control Data argues that the chancellor erred in intervening in the procurement process, citing Blumenschein v. Pittsburgh Housing Authority, 379 Pa. 566, 109 A.2d 331 (1954), as authority for his proposition. Therein we stated: “By a host of authorities in our own and other jurisdictions it has been established as an elementary principle of law that courts will not review the actions of governmental bodies or administrative tribunals involving acts of discretion, in the absence of bad faith, fraud, capricious action or abuse of power: they will not inquire into the wisdom of such actions or into the details of the manner adopted to carry them into execution. It is true that the mere possession of discretionary power by an administrative body does not make it wholly immune from judicial review, but the scope of that review is limited to the determination of whether there has been a manifest and flagrant abuse of discretion or a purely arbitrary execution of the agency’s duties or functions. That a court might have a different opinion or judgment in regard to the action of the agency is not a sufficient ground for interference; judicial discretion may not be substituted for administrative discretion.” Id., 379 Pa. at 572-73, 109 A.2d at 334-35. (Emphasis added.) As the chancellor made no findings concerning bad faith, fraud or capricious action, Control Data believes that the instant judicial intervention was improper. We do not agree. As Blumenschein points out, principles of municipal law forbid the substitution of judicial discretion for administrative discretion. We believe, however, that the governmental agencies in this case simply had no discretion to award the contract to Control Data on the original bids submitted. Our belief is based on two reasons. As previously mentioned, the original request for proposal invited the use of innovative suggestions. The request, by its own terms, stated: “In the event that the evaluation committee determines that any such suggestion or recommendation is worth further exploration, all bidders will have an opportunity to confirm their proposals in accordance with the revised provisions.” Instantly, the chancellor found that Control Data’s use of the cathode ray tube at the agents’ terminals was such an innovative suggestion. In fact, the use of the tube was the crucial factor in the evaluation committee’s recommendation of Control Data’s proposal over the proposal of American Totalisator as the latter was never given an opportunity to include the use of cathode ray tube at the agents’ terminals in its proposal. As the Commonwealth failed to abide by the terms of its own request for proposal, it lacked, in our view, any discretion to award the instant contract to Control Data, thus warranting judicial intervention. We acknowledge that the chancellor made no findings of bad faith, fraud or capricious action. Nevertheless, the chancellor did find that elementary principles of competitive bidding had been violated when Control Data was allowed to “clarify” its bid after American Totalisator’s bid had been opened. Before the clarification, Control Data’s bid was higher than the bid of American Totalisator; yet, after the clarification the opposite was true. The evil of the instant procedure is readily apparent. When competitive bidding is used and the procedures followed emasculate the benefits of such bidding, we believe judicial intervention is proper. Control Data’s argument that the original contract should be reinstated must be rejected, as we believe the chancellor acted correctly in ordering new bids submitted. See also, Lutz Appellate Printers v. Commonwealth, 485 Pa. 559, 403 A.2d 530 (1979). American Totalisator argues that it was the only responsive and lowest responsible bidder and as such, the chancellor erred in not awarding it the instant contract. We do not agree, because, the chancellor, in the instant case, decided that the best solution was to order rebidding. As we can find no abuse of discretion, we believe the chancellor did not err in refusing American Totalisator’s requested relief. Finally, American Totalisator argues that the chancellor erred in refusing to require Control Data to disgorge its profits from the original contract. As the entire Commonwealth Court stated, in confirming the chancellor’s decree nisi: “. . . The facts that the contract awarded was one within the general powers of the Bureau of Lotteries to make, that the evidence did not justify a finding of bad faith, as distinguished from mere fecklessness, on the part of the respondents of CDC, that the Acting Secretary had sought the advice of his lawyers, and that the Commonwealth had the benefit of CDC’s services at a price no higher than AmTote originally bid, tend to support the Chancellor’s decision not to afford this type of relief. Furthermore, again, the provision of such drastic relief might have harmed, interfered with or embarrassed the continued highly successful operation of the daily numbers game. We discern no abuse of the Commonwealth’s discretion with respect to the relief afforded by the decree nisi.” American Totalisator Co., Inc. v. Seligman, supra, 34 Pa.Cmwlth. at 440-41, 384 A.2d at 269. We likewise agree the chancellor did not abuse his discretion. Decree affirmed. Each party to pay own costs. LARSEN, J., files a dissenting opinion. . The request for proposal provided that the technical proposal, i. e., the proposal for the supply of equipment and management services, would be reviewed before the cost proposals were opened and considered. . The committee was impressed by the cathode ray tube for two reasons. First, the tube facilitated the training of agents. Second, by using the tube, the winning number could be displayed on each terminal. . The chancellor, in his findings of fact (Finding No. 50) stated: “The calculations prepared by Bureau employees (Finding 26) before either bidder responded to Seligman’s letters indicated that (1) if AmTote bid on an effective rate basis and CDC bid on a cumulative basis, and (2) both bids as submitted on March 26, 1976 were complete and responsive to the [request for proposal], AmTote’s bid was lower than CDC’s [bid].” (Emphasis added.) . The Commonwealth did not file any exceptions. . Control Data also argues that both the nature of the procurement and the conduct of the parties shows that they did not regard the contract as one requiring competitive bidding. Suffice it to say that the Commonwealth has always acted as if such bidding was required.

OPINION OF THE COURT LARSEN, Justice. In this rate case appeal, UGI Corporation — Gas Utility Division (UGI) and the Public Utility Commission (Commission) seek review of an order of the Commonwealth Court which reversed the Commission’s approval of UGI’s calculation of federal and state income taxes for rate-making purposes. The Commission’s ruling permitted UGI to calculate its federal and state income taxes on the basis of a separate return even though UGI did not file a separate return but joined in a tax-saving consolidated return filed by its corporate parent. On appeal, the Commonwealth Court disapproved of the separate-return calculations used by UGI and concluded that tax calculations which fail to account for the tax benefits realized by participation in a consolidated return cannot be sanctioned. We agree, and therefore, affirm. On March 31, 1982, UGI filed with the Commission, tariff revisions proposing rate increases which would generate an additional $30,719,803 in annual revenues. The commission initiated an investigation to determine the lawfulness and reasonableness of the proposed rates. The revised rates were suspended by operation of law until December 31, 1982. The Office of Consumer Advocate (OCA) was one of several parties who filed a complaint challenging the proposed rates. Among the various issues raised in the proceedings, the OCA contested the income tax expenses claimed by UGI. The OCA argued that UGI filed its tax return as part of a consolidated tax group comprised of its parent company and several other subsidiaries. Under this voluntary arrangement, UGI’s tax liability was less than it would have been had a separate return been filed. It follows then, the OCA argued, that taxes calculated on the basis of a separate return cannot be allowed and, for rate-making purposes, UGI must be required to figure its tax liability on the basis of the consolidated return actually filed. In considering the income tax issue raised by the OCA, the Commission summarized as follows: The Company has developed current and deferred income tax expense totalling $19,433,239 ($16,407,960 Federal and $3,025,279 State) which includes current taxes payable, deferred taxes normalizing liberalized depreciation, and the deferral and amortization of investment tax credits. (UGI Ex. 9, III-A-17(6), revised July 1, 1982.) The OCA urges that the requested allowance for state and federal income taxes of $19,433,239 be adjusted by the application of a consolidated effective income tax rate of 27.77% to the OCA pro forma return on rate base to yield a tax allowance of $10,538,091. (OCA St. 4, Sch. 67, revised). OCA further urges that the tax allowance be reduced by $402,520, to reflect the five year amortization of accumulated deferred state income taxes, and $42,594, which reflects a three year amortization of the difference between accumulated deferred income taxes collected at 48% and those collected at 46%. (OSA St. 4, Sch. 72, revised.) The total OCA allowance for state and federal income taxes would be $10,092,977. (OCA St. 4, Sch. 67, revised.) Slip opinion, pps. 39, 40. The Commission dismissed the OCA’s arguments saying that only consolidated tax savings that are generated by chronic loss companies should be flowed through to the ratepayers. In this case the Commission found that no chronic loss company was involved in the UGI consolidated return. The Commission held, therefore, that for rate-making purposes, UGI’s tax calculations on a separate return basis were reasonable. The Commission approved the income tax expense figure for the test year ending December 31, 1982 at $19,433,239, the sum which was calculated and submitted as if UGI filed a separate return. The Commonwealth Court found that the Commission’s conclusion on the tax expense issue violated basic rate-making principles, thus constituting an error of law. Appellants (UGI and the Commission) argue that the Commonwealth Court exceeded its scope review by substituting its discretion for that of the Commission. Appellants contend that the Commission’s ruling on the tax expense issue was within the Commission’s discretionary expert judgment and the Commonwealth Court possesses little latitude to interfere with the expertise of the Commission. See Pennsylvania Power and Light Co., v. Pennsylvania Public Utility Commission, 10 Pa.Cmwlth. 328, 311 A.2d 151, (1973). The scope of review in Public Utility Commission cases is limited to a determination of whether constitutional rights have been violated, an error of law has been committed, or the Commission’s findings and conclusions are, or are not, supported by substantial evidence. Park Towne v. Pennsylvania Public Utility Commission, 67 Pa.Cmwlth. 285, 289, 433 A.2d 610, 613 (1981); Carnegie Natural Gas v. Pennsylvania Public Utility Commission, 61 Pa. Cmwlth. 436, 438, 433 A.2d 938, 940 (1981); 2 Pa.C.S.A. § 704. In the case sub judice, the Commonwealth Court found that the Commission’s conclusion constituted an error of law. Although the Commission is vested with broad discretion in determining what expenses incurred by a utility may be charged to the ratepayers, the Commission has no authority to permit, in the rate-making process, the inclusion of hypothetical expenses not actually incurred. When it does so, as it did in this case, it is an error of law subject to reversal on appeal. Next, appellants argue that the Commission’s adoption and application of a “chronic loss company” methodology in the calculation of consolidated tax return savings is proper and legitimate regulatory policy and should be approved by the appellate courts. In 1981, the UGI parent corporation operated two utilities and had 22 non-utility subsidiaries. Rapid expansion of the non utility companies generated for these subsidiary entities large tax losses and considerable investment tax credits. It was these losses and credits that produced substantial reduction in the taxes due under a consolidated return. The appellants contend that tax losses and investment tax credits of a non utility member of a consolidated tax group do not relate in any way to the business of a utility member for rate-making purposes. Appellants insist that it is only in a situation where a chronic loss tax shelter company is a part of the consolidated group that allocation of non utility tax benefits to a utility member of the group is proper and sustainable. If no chronic loss company is present in the group, appellants argue it would be inconsistent to use those tax benefits to reduce the income tax expense allowance of a utility member without also including, in the rate-making process, consideration of the non utility costs which generated the tax losses and the tax credits. Appellants add, as the Commission held, that it is only where a chronic loss company is involved in the consolidated group that the savings realized by the filing of a consolidated tax return are to be flowed through to the ratepayers. The appellants’ argument fails to recognize the basic rate-making maxim that only expenses which, in fact, are actually paid or payable by the utility may be included for the purposes of rate-making. The rates of a utility are to be completed on the basis of providing a fair return on the fair value of its property used and useful in the public service after allowance for proper operating expenses, taxes, depreciation, and any other legitimate item. In computing the cost of operation and service, the Commission considers evidence of the actual expenses, properly adjusted when the evidence warrants; there is no legal or equitable reason for a supplemental return in the guise of allowances for taxes or other expenses which are not incurred, (emphasis supplied). City of Pittsburgh v. Pennsylvania Public Utility Commission, 182 Pa.Super. 551, 581, 128 A.2d 372, 386 (1956). In Riverton Consolidated Water Co. v. Pennsylvania Public Utility Commission, 186 Pa.Super. 1, 140 A.2d 114 (1958), the Commission recognized, for rate-making purposes, the utility’s tax savings resulting from participation in the filing of a consolidated tax return. Riverton, the appellant in that case, argued that the Commission should have permitted a tax expense in a sum equal to the amount paid by the utility to its parent company notwithstanding the diminished liability derived by joining in a consolidated return. The Superior Court rejected River-ton’s argument and approved the Commission’s justifiable consideration of the lessened tax liability in the rate-making process. The Superior Court said: The fact that Riverton actually pays to [its parent company] an amount for taxes greater than its proper proportionate share of the consolidated tax liability merely accomplishes in fact that which it is forbidden to do. The making of an improper payment does not eliminate its impropriety. The only proper tax expense which Riverton may pass on to its customers is its proportionate share after the consolidated return is filed and the actual tax paid. (Emphasis supplied). Id., 186 Pa.Super. at 20, 140 A.2d at 123. Our Courts have consistently held it to be improper to include, for rate-making purposes, tax expenses which, because of the filing of a consolidated return, are not actually payable. All tax savings arising out of participation in a consolidated return must be recognized in rate-making, otherwise we would be condoning the inclusion of fictitious expenses in the rates charged to the ratepayers. One of the generally accepted rate-making principles is that utilities are permitted to set rates which will recover those operating expenses reasonably necessary to provide service to customers, while earning a fair rate of return on the investment in plant used and useful in providing adequate utility service. City of Pittsburgh v. Pennsylvania Public Utility Commission, 42 Pa.Cmwlth. 242, 247, 400 A.2d 672, 674 (1979). Of course, this cost of service includes a reasonable allowance for federal income taxes. See The Peoples Natural Gas Co. v. Pennsylvania Public Utility Commission, 47 Pa.Cmwlth. 512, 409 A.2d 446 (1979). However, this Court has held that the Commission may properly exclude a portion of a utility’s tax expense where there is evidence that the utility has not been afforded its fair share of benefits from filing a consolidated tax return with a parent corporation. Bell Telephone Co. v. Pennsylvania Public Utility Commission, 47 Pa.Cmwlth. 614, 619-622, 408 A.2d 917, 921-922 (1979),.... Western Pennsylvania Water Co. v. Pennsylvania Public Utility Commission, 54 Pa.Cmwlth. 187, 190, 422 A.2d 906, 908 (1980). We recently held in Barasch v. Pennsylvania Public Utility Commission and Pennsylvania Power Company, 507 Pa. 496, 491 A.2d 94 (1985) that the rate-making practice of “normalization” which, when “applied to income tax expense ... permits a public utility to include in its current rate base an income tax expense higher than that which it has been required to pay on the assumption that the taxes saved by accelerated depreciation are merely deferred,” Id., 507 Pa. at 500 n. 1, 491 A.2d 95 n. 1, violated the “actual taxes paid” doctrine. We disapproved of this concept concluding that it was contrary to the requirement that rates approved by the commission must be “just and reasonable.” Id., 507 Pa. at 515, 491 A.2d at 103. Where an expense is not actually incurred, be it for taxes or otherwise, it is improper to include it in the rates charged to the ratepayers. If a utility, because of its combining with a group, is able to obtain a desirable long term lease of property containing a very favorable rental which, through the passing years, becomes considerably less than market value, we would not sanction the inclusion of the market rental value in place of the actual rent in the rate-making process. If a utility joins with non-utility companies in a buying group, and because of the increased purchasing power wielded by the group, it is able to purchase material, equipment, supplies, etc. at discount prices — lower than that which it would be required to pay if it made the purchases as a separate entity, we would not condone the inclusion of the higher costs in the rate-making process. It is a violation of basic rate-making principles to charge ratepayers for theoretical expenses which in practice the utility bears no liability. This is true no matter the category of expense. The ratepayers are entitled to the benefits of reduced tax expenses accruing to the utility by participation in a consolidated tax return as was filed in this case. The order of the Commonwealth Court is affirmed and this case is remanded for proceedings consistent with this opinion. . See 66 Pa.C.S.A. § 1308(b). . Also filing complaints were Hazelton Taxpayers Association, Bethlehem, Carpenter Technology Corporation, Highspire Borough, Steelton Borough, Penbrook Borough, Lower Paxton Township, Lower Swatara Township, South Hanover Township, Susquehanna Township, Derry Township, Paxtang Borough, PPG Industries, Inc. and Royalton Borough. . The income tax expense issue is the only issue raised in the appeal to this Court. . At the time in question, there were 2 regulated utility companies and 22 non-utility business corporations in the consolidated UGI corporation. . A chronic loss company is one that sustains losses year after year and is unable to benefit from carry-back or carry-forward provisions of the Internal Revenue Code. . Cohen v. Pennsylvania Public Utility Commission, 78 Pa.Cmwlth. 545, 468 A.2d 1143 (1983). . 2 Pa.C.S.A. § 704 provides in part as follows: The court shall hear the appeal without a jury on the record certified by the Commonwealth agency. After hearing, the court shall affirm the adjudication unless it shall find that the adjudication is in violation of the constitutional rights of the appellant, or is not in accordance with law, or that the provisions of Subchapter A of Chapter 5 (relating to practice and procedure of Commonwealth agencies) have been violated in the proceedings before the agency, or that any finding of fact made by the agency and necessary to support its adjudication is not supported by substantial evidence---- . Riverton, as UGI in the case at bar, calculated its tax liability based upon tax rates applicable under a separate tax return. The tax sum that would be due upon the filing of a separate return was remitted to the parent corporation. The parent company then re-figured the taxes due under a consolidated return and paid that reduced consolidated amount.

Opinion by Mr. Justice Barbieri, This is an appeal from a judgment of sentence of ten to twenty years entered by the Court of Common Pleas of Philadelphia County upon a verdict of second degree murder following denial by the Court en hone of defendant’s motion for a new trial. There is no dispute that appellant shot and killed the decedent. The only question to be decided at trial was whether or not appellant acted in self-defense. The jury’s verdict was that he did not. Appellant raises numerous allegations of trial errors, four of which we think merit discussion. Two of these require that the case be retried. 1. Necessity for Instructions on the Prosecution’s Use of Defendant’s Criminal Record We consider first the question of whether or not it was reversible error for the trial court to fail to give cautionary instructions, as requested, on the limited purpose for which the defendant’s criminal record could be used by the prosecution. The Commonwealth used defendant’s record during cross-examination of the defendant’s character witnesses, purportedly to test the extent of the witnesses’ knowledge of the defendant’s reputation. It is well settled that “character witnesses may legitimately be questioned as to whether or not they ever heard persons in the neighborhood attribute particular offenses to the defendant.” Commonwealth v. Jenkins, 413 Pa. 606, 607, 608, 198 A. 2d 497, 498 (1964). (Emphasis in original) Thus, the Commonwealth could properly ask defendant’s character witnesses if they had heard others in the neighborhood say that the defendant had been convicted of, or even just arrested for, various felonies and misdemeanors. See Michelson v. United States, 335 U.S. 469, 69 S. Ct. 213, 93 L.E. 168 (1948); Commonwealth v. Jenkins, supra; 111 A Wigmore on Evidence §988 (Rev. Third Edition (1970)). Of course, the potentially prejudicial effect of the introduction of the defendant’s record requires that the jury be made aware of the limited purpose of such evidence. The Commonwealth argues that the mention ing of tliis limited purpose by defendant’s counsel in a colloquy with the trial judge in the presence of the jury and by the assistant district attorney in his closing speech demonstrated that the jury had a clear understanding of this purpose, as is required by Commonwealth v. Wright, 415 Pa. 55, 61, 202 A. 2d 79, 81-82 (1964). We do not agree. In Wright the Court said (at page 61) : “[T]he trial court did state for the record the purpose of admitting this testimony at the time of admission, [but] it failed to instruct the jury on this important phase of the case during the charge.” The Court, per Mr. Justice Eagen, held that despite the trial judge’s statement and despite the absence of a request by defense counsel for instructions on this issue, the Court’s failure to give appropriate instructions to the jury was reversible error. “[W]e deem it extremely important that the jury clearly understands in every case, the limited purpose of such evidence.” IMd. The instant case is even stronger for the defendant than was Wright. Here, counsel rather than the court made the statements acknowledging the limited purpose of the defendant’s record and defense counsel did make a timely request for the instructions. Without specific instructions, one could only speculate as to whether or not the jury in this case “clearly understood” the limited purpose for which the evidence was admissible. The Commonwealth’s argument that the appellant waived his right to the requested instructions because he later referred to his criminal record Avhile explaining the circumstances under which he was arrested is without merit. The importance of the court’s bringing home to the jury that the defendant’s record was admissible for impeachment purposes only is in no way diminished by defense counsel’s attempt to reduce the prejudicial effect of the Commonwealth’s prior revelation of his record. 2. Admissibility of the Victim’s Criminal Record Appellant’s second contention is that the trial court erred in not admitting the record of the victim’s felony convictions. Appellant submits that the victim’s record is admissible on either or both of two grounds: (1) to corroborate defendant’s alleged knowledge of the victim’s quarrelsome and violent character in an effort to show that defendant reasonably believed that his life was in danger; (2) to prove the allegedly violent propensities of the victim to show that the victim was in fact the aggressor. This Court has recognized this first ground at least since Abernethy v. Commonwealth, 101 Pa. 322, 329 (1882). In Abernethy, we said (at page 329) that evidence that the victim was a man of quarrelsome disposition was admissible to show that the defendant believed himself to be in danger when it had been shown that “the defendant and the deceased were on terms of intimacy.” And this Court has recognized the second ground at least since Alexander v. Commonwealth, 105 Pa. 1, 9 (1884). There, evidence of the deceased’s propensity for hostility, vindictiveness and violence was held admissible on the issue of whether or not the victim was the aggressor. The Court imposed no requirement that defendant have had knowledge of the alleged propensity. Given that character evidence is permissible on both of the above-mentioned grounds, we must next determine whether a criminal record is to be allowed to prove a deceased victim’s character on either or both of these grounds. Previous decisions of this Court offer little guidance on this point. In Alexander, for example, while the Court held that it was permissible for the defendant to introduce evidence of the victim’s reputation for violence—but not the deceased’s prior criminal conduct—on the issue of who the aggressor was, there was no indication that the prior conduct was to be proved by means of a criminal record. Similarly, the Court’s suggestion in Commonwealth v. Straesser, 153 Pa. 451, 26 A. 17 (1893), that it would permit a defendant to introduce evidence of the victim’s prior conduct against the defendant but not against third persons even if the defendant were aware of such conduct at the time of the aggression between the victim and himself, is not controlling in this case because merely dictum. Thus, although our Court has indicated in several cases that generally, character can be proved only by reputation evidence, it has not yet spoken to the precise issue before us today. We believe that the various rationales for this rule in other situations do not obtain in this case and hold that where a defendant alleges self-defense, he may use his deceased victim’s criminal record either (1) to corroborate his alleged knowledge of the victim’s quarrelsome and violent character to show that the defendant reasonably believed that his life was in danger; or (2) to prove the allegedly violent propensities of the victim to show that the victim was in fact the aggressor. Our holding is supported by such authorities as the Uniform Rules of Evidence, the Model Code of Evidence, and Wigmore on Evidence. Uniform Rule 47, “Character Trait as Proof of Conduct,” provides that “evidence of conviction of a crime” may be admissible “when a trait of a person’s character is relevant as tending to prove his conduct on a specified occasion.” National Conference of Commissioners on Uniform State Law, Uniform Rules of Evidence (1953). Rule 306(2) of the Model Code of Evidence states that “As tending to prove a trait of a person’s character . . . (c) evidence that the person has been convicted of a crime the commission of which tends to prove the trait to be bad is admissible, but no other evidence of specific instances of his conduct is admissible except as stated in Rule 106(1) [Evidence Affecting Credibility].” American Law Institute, Model Code of Evidence (1942) (See also Illustration 4 under Rule 306). Wigmore states that the reasons usually marshalled in limiting proof of character as to a defendant—the possibilities of (1) arousing prejudice, (2) surprising the defendant, (3) confusing the jury, and (4) consuming time—do not obtain as to a victim. “[T]here is no substantial reason against evidencing the character [of a deceased victim] by particular instances of violent or quarrelsome conduct. Such instances may be very significant; their number can be controlled by the trial court’s discretion; and the prohibitory considerations applicable to an accused’s character have little or no force.” 1 Wigmore on Evidence §198 (Rev. Third Edition, 1970) (Emphasis in original). See also, Wigmore, §§194, 1610, 1986 and McCormick, Evidence, §158 (First Edition, 1954). We do not mean to imply that a defendant may introduce any or all of the convictions in a victim’s record. To have probative value, these crimes should be “of the same nature, not too distant in time” vis a vis the alleged aggression as is required by Commonwealth v. Raymond, 412 Pa. 194, as to criminal records admitted to show modus operandi. The record of the victim offered in our case contained three convictions for burglary and larceny and two convictions for assault and robbery. (Of the last two, one included a count of armed robbery and the other a count of aggravated assault and battery). The convictions for assault, especially those involving a weapon, would seem more probative on the issue of whether or not the deceased was the aggressor than would the convictions for larceny and burglary. The decision in each case as to similar nature and remoteness, however, rests within the sound discretion of the trial judge. Nor do we mean to suggest that our decision here abandons the rule enunciated in Abernethy that the defendant must first establish a foundation of his knowledge of the victim’s convictions before he can introduce the corroboratory record when the defendant is seeking to prove his belief that he was in imminent danger of bodily harm. Here again, the determination whether or not the defendant demonstrates a sufficiently particular knowledge of the victim’s record rests within the sound discretion of the trial court. 3. Crimes Suitable for Impeachment of Credibility Appellant argues thirdly that one of defendant’s witnesses’ credibility was improperly impeached when this witness was cross-examined as to his prior conviction for burglary. Appellant argues that not all felonies can be used for impeachment purposes but only those “involving dishonesty or false statement” under Model Code of Evidence Rule 106(1) (b) and Uniform Rule of Evidence 21. McIntosh v. Pittsburgh Railways Company, 432 Pa. 123, 247 A. 2d 467 (1968) is cited in support of this proposition. McIntosh, however, is distinguishable in that the conviction there was for the felony of pandering. While mere pandering may not necessarily demontsrate dishonesty, burglary is a crime connoting “dishonesty” by any definition. 4. Sufficiency of Instructions on “Reasonable Belief” Appellant fourthly contends that the trial court’s charge was erroneous because it did not sufficiently emphasize the rule that a defendant’s reasonable belief that he is in imminent peril of death or great bodily harm is sufficient to constitute the absolute defense of self-defense. The relevant portion of the charge reads: “The defense of self-defense is an affirmative one, and the burden lies on the defendant, in such a case, of proving by a fair preponderance of the credible evidence that there was an actual necessity for taking life or inflicting grievous bodily injury, or a seeming one so reasonably apparent and convincing to defendant as to lead him to believe he could only defend himself in that way.” Although the wording of this charge is slightly different from the statement of the law in Commonwealth v. Commander, 436 Pa. 532, 539-40, 260 A. 2d 773 (1970) and from the charge approved in Commonwealth v. James, 433 Pa. 508, 511, 253 A. 2d 97 (1969), it certainly did not misstate the law. In fact, it follows very closely the language in the leading case of Commonwealth v. Drum, 58 Pa. 9, 20 (1868). As we have noted, appellant’s other contentions have been considered by ns and found to be devoid of merit. We reverse. The sentence is vacated and a new trial is ordered. Mr. Chief Justice Bell took no part in the consideration or decision of this ease. After a period of confusion, most jurisdictions presently recognize that the defendant’s knowledge of the deceased’s propensity is not relevant to the issue of who was in fact the aggressor. See 1 A.L.R. 3d 571, Admissibility of Evidence as to Other’s Character or Reputation for Turbulence on Question. of Self-Defense by One Charged with Assault or Homicide, at 601-603 and eases cited therein; see also, Commonwealth v. Chilson, 213 Pa. Superior Ct. 213, 245 A. 2d 711 (1968). The Circuit Court of Appeals for the District of Columbia has taken a similar view on this ground. In Evans v. Unites States, 277 F. 2d 354 (D.C. Cir. 1960), the Court held that a wife could testify to the behavior while intoxicated of her husband, the victim. The Court thus held that the prior conduct of a victim was admissible on the issue of whether the victim or the defendant was the aggressor. This Court later suggested that the criminal record of a deceased would be admissible so long as it could be shown that the specific criminal acts were relevant. Jones v. United States, 385 F. 2d 296, 298 n. 2 (D.C. Cir. 1967) (dictum). Black’s Law Dictionary (4th ed.) defines “dishonesty” as “Disposition to lie, cheat, or defraud; untrustworthiness; lack of integrity.” Webster’s New International Dictionary (2nd ed.) gives as one of the meanings of “dishonesty”: “A dishonest act; a fraud; any deviation from probity.”

OPINION Justice CASTILLE. Appellant Andre Jones appeals from the Superior Court’s order affirming the trial court’s judgment of sentence for one count of burglary, 18 Pa.C.S. § 3502(a), and one count of criminal trespass, 18 Pa.C.S. § 3503. The sole issue on appeal is whether the trial court erred in sentencing appellant to consecutive sentences for burglary and criminal trespass where one act was involved and the same facts established nearly identical elements for both crimes. We now reverse the Superior Court and hold that criminal trespass is a lesser included offense of burglary for sentencing purposes, causing the sentences for the crimes to merge. We therefore vacate the sentence for criminal trespass. On July 31, 2002, at approximately 10 p.m., Julia Wellons heard noises coming from the inside of her house as she sat on the front porch of her home in Philadelphia. When Wellons went inside, she discovered that her previously locked back door was open. As she investigated further, she found her second floor bedroom light was turned on and her wallet was lying on her bed with the money removed. Upon hearing noises on the third floor, she phoned the police and shouted up the stairs that she had done so. She then heard someone trying to break through her third floor bathroom window and she began to climb the stairs, when she saw appellant, her next-door neighbor, in the bathroom. Before the police came, appellant jumped out of the window onto a shed adjacent to the home and fled. Following a conversation with Wellons, the police went next-door and arrested appellant. After a bench trial, appellant was found guilty of one count of burglary and one count of criminal trespass. On March 5, 2003, appellant was sentenced to ten to twenty years of imprisonment for burglary and two to ten years imprisonment for criminal trespass, the sentences to run consecutively. Appellant appealed to the Superior Court. The Superior Court affirmed the trial court’s judgment of sentence in an unpublished memorandum opinion. As to the issue of whether criminal trespass and burglary merge at sentencing, the panel held that criminal trespass is not a lesser included offense of burglary, since criminal trespass contains a scienter requirement not included within the elements of burglary. The panel began its analysis by citing Commonwealth v. Anderson, 538 Pa. 574, 650 A.2d 20 (1994), for the proposition that sentences merge if the elements of the lesser crime are included within the elements of the greater crime, and the greater offense includes an additional element not included within the lesser crime. The court concluded that criminal trespass and burglary do not merge by relying on Commonwealth v. Harrison, 444 Pa.Super. 103, 663 A.2d 238 (1995), which observed that the elements of criminal trespass require a defendant to know he is not privileged to enter a property, whereas burglary contains no such requirement. Appellant claims that criminal trespass should merge with burglary for sentencing purposes because every burglary also constitutes a criminal trespass. Appellant argues that his convictions should merge under the OAJC in Gatling, 570 Pa. 34, 807 A.2d 890, because they arose out of the same criminal act and the charge of criminal trespass is a lesser included offense of burglary. He also argues that his sentences merge under the test set forth in Commonwealth v. Comer, 552 Pa. 527, 716 A.2d 593 (1998), where this Court held that sentences should merge where one set of facts supports the elements of two offenses. Appellant acknowledges that it is reasonable for the Commonwealth to charge a defendant with both criminal trespass and burglary where the Commonwealth is uncertain it is able to prove a defendant’s intent to commit a crime at entry, but asserts that there is no logical justification for subjecting a defendant to multiple and consecutive terms of imprisonment when the act of burglary is proven at trial. The Commonwealth counters by arguing that merger is a question of legislative intent, and 42 Pa.C.S. § 9765 states that offenses merge only where “all of the statutory elements of one offense are included in the statutory elements of the other offense” and the crimes arise from a single criminal act. Moreover, the Commonwealth argues that this Court has consistently held that crimes do not merge unless they are lesser and greater included offenses. In the Commonwealth’s view, departures from that doctrine, notably in Gatling, are nonbinding dicta. The crimes that appellant was convicted of sub judice are not lesser and greater included offenses, according to the Commonwealth, because each crime includes an element that the other crime does not. Burglary requires the intent to commit a crime within a building at entry, while criminal trespass does not. Criminal trespass requires a breaking into a structure, while burglary requires only entry into a building. Therefore, the Commonwealth argues, it is possible to commit one offense without committing the other. In courts across the nation, analysis of lesser and greater included offenses typically falls into one of three categories. 5 Wayne R. LaFave et al., Criminal Procedure 576 (2d ed.1999). First, the “statutory elements test” limits a court to comparing the elements of the crimes, without reference to how the crimes were committed in a particular case, to determine whether in committing one offense the defendant has also committed a lesser offense. Id. The primary criticism of this test is that it is too inflexible, frequently ignoring the true nature of criminal conduct by excluding a lesser included offense; but the test is praised for its consistency which promotes judicial efficiency. Id. at 578. Second, the “cognate-pleadings” approach does not require that all of the elements of a lesser included offense be subsumed within the higher offense, and instead instructs a court to assess the relationship between crimes by looking at the pleadings in a case. Id. at 579-80. Third, the “evidentiary” approach allows a court to analyze the actual proof submitted at trial, rather than only the pleadings, to examine the relationship between the crimes committed. Id. at 581. Critics of this approach complain that it leads to too many crimes being deemed lesser included offenses and places both parties at a disadvantage in preparing for trial, while proponents of the method counter that all of the prosecution’s proof is known from the start of a case. Id. at 583. As detailed below, this Court’s own analysis of lesser and greater included offenses has evolved over time, in the sentencing merger context, from a strict statutory elements test to a hybrid of both the statutory elements and cognate-pleadings approaches. This development perhaps corroborates Justice Holmes’ observation that, “[t]he life of the law has not been logic: it has been experience.” Oliver Wendell Holmes, Jr., The Common Law 1 (1881). Nearly three decades ago, in Commonwealth v. Carter, 482 Pa. 274, 393 A.2d 660 (1978), this Court confronted an issue similar to the one before us today and utilized a merger analysis that most closely resembles a statutory elements approach. Carter did not involve sentencing merger, but instead a due process challenge where a defendant who was charged only with committing burglary was convicted for the uncharged crime of criminal trespass. With Justice Roberts (later Chief Justice) writing for the majority, this Court reasoned that criminal trespass is not a lesser included offense of burglary because the statutory definition of criminal trespass has a scienter requirement absent from the definition of the more sevére offense. [T]hus, one defending against a burglary charge would have no reason to establish that (albeit falsely) he believed his presence in a building or occupied structure was privileged or licensed. Yet evidence of such a belief could provide a basis for an acquittal of a charge of criminal trespass. Id. at 661. Given the deficiency in notice, the Carter Court held, it was a violation of due process to convict the defendant of criminal trespass when he was not indicted on that charge. Id. Since Carter, however, our precedent in the related but distinct area of sentencing merger has adopted a more flexible and realistic approach, which renders untenable, for merger purposes, Carter’s view that burglary and criminal trespass are not greater and lesser included offenses. More than a decade after Carter, this Court addressed in Anderson whether, for merger purposes, aggravated assault is a lesser included offense of attempted murder. We attempted to harmonize prior case law by first holding that the same facts may be used to support multiple convictions and separate sentences for each conviction, except where the case involves crimes that are greater and lesser included offenses. Anderson, 650 A.2d at 22. This Court explained that the test for sentencing merger was the same as the test used to determine whether two offenses have been committed in the double jeopardy context, quoting the inquiry announced in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932): The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of a fact which the other does not. Id. at 23 (quoting Commonwealth v. Tarver, 493 Pa. 320, 426 A.2d 569, 572 (1981) for its quotation of Blockburger ). We then set forth the test for determining greater and lesser included offenses as: [W]hether the elements of the lesser crime are all included within the elements of the greater crime, and the greater offense includes at least one additional element which is different, in which case the sentences merge, or whether both crimes require proof of at least one element which the other does not, in which case the sentences do not merge. Id. at 24. Applying this test to the case, the Anderson Court found that all of the elements of aggravated assault were subsumed under the attempted murder statute. The Court reached this conclusion by noting that “any merger analysis must proceed on the basis of [the] facts” of a case because some portions of a statute may be relevant to the analysis, while others will be immaterial. Id. at 24 n. 3 (discussing two different portions of aggravated assault statute; noting that defendant may be prosecuted for aggravated assault if he either attempts to cause or causes serious bodily injury to another. See 18 Pa.C.S. § 2702(a)). Then, in Comer, 552 Pa. 527, 716 A.2d 593, this Court considered whether imposition of multiple sentences for convictions for involuntary manslaughter and homicide by vehicle violates the double jeopardy clauses of the Pennsylvania Constitution and the United States Constitution. The Superior Court in Comer held that homicide by vehicle is not a lesser included offense of involuntary manslaughter because homicide by vehicle requires a violation of the Motor Vehicle Code, 75 Pa.C.S. § 101 et seq., an element not present in the involuntary manslaughter statute. Id. at 599. Additionally, the Superior Court held that involuntary manslaughter is not a lesser included offense of homicide by vehicle given that the former crime requires a higher degree of culpability. Id} This Court reversed on further appeal, holding that the elements of homicide by vehicle “as charged” in the case were included within the elements of involuntary manslaughter and each offense could be proven using the same evidence. Id. This was so because the defendant in Comer was charged with recklessly driving his vehicle into a bus stand, a fact which supported both the reckless act element of involuntary manslaughter and the Vehicle Code violation element of homicide by vehicle. Id. We buttressed our conclusion by noting that the test announced in Anderson was based on Blockburger. Significantly, we expressly acknowledged in Commonwealth v. Collins, 564 Pa. 144, 764 A.2d 1056, 1059 (2001) that homicide by vehicle contained a statutory element that the greater offense, involuntary manslaughter, did not, but we reiterated the importance of looking at the elements of the crimes as they are actually charged when determining whether convictions merge for sentencing. We did not abandon, however, our practice of considering the statutory elements of the crimes when we held that the offenses of homicide by vehicle and homicide by vehicle while driving under the influence of alcohol (homicide by vehicle DUI) do not merge for sentencing purposes. Id. The rationale underlying this decision was premised on the fact that the doctrine of merger is a rule of statutory construction mandating an inquiry, if diseernable in the construction of the statutes, regarding whether the Legislature intended the two offenses to merge for sentencing. Id. at 1057. In Collins, we found legislative intent readily ascertainable in the statutory definitions of the two offenses at issue, as the General Assembly constructed homicide by vehicle as requiring a non-DUI Vehicle Code violation and homicide by vehicle DUI as requiring a DUI conviction. Id. at 1059. The Collins Court further recognized that Comer permitted an analysis of “the elements as charged in the circumstances of a case,” but that “it does not permit [this Court] to view the circumstances so broadly that we redefine the elements of the crime.” Id. Gatling was decided a year after Collins, but did not result in a majority opinion. The question in Gatling was whether convictions for corrupting the morals of a minor and statutory sexual assault merged. Madame Justice Newman’s OAJC characterized merger analysis as a two-part test, inquiring: (1) whether the crimes are lesser included offenses; and (2) whether the crimes are based on the same set of facts. Gatling, 807 A.2d at 899. In a footnote, the OAJC opined that “in a situation where the crimes, as statutorily defined, each have an element not included in the other but the same narrow fact satisfies both of the different elements, the lesser crime merges into the greater-inclusive offense for sentencing.” Id. at 899 n. 9 (comparing holding of Comer with holding in Collins). Although the parties in the case sub judice disagree over whether this statement articulates prevailing law, none of the members of the Gatling Court who were not with the OAJC took issue with this particular point. Rather, the primary point of dispute related to a subject not at issue in this case, namely, the OAJC’s articulation of a “break-in-the-chain” test to determine whether a series of events constitutes a single criminal act or multiple ones. Id. at 900. Moreover, the proposition so stated in Gatling is squarely supported by Comer and Collins. With this background in mind, we turn to the relevant statutes. Burglary is defined as follows: A person is guilty of burglary if he enters a building or occupied structure, or separately secured or occupied portion thereof, with intent to commit a crime therein, unless the premises are at the time open to the public or the actor is licensed or privileged to enter. 18 Pa.C.S. § 3502(a). In the very next statutory provision, criminal trespass is defined as follows: A person commits an offense if, knowing that he is not licensed or privileged to do so, he: (1) enters, gains entry by subterfuge or surreptitiously remains in any building or occupied structure or separately secured or occupied portion thereof; or (ii) breaks into any building or occupied structure or separately secured or occupied portion thereof. 18 Pa.C.S. § 3503(a)(1). The phrase “breaks into” requires a person “to gain entry by force, breaking, intimidation, unauthorized opening of locks, or through an opening not designed for human access.” Id. at § 3503(a)(3). The impediment to merger here, as identified in the Carter approach to charging and due process and the Anderson approach to sentencing merger, consists in the fact that the two primary elements of criminal trespass — (1) knowledge of lack of privilege (2) to enter a building — are not elements of burglary. Criminal trespass requires a defendant’s awareness of lack of privilege, 18 Pa.C.S. § 3503(a)(1), while the putatively greater offense of burglary requires only lack of privilege, id. at § 3502(a). In accordance with the teaching of Comer, Collins, and the Gatling OAJC, however, we must evaluate the statutory elements, with an eye to the specific allegations levied in the case. See also Commonwealth v. Buffington, 574 Pa. 29, 828 A.2d 1024, 1031 n. 11 (2003) (in determining whether particular crime is lesser included offense, U.S. Supreme Court and this Court have deemed “the facts of a case as alleged in the charging document to be of significance where the crimes are defined as encompassing a range of acts or offenses”). The pleadings make clear the crimes must be deemed to merge. Appellant was charged with entering the home of his next-door neighbor, without permission, and taking $400 from inside. Although appellant made an argument below that he believed he had permission to enter, the trial court, sitting as factfinder, obviously rejected this contention when it convicted him of both burglary and criminal trespass. Any individual who covertly enters another person’s home, through a locked back door as appellant did, and then steals valuables obviously is aware that his entry into the home is neither licensed nor privileged. Thus, the totality of circumstances here, including the pleadings and proof at trial, established that appellant was aware of his lack of privilege to enter when he committed both burglary and criminal trespass. We find further support for our finding of merger in Justice Pomeroy’s dissenting opinion in Carter. Although that dissent is not binding, and Carter remains valid precedent for the due process issue there decided, it is significant that the dissent anticipated the more practical, hybrid approach that has emerged in Pennsylvania sentencing merger law, and it did so in a case involving burglary and criminal trespass, the crimes at issue here. Justice Pomeroy, who was joined by Justice O’Brien, would have held that criminal trespass is a lesser included offense of burglary. Justice Pomeroy stressed the factual realities of the Commonwealth’s prosecution in a case such as this one. The criminal trespass statute requires that a defendant have affirmative knowledge of his lack of privilege to enter a building, whereas a plain reading of the burglary statute requires the Commonwealth to show volitional entry (with the intent to commit a crime) into a building and allows a defendant’s license or privilege to enter a building to operate as an affirmative defense to the crime. Justice Pomeroy viewed criminal trespass as a lesser included offense of burglary because the burden of production on the Commonwealth is functionally identical for each crime, as the Commonwealth must essentially prove entry without legal justification in each case. Carter, 393 A.2d at 666. Justice Pomeroy opined that, although the burglary statute suggests that privilege is an affirmative defense to the crime, as opposed to a mandatory element that the Commonwealth must prove to establish criminal trespass, the very availability of the defense necessarily requires any competent prosecutor to establish knowledge of lack of privilege in his case in chief to thwart a potential defense argument or evidence respecting license or privilege. Id. Justice Pomeroy’s exploration of the practicalities and the interplay of these particular crimes is persuasive, particularly considering how merger analysis has evolved in this Court. We stress that our reliance on the Carter dissent does not call into question the validity of the holding of the Carter majority. Carter implicated due process, a distinct concern from the present case. This Court has evaluated whether crimes are lesser and greater included offenses in cases concerning sentencing merger, double jeopardy, and due process, but the concerns arising under due process are different from those attending the former two types of cases. The fact that this Court employs the same analysis in double jeopardy and sentencing merger cases is a function of the Double Jeopardy Clause’s prohibition that no person “shall be subject for the same offence to be twice put in jeopardy of life or limb,” which protects against both successive punishments and successive prosecutions for the same offense. United States v. Dixon, 509 U.S. 688, 695-96, 113 S.Ct. 2849, 2855, 125 L.Ed.2d 556 (1993). The due process concern in Carter, in contrast, had to do with notice and fairness, i.e., whether a defendant could be convicted of a charge that he was not indicted on and, therefore, had no notice to defend. Carter, 393 A.2d at 661-62. Where due process and notice are at issue, it is prudent to primarily focus the analysis on the statutory elements of a crime to determine whether crimes are lesser and greater included offenses because due process protects “an accused against any unfair advantage.” Commonwealth v. Bryant, 367 Pa. 135, 79 A.2d 193, 198 (1951). When a defendant may be convicted on a charge absent from the indictment, concerns of fundamental fairness dictate that analysis of potential greater and lesser included offenses proceed in a more narrow fashion than when sentencing merger is at issue. Furthermore, given our jurisprudence, which requires consideration of the crimes as charged, this Court must also reject the Commonwealth’s argument that appellant’s convictions do not merge because criminal trespass requires breaking into a building, an element it alleges is absent from the definition of burglary. Subsection (i) of the criminal trespass statute makes mere entry into a building without privilege unlawful and subsection (ii) prohibits breaking into a building without privilege. 18 Pa.C.S. § 3503(a). The burglary stat ute, likewise, punishes unlicensed entry into a building to commit a crime therein where the defendant has gained access through both mere entry into a building and entry into a “separately secured” portion of a building, which implies a breaking. 18 Pa.C.S. § 3502(a). The Commonwealth charged appellant under both subsections (i) and (ii) of the criminal trespass statute, as well as generally under the burglary statute. When the trial court convicted appellant of criminal trespass, it did not make a specific finding respecting which section of the statute was violated and, therefore, it was possible for appellant to have been convicted under subsection (i), which does not require a defendant to break into a structure as separately defined under the statute. See Anderson, 650 A.2d at 24 n. 3. Although Ms. Wellons testified that appellant entered her home through a locked door, the Commonwealth alleged only that appellant entered her home in its criminal complaint. Therefore, since breaking into a structure is not always an indispensable element of criminal trespass, and the Commonwealth did not have to prove, and did not necessarily prove, that appellant broke into Ms. Wellons’s home in order to secure convictions of burglary and criminal trespass, the Commonwealth was not obligated to prove an additional breaking element to establish appellant’s conviction for criminal trespass. In any event, even if the Commonwealth could be said to have proved a breaking, in light of the reality that the very same narrow facts charged proved both crimes, we believe they must merge. In sum, appellant was charged on facts that satisfy both the elements of criminal trespass and of burglary. Appellant was accused in the Commonwealth’s complaint of entering his neighbor’s home without her consent to steal a substantial quantity of cash. These facts, as charged in the pleadings and made out at trial, were sufficient to convict appellant of both burglary and the lesser offense of criminal trespass. Accordingly, the crimes merge for sentencing. For the foregoing reasons, we reverse the order of the Superior Court in part, and we vacate the sentence imposed by the trial court for criminal trespass. Chief Justice CAPPY and Justice BAER join the opinion. Former Justice NIGRO did not participate in the decision of this case. Justice SAYLOR files a concurring opinion. Justice NEWMAN files a dissenting opinion in which Justice EAKIN joins. . The issue before us is a question of law and, as such, our scope of review is plenary and our standard of review is de novo. Stilp v. Commonwealth, 588 Pa. 539, 905 A.2d 918, 930 (2006). . Appellant received the statutory maximum sentence for burglary, which is graded as a first degree felony, except in limited circumstances not relevant here,18 Pa.C.S. § 3502(c). See 18 Pa.C.S. § 1103(1). . The Superior Court cited this Court’s most recent case law on merger when it characterized the Opinion Announcing the Judgment of the Court ("OAJC”) in Commonwealth v. Gatling, 570 Pa. 34, 807 A.2d 890 (2002) as adopting a "break-in-the-chain” test to determine if the crimes a defendant was convicted of amount to a single act for sentencing. The panel correctly found that this portion of Gatling is inapplicable to the present case because appellant’s crimes "undeniably” involved a single act covered by the test in Anderson. . In holding that the same facts may support multiple convictions, the Anderson Court eliminated an inconsistency between Commonwealth v. Weakland, 521 Pa. 353, 555 A.2d 1228 (1989) and Commonwealth v. Leon Williams, 521 Pa. 556, 559 A.2d 25 (1989), abrogating the holding in Weakland and reaffirming the holding in Leon Williams. Anderson, 650 A.2d at 22. In Weakland, the Court had held that if an individual is convicted of two crimes predicated on only one act of criminal violence, the crimes will merge for sentencing. Weakland, 555 A.2d at 1233. The Weakland Court further held that crimes would not merge if “the actor commits multiple criminal acts beyond that which is necessary to establish the bare elements of the additional crime.” Id. In Leon Williams, the Court abrogated and abolished, except for lesser included offenses, a previous doctrine of merger based on whether the Commonwealth had an interest in prosecuting a defendant for more than one crime. Leon Williams, 559 A.2d at 29 (abrogating Commonwealth v. Michael Williams, 514 Pa. 124, 522 A.2d 1095 (1987)). . The Anderson Court approved of the Superior’s Court summary of the double jeopardy test as an analysis dependent solely on a comparison of the elements of the crimes charged. Anderson, 650 A.2d at 24. . In 2002, the Anderson test was essentially adopted by the General Assembly in 42 Pa.C.S. § 9765, which reads: No crimes shall merge for sentencing purposes unless the crimes arise from a single criminal act and all of the statutory elements of one offense are included in the statutory elements of the other offense. Where crimes merge for sentencing purposes, the court may sentence the defendant only on the higher graded offense. Id. The Commonwealth characterizes this statute as reflecting both the General Assembly's specific intent concerning when crimes should merge for sentencing and a codification of existing case law. See Commonwealth's Brief at 5-8. While this characterization may be correct, this Court's merger jurisprudence is not rendered irrelevant by Section 9765, for it is silent as to whether the facts of a case are pertinent to merger analysis, see discussion infra, and our jurisprudence in these cases implicate constitutional double jeopardy concerns. . Pa. Const, art. 1, § 10. . U.S. Const amend. V. . A person commits homicide by vehicle when he: (1) unintentionally causes a death, (2) while engaged in a violation of any law, municipal ordinance, or traffic regulation, which relates to the operation or use of a vehicle. 75 Pa.C.S. § 3732. The elements of involuntary manslaughter are satisfied where the defendant: (1) committed an act in a reckless or grossly negligent manner, (2) which causes the death of another person. 18 Pa.C.S. § 2504. . The Commonwealth quotes Comer for the proposition that “ ‘to determine whether one offense is a greater or lesser included offense of the other, the statutory elements of the offenses must be compared without considering the underlying factual circumstances.’ ” Commonwealth’s Brief at 11 (citing Comer, 716 A.2d at 599). The Commonwealth, however, has quoted from the Comer Court’s characterization of the Superior Court’s holding, a holding that that the Comer Court ultimately reversed. . Homicide by vehicle DUI is defined in the Motor Vehicle Code as follows: Any person who unintentionally causes the death of another person as the result of a violation of section 3802 (relating to driving under influence of alcohol or controlled substance) and who is convicted of violating section 3802 is guilty of a felony of the second degree when the violation is the cause of death and the sentencing court shall order the person to serve a minimum term of imprisonment of not less than three years. 75 Pa.C.S. § 3735(a). . 18 Pa.C.S. § 6301(a)(1). . 18 Pa.C.S. § 3122.1. . Gatling was decided by six Justices. This author joined the OAJC, while then-Chief Justice Zappala concurred in the result. Justice Saylor authored a concurring opinion, observing, among other things, that Pennsylvania law would benefit from clarification regarding the exact role that evidence plays in our sentencing merger jurisprudence and suggesting a totality of the circumstances approach to determining the number of punishments to be imposed for a criminal episode. Justice Cappy, now Chief Justice, filed a dissenting opinion joined by Justice Nigro, rejecting the notion that "there was a break in the action sufficient to support a finding that two different sets of facts underlie” the convictions in the case. Id. at 903. Justice Eakin did not participate in the consideration or decision of the case. . The OAJC would have held that where there is a break in a chain of events, multiple criminal acts have been committed. A break requires that: “(1) the acts constituting commission of the first crime were completed before the defendant began committing the second crime; and (2) proof of the second crime did not in any way rely on the facts necessary to prove the first crime.” Gatling, 807 A.2d at 900. Using this test, the OAJC found that the defendant had engaged in separate criminal acts that gave rise to his convictions for corruption of a minor and statutory sexual assault. Id. at 901. Therefore, the OAJC determined that a classic merger analysis was not required. Id. Prior to Gatling, in Commonwealth v. Belsar, 544 Pa. 346, 676 A.2d 632 (1996), this Court had noted the importance of examining the facts of a case to determine whether sentences should be imposed for each criminal act perpetrated. If a criminal act has been committed, terminated, and then repeated, at least two crimes have been committed and separate sentences should be imposed for each crime to ensure that criminals are not permitted to "brutalize their victims with impunity.” Id. at 634. . Unlike Collins, where the crimes were defined with mutually exclusive provisions, criminal trespass and burglary do not contain mutually exclusive provisions that would enable us to discern any legislative intent. Moreover, Collins did not implicate double jeopardy concerns, which would account for its narrow statutory analysis. . One of Justice Pomeroy’s chief objections to the Carter majority was that it seemingly announced a new approach for determining when offenses merge that required each of the elements of the greater offense to be "set forth in the statute in precisely the same fashion as are in the elements of the lesser offense." Carter, 393 A.2d at 663 (Pomeroy, J., dissenting). Justice Pomeroy noted that this approach differed from the traditional approach to merger, i.e., evaluating whether "one crime necessarily involves another,” as articulated in Commonwealth ex rel. Moszczynski v. Ashe, 21 A.2d 920 (1941). Carter, 393 A.2d at 663. . As mentioned above, Carter utilized a test that closely resembled the statutory elements test to determine if a defendant may be convicted of an uncharged crime. Justice Pomeroy, however, noted that the Court had previously employed Model Penal Code Section 1.07(4), which seemingly allows for a broader analysis of the statutory elements of the crimes involved: (4) Conviction of Included Offense Permitted. A defendant may be convicted of an offense included in an offense charged in the indictment [or the information]. An offense is so included when: (a) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged; or (b) it consists of an attempt or solicitation to commit the offense charged or to commit an offense otherwise included therein; or (c) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property or public interest or a lesser kind of culpability suffices to establish its commission. M.P.C. § 1.07(4); Carter, 393 A.2d at 667 (Pomeroy, J., dissenting). Justice Pomeroy added that five Justices "were prepared to be guided by Section 1.07(4)" in Commonwealth v. Polimeni, 474 Pa. 430, 378 A.2d 1189 (1977) (OAJC) and Commonwealth v. Garcia, 474 Pa. 449, 378 A.2d 1199 (1977) (plurality). Under Section 1.07(4)(c), Justice Pomeroy noted, criminal trespass would constitute a lesser included offense of burglary. Carter, 393 A.2d at 667.

JACOBS, President Judge: On this appeal we are again faced with the question of whether an insurance company may contractually divide the uninsured motorist coverage in two or more automobile insurance policies to prevent “stacking” or “pyramiding” of recovery. Appellant contends that the lower court erred in refusing to modify the award of $20,000 to appellee following arbitration conducted pursuant to the Arbitration Act of 1927, 5 P.S. § 161 et seq. We agree and therefore reverse and remand for the entry of an award in the amount of $10,000. Appellee, Betty Adelman, was injured in an automobile accident on June 28, 1974 when her 1966 Plymouth, which she was operating, was struck by an uninsured motorist. At the time of the accident both appellee’s car and the 1970 Oldsmobile belonging to her husband were insured under separate policies issued by appellant, State Farm. Each policy provided uninsured motorist coverage of $10,000 for any one person injured in an accident as required by the Uninsured Motorist Act. Appellee filed a claim for uninsured motorist coverage under both policies, requesting a total payment of $20,000. Appellant maintained, however, that appellee was entitled to recover only under the policy covering her vehicle and the dispute was submitted to arbitration in accordance with the arbitration clause in the policies. See Record at 35a and 51a. Following a hearing before a mutually agreed upon arbitrator on June 2, 1976, and the submission of written briefs, the arbitrator entered an award of $20,000 in favor of appellee. The decision, issued on June 17, 1976, clearly stated that the arbitrator had limited himself to the question of the interpretation to be given to the policy and considered Nationwide Mutual Insurance Co. v. Ealy, 221 Pa.Super. 138, 289 A.2d 113 (1972), to be the controlling authority. He determined, however, that the exclusion which we approved in Ealy did not exist in the State Farm policies in question. Appellant filed a timely motion to modify the award in the Court of Common Pleas of Philadelphia County, asserting that the arbitrator’s award was contrary to law. The lower court entered an order denying the motion on October 20, 1976, and issued an opinion in support of that order on March 28, 1977. Both the arbitrator and the trial judge based their decisions on the mistaken belief that the Ealy exclusion was not contained in the State Farm policies presently under scrutiny. On the contrary, we clearly dealt in Ealy with the exclusion to the uninsured motorist coverage which prevented recovery by the named insured or his relatives for injuries sustained while occupying an insured-owned automobile not listed in the declarations of the policy. The policies issued by appellant to appellee and her husband contain language nearly identical to that in Ealy. Exclusion (b) in Section III of the State Farm policies issued to Mr. and Mrs. Adelman provides that the uninsured motorist coverage does not apply (b) to bodily injury to an insured while occupying or through being struck by a land motor vehicle owned by the named insured or any resident of the same household, if such vehicle is not an owned motor vehicle. Record at 30a. The only real difference between the Ealy exclusion and the one at issue is that in the latter the term “owned motor vehicle” is used rather than the term “insured land motor vehicle.” The definitions of these terms in the respective policies are, however, nearly identical. The lower court was, therefore, incorrect in holding that the Ealy exclusion was not present in the Adelmans’ State Farm policies. Having determined that the same exclusion is present here as in Ealy, we must examine Exclusion (b) to ascertain if it operates to prevent Mrs. Adelman from recovering under Mr. Adelman’s policy. The interpretation of an insurance policy is, of course, a question of law for the court. Baldwin v. Magen, 279 Pa. 302, 123 A.2d 815 (1924). Courts, however, cannot rewrite the terms of the policy or give them a construction in conflict with the accepted and plain meaning of the language used. Pennsylvania Manufacturers Association Insurance Co. v. Aetna Casualty & Surety Insurance Co., 426 Pa. 453, 233 A.2d 548 (1967). When a word used in the exclusion under scrutiny is specifically defined in the definitions section of the policy, it is that definition which must control in determining the applicability of the exclusion. Great American Insurance Co. v. State Farm Mutual Automobile Insurance Co., 412 Pa. 538, 194 A.2d 903 (1963). Any ambiguous terms must be given a construction most favorable to the insured. Patton v. Patton, 413 Pa. 566, 198 A.2d 578 (1964); but “[a] provision of an insurance policy is ambiguous [only] if reasonably intelligent men on considering it in the context of the entire policy would honestly differ as to its meaning.” Celley v. Mutual Benefit Health & Accident Association, 229 Pa.Super. 475, 481-82, 324 A.2d 430, 434 (1974). Exclusion (b) in Mr. Adelman’s policy is totally unambiguous. It reads, with interpolations from the definitions section, as follows: This insurance does not apply: (b) to bodily injury to an insured [Mrs. Adelman] while operating or through being struck by a land motor vehicle owned by the named insured [Mr. Adelman] or any resident of the same household [Mrs. Adelman], if such vehicle is not an owned motor vehicle [the motor vehicle described in the declarations of Mr. Adelman’s policy], (footnote added). In other words, the uninsured motorist coverage provided by Mr. Adelman’s policy on his 1970 Oldsmobile does not apply to Mrs. Adelman (or to any other relative residing in the same household) when she is driving any vehicle owned by her or her husband other than the 1970 Oldsmobile (the sole vehicle described in the declarations of Mr. Adelman’s policy). The question then becomes whether this unambiguous contractual limitation on uninsured motorist coverage is permissible under regulations promulgated by the Insurance Commissioner and under the Uninsured Motorist Act. The regulations promulgated by the Insurance Commissioner provide that the extent of coverage under the uninsured motorist endorsement of an insurance policy shall be at least that provided by the sample form, which conforms to the national standard form. 31 Pa.Code § 63.2. The sample form sets forth the following exclusion: This endorsement does not apply: (b) to bodily injury to an insured while occupying an automobile (other than an insured automobile) owned by a named insured or any relative resident in the same household, or through being struck by such an automobile. . . 31 Pa.Code § 63.2, Exhibit C at 184. To this point the sample exclusion is virtually identical to Exclusion (b) in the State Farm policies with which we are concerned. The Insurance Commissioner’s sample form goes on to state, however, that, “[TJhis exclusion does not apply to the principal named insured or his relatives while occupying or if struck by an automobile owned by an insured named in the schedule or his relatives.” Id. Since the State Farm policies do not contain the latter clause, it is necessary to ask whether the omission is fatal in this case. “Even though the policy does not exactly match the Commissioner’s sample form, if the policy as applied to this case . . . has the same effect as the form, it should not be held in violation of the regulations under which the form was promulgated.” Wilbert v. Harleysville Mutual Insurance Co., J. 132/76, slip opinion at 3. What then is the meaning of the omitted clause and, more particularly, of the words “insured named in the schedule?” The first part of Exclusion (b), both in the State Farm policies and in the sample form, is relatively clear. It denies coverage to an insured who is occupying, or is struck by, any vehicle owned by the named insured or his relatives, other than the vehicle described in the declarations of the policy. The concluding portion of the paragraph, on the other hand, contains an exception to that exclusion. To paraphrase the exception, Exclusion (b) does not apply when the named insured or his relatives are riding in a vehicle owned by an insured named in the schedule (or his relatives) rather than one owned by a named insured (or his relatives). The term “insured named in the schedule,” as used in the Commissioner’s sample form, means a “designated insured.” There is no doubt that Exclusion (b) in Mr. Adelman’s policy precludes Mrs. Adelman from applying the uninsured motorist coverage in her husband’s policy to injuries which she sustained while occupying her own automobile. She is an “insured” under her husband’s policy, but she was driving an automobile owned by her (a relative of the named insured, Mr. Adelman) which is not described in the declarations of Mr. Adelman’s policy. The result would be no different if Exclusion (b) had contained the exception set forth in the Commissioner’s sample form and the national standard form. Mrs. Adelman is not named in the schedule to Mr. Adelman’s policy as a “designated insured.” Obviously, therefore, her 1966 Plymouth could not be a vehicle owned by a “designated insured” and the exception to the exclusion does not come into play. The policy, as applied to the facts of this case, has exactly the same effect as the Commissioner’s sample form. Exclusion (b) cannot, there fore, be held in violation of the regulations promulgated by the Insurance Department. Even this conclusion does not end our inquiry. We must further consider whether the Commissioner’s sample form itself contravenes the policies behind the adoption of the Uninsured Motorist Act. “The legislative intent in enacting the uninsured motorist law therefore requires a liberal construction of the statute and a pronounced propensity ... to find coverage unless equally strong legal or equitable considerations to the contrary are present.” Sands v. Granite Mutual Insurance Co., 232 Pa.Super. 70, 80, 331 A.2d 711, 716-17 (1974). Any conditions or restrictions in the insurance policy in derogation of the statute’s purpose are void as against public policy. Shamey v. State Farm Mutual Automobile Insurance Co., 229 Pa.Super. 215, 331 A.2d 498 (1974). Our Supreme Court has reiterated on several occasions that the Uninsured Motorist Statute is “ ‘designed to give monetary protection to that ever changing and tragically large group of persons who while lawfully using the highways themselves suffer grave injury through the negligent use of those highways by others.’ ” Pattani v. Keystone Insurance Co., 426 Pa. 332, 338, 231 A.2d 402, 404 (1967), quoting Katz v. American Motorists Insurance Co., 244 Cal.App.2d 886, 53 Cal.Rptr. 669 (1966). Accord, Harleysville Mutual Casualty Co. v. Blumling, 429 Pa. 389, 241 A.2d 112 (1968). Does Exclusion (b) contravene the statute’s purpose when it is used, as here, to prevent cumulation of coverage between two separately insured automobiles? We think not. The Pennsylvania Uninsured Motorist Act, Act of August 14, 1963, P.L. 909, as amended, 40 P.S. § 2000, provides that (a) No motor vehicle liability policy of insurance . shall be delivered or issued . . . unless coverage is provided therein ... in limits for bodily injury or death as are fixed from time to time by the General Assembly in section 1421 of article XIV of “The Vehicle Code,” act of April 29, 1929 (P.L. 58), under provisions approved by the Insurance Commissioner, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles . The Vehicle Code, Act of April 29, 1959, P.L. 58, 75 P.S. § 1421, established minimum liability coverage of $10,000 per person and $20,000 per accident. Thus, by its terms, the Uninsured Motorist Act requires only that uninsured motorist coverage be included in any automobile liability policy in an amount not less than that set forth in the Motor Vehicle Safety Responsibility Provisions of the Vehicle Code. The intent of the Act is, therefore, that an insured injured by an uninsured motorist be able to recover those damages which he would have received had the uninsured motorist maintained liability insurance. Bankes v. State Farm Mutual Automobile Insurance Co., 216 Pa.Super. 162, 168, 264 A.2d 197, 200 (1970). 7 Am.Jur.2d, Automobile Insurance § 135 (1963). The uninsured motorist endorsement fills the gaps left by compulsory liability insurance and financial responsibility legislation. Comment, The Financially Irresponsible Motorist: A Survey of State Legislation, 10 Vill.L.Rev. 545, 553 (1967). It provides a minimum amount of protection against losses caused by a negligent uninsured motorist by distributing the burden of loss among all owners of insured vehicles registered in the Commonwealth. As we stated in Nationwide Mutual Insurance Co. v. Ealy, 221 Pa.Super. 138, 289 A.2d 113 (1972), allocatur denied, 221 Pa.Super. xliii, “[Njothing in the Uninsured Motorist Act precludes contractual exclusion of uninsured motorist coverage for unlisted, insured-owned vehicles as long as the exclusion does not seek to reduce the insured’s coverage below that specified in the statute.” In Ealy we distinguished both Harleysville Mutual Casualty Co. v. Blumling, 429 Pa. 389, 241 A.2d 112 (1968) and Bankes v. State Farm Mutual Automobile Insurance Co., 216 Pa.Super. 162, 264 A.2d 197 (1970). In Blumling our Supreme Court examined the “other insurance” clause in the policy and held it invalid because the insurer attempted to limit its liability under the policy purchased from it by Blumling to the difference between any recovery under the insurance policy of the vehicle he was driving (his employer’s vehicle) and the $10,000 statutory recovery. Harleysville was thus attempting to circumvent the statute by, in effect, offering less uninsured motorist coverage under its policy than that required by the Uninsured Motorist Act. In Bankes, the insurer argued that Exclusion (b) validly denied recovery to an insured who was operating an uninsured motorcycle owned by him and who sought to recover under a policy issued on his automobile. We rejected this attempt to deny uninsured motorist coverage completely and held that the exclusionary language used there impermissibly broadened that authorized by the Insurance Commissioner. Certainly the Legislature was cognizant of the fact that, by fixing the amount of obligatory uninsured motorist coverage at the level specified in the financial responsibility law, motorists would occasionally suffer uncompensated injuries in excess of $10,000 at the hands of uninsured motorists. We fail to see why public policy would dictate that the owner of two or more vehicles is entitled to more coverage (by cumulating policies) than a person who owns only one vehicle, particularly when unambiguous contractual language is used to insulate the coverage on one vehicle from that provided by other insured vehicles owned by the insured or his family. Nor are we persuaded by appellee’s argument that since uninsured motorist insurance premiums were paid on both Mr. and Mrs. Adelman’s automobiles, double coverage should be afforded in order to prevent the insured from being deprived of the consideration paid for the uninsured motorist coverage on the second vehicle. The insurer undertakes a considerable risk even if the exclusion is allowed, and the amount of the premium “presumably has been calculated in light of the exclusion.” Motor Club of America Insurance Co. v. Phillips, 66 N.J. 277, 291, 330 A.2d 360, 368 (1974). “Under each policy the insured is given the full protection required by the act.” Nationwide Mutual Insurance Co. v. Ealy, 221 Pa.Super. 138, 143, 289 A.2d 113, 116 (1972). We hold, therefore, as we did in Ealy, that under the circumstances of this case Exclusion (b) is not in contravention of the uninsured motorist law. An insurance company may contractually divide the uninsured motorist coverage in two or more automobile insurance policies issued to members of the same household in order to prevent cumulation of coverage. Reversed and remanded for the entry of an award in favor of appellee in the amount of $10,000. WATKINS, former President Judge, and HOFFMAN, J., did not participate in the consideration or decision of this case. . This issue rears its multi-faceted head in a myriad of factual situations. The only reported appellate decision in this jurisdiction squarely on point is Nationwide Mutual Insurance Co. v. Ealy, 221 Pa.Super. 138, 289 A.2d 113 (1972), allocatur denied, 221 Pa.Super. xliii. In Ealy we held that Nationwide’s contractual division of its uninsured motorist coverage in order to prevent cumulation of coverage among Ealy’s five separate automobile policies did not contravene Pennsylvania’s Uninsured Motorist Act. Act of August 14, 1963, P.L. 909, as amended, December 19, 1968, P.L. 1254, No. 397, § 1, 40 P.S. § 2000. In State Farm Mutual Automobile Insurance Co. v. Williams, 244 Pa.Super. 640, 371 A.2d 1314 (1977), we affirmed per curiam the lower court’s confirmation of the arbitrator’s refusal to permit cumulation of coverage. The Williams case involved two vehicles separately owned by a husband and wife and insured by State Farm. The husband was injured while driving the wife’s automobile. In light of the fact that the Williams policies contained an exclusionary clause nearly identical to that in Ealy (and to that in the present case), the lower court refused to permit Williams to recover under the policy issued on his vehicle, but restricted his uninsured motorist coverage to the $10,000 provided by his wife’s policy. . The State Farm policies involved here both provide for arbitration of disputes under the Arbitration Act of 1927. Section 11(d) of the Act, 5 P.S. § 171(d) (1963), permits the party aggrieved by the arbitrator’s decision to petition the court of common pleas for a modification of the award. Appellant need only establish that the arbitrator’s award was contrary to the law in order to prevail. Id. This is to be contrasted with the standard of review which must be adhered to in appeals from common law arbitration. In the latter situation the party appealing the decision must establish fraud, misconduct, corruption or other such irregularity on the part of the arbitrator, or allege that the decision contravenes statutory or constitutional dictates. Runewicz v. Keystone Ins. Co., 234 Pa.Super. 355, 360, 338 A.2d 602, 604 (1975); United Services Automobile Association Appeal, 227 Pa.Super. 508, 516, 323 A.2d 737, 741 (1974). To be distinguished are cases such as Harker v. Pennsylvania Manufacturers’ Assoc. Ins. Co., 219 Pa.Super. 485, 281 A.2d 741 (1971), in which we did not decide whether the common law arbitration decision was correct in allowing “stacking.” We held only that the arbitrators’ holding was a “colorable and reasonable interpretation of the contract . . .” Id., 219 Pa.Super. at 488, 281 A.2d at 743. See also Gallagher v. Educator and Executive Insurers, Inc., 252 Pa.Super. 414, 381 A.2d 986; Flynn v. Allstate Ins. Co., 50 D. & C.2d 195 (C.P. Allegh. 1970). . The 1968 amendments to the Act made the previously optional uninsured motorist coverage mandatory. . It is agreed by both parties that Mrs. Adelman’s injuries exceeded $20,000 and that the accident was caused by the negligence of the uninsured motorist with whom she collided. . Appellee contended below, and the arbitrator implicitly held, that in Ealy we had approved the “Limits of Liability” clause in the Nationwide policy. See Record at 89a. This is incorrect, however. The “Limits of Liability” clause comes into play only when two or more vehicles are insured under the same policy. Thus it is irrelevant to a situation such as that with which we were faced in Ealy. . Exclusion (b) in the Nationwide policy with which we dealt in Ealy provided that the uninsured motorist coverage would not apply (b) to bodily injury to an Insured while occupying a land motor vehicle (other than an insured land motor vehicle) owned by a Named Insured or any relative resident in the same household, or through being struck by such a land motor vehicle. Record at 89a-1. . See note 6, supra. . The State Farm policies both provide that the definition of “owned motor vehicle” set forth in Section I also applies to Section III. The term is defined in Section I to mean “the motor vehicle or trailer described in the declarations. . . .” Record at 27a. The Ealy policy defined “insured automobile” as “an automobile described in the schedule ... [of the policy].” Record at 89a-l. . Compare Blocker v. Aetna Casualty and Surety Co., 232 Pa.Super. 111, 332 A.2d 476 (1975), in which we held the “Limits of Liability” clause in an uninsured motorist endorsement to be ambiguous. . The unqualified word “insured” means, inter alia, the named insured and, while residents of his household, his spouse and the relatives of either spouse. Record at 30a. . The converse is, of course, true under Mrs. Adelman’s policy on her 1966 Plymouth. Neither she (the named insured) nor any of her relatives in the same household (including Mr. Adelman) would be covered by the Plymouth’s policy if they were driving another automobile owned by them (i. e. the 1970 Oldsmobile). . The 1963 Revised Standard Family Automobile Liability Policy did not contain this exception to the exclusion. It first appeared in the 1966 Standard Policy, which is presently in use. P. Pretzel, Uninsured Motorists, 32 (1972). . There is much confusion concerning the intent of the drafters of this exclusion. See P. Pretzel, Uninsured Motorists, 30-31 (1972). See also Widiss, A Guide to Uninsured Motorist Coverage § 2.9 (Supp.1976). . Since the Commissioner’s sample form was promulgated in conformity with the national standard form, it is instructive to examine the definitions in Section V of the latter. The 1966 Standard Form defines “designated insured” as “an individual named in the schedule under Designated Insured.” P. Pretzel, Uninsured Motorists, Appendix C at 210 (1972) (emphasis added). Exclusion (b) in the Standard Form uses the term “designated insured” rather than “insured named in the schedule.” Id. at 208. . If the term “insured named in the schedule” were construed to mean the “named insured” as has sometimes been argued, the exception would completely engulf the exclusion and the entire paragraph would be a nullity. . The insured’s rights are to be determined by the terms of the insurance policy, but only to the extent that the policy grants benefits at least equal to those required by statute. Darrah v. California State Automobile Assoc., 259 Cal.App.2d 243, 66 Cal.Rptr. 374 (1968). . To be distinguished is the situation with which we dealt in Bankes v. State Farm Mutual Automobile Insurance Co., 216 Pa.Super. 162, 264 A.2d 197 (1970), in which State Farm denied coverage to the owner of an insured automobile who was injured by an uninsured motorist while riding his uninsured motorcycle. We there held that Exclusion (b) did not prevent recovery under the uninsured motorist endorsement in the automobile policy, but our decision was based on the fact that the insurer had impermissibly broadened the exclusion by using the term “land motor vehicle” rather than the word “automobile” used in the sample form issued by the Insurance Commissioner. . Repealed by the Act of June 17, 1976, P.L. 162, No. 81, § 7. . See note 17, supra. It is interesting to note that in Bankes we questioned, but did not decide whether the exclusion authorized by the Commissioner was itself valid under the statute. In reviewing the legislative history of the 1968 amendments to the Uninsured Motorist Act, we made the following observation in dictum: When this amendment was enacted, most uninsured motorist policies contained three exclusions similar to the ones contained in State Farm’s policy here. They excluded coverage if: 1. The insured settles with the third party; 2. The insured is occupying an uninsured automobile owned by the insured; or 3. Benefits inure directly or indirectly to any workmen’s compensation fund. Senate Bill 961, which was the bill from which the amendment was ultimately taken, contained each of these exclusions. . . . Yet, while exclusions 1 and 3 above were specifically included in the 1968 .statutory amendment, exclusion 2 was stricken and not adopted by the legislature. There thus appears a definite legislative intent to deny the exclusion claimed by State Farm in this case and to extend uninsured motorist coverage even to individuals occupying uninsured automobiles. Bankes v. State Farm Mutual Automobile Ins. Co., 216 Pa.Super. at 167-68, 264 A.2d at 199 (1970). It will be noted, upon a close examination of the language employed, that exclusion 2 quoted above sought to preclude coverage if the insured was occupying an uninsured automobile owned by him. If this were permitted, the insured would be left entirely without protection in derogation of the statute. Whatever indication of legislative intent the quoted passage may provide, it is inapplicable in the instant case in which both vehicles are insured and the insurer merely seeks to prevent cumulation of coverage between the two policies. . While a majority of jurisdictions, including Pennsylvania, have held that “excess-escape” and “other insurance” clauses are invalid, there is no clear cut trend in the cases dealing with multiple claims on different policies issued by a single insurer on more than one vehicle owned by the named insured, or on more than one automobile owned by members of the same household. Motor Club of America Ins. Co. of Phillips, 66 N.J. 277, 289, 330 A.2d 360, 367 and n. 4 (1974). In the special case of uninsured vehicles owned by the named insured or members of his household, a majority has held exclusions similar to the one at issue to be invalid. A. Widiss, A Guide to Uninsured Motorist Coverage § 2.9, 20 (Supp.1976). See, e. g., Wilbert v. Harleysville Mutual Ins. Co., J. 132/76.

Mr. Justice Green delivered the opinion of the court, October 5th, 1885. This case comes before us in an unsatisfactory manner. The theory of the defence was that the contract was for the sale and delivery of six carloads of corn to be paid for at a price per bushel on the delivery of each carload,'by means of the acceptance and payment of a sight draft for each carload. There was evidence in support of this theory, the most precise and persuasive of which came from the plaintiff on. the v. itness stand, and from his act of accepting and paying the draft drawn for the first carload. He also said the price-was to be by the bushel and named the amount, 45§c. for yellow and 45] for mixed, and the defendant’s witness concurred that the price was to be by the bushel, but did not name the price. The chief complaint of the defendants is, that under the charge of the court, they had no hearing before the jury on their theory of defence, and a careful examination of the charge appears to sustain the complaint. This is partly the fault of the defendants, because they might have exhibited their theory in a point expressing it intelligibly, and asked the instructions of the court, but they did not do so. The only point they did present mingled a question of the authority of the agent with a refusal of the plaintiff to accept any draft, and asked a peremptory instruction for a verdict upon those two matters only, when they alone would not necessarily result in a verdict for the defendants, even if found as stated in the point — that would depend upon other facts not expressed or provided for in the point. We cannot say therefore that there was error in the mere refusal to affirm the point in the terms in which it was propounded. But in other respects we think the charge tended to mislead the jury, and for that reason the case must be reversed. Thus, the learned judge said in his charge : “ If the jury, from the evidence, find the contradrteHim-ve-heenr-as stated in the testimony of the defendants, and made with Moore by the defendants through their agent, it was an entire contract and defendants were bound to furnish and deliver the corn before demanding pay, and if they failed so to do they would Iso liable in damages if be suffered loss. If the jury find from tl .,-'huh; evidence that there was a contract made by defendants 1 ■ 'tough their agent, with plaintiff for the sale to him of six oai loads oí com to be delivered to plaintiff at Landmiilo at different times, and the consideration or money for if. was apportioned or to be paid on each item or carload and noi; entire or single it was a severable contract, and rofi: to honor ono draft would not rescind it, and plaintiff would be entitled to recover for a breach of it.” According to this, the plaintiff was entitled to recover in any event, whether the contract was entire or severable, and the only disore!ion which the jury bad was to assess the damages. Nor did A matter under this language what brevehu. Inal been committed by the plaintiff. If he had refused to pay for the corn A toady delivered he could, nevertheless, require tlw dAbmhjA to continue delivering, if the contract was entire, and if A was severable the failure of the plaintiff to perform bis part of each item of the contract, did not Authorize the defendants to decline performing all the items of the contract on their part; and if they did so decline the plaintiff could mulct them in damages for so acting. We do not think this was a correct view either of the facts of the case or of the rights and duties of the parties. It does not seem to us that the contract between these parties was an entire contract in any view of the testimony. No witness for the defendants or for the plaintiff testified that the corn was all to be delivered before the price was to be paid, or that the sale was a sale in bulk, the whole consideration being an entirety and to be paid at one time. In Lucesco Oil Co. v. Brewer, 16 P. F. S., 351, we held that whether a contract was severable or entire depended upon the character of the consideration, thus: “It is the consideration to be paid and not the subject or thing to be performed that determines the class to which a contract belongs. Its entirety or separableness depends not'' upon the singleness of its subject or the multiplicity of the items composing it, but upon tiie entireness of the consideration, or its express or implied apportionment to the several items constituting its subject. If the consideration is single's the contract is entire, whatever the number or variety of the items embraced in its subject; but if the consideration is apportioned expressly or impliedly to each of these items the, contract is severable.” As the defendants’ witness, Clark; testified that he sold six carloads, deliverable at different times, and payable at a price per bushel by drafts at sight, there was an entire absence of an express agreement that the whole price of all the carloads was to be paid at one time, and after the delivery of the entire quantity, and a strong inference that drafts at sight were to be payable whenever drawn and Breach delivery. It was error, therefore, for the learned court below' to say absolutely that -if the defendants testimony was believed the contract was entire. The question as to the char- " aeter of the contract should have been submitted to the jury upon all the evidence, and then they would have considered it upon the testimonyboth of the plaintiff and the defendants, and viewed in this'maimer they could not consistently with the evidence, have found an entire contract. Then they should have been told that if it was the contract of the parties that the corn was to be paid for at each delivery, whether one car or more, and the plaintiff refused to pay for a delivery which had been accepted by him, without some sufficient reason for such refusal, he thereby authorized the defendants to rescind, and if within a reasonable time thereafter they exercised their right of rescission, the contract was a.fc - q end and the plaintiff could not recover. This view is expr.: Nal with reference to the state of the evidence exhibited upon * ho present record. Whether a contract when seve ‘‘ ch a character that one party may refuse to perform his part as to one of the terms, and nevertheless require the other party to continue full performance of his part of each term upon peril of damages for non-performance, is a much vexed question upon which neither the English nor the American courts are agreed, and as to which it is not easy to state a uniform rule. In this state we have held that where a contract consisted of several entirely distinct and independent parts, each of which could be performed without reference to the others, a failure of one of the parties to perform one of the terms did not authorize the other to rescind the whole contract and refuse performance of the other terms by the party in default in the first instance, when such further performance was subsequently tendered: Morgan v. McKee, 27 P. F. S., 228. But in this case there were eight separate contracts, each for the delivery of 500 barrels of oil at fixed times and a specified price. The action was on three of them by the seller against the buyer for refusing to accept after default in a delivery, and the question arose on a rejected offer to prove that the contract was entire for 4000 barrels, that the first four deliveries were accepted and paid for, that the fifth delivery was defaulted by the seller, and that when the next delivery was tendered by the seller the buyer gave notice of an election to rescind on account of the previous month’s default and declined acceptance of either that or the subsequent deliveries. We held that the offer could not be received because it contradicted the written contracts by parol testimony, because each delivery was the subject of an independent agreement, the breach of which would authorize a recoupment; in damages but not a rescission of the other contracts, and because the right of rescission was not exercised within a reasonable time. The case is not parallel with the present and contains no element which determines it. Nor is the case of Scott v. Kittaning Coal Co., 8 Norr., 231, any more in point. There the action was by the seller against the buyer for not taking, or not calling for, a large part of an entire lot of 50,000 tons of coal to be delivered on monthly calls by the buyer, of 6000 tons each, after having taken 18,000 tons which were called for and delivered, but not in exact accordance with the contract. The defendants contended that inferior coal was delivered among the 18,000 tons, and that they were thereby defrauded and authorized to rescind the contract as to the t remainder on that account. But wo held that while they! might have refused to accept the inferior coal, they had in fact* accepted it and sold it, and therefore could not rescind the contract because they could not restore the inferior coal, and had never notified plaintiffs of their intent to rescind. The caso does not raise the question which is presented in this. The ease of Reybold and Yoorhees, 6 Cas., 116, is more closely analogous both in its facts and in the character of the question determined. The action was brought by the buyer against the seller for damages for not delivering peaches under a contract to deliver the seller’s entire crop and receive weekly payments for all peaches delivered during each week. The buyer defaulted in his payment for the first week. The seller continued to deliver on the Monday following, but receiving no payment he on Tuesday stopped his deliveries. The buyer on the next day offered to pay and asked to have the deliveries continued, which the seller refused and thereupon the action was brought. Lowkie, C. J., in speaking of the rights and duties of the parties in these circumstances, said: “The plaintiffs broke their contract by not paying up on Saturday, and the defendant had a right then to rescind it and seek another market. He continued another day to execute it on his side and again the plaintiffs failed. Then he rescinded, and a day or two afterward, the plaintiffs came and Avere willing to pay. We think they were too late. To relieve them would be to change their contract Avithout cause, Avhich we cannot do.” Other courts have held similar doctrine in similar circumstances, as in Bradley v. King, 44 Ill., 339; Dwinel v. Howard, 30 Me., 268; Stephenson v. Cady, 117 Mass., 6; Haines v. Tucker, 50 N. H., 307; The King Phillip Mills v. Slater, 12 R. I., 82. In the case at bar, it does not appear that particular times of delivery Avere fixed,-nor the quantity of each deliveiy. But it does appear in the testimony of both parties that payments were to be made when deliveries Avere made. The defendants’ witness said the corn Avas to be paid for on sight drafts, but didniot say at what times or for what quantities of corn they AveiV^fco be draAvn. The plaintiff said drafts were sent Avith bill of lading attached and he paid the first and refused to pay the second, because he Avanted to see whether the defendants had shipped or would ship all the corn. [ This Avas not a sufficient reason for refusing to pay after he \had accepted and received the corn. If then the contract required payments on deliveries, and the plaintiff wilfully refused payment according to the contract, he thereby authorized defendants to rescind at their option. The defendants did give notice of rescission at once if payment was not made of the draft for the last delivery and it was not. We think this right of rescission Avas exercised Avithin a reasonable time. We sustain the third and fifth assignments. Judgment reversed and venire de novo awarded.

CERCONE, Judge: Appellants, Michael and Rose Amabile, appeal from orders granting summary judgment in favor of defendant-appellees. Appellants contend that the court below erred in granting the motions for summary judgment under Rule 1035 of the Pennsylvania Rules of Civil Procedure because material issues of fact clearly existed on the record. On March 10, 1971, plaintiff-appellant, Michael Amabile had his car washed at the Auto Kleen Car Wash in Philadelphia, and then parked it in the vacuum area, provided by appellee, Auto Kleen, for the use of its patrons. As he was leaning over the trunk drying his back window and rear section of his car, he was struck by another automobile driven by Shirley Jane Messick, an additional defendant, causing injuries which form the damages in the instant action. Immediately preceding the accident Ms. Messick had also driven her automobile through the car wash. On June 25, 1971 the Amabiles filed suit only against Ms. Messick; but, on February 20,1973, appellants filed a second action against appellees which forms the basis of the instant appeal. The defendants in this action, now the appellees, are Auto Kleen Car Wash; Edwin B. McCoy, owner and operator of Auto Kleen Car Wash; Edward M. Kaplan, Ann Kaplan, Erwin Adler and Belle Adler, owners of real estate on which the car wash was built; and J. D. Cathcart, designer of Auto Kleen Car Wash and the vendor of equipment installed therein., In their complaint, appellants pleaded causes of action in assumpsit, trespass and strict liability in tort against appellee-McCoy trading as Auto Kleen while the other appellees, Edward M. Kaplan, Ann Kaplan, Erwin Adler, Belle Adler, and J. D. Cathcart were sued in trespass only. Appellants’ complaint alleged the above facts and further alleged that appellee-Auto Kleen failed to provide appellant with a safe place to wash his motor vehicle, exposed appellant to danger about which it knew or should have known, failed to take adequate precautions for appellant’s safety, and misrepresented the safety and effectiveness of its establishment. As to appellees Edward M. Kaplan, Ann Kaplan, Erwin Adler and Belle Adler, appellant alleged that these appellees, as the owners of the real estate on which the car wash was built, knew or should have known that the operation and construction of the car wash was hazardous to patrons, so that they permitted the car wash to be designed, constructed and operated in a careless manner without due care to the safety of appellant. As to appellee, J. D. Cathcart, appellant alleged that, as the designer of Auto Kleen Car Wash and the vendor of equipment installed therein, Cathcart knew or should have known that the design and operation of the car wash was hazardous to patrons. Appellees filed answers denying all material allegations in the complaint. I. At the close of the pleadings, pursuant to Pa.R.C.P. 1035, Auto Kleen, its owner, and the owners of the real estate on which it is located, moved for summary judgment and supported the motion with depositions of Shirley Jane Mes-sick, Edwin B. McCoy, the owner and operator of Auto Kleen Car Wash, and police officer Joseph Lemerise. Appellants filed an answer to the motion but did not support their answer by either affidavit or deposition. On December 11, 1975, the court below entered an order granting the ñiotion for summary judgment and dismissing the complaint. Pennsylvania Rule of Civil Procedure 1035(b) provides that summary judgment is to be rendered only if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” The burden of demonstrating that no genuine issue of material fact exists and that one is entitled to a judgment as a matter of law, is on the moving party, and the record must be examined in the light most favorable to the non-moving party. Schacter v. Albert, 212 Pa.Super. 58, 239 A.2d 841 (1968); Kent v. Miller, 222 Pa.Super. 390, 294 A.2d 821 (1972). In McFadden v. American Oil Co., 215 Pa.Super. 44, 48-49, 257 A.2d 283, 286 (1969), this court noted: “In passing upon a motion for summary judgment, the trial court’s function is not to decide issues of fact, but solely to determine whether there is an issue of fact to be tried. All doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. . Finally, a summary judgment should be granted only when the case is clear and free from doubt.” [Citations omitted.] In the instant case, Auto Kleen, et al., supported their motion for summary judgment with depositions. Once a motion for summary judgment is made in this manner, the non-moving party may not rely on the controverted allegations of the pleadings. Phaff v. Gerner, 451 Pa. 146, 303 A.2d 826 (1973). Pa.R.C.P. 1035(d) provides, in pertinent part, that: “When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavit or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, should be entered against him.” Therefore, if the non-moving party does not oppose a properly supported motion for summary judgment with affidavits, depositions, or the like, he may not rely upon his pleadings to controvert those facts presented by the moving parties’ depositions. As our Supreme Court noted in Phaff v. Gerner, supra, “[supporting affidavits, after a motion for summary judgment, are acceptable as proof of facts. Pleadings are not.” 451 Pa. at 150, 303 A.2d at 829. The rationale for requiring affidavits in opposition to a motion for summary judgment can be better understood after examining the reasons for permitting such a motion. Pa.R.C.P. 1035(d) was taken verbatim from the Federal Rules of Civil Procedure 56(c), and an examination of the Advisory Committee comments is helpful in understanding the reasoning behind the Rule: “A typical case is as follows: A party supports his motion for summary judgment by affidavits or other evidentiary matter sufficient to show that there is no genuine issue as to a material fact. The adverse party, in opposing the motion, does not produce any evidentiary matter, or produces some but not enough to establish that there is a genuine issue for trial. Instead, the adverse party rests on averments of his pleadings which on their face present an issue. . . . The very mission of the summary judgment procedure is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial. The . . . doctrine, which permits the pleadings themselves to stand in the way of granting an otherwise justified summary judgment, is incompatible with the basic purpose of the rule. . . .” Federal Rules of Civil Procedure, Rule 56, Notes of Advisory Committee on 1963 Amendment, 28 U.S.C.A. p. 416. [Emphasis added.] Therefore, although the pleadings may sufficiently state a genuine issue of material fact, a motion for summary judgment “was designed to remedy the situation where there is a sufficiently pleaded but factually improper claim or answer. .” Ritmanich v. Jonel Enterprises, Inc., 219 Pa.Super. 198, 203, 280 A.2d 570, 571 (1971). However, merely because a party does not oppose by affidavit, deposition or the like, a factually supplemented motion for summary judgment, it does not follow that the motion must be granted. The last sentence of Pa.R.C.P 1035(d) provides that if the non-moving party “does not so respond, summary judgment, if appropriate, shall be entered against him.” [Emphasis added.] Even though the facts presented in depositions in support of a motion for summary judgment must be taken as true when no opposing affidavits, depositions or the like are filed, granting a defendant’s motion for summary judgment is never appropriate when depositions filed in support of such motion do not either 1) refute a material allegation in plaintiff’s complaint, thus destroying the prima facie case or 2) present a complete defense to the action. As our Supreme Court noted in Marchese v. Marchese, 457 Pa. 625, 630, 326 A.2d 321, 323 (1974): “The mere fact that a party fails to submit counter-affidavits does not automatically render summary judgment appropriate under Rule 1035(d) or Phaff. It is preliminarily imperative that the moving party’s affidavit evidence clearly dispel the existence of any genuine factual issue as required by Rule 1035(b).” In the case at bar, the motion for summary judgment was supported by three depositions. However, we conclude that the depositions filed do not controvert the allegation, contained in appellant’s pleadings that the vacuum machines were negligently placed in an area which exposed appellant to unreasonable danger. The relevant deposition testimony supporting appellee’s argument that the placement of the vacuum pumps was not negligent consisted solely of appellee-McCoy’s statement that over 200,000 cars had used the car wash without an accident. Although this is some evidence that the vacuum pumps were not negligently placed, it does not preclude a finding that they were. In dismissing a similar argument our Supreme Court noted, in Cummings v. Nazareth Borough, 427 Pa. 14, 19-20, 233 A.2d 874, 878 (1967): “The trial court was persuaded into believing there could be no hazard in use of the Nazareth pool because, over a period of 10 years, there had been a half million admissions into the pool. [Without the occurrence of a similar accident.] Millions of people had safely crossed the Atlantic before the Titanic sailed from Southampton boasting a prodigality of ballrooms, restaurants, orchestras and recreational devices never found aboard theretofore, but this mistress of the seas did not carry enough lifeboats to save from an ice-strewn watery grave the 1517 passengers who had depended upon the ship’s owners to manifest as much concern over safety as over sumptuousness. The negligence of the Titanic’s owners was as startlingly clear as the iceberg which sank it.” Therefore, even though we must accept all statements of fact in the depositions as true, because no contrary depositions or affidavits were filed by appellants, this statement does not refute the material allegation that the vacuum pumps were negligently placed in an area which exposed appellant to unreasonable danger. Next, appellees, Auto Kleen, et al., argue that even if the placement of the vacuum pumps was negligent, the proximate cause of the accident was the failure of Ms. Messick’s brakes. Appellees, Auto Kleen, et al., contend that since Ms. Messick deliberately drove toward the vacuum pumps, the result would have been the same regardless of their placement. However, we cannot hold, as a matter of law, that a factfinder is prevented from finding that had the pumps been located in a safer location, appellant either would not have been injured, or would not have sustained injuries of the same character and extent. See Noon v. Knavel, 234 Pa.Super. 198, 339 A.2d 545 (1975) (plurality opinion by Judge Hoffman). Moreover, our Supreme Court has specifically noted in Flickinger Estate v. Ritsky, 452 Pa. 69, 74, 305 A.2d 40, 43 (1973) that Section 447 of the Restatement of Torts, Second, sets forth the law of Pennsylvania. Section 447 provides: “Negligence of Intervening Acts. The fact that an intervening act of a third person is negligent in itself or is done in a negligent manner does not make it a superseding cause of harm to another which the actor’s negligent conduct is a substantial factor in bringing about, if (a) the actor at the time of his negligent conduct should have realized that a third person might so act, or (b) a reasonable man knowing the situation existing when the act of the third person was done would not regard it as highly extraordinary that the third person had so acted, or (c) the intervening act is a normal consequence of a situation created by the actor’s conduct and the manner in which it is done is not extraordinarily negligent.” As the Court concluded in Flickinger: “What the original actor should have realized and what a reasonable man would say was highly extraordinary are, of course, fact questions which must in .the majority of cases be left to the jury. The Restatement [Second] of Torts, § 453 (1965) (Comment b) makes quite clear this division of responsibility as between court and jury: ‘If, however, the negligent character of the third person’s intervening act or the reasonable foreseeability of its being done is a factor in determining whether the intervening act relieves the actor from liability of his antecedent negligence, and under the undisputed facts there is room for reasonable difference of opinion as to whether such act was negligent or foreseeable, the question should be left to the jury.’ ” See also Bleman v. Gold, 431 Pa. 348, 246 A.2d 376 (1968). Therefore, the allegation of negligence in placement of the vacuum pumps presents issues of material fact not sufficiently controverted by the moving parties’ depositions so as to justify the lower court’s granting the motion for summary judgment. Accordingly the order is reversed. II. On March 19, 1976, the lower court entered an order granting appellee, J. D. Cathcart’s motion for summary judgment. Appellee-Cathcart supported his motion for summary judgment with his own deposition. In his deposition Cathcart stated that at no time did he, personally, rather than in his capacity as agent for Clayton Equipment Company, have anything to do with the planning, layout or sale of equipment to the car wash. Therefore, the gist or gravamen of Cathcart’s contention is that, even if he were the designer of Auto Kleen Car Wash, the existence of the corporate entity insulates him from liability. Price Bar, Inc. Liquor License Case, 203 Pa.Super. 481, 201 A.2d 221 (1964). With this contention we cannot agree. The law of Pennsylvania has long recognized that personal liability can be found against a corporate officer who actually participates in the wrongful, injury-producing act. Chester-Cambridge Bank & Trust Co. v. Rhodes, 346 Pa. 427, 31 A.2d 128 (1943). Cathcart testified in his deposition that he took an active part in the selling of the equipment to Auto Kleen Car Wash, and that his relation to the car wash was as an employee of Clayton. It is immaterial that Cathcart, at all times, was acting in his capacity as an agent of Clayton Equipment Company if, in fact, it was Cathcart’s negligent design which contributed to appellant’s injury. Appellants’ theory of liability against Cathcart is not vicariously or derivatively drawn from Cathcart’s relationship with Clayton, but rather it is predicated on Cathcart’s persona} involvement, albeit as an agent for Clayton in the negligent design and construction of the car wash. Therefore, summary judgment is only appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file show that appellee-Cathcart did not personally participate in the design and construction of the car wash. Pa.R.C.P. 1035(b). After careful consideration of the depositions filed in the instant appeal, we conclude that the genuine issues of material fact still exist; that is, whether appellee was involved in the design of the car wash and whether the car wash was designed so as to expose appellant to unreasonable danger. Cathcart’s deposition evidences that he, along with one Marvin Cohen, took an active part in the operation of the business of Clayton Equipment Company, and that this participation included obtaining a site for the car wash as well as discussing the operation of the car wash. Moreover, in answering appellee’s motion for summary judgment, appellants filed the deposition of Edwin McCoy, who testified that Clayton Equipment Company was actively involved in the selection of the site for the car wash as well as involved in the actual design of the car wash. McCoy also testified that, at all times material to the instant action, he dealt with either Cohen or Cathcart, although he is not certain which of the officer-agents personally participated in the design of the car wash. Appellee’s deposition testimony, in direct conflict with McCoy’s, was that neither he nor Clayton Equipment Company gave any advice about designing the car wash. Therefore, the depositions filed, both in support and in opposition to appellee’s motion for summary judgment, cannot be said to “show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Pa.R.C.P. 1035(b). This is especially true in light of the fact that all doubts must be resolved against the moving party and in favor of appellants. McFadden v. American Oil Co., supra. Therefore, the order of the lower court is reversed as to all appellees and we remand for further proceedings. WATKINS, President Judge, and PRICE, J., concur in the result. VAN der VOORT, J., dissents. . 12 P.S. Appendix (1967), Pa.R.C.P. 1035. . Mr. Cathcart also filed a motion for summary judgment which will be separately discussed later in this opinion. . Apparently the lower court also concluded that regardless of the placement of the vacuum pumps the brake failure of Ms. Messick’s automobile would be an intervening, superseding cause relieving Auto Kleen, et al., from liability. After summarizing the testimony contained in the depositions, the court noted: “The only question of fact in this case was whether or not the brakes were working on the car of Shirley Jane Messick and if not, why not. . “The Court failed to see any legal responsibility on the part of the Defendants. . . . ” . Appellee alleges that, due to appellant’s failure to properly answer requests for admissions filed pursuant to Pa.R.C.P. 4014, appellant has admitted that at all times appellee was acting in his capacity as a corporate officer of Clayton. We need not consider this issue in light of the fact that the seminal question is appellee’s involvement individually or as an agent of Clayton, not whether or not Clayton would also be liable under the theory of respondeat superior. . See discussion in Part I, supra, for analysis that the allegation of the placement of the vacuum pumps being negligent is still an issue in this action.

Opinion by Mr. Justice Simpson, William B. Lincoln, a minor, by his next friend and mother, Anna Lincoln, and Anna Lincoln, in her own right, brought suit against the National Tube Company, alleging the minor had been assigned by defendant to operate a hoisting machine, in express violation of the statutes of the State, and had been seriously injured while so doing. Judgments having been entered on the verdicts rendered for plaintiffs, defendant appealed upon two grounds: (1st) Was the only right of recovery that provided by the Workmen’s Compensation Law of June 2,1915, P. L. 736; and (2d) Was the crane, upon which the minor was working, a hoisting machine within the meaning of section 5 of the Act of May 15, 1915, P. L. 286? Notwithstanding the able argument of the junior counsel for appellant, we are not satisfied the court below erred in deciding the former act did not apply to the case of minors engaged in work for which, by statute, their employment was expressly forbidden. Certain clauses in it furnish opportunity for a plausible argument to the contrary; but in terms it relates only to those employers who “shall by agreement, either expressed or implied,......accept the provisions” thereof. Since no legal contract could be made by or for the minor to do this kind of work, and as such a contract could not be legally “renewed or extended by mutual consent, expressed or implied,” it is clear the workmen’s compensation law does not cover the case; and this conclusion is rendered still further necessary by the fact that the two statutes were adopted at the same session of the legislature, and, if possible, each must be given full effect without one infringing upon the domain of the other: White v. City of Meadville, 177 Pa. 643; Duffy v. Cooke, 239 Pa. 427. Our conclusion as above operates so to do. Moreover, it cannot be supposed the legislature intended to make such contracts illegal, and at the same time to give to them all the force and effect of legal contracts, so far as civil liability for injuries to minors is concerned. To so hold would tend to encourage and not discourage the practice which the statute has declared illegal; for, in the event of an injury, the employer would suffer no more in the case of an illegal than of a legal employment. In New Jersey and Iowa the same conclusion is reached on substantially similar provisions (Hetzel v. Wasson Piston Ring Co., 89 N. J. Law 201; Secklich v. Harris-Emery Co., 184 Iowa 1025); the statutes in the other states, whose opinions are cited or quoted by counsel, being so widely variant from ours as to make their decisions valueless as precedents here — though, partially from a different standpoint, they are in accord with the conclusion reached by us. Nor are we impressed by appellant’s contention that the crane, upon which the minor was working, was not a hoisting machine within the meaning of the law. Admittedly it was employed in hoisting heavy materials, and the mere fact that thereafter it was to be used in carrying them to a new place of deposit, did not deprive it of its character as a hoisting machine. “Elevators, lifts, or similar contrivances” may also be “hoisting machines” within the meaning of the statute, but since the dangers to minors, which the legislature was endeavoring to prevent, are those arising from the use of machines employed in hoisting, as was this crane, we cannot limit the language, as appellant asks us to do, to those machines more properly called “hoists,” or decide the court below erred in not charging the jury as a matter of law, as the second assignment says it should have done, that the crane was not a hoisting machine. Indeed, defendant’s own foreman, when asked about it, said it was a machine used for hoisting pipe, and that the minor was assigned to use it for this purpose. The judgments of the court below are affirmed.

Per Curiam, This is an appeal from a decree of the Court of Common Pleas of Delaware County affirming the action of the Board of Adjustment of the Borough of Prospect Park in refusing to issue to Veronica L. Fleming a permit for the construction of two three-car private automobile garages on the rear of the premises owned and used by her for apartment house purposes. Appellee has filed motions to quash and dismiss the appeal which raise the question of our jurisdiction in this class of cases. The proceedings in the court below were held pursuant to the provisions of the Act of June 29, 1923, P. L. 957. The statute is silent as, to the right of appeal to any higher court, consequently we must consider the case as if before us “in the broadest sense allowed on certiorari”: Geary’s App., 316 Pa. 342; Weinbach’s App., 316 Pa. 333. In other words, we will examine the record solely with a view of determining whether there was evidence to justify the action taken by the court below, and of correcting errors of law appearing therein. The building restriction called in question here exists by virtue of a zoning ordinance of the borough, which, among other things, limits private garages on any one property, in the district in which appellant’s apartment house is located, to a capacity of four cars. This regulation is entirely reasonable and proper, having due regard to the neighborhood and type of community. At the time the case was heard in the court below, appellant had in use on the premises one garage, capable of accommodating three cars, and since then (we are advised by counsel) she has obtained a building permit for and has already constructed an additional garage, ten by seventeen feet, on the premises involved in this appeal. The ordinance provides in section 11 that the board of adjustment “may, in particular cases where unnecessary hardship would otherwise result, authorize variance from the terms of the ordinance in harmony with its general purpose and intent, and with the public interest.” The only reason for authorizing a departure in this instance appears to be the added advantage and financial benefit to appellant, through increase in the rental value of her apartments. This is not sufficient to warrant interference by us in a matter which was, in any event, primarily one of discretion with the board of adjustment. “Where an official body, in its administrative capacity, has acted upon a matter properly before it, the courts should not reverse, except where there is a manifest and flagrant abuse of discretion”: Valicenti’s App., 298 Pa. 276, 281. The record before us fails to disclose such abuse of discretion. The decree is affirmed at appellant’s costs.

Opinion by Mr. Justice Drew, Margaret M, Mandeville died without issue on November 20, 1930. Her last will and testament contained these provisions : “Sixth: All the rest, residue and remainder of my estate, whether real, personal or mixed, wheresoever situate, I give, devise and bequeath unto my beloved sister, R. Philomena Byrne, absolutely. “Seventh: Upon the death of my said sister, R. Philomena Byrne, should any part of my estate remain, I give, devise and bequeath the same to my beloved niece, Mrs. J. M. Shadle.” R. Philomena Byrne died without issue on January 26, 1933, having in her possession at the time securities of the face value of $16,000, which were clearly earmarked as having come from the estate of Margaret Mandeville. By the twelfth paragraph of her will, Mrs. Byrne ordered her executor, The York National Bank & Trust Company, to divide the residue of her estate equally between certain charities. A petition was filed iby Mrs. Shadle, as administratrix d. b. n. c. t. a. of the estate of Margaret Mandeville, praying that The York National Bank & Trust Company be directed to deliver to her the earmarked securities. Preliminary objections raised in the answer filed by the charities were sustained by the court below, and a decree was entered dismissing the petition. From the overruling of exceptions to that decree the present appeal was taken. The sole question raised is whether Mrs. Byrne acquired absolute ownership of the residue of her sister’s estate or simply a life interest with power of consumption. The court below held that her interest was one of absolute ownership and that the securities therefore passed under the residuary clause of her will. It was of the opinion that the seventh paragraph of Mrs. Mandeville’s will did not indicate a clear intent to restrict the estate previously given, but at most disclosed “merely a secondary or subordinate intent to strip the estate given by the sixth paragraph of one of its inherent attributes, to wit: the right absolutely to dispose of it.” We cannot agree with that conclusion. The cases of this character in our reports fall into two groups. On the one hand, we have repeatedly observed that “an estate devised in fee cannot by subsequent limitations be stripped of its legal incidents” (Fairman’s Est., 287 Pa. 334, 336), and we have accordingly held that “Where words sufficient to vest an absolute interest are used in a will, such interest is not to be cut down by subsequent provisions unless the testator has indicated a clear intent to take away the estate previously given”: Cross v. Miller, 290 Pa. 213, 216. The matter was aptly put by Mr. Justice Kephart in Buechley’s Est., 283 Pa. 107, at page 109: “Where there is a gift of an entire estate by clear and explicit language, the presumption is that the gift is absolute, and subsequent clauses to reduce it must do so by language which is equally clear and explicit, haying the undoubted effect of causing such diminution.” On the other hand, “we have probably as often held that, in finding the controlling intention, all the words used by testator should be taken into account, and, if the intent to restrict the gift is clear, it must be given effect”: Wettengel’s Est., 278 Pa. 571, 573. As we said in Stanton v. Guest, 285 Pa. 460, at page 463, quoting from Good v. Fichthorn, 144 Pa. 287, 292, “The true test of the effect of language apparently at variance with other parts of the devise, is whether the intent is to give a smaller estate than the meaning of the words of the gift standing alone would import, or to impose restraints upon the estate given. The former is always lawful and effective, the latter rarely, if ever.” So, where the language of the whole will clearly indicates that a gift to A was in fact intended to be a life estate with power of consumption, and remainder over, it will be held to be such, even though the words of gift to A, standing alone, would import absolute ownership. The repugnancy which causes a gift over of an uneonsumed portion to fail in the first group of cases lies in the restriction imposed by the gift over upon the alienation of a previously given estate of absolute ownership. While some restraints on alienation (e. g., restraints which simply forbid alienation to a particular person or class of persons) have been held valid (see M'Williams v. Nisly, 2 S. & R. 507, 513; Jauretche v. Proctor, 48 Pa. 466, 472; Gray, Restraints on Alienation (2d ed.), sections 31 ff.), restraints upon the power of the owner of an absolute estate to determine its devolution by will or by intestacy have been generally struck down. Thus the forfeiture, by gift over, of an absolute estate upon failure to dispose of the property during life (see Rea v. Bell, 147 Pa. 118; Gray, supra, section 56) or by will is invalid.* * But before this doctrine may be invoked, it must appear clearly, from a reading of the whole will; that testator’s intention was to vest in the first taker an estate of absolute ownership. The use of words of restriction after language which in itself would be sufficient to create an absolute estate may of course be evidence — to be considered with other provisions in the will —of an intent to create a less estate.* ** Accordingly, a gift over after the death of the first taker may indicate an intention to vest in the first taker no more than a life estate ; and where an examination of the whole will discloses such to be the controlling intention it will of course be given effect. The sixth paragraph of Mrs. Mandeville’s will provided for the gift of the residue of her estate to her sister “absolutely.’’ This clause by itself would undoubtedly be sufficient to vest the entire ownership. In the paragraph immediately following, however, testatrix gives, devises and bequeaths to her niece whatever should remain of her estate upon her sister’s death. It cannot be doubted that tbe phrase “should any part of my estate remain” refers to the unconsumed portion of the residue given her sister in the preceding paragraph. The language of the seventh paragraph clearly and unequivocally provides for a gift over of whatever portion of the residue might remain unconsumed at Mrs. Byrne’s death. It therefore plainly indicates an intention to limit the estate given her in the sixth paragraph. It is urged by appellees that this construction wholly disregards the word “absolutely” and hence runs counter to the rule favoring a construction which will render every word operative rather than one which makes some words idle and nugatory. But appellees’ construction would render inoperative not one word but a whole paragraph. Nor can it be said that the word “absolutely” is being disregarded. The plain import of this word in the sixth paragraph is that, being about to provide for a gift over upon her sister’s death, testatrix wanted to make it quite clear that her sister was to have an absolute and unrestricted power of enjoyment and disposition while she lived. There can be no doubt that Mrs. Byrne was entitled to use and consume or dispose of her sister’s residuary property during her life for any purpose and in any way that she might see fit, and without interference or challenge from anyone. But it is equally clear that any of the property not thus expended was to go over to testatrix’s niece. The fact that testatrix had lived with her sister for twenty-four years and apparently entertained considerable affection for her lends no strength to the argument in favor of appellees’ construction. In vesting in Mrs. Byrne a life estate with power to consume, testatrix gave her the complete use and enjoyment of the property, and in fact all the benefits of absolute ownership except the power to control the devolution of the unconsumed portion upon her death. That testatrix should want to retain this power in order to benefit her “beloved niece,” who is thus described in no less affectionate terms than her sister, is natural. The court below relied principally upon Cross v. Miller, supra, and Billmyer v. Billmyer, 296 Pa. 31, in reaching its decision. In the Cross case the disputed provision of the will was: “Should Martha C. Greenawalt die unmarried or childless, then her sister Marg’t. Cross is to become her heir and should Marg’t. Cross die before her husband then her children are to become her heirs and their father William U. Cross their guardian. Should Eleanor D. Huston die before her husband her children are to become her heirs and their father Jas. A. Huston their guardian.” In holding this language ineffective to cut down previously given absolute estates, we said: “The codicil shows merely a desire to leave the dispositions of the will as written but to, control the descent from three of the four devisees of all property left to them. ... In other words, testatrix, without any idea of disturbing the gifts as made in the will, sought to direct or control the inheritance or descent of the title she was giving in fee; this the law does not permit.” Plainly, an attempt, such as was there made, to control the manner of descent of an absolute estate, being in derogation of the intestate and other inheritance laws, must fail. In the Billmyer case, testator, having bestowed an absolute estate upon his wife, provided: “Second — And after the death of my wife Hannah my estate shall be equally divided in four equal shares, namely to the following children, Lewis, John, Mary and Joseph Billmyer, provided anything is left at the death of my wife, but she shall have full power and authority and power to sell and dispose of the whole of my estate.” In concluding that testator’s controlling intention was to give an absolute estate to his wife, and that no clear intent to reduce it to a less estate appeared, we said: “In our opinion, this second paragraph of decedent’s will either states a subordinate intent to control a previously given absolute estate, — which was beyond his legal power, — or it shows a mere intent to state how the property shall descend in case his wife should die without a will, at the same time recognizing her full power and authority to sell the property in her lifetime or dispose of it at her death, as she might see fit.” We therefore held that the property in question passed under the wife’s will. The fundamental objective, of course, in the construction of wills is to give full effect to the testator’s intention, in so far as that intention may be ascertained. Accordingly, where it appears that the controlling intention is to give an absolute estate, language inconsistent therewith must be held ineffective. Such certainly was the Cross case, and such this court held the Billmyer case to be. Where, however, a reading of the whole will shows a controlling intention to give a less estate, with a gift over, that intention must be given effect. Such is this case. In Stanton v. Guest, supra, the will provided as follows: “I give, devise and bequeath unto my husband Edward H. Addleton all my estate, real, personal or mixed, ... to have and to hold to him, his heirs, executors, administrators and assigns.” Having thus used words which would clearly import absolute ownership, testatrix in the next paragraph stipulated: “It is my will, that upon the death of my said husband, I give, devise and bequeath unto my nephew and niece Edgar M. Guest and Elsie W. Guest ... all of the estate real, personal or mixed . . . that my said husband shall be seized or possessed of at the time of his death, and that he has not disposed of.” We held that the will vested but a life estate in testatrix’s husband, with a remainder over of the unconsumed portion. Similarly, in Eairman’s Est., supra, the language of the will was: “First. I give and bequeath to my husband, W. M. Fairman, all my property, personal, real and mixed, to him and his assigns, forever. 2nd. At his death if any is left I direct it to go to my sister, Mary A. J eff erson, if living at the death of W. M. Fairman.” We held that Mary A. Jefferson took under this will, testatrix’s husband having been given a life estate with power of consumption. In both of these cases the words of gift to the first taker were certainly no less appropriate to a gift of absolute ownership than in the present case. This language was none the less obliged to yield in each case to the controlling intention plainly indicated in the subsequent clause. We are satisfied that a like situation is presented in the ease before us, and that the court below erred in holding the gift over to Mrs. Shadle void. The difficulties which pervade this whole subject, vexing as it is and always has been to courts and lawyers, recall a remark of Sir Edward Coke’s: “Wills and the construction of them do more perplex a man than any other learning, and to make a certain construction of them, this excedit jurisprudentium artem.” The effort always is to determine the intention of the testator, and, unless public policy forbids it, to enforce that intention, so that in death his property may be faithfully disposed of according to his will. Courts have this duty in the last analysis, and cases, even in the same jurisdiction, which seem to be, on the one hand, completely parallel, or, on the other hand, in irreconcilable conflict, are really not so because in each instance the result reached is founded upon the court’s decision, in view of all the circumstances, as to what the testator intended. As was said by Chief Justice Marshall in Smith v. Bell, 31 U. S. 68, at page 80, quoting from 3 Wils. 141, “Cases on wills may guide us to general rules of construction; but, unless a case cited be in every respect directly in point, and agree in every circumstance, it will have little or no weight with the court, who always look upon the intention of the testator as the polar star to direct them in the construction of wills.” The slightest variations in language or in attending cireumstancse may lead a court to wholly different conclusions with regard to the testator’s intent, and therefore to wholly different results. For that reason the conflict which appears to exist among the cases, and which is inherent in the problem, is in fact no more than an apparent one. If the intention of the testator is to be given effect, as it must be, courts must be permitted, considering each case separately, to hold ineffective words of restriction and to enforce an absolute estate, where such an estate was intended, or, conversely, to disregard words of absolute gift and to declare the estate created to be a limited estate where a clear intention to that effect appears. Decree reversed and record remitted for further proceedings in accordance with this opinion, costs to be paid out of the estate in the hands of The York National Bank & Trust Company as executor. Thus, a provision is ineffective which imposes a restraint upon the alienation of a fee during the donee’s life (Reifsnyder v. Hunter, 19 Pa. 41; Walker v. Vincent, 19 Pa. 369; Jauretche v. Proctor, 48 Pa. 466; but cf. M’Williams v. Nisly, 2 S. & R. 507, 513) or for a period of years (Pattin v. Scott, 270 Pa. 49), or which directs a specified testamentary disposition by the donee (Good v. Fichthorn, 144 Pa. 287; Smith v. Bloomington Coal Co., 282 Pa. 248), or attempts to control the manner of descent: Cross v. Miller, 290 Pa. 213. Similarly, where testator’s language reveals a controlling intention to give to the first taker an estate of absolute ownership, a gift over of what remains at the death of the first taker has been held to be void: Levy’s Est., 153 Pa. 174; Evans v. Smith, 166 Pa. 625; Billmyer v. Billmyer, 296 Pa. 31; see Gilchrist v. Empfield, 194 Pa. 397; Huber v. Hamilton, 211 Pa. 289. See also Eichenlaub’s Est., 307 Pa. 357, 364; Lerch’s Est., 309 Pa. 23, 27; Crawford v. Withrow, 314 Pa. 497, 501. Merely precatory words are, of course, likewise ineffective to cut down a previously given absolute estate: Boyle v. Boyle, 152 Pa. 108; Robinson’s Est., 282 Pa. 581; Kidd’s Est., 293 Pa. 21; see Pennock’s Est., 20 Pa. 268; Good v. Eichthorn, supra. Schmid’s Est., 182 Pa. 267; Trout v. Rominger, 198 Pa. 91; Dickinson’s Est., 209 Pa. 59; Allen v. Hirlinger, 219 Pa. 56; Keown’s Est., 238 Pa. 343; Eassitt v. Seip, 240 Pa. 406; Stanton v. Guest, 285 Pa. 460; Fairman’s Est., 287 Pa. 334; Chesnut v. Chesnut, 300 Pa. 146; Brockley’s App., 2 Sadler 569; Fidelity Title & Trust Co. v. Nibozin, 88 Pa. Superior Ct. 113. See also Edwards v. Newland, 271 Pa. 1; Wettengel’s Est., 278 Pa. 571. See Karker’s App., 60 Pa. 141; Gillmer v. Daix, 141 Pa. 505; Fisher v. Wister, 154 Pa. 65; Jarman on Wills (7th ed.), pages 537-538; Gray, Restraints on Alienation (2d ed.), sections 57 ff. The doctrine that a gift over of what remains at the death of the first taker is void has sometimes been placed upon the ground of uncertainty as to the subject-matter of the gift, where the gift was of money or of a residue: see Jarman, supra, pages 437-438; Gray, supra, section 58. That ground seems not to have been considered in the later cases, however. The objection of uncertainty obviously could have no force where the unconsumed portion consists of clearly earmarked securities, as in the present case. See Dickinson’s Est., 209 Pa. 59. It is worth noting that this whole doctrine is forcefully castigated by Gray, supra, in sections 74b-d: “The establishment of this doctrine is an interesting instance of what naturalists call a reversion to a primitive type. In the barbarous stages of law, courts thwart the intention of parties to transactions by rules and restrictions which are not based on considerations of public advantage, but are formal, arbitrary, and often of a quasi sacred character. The process of civilization consists in the courts endeavoring more and more to carry out tbe intentions of tbe parties or restraining them only by rules which have their reason for existence in considerations of public policy. . . . It is to be observed that tbe rule is not a rule of construction, it is not a rule to carry out tbe intention of tbe parties, but its avowed purpose is to defeat that intention. Tbe courts always recognize this fact; and that no considerations of public policy are involved, is shown by its being perfectly easy to carry out the desired result by a slight change of phrase. If you give a man a fee simple, you cannot provide that if be does not sell or devise it it shall go to T, but if you give him a life estate with power to appoint by deed or will, and in default of appointment to T, tbe gift to T is perfectly good. In both cases the intention is clear and undisputed; when you defeat tbe intention in one case, you are defeating exactly tbe intention that is preserved in tbe other.” Zeisweiss v. James, 63 Pa. 465; Urich v. Merkel, 81 Pa. 332; Fox’s App., 99 Pa. 382; Field’s Est., 266 Pa. 474; Reiff v. Pepo, 290 Pa. 508. Zimmerman v. Anders, 6 W. & S. 218; Sheets’ Est., 52 Pa. 257; Taylor v. Bell, 158 Pa. 651; Boulevard from Second Street, 230 Pa. 491; Keown’s Est., 238 Pa. 343. In that case the will provided: “I give to my wife, Elizabeth Goodwin, all my personal estate ... to and for her own use and benefit and disposal, absolutely; the remainder of the said estate, after her decease, to be for the use of the said Jesse Goodwin.” It was held that the gift over indicated an intent to restrict the previous estate and that, as to certain slaves, Elizabeth Goodwin had but a life interest.

Opinion by Mr. Chief Justice Horace Stern, The present appeals challenge the validity of an ordinance of December 9, 1952, of the City of Philadelphia and question its applicability to the various taxpayers involved in these proceedings. It has become a mere platitude to state, what has so often been proclaimed, that courts- are concerned, not with the wisdom of legislation, but with the right of the legislative body to enact it, — not with policy but with poioer. The ordinance is entitled in part: “An Ordinance to provide revenue by imposing a mercantile license tax on persons engaging in certain businesses, including manufacturing, professions, occupations, trades, vocations, and commercial-activities in the City of Philadelphia.” It levies an annual tax on wholesale and retail dealers or vendors, manufacturers and all other persons engaged in-business, at the rate.'of 3 mills on each dollar of the annual gross volume of business transacted. “Gross volume of business”, is defined to mean, with certain exceptions, gross receipts, including both cash and credit transactions. “Business” is defined to mean “the carrying on or exercising for gain or profit within the City of Philadelphia of any trade, business, profession, vocation, or making sales to persons within the City of Philadelphia, or of any manufacturing, commercial or financial activity, service or business, including but not limited to manufacturers, brokers, wholesale dealers, or wholesale Vendors,'retail, dealers or retail vendors”; it does not include, any' employment for-a'-wage'or' salary.Every person desiring to engage in, or to continué to engage in any business is i-equired to procure a mercantile license for each of his places of business in the City, paying therefor a fee of $3 for each such place. In the argument on these appeals an attack was made upon this legislation on the ground that the title of the ordinance is constitutionally defective and that the terms of the ordinance itself are vague and uncertain. Those criticisms, however, were apparently not seriously pressed, and, in any event, they do not merit serious discussion. Another complaint urged was that the ordinance does not limit itself to the scope of the usual mercantile license tax because, it is alleged, such taxes have “historically” been imposed only upon merchants, whereas this ordinance purports to tax also persons otherwise engaged. But, whether that fact be true or not, it is certainly wholly irrelevant because the sole question is whether the City has the power to impose the tax upon such “additional” persons and not whether preceding acts or ordinances have included them. Moreover, the ordinance itself provides that if the tax, or any portion thereof, which it imposes shall be held by any court of competent jurisdiction to be in violation of any constitutional or statutory provisions, as applied to any person, such decision shall not affect or impair the right to impose the tax, or the validity of the tax so imposed upon other persons as therein provided. Even if, therefore, it should be adjudged that the tax cannot validly be applied to any particular person or persons that would not affect or impair the validity of the ordinance as to those properly subject thereto. Accordingly, it is clear that the ordinance, as such, is a valid enactment, and that the only questions requiring consideration are those concerning its applicability to persons which it assumes to tax who are engaged in certain types of business, professions, occupations, and financial activities. The Act of August 5,1932, special session 1932, P. L. 45, being the so-called “Sterling Act,” gave authority to the council of any city of the first or second class, for general revenue purposes, to levy, assess and collect such taxes on persons, transactions, occupations, privileges, subjects and personal property, within the limits of such city, as it should determine, except that such council should not have authority to levy, assess and collect any tax on a privilege, transaction, subject or occupation, or on personal property, which then was or might thereafter become subject to a State tax or license fee. While, therefore, this statute vested in the council of the City of Philadelphia an enormously broad and sweeping power of taxation, that grant was attended by the important limitation that no tax could be thus imposed if it duplicated the State’s own imposition of a tax or license fee. Because of that limitation National Biscuit Company, one of the present appellees, claims exemption from the City tax because, as a corporation, it pays annually to the Commonwealth a corporate net income tax under the Act of May 16, 1935, P. L. 208, as reenacted and amended, and, as a foreign corporation, a franchise tax under the Act of June 1, 1889, P. L. 420, as amended, and also, to the School District of Philadelphia, an annual tax on gross receipts under the Act of May 23, 1949, P. L. 1669, as reenacted and amended. Household Finance Corporation, another of the appellees, claims exemption from the City tax because, as a corporation, it pays annually to the Commonwealth a corporate net income tax under the Act of May 16, 1935, P. L. 208, as reenacted and amended, and, as a foreign corporation, a franchise tax under the Act of June 1, 1889, P. L. 420, as amended. Household Consumer Discount Company, another of the appellees, claims exemption from the City tax because, as a corporation, it pays annually to the Commonwealth a corporate net income tax under the Act of May 16, 1935, P. L. 208, as reenacted and amended, and, as a domestic corporation, a capital stock tax under the Act of June 1, 1889, P. L. 420, as amended. Both Household Finance Corporation and Household Consumer Discount Company also pay to the School District of Philadelphia an annual tax on gross receipts under the Act of May 23, 1949, P. L. 1669, as reenacted and amended. The Philadelphia Saving Fund Society, the Western Saving Fund Society of Philadelphia, the Beneficial Saving Fund Society of Philadelphia, and Saving Fund Society of Germantown and its Vicinity, appellees, claim exemption from the City tax because they each pay to the Commonwealth an annual tax on their net earnings or income under the Act of June 1,1889, P. L. 420, as amended. They also pay to the School District of Philadelphia an annual tax on gross receipts under the Act of May 23, 1949, P. L. 1669, as reenacted and amended. The court below held that because of these various payments all of these appellees were relieved from payment of the City tax. We are not in accord with this conclusion. In the first place, as far as the payments made to the School District of Philadelphia are concerned, it is sufficient to say that in McClelland v. Pittsburgh, 358 Pa. 448, 57 A. 2d 846, we held that a tax imposed for the benefit merely of a local political subdivision, and not for general State purposes, is not to be regarded as a State tax within the meaning of that term in the “Tax Anything” Act of June 25, 1947, P. L. 1145, which, as previously stated, contained a limitation on the authority of the municipal legislative body similar to that embodied in the Sterling Act. This ruling was followed in Federal Drug Co. v. Pittsburgh, 358 Pa. 454, 57 A. 2d 849. In the second place, as to the payments made to the CommonAvealth of capital stock taxes, corporate net income taxes, foreign corporation franchise taxes, and taxes on net earnings or income, it need merely be pointed out that all those taxes have been held, many times, to be property taxes. In an opinion by Mr. Justice Linn, who cited many previous authorities so holding, the capital stock tax was again declared in Murray v. Philadelphia, 364 Pa. 157, 166, 71 A. 2d 280, 284, to be a tax on the property of the corporation, and so likewise (following Blauner’s Inc. v. Philadelphia, 330 Pa. 342, 198 A. 889, and Philadelphia v. Samuels, 338 Pa. 321, 12 A. 2d 79) the corporate net income tax (p. 169, A. p. 286), the franchise tax (p. 170, A. p. 286), and (following Kelley v. Kalodner, 320 Pa. 180, 187, 181 A. 598, 601) a tax on net earnings or income (p. 175, A. p. 289). On the other hand, the authorities are equally numerous to tlie effect that a mercantile license tax is not a tax on property or income, but an excise tax upon the privilege of transacting business measured by the gross volume of business annually transacted: Knisely v. Cotterel, 196 Pa. 614, 46 A. 861; Commonwealth v. Harrisburg Light & Power Co., 284 Pa. 175, 130 A. 412; Commonwealth v. Globe Furnishing Co., 324 Pa. 180, 188 A. 170; Commonwealth v. McKinley-Gregg Automobile Co., 345 Pa. 544, 28 A. 2d 918; Commonwealth v. Bailey, Banks & Biddle Co., 20 Pa. Superior Ct. 210; H. J. Heinz Co. v. School District of Pittsburgh, 170 Pa. Superior Ct. 441, 87 A. 2d 85. Since clearly, therefore, a mercantile license tax is not a duplication of any of the property taxes paid by appellees to the Commonwealth, the City of Philadelphia is not prohibited by reason of any limitation on its power contained in tlie Sterling Act from imposing such a tax on corporations otherwise subject thereto. Indeed it was definitely so decided in Federal Drug Co. v. Pittsburgh, 358 Pa. 454, 57 A. 2d 849, where the mercantile license tax imposed by an ordinance of the City of Pittsburgh was upheld; it was there concisely and categorically stated in an opinion by Mr. Justice Allen M. Stearns, speaking for a unanimous court, that a mercantile license tax did not duplicate or conflict with either the corporate net income tax or the foreign corporation franchise tax. The court below was of the opinion that this holding in tlie Federal Drug case was overruled, or at least impaired, by the decision in the Murray case. Nothing could be further from the truth. The ordinance held invalid, in the Murray case attempted to tax dividends received by persons on shares of stock in corporations paying these various property taxes, and it was held that, since such dividends represented merely a distribution of the net income of the corporation, a tax thereon was a property tax and therefore a duplication of the property taxes paid by the corporation to the Commonwealth. What was held in the Federal Drug case was that, the mercantile license tax not being a property tax, it was not a duplication of the property taxes paid by the corporation. An analysis of the two cases makes this distinction entirely clear and there is not the slightest basis for the contention that they are other than in complete accord. We hold, therefore, that corporations otherwise sub-' jeet to the city mercantile license tax are not exempt therefrom by reason of the provisions of the Sterling Act merely because they pay property taxes to the Commonwealth. But these appeals require careful consideration of claims to exemption from the tax imposed by the City ordinance based on another reason than that heretofore discussed, namely, the payment to the Commonwealth of alleged “license fees,” the Sterling Act providing that the council of the city shall not have authority to levy a tax on a privilege, transaction, subject or occupation “which is now or may hereafter become subject to a State tax or license fee.” The City earnestly argues that this prohibition should not be held applicable because, it alleges, the City had the power to impose a mercantile license tax under the wide authority granted it by the Act of August 25, 1864, P. L. 1030, which act, it is claimed, is still in force, and the Sterling Act gave the City no additional power in that respect; it is argued that the limitation contained in the Sterling Act on the City’s authority to tax should be deemed applicable only to those powers given by the Sterling Act which had not previously existed, and therefore not to this mercantile license tax. We cannot subscribe to this proposition. Canned to its logical extreme, it would mean that the city could impose many other taxes even though they duplicated, not merely license fees, but revenue-producing taxes of the Com monwealtli. While it may seem, from a practical standpoint, that the payment of a mere license fee to the Commonwealth ought not to be regarded as sufficient to preclude the City from imposing a mercantile license tax on the State’s licensee, nevertheless the provision in the Sterling Act in that regard is explicit and unambiguous, and it is for the legislature alone to remove this limitation on the City’s power if that body should determine that such action is desirable. The real problem in this connection is to determine whether, in any given instance, a charge exacted by the State and designated as a “license fee” is really a license fee, because, as pointed out in Flynn v. Horst, 356 Pa. 20, 27, 29, 51 A. 2d 54, 58, the name given it by the legislature is not controlling. A true license fee is defined in Pennsylvania Liquor Control Board v. Publicker Commercial Alcohol Co., 347 Pa. 555, 560, 32 A. 2d 914, 917, as “A charge which is imposed by the sovereign, in the exercise of its police power, upon a person within its jurisdiction for the privilege of performing certain acts and which has for its purpose the defraying of the expense of the regulation of such acts for the benefit of the general public; it is not the equivalent of or in lieu of an excise or a property tax, which is levied by virtue of the government’s taxing power solely for the purpose of raising revenue.” The distinguishing features of a license fee are (1) that it is applicable only to a type of business or occupation which is subject to supervision and regulation by the licensing authority under its police power; (2) that such supervision and regulation are in fact conducted by the licensing authority; (3) that the payment of the fee is a condition upon which the licensee is permitted to transact his business or pursue his occupation; and (4) that the legislative purpose in exacting the charge is to reimburse the licensing authority for the expense of the supervision and regula tion conducted by it. Therefore, even though the charge be labeled a “license fee,” it cannot be regarded as such if, being merely nominal in amount and not apparently equated to the probable cost of supervision and regulation of the licensee’s activities, it presumably was not legislatively intended to provide for such cost.; in such a case it must be considered as merely a registration charge intended to cover clerical costs of the. issuance of the license certificate and general office expenses, and in that event it does not, of course, prevent municipal taxation under the grant of power made in the Sterling Act. Two cases decided by this court make the distinction entirely clear. One is Pittsburgh Milk Co. v. Pittsburgh, 360 Pa. 360, 62 A. 2d 49. The Milk Control Law of April 28, 1937, P. L. 417, stated the. purpose of its enactment to be that of regulating and controlling the milk industry in the Commonwealth, for the protection of the public health and welfare, and for the prevention of fraud. It vested in the Milk Control Commission power to supervise, investigate and regulate the entire milk industry of the Commonwealth and provided that they could enter and inspect all places and equipment where milk or any product thereof was being produced, stored, processed or otherwise handled. It required all milk dealers to be licensed and it established-license fees to.be charged by the Commission for milk-dealers on a yearly -basis; these fees ran-through- an - elaborately graded schedule from a charge of-$1.00 if the dealer produced or brought-within the Commonwealth-during the year a daily average not exceeding .20 pounds of-milk to a charge of $5,000 where such-daily average exceeded 1,000,000 pounds. ; In the Pittsburgh Milk Co. case it was held-that these. were true-license feesandthat the appellee .in that case, whose average daily quantity of milk was -between- 25,000. and 50,000 pounds, and who paid a license fee for the year of $300.00, was therefore exempt from liability to the mercantile license tax of the City of Pittsburgh. A different result was reached in the case of Armour & Company v. Pittsburgh, 363 Pa. 109, 69 A. 2d 405. There the Act of May 28, 1915, P. L. 587, as amended, is labeled, in part, an act to protect the public health by regulating and licensing the manufacture, handling, storage, sale and possession of meat and meat-food products. It provided for examinations by the Department of Agriculture of all establishments where meat-food products were prepared, stored or sold, or in which slaughtering or meat packing was carried on, and it required persons carrying on such operations to obtain an annual license and pay to the department at the time the application for registration and license was filed an annual fee of $10 for each establishment operated. We held that the fee thus exacted was not a true license fee within the meaning of that term in the “Tax Anything” Act of June 25, 1947, P. L. 1145. We said, pp. 113, 114, A. p. 407: “It would be wholly absurd to suppose that the charge of $10 imposed by the 1945 Act was intended by the legislature to constitute a license fee in the sense thus indicated, especially in view of the tremendous size of the industry involved and the elaborate inspections which its regulation requires. On the contrary, the charge is obviously one designed to cover merely the clerical expense of registration and issuance of the license certificate. It is of the same nature as the f 1 permit fee imposed by the Cigarette Tax Act of May 13, 1947, P. L. 215, as to which we said, in Rice Drug Co. v. Pittsburgh, 360 Pa. 240, 244, 61 A. 2d 878, 880, that ‘Clearly the imposition of this nominal charge was not intended to be an excise tax for the privilege of selling cigarettes.’ It is of the same nature also as the annual fee of $2 for a mercantile license prescribed in section 3 of the Act of June 20, 1947, P. L. 745, imposing a mercantile license tax in school districts of the first class; that fee was to be paid to the receiver of school taxes or school treasurer, who was to issue the license upon receiving such payment. The fee provided for in the Milk Control Law of April 28, 1937, P. L. 417 was a real license fee, as we held in Pittsburgh Milk Co. v. Pittsburgh, 360 Pa. 360, 62 A. 2d 49, 52, which is the case relied upon by the packers; that fee was a graded one imposed upon milk dealers according to the average quantity of milk daily received or produced by them, ranging from a minimum of $1 to a maximum of $5,000, thus indicating that it was intended by way of reimbursement for the expense of supervision and regulation of the milk industry, the burden being placed upon the dealers in the proportions in which the magnitude of their respective business operations required such supervision. The charge here in question is wholly different from the license fee thus exacted of the milk dealers, and we are clearly of opinion that the meat-packers are not entitled to exemption from the City of Pittsburgh mercantile license tax merely because of their $10 payments to the Department of Agriculture.” In view of these decisions and of the principles therein enunciated it becomes necessary, then, to consider separately the case presented in each of the present appeals to determine whether the fees paid by them to the Commonwealth fall within the Pittsburgh Milk Co. case or the Armour & Co. case,— in other words, whether the fees they pay are, or are not, true license fees within the meaning of that term in the Sterling Act. J. AWen Tifft et al., appellants in No. 196 January Term 1953, representing themselves, the members of the Insurance Agents and Brokers Association of Philadelphia and Suburbs, and all other insurance agents and brokers, are engaged in the business of insurance agents and brokers and are duly licensed as such under the Act of May 17, 1921, P. L. 789, as amended. The title of that act states, inter alia, that it is for the purpose of amending, revising and consolidating the law relating to the licensing and regulation of insurance agents and brokers. It provides for the licensing of both agents and brokers, prohibits certain transactions, misrepresentations and criminal acts on their part, gives the Insurance Commissioner power to examine the books and papers of the agents of any insurance company and, after hearing, to revoke the licenses of agents and brokers for cause. The Act of June 5, 1947, P. L. 445, empowers the Commissioner to examine and investigate the affairs of every person engaged in the business of insurance in order to determine whether such person has been or is engaged in any of the acts, methods and practices prohibited by the act, including unfair methods of competition and unfair or deceptive acts or practices in the conduct of such business. The Act of 1921, as amended, imposes a fee of $19 for individual insurance brokers and $25 for licenses in the name of a copartnership or corporation, including individual licenses for any duly qualified individuals without extra charge for officers or solicitors, not exceeding three; and a fee of $2 for an agent’s license for each company. In our opinion these charges assimilate the case to the Armour case, for it is difficult to conceive that the merely nominal fee of $2 exacted from an agent or of $10 from a broker, was intended to cover the entire probable cost of properly regulating the business of such agents and brokers — a regulation so necessary and so extensive as that prescribed in the act. As the court below pointed out, the fee of $2 for the license of an agent is no more than that charged by the act for the issuance of any kind of a certificate. As the court further stated, the $2 and $10 charges are flat rates entirely unrelated to the. licensees’ volume of business, that-“A license fee cannot be conjured up merely by aggregating a number of registration fees,” and that “Manifestly there is no logical correlation between the number of insurance companies represented by an agent and the volume of business done by that agent.” There is no relationship between the amount of the fee for each agent and the magnitude of his business operations which might require supervision. Nor is the question controlled by the fact that for certain years reported by the Commissioner the receipts in connection with the issuance of licenses to agents and brokers was in excess of the expenditures of the licensing division of the department and the regulation of such licenses. Such statistics will naturally vary each year depending upon the actual amount of regulation which the department may elect to carry on in that year and how much expense it may choose to incur for that purpose, and they throw no light upon whether it was the intention of the legislature in the 1921 Act to exact such charges for the purpose of meeting the cost of regulating the activities of the agents and the brokers. Moreover, while the amount of receipts, even at the rate of $2 and $10 respectively per license, naturally becomes larger as the number of licenses increases, with that increase the need of regulation, of course, increases proportionately; the determining factor is the unit fee imposed. We hold, therefore, that, as the court below correctly determined, the fees specified in the Act of 1921 for insurance brokers and agents are not “true” license fees which exempt them from liability under the City’s mercantile license tax. Nor is there any merit in appellants’ reliance on the provision of the Act of May 3, .1915, P. L. 217, which made it unlawful for any municipality to impose a license fee upon insurance companies, agents, or brokers, authorized to transact business under the Act of June 1, 1911, P. L. 607. Mercantile license taxes, notwithstanding their appellation, are revenue measures and not “license fees” to cover the cost of the regulation of a business and without payment of which a business may not continue to operate. Moreover, the Act of June 1, 1911, P. L. 607, thus referred to, was repealed by the Act of May 17, 1921, P. L. 789, and therefore the provision of the statute relied upon by appellants has no present application. National Biscuit Company, appellee in No. 214 January Term 1953, is engaged in the business of manufacture and sale of bakery products; as the operator of a bakery it is duly licensed under the Act of May 22, 1933, P. L. 912, as amended. The title of that act states, inter alia, that it is for the purpose of protecting the public health and regulating the inspection, maintenance and operation of bakeries and premises, stores and shops connected therewith, and the manufacture and sale of bakery products. It provides for the maintenance of clean and sanitary bakeries and for the purity and wholesomeness of bakery products. It gives to the Department of Agriculture permission to inspect bakeries and their operation, to forbid the continuance of any violations of the act, and to suspend or revoke the license issued to the bakery. It exacts an annual fee of $5 for bakeries using less than 100 barrels of flour per week, of $10 for bakeries using 100 barrels and less than 200 barrels of flour per week, and $20 for bakeries using 200 barrels or more of flour per week. We are of opinion that the National Biscuit Company case is similar in nearly all respects to the Armour case. Here, too, is an industry requiring extensive inspections, examinations and regulations involving the purity of food products. Here, too, it is difficult to believe that flat charges ranging from $5 to $20 per annum could have been legislatively intended to cover the cost of regulating the bakery industry. A maximum charge of $20 for a bakery with a minimum use of 200 barrels of flour per week irrespective of the magnitude of the volume of its business beyond that minimum, is far different than the fees charged in the Pittsburgh Milk Co. case ranging up to $5,000 a year. What has been said in regard to the license fees charged to insurance brokers and agents applies with equal force to this appellee, and we therefore conclude that National Biscuit Company is not exempted from liability under the City’s mercantile license tax. The Philadelphia Saving Fund Society, the Western Saving Fund Society of Philadelphia, the Beneficial Saving Fund Society of Philadelphia, and Saving Fund Society of Germantown and Its Vicinity, appellees in No. 216 January Term 1953, are corporations engaged in the business of conducting mutual saving funds. They are subject to the supervision of the Department of Banking of the Commonwealth under the Act of May 15, 1933, P. L. 565, as amended. That Act directs the Department of Banking to examine all such institutions at least once each year including a complete review of their property and the operation of their business, and for that purpose authorizes the Department to examine and investigate their books, papers and affairs. The Department may order them to cease any violation of law or the conduct of their business in an unsafe or unsound manner. Instead of exacting a “license fee” eo nomine, the act provides that all the expenses of the Department of Banking shall be charged to the institutions supervised by the Department in such equitable amounts as the Department shall prescribe. The expenses incurred in connection with any examination or investigation, including a proportionate part of the examiner’s salary and counsel assigned to the examination or investigation, may be assessed by the Department upon the particular institution examined or investigated; these expenses are prorated among the institutions on the basis of their respective total assets as of the end of the preceding year. Accordingly the four Saving Fund Societies, present appellees, pay annually, as their equitable proportions of the expenses of the Department of Banking and the actual cost of the examinations of their institutions, sums running into several thousands of dollars. In this instance, therefore, there can be no doubt but that these Saving Fund Societies do pay substantial fees, the legislative purpose in regard to which may well be assumed to be the defraying of the expense involved in the regulatory activities of the Department of Banking, since they are measured and determined by that expense. It is therefore our opinion that, by reason of the payment of such charges to the Commonwealth, these appellees are exempted from liability under the City’s ordinance imposing the mercantile license tax. Household Finance Corporation, appellee in No. 215 January Term 1953, is a foreign corporation engaged in the business of making small loans of |300 or less under authority of the Act of June 17, 1915, P. L. 1012, as amended, having 57 small loan offices in the State of which 14 are in the City of Philadelphia. The act provides that the Secretary of Banking shall at least once a year investigate the business and affairs of such corporations in order to ascertain the condition of their business and whether it has been transacted in accordance with law. Such a company must obtain a license from the Secretary of Banking as a condition upon which it shall be allowed to transact its business, and for which it must pay a license fee of $100 annually on each of its places of business in the Commonwealth, and in addition the cost of every such examination and investigation of its business and affairs,. The Secretary of Banking may, after hearing, revoke any license if the licensee shall violate any of the provisions of the act or fail to pay the cost of an examination. The same considerations obviously apply in this instance as in the case of the Saving Fund Societies. Since appellee must pay for whatever expense is incurred by the State in its examinations and investigations of the affairs of, the company, and this in addition to the fee of $100 annually for each of the company’s places of business, which in itself is a substantial and not a mere nominal charge^ it would seem clear that the sums thus paid are -in the nature of true license fees, and therefore that this appellee is exempt from liability under the City’s ordinance imposing the mercantile license tax. Household Consumer Discount Company, appellee in No. 215 January Term 1953, a subsidiary of Household Finance Corporation, is a domestic corporation engaged in the business of making loans up to $2,000 .under the Consumer Discount Company Act of April 8,1937, P. L. 262, as amended; it has likewise 57 places of business in Pennsylvania including 14 in the City of Philadelphia. The act provides that the Secretary of Banking may at any time investigate the business and affairs of such companies and examine their books and records. In order to transact its business, appellee must obtain a license from the Secretary of Banking, for which it must pay an annual license fee of $100 for each place of business conducted by it. The act provides that all license fees received must be deposited in the State Treasury to the credit of the Banking Department Fund for the use of the Secretary of Banking in administering the act. The cost of every examination of the company’s business must be paid by the licensee so examined. The case of this appellee, therefore, is in every respect identical with that of Household Finance Corporation, and it is therefore similarly exempt from liability under the City’s mercantile license tax ordinance. Gerald W. Caner, et al., appellants in No. 219 January Term 1953, representing themselves and all other dealers in securities and investment advisers registered under the Pennsylvania Securities Act, and all other members of the Eastern Pennsylvania Group of the Investment Bankers Association of America similarly situated, are engaged in the business of dealing in securities and acting as investment advisers, and are duly licensed as such under the Act of June 21, 1939, P. L. 718, as reenacted and amended. The title of that act states, inter alia, that it is to provide for the registration and regulation of persons in the business of selling and buying securities or advising others as to the value of securities. It provides that dealers and their salesmen, and also investment advisers, must be registered annually in order to permit them to transact their business. There are provisions forbidding certain practices on the part of dealers, their salesmen, and investment advisers. The administration of the provisions of the act is vested in the Pennsylvania Securities Commission, upon whom the duty is imposed to see that the provisions of the act are at all times properly administered and obeyed, and to take such measures and make such investigations as in its opinion will or may detect the violation of any such provisions. The Commission is authorized, after hearing, to revoke the registration of any dealer, salesman or investment adviser if it has reason to believe that the law has been or is about to be violated, or if the dealer, salesman or investment adviser has been guilty of any fraud or fraudulent prac tice, or if the Commission has reason to believe that any registered dealer or investment adviser has become of bad repute, that his plan of business has become unfair, unjust or inequitable, that it is being conducted in an unfair, unjust or equitable manner, or that he has become of insufficient financial responsibility to deal with the public. The Commission may at any time make examinations of the books, securities and records of any dealer or investment adviser. The Commission is directed to charge as fees the sum of $10 for the filing of applications for licenses, — evidently a charge merely for the clerical service — $60 for each registration certificate of a dealer or investment adviser, and $15 for each registration certificate of a salesman. In accordance with that schedule appellants, who employ 29 salesmen, paid to the Commission in the year 1952 the sum of $660. In the light of the facts thus recited we conclude that the payments thus exacted' of these appellants by the Commonwealth are real “license fees” within the meaning of the Sterling Act.' They are substantial in amount and are imposed as a condition upon the right of the appellants to conduct their business. It is to be noted that dealers are obliged to pay, in addition to their OAvn registration fee, the sum of $15 for every salesman employed by them, and it is reasonable to suppose that the magnitude of the business of such a dealer, and therefore the amount of regulation and examination of his business required, is in likely proportion to the number of salesmen he employs. There would seem in this instance little room for doubt but that the legislative purpose of the fees thus imposed was to reimburse the Commonwealth for the expense of regulating and examining the business and affairs of the licensees. While the charges aré designated in the act as being imposed for “registration certificates,” such nomenclature, as previously stated, is of no moment, since it is the nature and apparent purpose of the charge which controls its classification. We hold, therefore, that these appellants are exempt from liability under the City’s mercantile license tax. ORDER In Appeal No. 234 January Term 1953, the decree of the court below is reversed at the cost of appellee. In Appeals Nos. 215 and 216, the decree of the court below is affirmed at the cost of appellants. In Appeal No. 196, the decree of the court below is affirmed at the cost of appellants. In Appeal No. 219, the decree of the court below is reversed at the cost of appellees. Incidentally it is of interest to note that the Acts of May 23, 1949, P. L. 1669, and May 10, 3951, P. L. 265, imposing a. similar tax for the purpose of providing revenue for school districts of the first class, are in fact almost as broad as the present ordinance and define “business” and “financial business” in nearly the same language. Also, in the Pittsburgh mercantile license tax which was the subject of discussion in Federal Drug Co. v. Pittsburgh, 358 Pa. 454, 57 A. 2d 849, liability was extended even to persons conducting or operating places of amusement, including theatres, motion picture houses, billiard and pool rooms, baseball and football fields, and a large number of other such places.' The Act provided that as to cities of the second class it should remain in force only until June 1, 1935. Similar power was subsequently granted by the so-called “Tax Anything” Act of June 25, 1947, P. L. 1145, as amended, to the duly constituted authorities of certain other political subdivisions óf the Commonwealth, but with' somewhat greater limitátions than those contained in the Sterling Act. For this same reason the fee of $3 charged in the present City ordinance for each place of business procuring a mercantile license is. obviously a mere registration charge designed to inform the City of the identity of those liable, for the payment of the tax.

OPINION OF THE COURT O’BRIEN, Justice. This appeal results from a March 17, 1976, decree of the Court of Common Pleas of Allegheny County enjoining the Allegheny County Board of Elections from placing on the ballot two proposed amendments to the Mt. Lebanon Home Rule Charter. Appellee, Mt. Lebanon, Pennsylvania, is a home rule municipality, having adopted a home rule charter effective January 1, 1975. On January 9, 1976, the Board of Elections of the County of Allegheny notified appellee that proposed amendments to appellee’s home rule charter had been received. The amendments were to be submitted to the Mt. Lebanon electorate on the April 27, 1976, primary election ballot. On February 23, 1976, appellee Mt. Lebanon, filed an action in equity, seeking to enjoin the Board of Elections from placing the proposed amendments on the ballot. On March 4, 1976, appellants, Roger W. Lund and Ruth M. Lund, citizens and taxpayers of appellee, were permitted to intervene as party-defendants. Following a March 5, 1976 hearing, the court below ordered the proposed amendments stricken from the ballot, holding that the amendments, if adopted, would be unconstitutional. This appeal followed. I We believe the court below erred in issuing its decree. While expressing no opinion on the constitutionality of the proposed amendments, we believe the court should have dismissed the action for want of subject matter jurisdiction. Article II, § 1, of the Pennsylvania Constitution provides : “The legislative power of this Commonwealth shall be vested in a General Assembly, which shall consist of a Senate and a House of Representatives.” Legislative power has been defined as the power to make, alter, and repeal laws. Marshall Impeachment Case, 363 Pa. 326, 69 A.2d 619 (1949). Furthermore, the courts may not encroach on the legislature’s powers. Leahey v. Farrell, 362 Pa. 52, 66 A.2d 577 (1949). As an amendment to a home rule charter has the force and status of a legislative enactment, Addison Case, 385 Pa. 48, 122 A.2d 272 (1956), the courts should not interfere. As Justice (later Chief Justice) Charles Alvin Jones stated, in his dissenting opinion in Schultz v. Philadelphia, 385 Pa. 79, 89-90, 122 A.2d 279, 284 (1956): “The jurisdiction of a court of equity may not be invoked to enjoin the enactment of a bill during the course of its passage through a legislative body. Such is the preponderant weight of authority throughout this Country and I say that without fear of successful contradiction. . . . Would anyone have the temerity to suggest that the Court of Common Pleas of Dauphin County, sitting in equity, would extend its jurisdiction to a complainant who sought to enjoin the enactment of a bill during its passage through the legislature even though it was conceded on all sides that the bill, if passed, would be a gross and palpable violation of the Constitution ?” As this court stated in Cali v. Philadelphia, 406 Pa. 290, 312, 177 A.2d 824, 835 (1962): “. . . it is too often forgotten that under our basic form and system of Constitutional Government the power and duty of a Supreme Court is interpretative, not legislative. We are not a Supreme, or even a Superior Legislature, and we have no power to redraw the Constitution or to rewrite Legislative Acts or Charters, desirable as that sometimes would be.” Furthermore, this court should not offer advisory opinions during the deliberative stages of the legislative process. In Knup v. Philadelphia, 386 Pa. 350, 353, 126 A.2d 399, 400 (1956), this court stated: “. . . it is equally well established that a court will take jurisdiction only in a case in which a challenged statute, ordinance, or rule of court has been actually applied to a litigant; it does not undertake to decide academically the unconstitutionality or other alleged invalidity of legislation until it is brought into operation so as to impinge upon the rights of some person or persons.” See also Bliss Excavating Co. v. Luzerne Co., 418 Pa. 446, 211 A.2d 532 (1965); Pittsburgh Outdoor Adv. Co. v. Clairton, 390 Pa. 1, 133 A.2d 542 (1957). In the instant case, there was only proposed legislation which, until enacted, affected no one. The instant action was an attempt to obtain an advisory opinion. II The court below, however, on the authority of Schultz v. Philadelphia, supra, held that it was proper to enjoin a home rule municipality from passing an unconstitutional amendment. In Schultz, supra, this court held that proposed amendments to the Philadelphia Home Rule Charter were properly kept off the ballot for failure to comply with provisions concerning advertisement and public hearings. The court went on to state, by way of dictum, that the amendments would be unconstitutional if enacted. The court stated, 385 Pa. at page 86, 122 A.2d at page 283: “It is urged that the Court should not pass upon the validity of the proposed legislation at this time but should defer a decision thereon until after the measure shall have been voted upon at the polls. We cannot subscribe to this point of view. The question of validity has been argued before us by all parties in interest, and since, as a result thereof, we are convinced that the legislation is in fact invalid, it would seem to us to be wholly unjustified to allow the voters to give their time, thought and deliberation to the question of the desirability of the legislation as to which they are to cast their ballots, and thereafter, if their vote be in the affirmative, confront them with a judicial decree that their action was in vain because of the reasons herein set forth.” We believe the above-quoted language in Schultz, supra, must be disregarded. First, the pronouncement is pure dictum. The Schultz decision could have been based on the failure to advertise and hold public hearings. Since the procedure for placing the questions on the ballot was not followed, the court properly kept the questions off the ballot. This court has consistently held that we should not decide a constitutional question unless absolutely required to do so. Lattanzio v. Unemploy. Comp. Bd. of Rev., 461 Pa. 392, 336 A.2d 595 (1975); Lynch v. O. J. Roberts Sch. Dist., 430 Pa. 461, 244 A.2d 1 (1968); Robinson Twp. Sch. Dist. v. Houghton, 387 Pa. 236, 128 A.2d 58 (1956); Commonwealth v. Picard, 296 Pa. 120, 145 A. 794 (1929); Bedford v. Shilling, 4 Serg. & R. 401 (1818). Since an alternative, nonconstitutional ground existed and was discussed, the statement in question was not only dictum, but dictum that flew in the face of existing case law and proper appellate procedure. Secondly, the Schultz opinion was not a majority opinion and, therefore, non-decisional. The case was ar gued before a six-man court. The opinion of Chief Justice Stern was joined by Justices Chidsey and Arnold. Justice (later Chief Justice) Bell concurred in the result. Justice (later Chief Justice) Charles Alvin Jones and Justice Musmanno filed dissenting opinions. The nondecisional nature of the opinion is another factor in deciding to disregard the statement. Furthermore, the discussion in part I of this opinion is applicable here. Schultz attempts to allow unwarranted judicial interference with the legislative process. This intrusion conflicts with sound constitutional principles and two centuries of case law of this court. For the reasons mentioned, we disregard the dicta in Schultz. As the court had no subject matter jurisdiction, we must vacate the appeal and dismiss the complaint. Appeal vacated and case remanded to the Court of Common Pleas of Allegheny County to dismiss Mt. Lebanon’s complaint. MANDERINO, J., concurs in the result. . Article II, Mt. Lebanon Home Rule Charter. . One proposed amendment required voter approval of any increase of new non-electoral debt or lease rental debt in an amount exceeding 25% of current borrowing base. The other required electoral approval of any increase in the annual tax levy in excess of two mills. . Appellants-intervenors, the Lunds, were the only parties to appeal from the chancellor’s decree.

OPINION McDermott, Justice. Spanning the Delaware River, from Philadelphia to Pennsauken, a concinnity of steel, stone and river, is the Betsy Ross Bridge, named in honor of a placid seamstress who, story tells, stitched the Stars and Stripes. A limited access highway to the bridge was proposed and named in honor of Casimir Pulaski, a great general of the Revolution, who came from Poland, that free men might build such like bridges. The Pulaski Highway, a main artery from the heart of the Philadelphia area to be served, remains unconstructed and therefore the purpose of the bridge unfulfilled. The Delaware River Port Authority (DRPA) and this Commonwealth, who were involved in the conception and construction of the bridge, have fallen into quarrel over the responsibility for the construction of the Pulaski Highway. That ultimate question of responsibility is not before us. What is before us is this: In what form and before what forum should that question be resolved? The question was raised by an action in mandamus brought by DRPA, contending that, by statute and contract, the Commonwealth and the Department of Transportation (PennDOT) are obligated to build the highway, and can be compelled to do so in mandamus. The Commonwealth, on the other hand, contends that, if it is ultimately obliged to build the highway, it is by contract, for which only damages would follow if it failed to perform. Further, the argument goes, since the claims sound in contract and state no statutory cause of action, the Commonwealth Court lacks jurisdiction and the matter properly lies before the Board of Claims. It is that issue that lies before us now. The DRPA initiated these proceedings by filing a petition for review addressed to the original jurisdiction of the Commonwealth Court. Named as respondents in that petition (appellees herein) were the Commonwealth Department of Transportation, the Secretary of Transportation, the Governor, and the General Assembly. The petition alleged that the Commonwealth has violated its statutory obligations under the Delaware River Port Authority Compact (Compact) by failing to fulfill a contractual promise to construct the Pulaski Highway to connect with the Pennsylvania approach to the bridge. The DRPA sought a writ of mandamus compelling the Commonwealth to take all necessary and proper steps to effectuate construction of the highway, and an injunction precluding the Commonwealth from hindering said construction, or from disposing of any property previously acquired for the construction of the highway. The DRPA also has pending an action before the Board of Claims seeking contractual damages. In response to the petition for review, appellees filed preliminary objections alleging, inter alia, a lack of subject matter jurisdiction in the Commonwealth Court. That court, determining that the claims sounded in contract, sustained the preliminary objections and found that the Board of Claims had exclusive jurisdiction. Delaware Riv er Port Authority v. Thornburgh, 56 Pa.Cmwlth. 459, 425 A.2d 479 (1981). On appeal we reversed, and remanded the case to the jurisdiction of the Commonwealth Court for consideration on the merits. Delaware River Port Authority v. Thornburgh, 500 Pa. 629, 459 A.2d 717 (1983). We there held, in a unanimous opinion authored by then-Chief Justice Roberts, that the Commonwealth Court had erred in characterizing appellant’s claim as solely contractual and in declining to accept jurisdiction over the mandamus action. We further stated that, inasmuch as the petition for review sought to restrain appellees’ alleged interference with the performance of DRPA’s statutory duties and to enforce appellees’ compliance with their statutory duties under interstate compact, the issue was statutory, rather than simply contractual, and thus was cognizable in Commonwealth Court. Id., 500 Pa. at 634, 459 A.2d at 719-20. On remand the Commonwealth Court reinstated and considered those preliminary objections which it had not previously addressed, and again decided that jurisdiction properly lay in the Board of Claims, determining that the DRPA petition for review failed to state a cognizable claim for the relief requested. Delaware River Port Authority v. Thornburgh, 83 Pa.Cmwlth. 343, 479 A.2d 626 (1984). In so holding, that court concluded that no statutory obligations under the Compact were herein implicated, and that the Commonwealth’s only remaining obligations, if proven, were contractual in nature. Thus, the matter is now before us for the second time, and arises in the posture of an appeal by DRPA from the Commonwealth Court order sustaining preliminary objections in the nature of a demurrer. We reverse. Jurisdiction over matters arising exclusively out of contractual or quasi-contractual claims against the Com monwealth lies in the Board of Claims. Xpress Truck Lines, Inc. v. Pennsylvania Liquor Control Board, 503 Pa. 399, 469 A.2d 1000 (1983); Ezy Parks v. Larson, 499 Pa. 615, 454 A.2d 928 (1982). On the other hand, where an obligation derives from statute rather than from contract, a petition for review is properly entertained in Commonwealth Court. Delaware County v. Commonwealth, Department of Public Welfare, 34 Pa.Cmwlth. 165, 383 A.2d 240 (1978). The question before us is whether the commitments allegedly entered into by the Commonwealth in this matter are of a type that trigger such statutory obligations and duties. The DRPA alleges that, prior to agreeing with the Commonwealth to construct the Betsy Ross Bridge, it received express assurances from PennDOT concerning the construction of the proposed highway. Further, DRPA alleges that the construction of the bridge was fundamentally based upon, and only undertaken in view of, said assurances. The DRPA also avers that its ability to meet its statutory obligations to its bondholders is being adversely affected by the Commonwealth’s failure to construct the Pulaski Highway. Finally, appellant contends that the failure of the Commonwealth to construct the highway impairs its ability to collect tolls on the bridge. This, appellant argues, constitutes a violation of appellees’ statutory obligations under Article IX of the Compact, wherein the Commonwealth agrees not to “diminish or impair the power of the Commission... to establish, levy or collect tolls, rents, rates, or other charges...” 36 P.S. § 3503. Accepting the truth of appellant’s factual averments, as we must in deciding whether a demurrer was properly sustained, Savitz v. Weinstein, 395 Pa. 173, 149 A.2d 110 (1959); March v. Banus, 395 Pa. 629, 151 A.2d 612 (1959), we conclude that statutory as well as contractual obligations are at issue herein. A review of the relevant statutory passages reveals the breadth of the Commonwealth’s obligations. In addition to agreeing not to diminish or impair DRPA’s power to discharge its duties, the Commonwealth has agreed to vest in the DRPA a broad panoply of powers with which to effectuate its purposes and functions. 36 P.S. § 3503, Article IV. Among such powers is that of entering into contracts; the power to borrow money upon bonds or other obligations and to perform its covenants and agreements with the holders of such bonds and obligations; and the authorization to exercise such other powers as are necessary or incidental to the effectuation of its authorized purposes. Moreover, the General Assembly has provided that the Compact is to have the full force and effect of a statute of the Commonwealth: Upon its signature on behalf of the State of New Jersey and by the Governor on behalf of the Commonwealth of Pennsylvania, the aforesaid compact or agreement shall be and become binding and shall have the force and effect of a statute of the Commonwealth of Pennsylvania, and The Delaware River Joint Commission [now DRPA] shall thereupon become vested, with all the powers, rights and privileges, and be subject to the duties and obligations, contained in said compact as though the same were specifically authorized and imposed by statute, and the Commonwealth of Pennsylvania shall be bound by all of the obligations assumed by it under said compact... 36 P.S. § 3504. In concluding that any duties the Commonwealth may have incurred were strictly contractual in nature, rather than statutory, the Commonwealth Court failed to give sufficient consideration to the Commonwealth’s pledge, with both the State of New Jersey, and with the holders of bonds, securities, or other obligations of the DRPA, not to diminish or impair the power of that body to discharge its obligations. Article IX of the Compact provides in pertinent part: The Commonwealth of Pennsylvania and the State of New Jersey hereby covenant and agree with each other and with the holders of any bonds or securities or obligations of the Commission for which there may or shall be pledged the tolls, rents, rates or other revenues, or any part thereof, of any property or facility owned, operated or controlled by the Commission... that ... the Commonwealth and the said State will not diminish or impair the power of the Commission to own, operate or control said properties and facilities or to establish, levy or collect tolls, rents, rates or other charges in connection with such properties or facilities. 36 P.S. § 3503. In reading Article IX as prohibiting the Commonwealth only from actual interference with DRPA’s setting of toll rates, collection of tolls, or operation of the bridge, the Commonwealth Court adopted an overly restrictive view of the Commonwealth’s obligations to the DRPA. By operation of 36 P.S. § 3504, the Commonwealth suffused the Compact with the binding force and effect of a statute, and committed itself to be bound by all obligations assumed by it under the Compact. The General Assembly further vested the DRPA with all of the powers, rights and privileges contained in the Compact, as though same were specifically authorized and imposed by statute. The issue before us is whether the commitments allegedly rendered by the Commonwealth in this matter are of a type as will bring into operation such statutory obligations and duties. We find that they are. By authorizing the DRPA to enter into contracts, to incur financial obligations and pledge its tolls or other revenues in security therefor, and by then pledging neither to diminish nor impair the DRPA’s power to discharge its obligations, the Commonwealth incurred obligations of a statutory dimension. That pledge, rendered to both the State of New Jersey and to the holders of the DRPA’s financial obli gations, may not now be made ephemeral by easting the Commonwealth as simply one more contracting party, free like any other to affirm or disaffirm its commitments with only contractual ramifications. By rendering assurances concerning the bridge and highway, by referencing such assurances to the DRPA’s bond-marketing function, and finally, by entering into an agreement with the DRPA for the construction of the highway, the Commonwealth, if these claims be proven, has assumed statutory duties to neither diminish nor impair the DRPA’s discharge of the above, and no longer retains the discretion to renege on its obligations. Appellants seek relief in the nature of mandamus. Mandamus will only lie to compel official performance of a ministerial act or mandatory duty where there is a clear legal right in the plaintiff, a corresponding duty in the defendant, and a lack of any other adequate and appropriate remedy at law. Porter v. Bloomsburg State College, 450 Pa. 375, 301 A.2d 621 (1973); Valley Forge Racing Association v. State Horse Racing Commission, 449 Pa. 292, 297 A.2d 823 (1972). Further, this Court has stated that mandamus is proper to compel the performance of legal duties, even where the existence and scope of such duties must be found and defined in the course of the mandamus action itself. Volunteer Firemen’s Relief Association v. Minehart, 415 Pa. 305, 203 A.2d 476 (1964). While mandamus will not ordinarily lie to compel a series of particular acts or conduct, Russell v. Osser, 437 Pa. 45, 261 A.2d 307 (1970), or to compel the performance of a particular discretionary act, it is available to direct that discretion be exercised. Philadelphia Newspapers, Inc. v. Jerome, 478 Pa. 484, 387 A.2d 425 (1978). As Mr. Justice Musmanno suggested in his dissenting opinion in Boslover A.A.B. Assn. v. Philadelphia Redevelopment Authority, 425 Pa. 535, 229 A.2d 906 (1967), there may exist circumstances in which a governmental unit, although vested with discretion, exhausts that discretion by making contractual commitments, and thereafter retains no discretion to do other than act in conformity with such commitments: The Authority could not, after the contractual cement had hardened, smash it open with the sledge hammer of an alleged discretion in a field in which it had no discretion. 425 Pa. at 543, 229 A.2d at 910. Consequently, if PennDOT is ultimately responsible for the construction of the highway, an as yet unresolved question, their discretion to build or not to build is foreclosed. By the operation of the Compact they lose the status of an ordinary contracting party to suffer damages in lieu of performance. This conclusion is consistent with the intent of the General Assembly, since it cannot be that the purpose for which PennDOT and the DRPA were created is either advanced or satisfied by one paying damages to the other for the failure of the performance envisioned in the legislative purpose. For the reasons outlined above, we find that the requisite legal right, and corresponding duty, are made out by the averments in the instant petition for review. Moreover, it is clear that there exists no adequate alternative legal remedy, other than the relief herein requested, to ensure the Commonwealth’s compliance with its statutory obligations. We hold therefore that the Commonwealth’s failure to fulfill its contractual promises, if proven, would constitute a violation of its statutory obligations under the Compact, and as such would state a cognizable claim under the Compact for the relief requested. Should appellants prove their averments, we find that relief in the nature of a writ of mandamus lies in this setting to compel the Commonwealth to fulfill its statutory duty to effectuate the construction of the Pulaski Highway. Accordingly, the Order of the Commonwealth Court is reversed and the case is remanded to that court for consideration on the merits. . The Delaware River Port Authority Compact (Compact) was agreed upon in 1931 by the Commonwealth of Pennsylvania and the State of New Jersey to effectuate the development of the Delaware River and Port District. The Compact was first approved by the Commonwealth by the Act of June 12, 1931, P.L. 575, as amended, 36 P.S. § 3503, and by the State of New Jersey by 1929 N.J. Laws C. 271, N.J.Stat.Ann. 32:3-1 through 32:3-18. The United States Congress gave its consent to the Compact on June 14, 1932, 47 Stat. 308. Moreover, the Compact is to have the full force and effect of a statute of the Commonwealth. See infra at 15-18. . We upheld that part of the Commonwealth Court order dismissing the petition as to the respondent General Assembly, on grounds of constitutional separation of powers. . Act of May 20, 1937, P.L. 728, §4, as amended, 72 P.S. § 4651-4 (Supp. 1982-83). . Article IX, 36 P.S. § 3503. See p. 6, supra, and pp. 7-8, infra. . Article IV (f), 36 P.S. § 3503. . Article IV (j), 36 P.S. § 3503. . Article IV (n), 36 P.S. § 3503. . In a separate dissenting opinion, joined by Mr. Justice Bell, Mr. Justice Roberts articulated a similar view: That discretion ... has already been exercised; the enactment ... coupled with the prior acts of the Authority leaves no further ambit for discretionary action ... Boslover A.A.B. Assn. v. Philadelphia Redevelopment Authority, 425 Pa. 535, 548, 229 A.2d 906, 912 (1967). . We have reviewed the remaining preliminary objections offered by appellees, and we find them to be without merit.

The opinion of the Court was delivered by Rogers, J. A person erecting a mill and dam upon a stream of water, does not, by the mere prior occupation, gain an exclusive right, and cannot maintain an action against a person erecting a mill and dam above his, by which the water is in part diverted, and he is in some degree injured. Platt v. Johnson, 15 Johns. Rep. 213. A contrary principle would be very pernicious, particularly in a new country; for the necessary effect will be to impair the value 'of all the land through which the stream passes. The elements being for general and public use, when the benefit is appropriated to individuals by occupancy, this occupancy must be regulated and guarded with a view to the individual rights of all who have an interest in its enjoyment; and the maxim, sic utere too tit alienum non leudas, must be taken and construed with an eye to the natural rights of all. 15 Johns. Rep. 213. The use of the water is open to all, with the necessary restrictions that no person is permitted to enjoy it to the injury of those through whose land the stream passes. That no riparian proprietor gains any privilege by mere priority of appropriation, is a principle now well established; although the opinion entertained by some, that a riparian proprietor who occupies a mill site, can secure by such priority of occupation advantage which he could not claim provided any other riparian proprietor, above or below, had before appropriated the water, is not without countenance from respectable authority. In 2 Bl. Com. 403, the commentator says, if a stream of water is unoccupied, a person may erect a mill thereon, and detain the water; yet not so as to injure his neighbour’s mill, for he has, by the first occupancy, acquired a property in the current. In Hatch v. Dwight, 17 Mass. Rep. 289, there is a dictum of Chief Justice Parker to the same effect. And this would also seem to be theopinion of Justice Duncaniri Strichler v. Tod, 10 Serg. & Rawle 69. Subsequent decisions, however, have ruled the point otherwise. In Palmer v. Mulligan, 3 Caines’s Rep. 307, and Ingraham v. Hutchinson, 2 Conn. Rep. 592, and Bullen v. Burrel, 2 New Hamp. Rep. 217, the court put the right on the presumption arising from length of possession. They entirely discountenance the idea that the plaintiff acquired any right by mere prior appropriation. The subject of prior occupation was also considered in the case of Marten v. Bigelow, 2 Aiken’s Rep. 184, and it was ruled that the mere prior occupancy of the water by the defendant, did not prevent the plaintiff from using the same water in a prudent, way as it flowed down its channel. In Tyler v. Wilkinson, ’ this question was also examined by Justice Story. 4 Mason’s Rep. 401, 402. If a thing be common, there may be an appropriation by general consent or grant. Mere priority of appropriation of running water, without such consent or grant, confers no exclusive right. It is not like the case of mere occupancy, where the first occupant takes by force of his priority of occupancy. That supposes no ownership already existing, and no right to the use already acquired. But our law annexes to the riparian proprietors the right to the use in common, as an incident to the land; and whoever seeks to found an exclusive use, must establish a rightful appropriation in some manner known and admitted by the law. The same doctrine is recognized in New Hampshire, 5 New Hamp. Rep. 231, and in the latest English authorities. Those authorities are full to the point, that the fact that Hoy erected his mill before Sterrett, does not of itself confer a right of action,. unless the occupancy has been accompanied by a possession for such a length of time as that the jury are bound to presume a grant. On this part of the case, the court was requested to charge the jury, that if the jury believe that Hoy, and those under whom he claims, have occupied and used the water for near forty years, the jury may, and are bound by law to presume there was a grant from the owners of the tract of land above and adjoining for using it, and the plaintiff would be entitled to recover. To this the court answer, We can see nothing in this case for a presumption such as the plaintiff requires. There was no use of any part of the land held by Sterrett for the use of Hoy’s mill; no overflowing of land claimed by the defendant. This court cannot apply this proposition to the case before them so as to answer it in the affirmative. The opinion of the court evidently is, that even admitting the fact that Ploy had been in the uninterrupted enjoyment of the water right as at present exercised for more than forty years, yet, inasmuch as he did not overflow the lands of Sterrett, or make any use of his premises, a presumption of grant cannot arise. The learned judge seems to have adopted the opinion of Justice Gould in Ingraham v. Hutchinson, 2 Conn. Rep. 592. The reasoning of Justice Gould is very forcible, but did not accord with the opinion of his brother, who ruled the point otherwise; and this, it must be confessed, is in accordance with adjudged cases. The general rule of law is, that independent of any particular enjoyment used tobe had by another, every man has a right to have the advantage of a flow of water in his own' land without diminution or alteration ; but an adverse right may exist in another, founded on his occupation.- And although the stream be either diminished in quantity, or even corrupted in quality, as by the means of the exercise of certain trades, yet if the occupation of the party so taking and using it have existed for so long a time as may raise the presumption of a grant, the other party, whose land is below, must take the stream, subject to, such adverse right. Twenty-one years exclusive enjoyment of water, affords a conclusive presumption of right in the party enjoying it. This principle of presumption is introduced,in analogy to the act of limitations; and to raise the presumption of. a grant, the enjoyment must have been adverse; or, as in Carter v. Smith, 9 Serg. & Rawle 20, there must be a continued, exclusive enjoyment of the easement, with the knowledge and acquiescence of the owner of the inheritance, foy twenty-one years, which would be evidence from which a jury might presume a right by grant or otherwise to such easement. ^ Hoy built his mill on his own land, and swelled the water on his own land. Sterrett had no reason to complain of Hoy, nor was there a time when he had a right of action against him. Nor can he, with any propriety, be said to have acquiesced in the enjoyment of the water by Hoy. He cannot be said to have granted a right, about which it would have been an impertinent interference to utter a complaint. Hoy could not have been restrained by any legal process from the enjoyment of the right in the manner he had been accustomed. How can Sterrett be presumed to grant that which Hoy had a right to do independent of his grant. There is nothing unreasonable in requiring Hoy,, when he erected his mill, to erect it with a view to the capacity of the stream and the rights of his neighbours. And it must be presumed he has done so, as by prior occupation alone he acquires no right. . It is said the doctrine is necessary to promote peace, and it is admitted that the general principle of presumption is so; but it is also equally necessary to promote justice and fair dealing among neighbours. It amounts to this, that when the riparian owner above is unable, which is frequently the case, to improve and use the water on his own land, he must be deprived of a right incident to his land, and which may constitute its principal value. It would have been difficult for Sterrett to know the effect which Hoy’s mill would have on his water right above. At any rate, Hoy was as competent to form an opinion on that point as Sterrett was, particularly as his attention must have been drawn to the matter when he erected his mill. As a prudent man, it was his especial duty to calculate the capacity of the stream with a view to his own and his neighbour’s rights. That a title to an incorporeal hereditament may be supported by an uninterrupted enjoyment for the period limited by statute for the right of entry upon land, was first laid down in England, in Lewis v. Price, 2 W. Saund. 175. The rule was adopted in analogy to the statute of limitations. And in Donegal v. Wilson, Chief Justice Wilmot, who ruled the case of Lewis ». Price, in answer to an objection that an ancient light did not exist more than sixty years, said, “If a man hasbeen in possession of a house for sixty years, no one can stop up his lights. Possession,” he said, “ for such a length of time, amounts to a grant of a liberty of making them, and is evidence of an agreement to permit them to be made.” The doctrine of the English books in respect to ancient lights, is not very well understood in this country. I am not aware that any case has been ruled in this state in which the principle has been recognized. It should be introduced with caution. Many vacant lots in our cities and towns are owned by persons who reside at a distance, and who are either unable or unwilling to improve them. It would be inconvenient to compel .them to do so, on the penalty of forfeiting a valuable right by neglect. The court were also further requested to instruct the jury, that if they believe that Sterrett frequently withheld the water in his saw mill dam for two days and one night, to the injury of Hoy’s mill, the plaintiff is entitled to recover. The court very properly refer this as a'fact to be determined by the jury ; and instruct them that if they believe the water was no longer detained than was necessary for a proper enjoyment of it, as it passed through Sterrett’s land, for the use of his mill, it is a damage to which the plaintiff must submit. If the finding of the jury was wrong, the remedy was on a motion for a new trial. This question was decided by the jury, under the direction of the court, with a view to all the facts, the capacity of the stream, &c.; and however disposed we might be to interpose, had wé the power, yet we cannot afford relief under the circumstances of the case. The rights of the riparian owners must be adjusted in the samé manner as if each mill had been erected at the same time; lapse of time not having given any superior right to either party. It is very true, as the court state, that if there was a vexatious detaining of the water, or if there was any degree of malevolence as to the time, or the quantity of water discharged by Sterrett ; it was an injury for which the plaintiff was entitled to relief in damages. The jury having found that the defendant made a proper use of the water, we are of opinion that the judgment should be affirmed. I have examined the other errors assigned, and do not discover that there is any error. Judgment affirmed.

Opinion by Mb. Justice Robebts, Appellant, George Haideman, was tried by a jury and found guilty of bookmaldng, setting up a gambling establishment and conspiracy. He was sentenced to undergo imprisonment for six to twenty-three months and to pay a fine of $500.00. Following a per curiam affirmance by the Superior Court, we granted allocatur and, in a per curiam order, affirmed the conviction by an equally divided Court. Commonwealth v. Haide- man, 284 A. 2d 757 (1971). On March 21, 1972, however, we granted appellant’s motion for reargument. The issue presented is whether the trial court erred in permitting testimony that appellant, upon being advised of his Miranda rights, requested counsel and exercised his constitutional right to remain silent. The Commonwealth, in its case in chief, introduced the following testimony of Trooper Kardash: “Q. When you say advised him of the Warrant and the reason of our business, what do you mean, Trooper Kardash? A. He read him his constitutional rights, and he read the Search Warrant to him and the Body Warrant. Q. When the constitutional rights were read to the defendant, did the defendmit say anything? A .He didn’t say nothing; he calmed down and he shut up.” Defense counsel immediately requested a sidebar conference and objected to such evidence. After a lengthy discussion, the trial court overruled the objection and denied the motion for mistrial. Subsequently, the Commonwealth called Trooper Purcell who testified: “Q. What did you do as you entered? A. Again advised the subject of his constitutional rights, and asked him if he understood what I was speaking of, because naturally there is physical emotion and so forth involved, and he was more settled down, and he was advised of his constitutional rights, which he stated he understood, and also requested to remain mute pending counsel.” Testimonial reference to an accused’s silence and his request for a lawyer at time of arrest is a constitutionally impermissible violation of the accused’s Fifth Amendment right.. In Griffin v. California, 380 U.S. 609, 85 S. Ct. 1229 (1965), the Supreme Court held that the Fifth Amendment “forbids either comment by the prosecution on the accused’s silence [at trial] or instructions by the court that such silence is evidence of guilt.” Id. at 615, 85 S. Ct. at 1233. The difference between prosecutorial use of an accused’s silence at trial and the use of an accused’s silence at time of arrest is, as one court stated, “infinitesimal.” Gillison v. United States, 399 F. 2d 586, 587 (D.C. Cir. 1968). In both instances, the defendant’s silence is exploited as evidence of guilt. As the Fifth Circuit observed, “[w]e would be naive if we failed to recognize that most laymen view an assertion of the Fifth Amendment privilege as a badge of guilt.” Walker v. United States, 404 F. 2d 900, 903 (5th Cir. 1968). It is clear that “[t]he privilege against self-incrimination would be reduced to a hollow mockery if its exercise could be taken as equivalent either to a confession of guilt or a conclusive presumption of perjury.” Slochower v. Board of Higher Ed. of N.Y., 350 U.S. 551, 557, 76 S. Ct. 637, 641 (1956). The Seventh Circuit in United States v. Kroslack, 426 F. 2d 1129 (7th Cir. 1970), relied on Griffin in concluding that testimony similar to that utilized here was inadmissible. That court said: “It was reversible error for the agent to testify that when the defendant was questioned he refused to make a statement. Baker v. United States, 5 Cir. 357 F. 2d 11 (1966). Defendant had a constitutional right to refuse to make a statement until his request that a lawyer be present was met. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1964). [sic] We find little difference between the prejudice resulting from the testimony admitted in the case before us, and a prosecutor’s comment before a jury on a defendant’s exercise of his constitutional right not to take the witness stand. Such comments have been held to be reversible error. Griffin v. California, 380 U.S. 609, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965). The testimony elicited here could well have led the jury to infer guilt from defendant’s refusal to make the statement. We think exercise of a constitutional privilege should not incur this penalty.” Id. at 1130-31 (footnote omitted). Accord, United States v. Matos, 444 F. 2d 1071 (7th Cir. 1971); United States v. Arnold, 425 F. 2d 204 (10th Cir. 1970); Fowle v. United States, 410 F. 2d 48 (9th Cir. 1969); Walker v. United States, supra; Gillison v. United States, supra; Baker v. United States, 357 F, 2d 11 (5th Cir. 1966); Fagundes v. United States, 340 F. 2d 673 (1st Cir. 1965); People v. Lampson, 129 Ill. App. 2d 72, 262 N.E. 2d 601 (1970); People v. Abdul Karim Al-Kanani, 26 N.Y. 2d 473, 260 N.E. 2d 496 (1970); Galasso v. State, 207 So. 2d 45. (Fla. Dist. Ct. App. 1968); State v. Dearman, 198 Kan. 44, 422 P. 2d 573 (1967), cert. denied, 396 U.S. 895, 90 S. Ct. 194 (1969). In Fowle v. United States, supra, the court rejected the use of evidence of an accused’s silence at arrest as being constitutionally precluded because such evidence ignores his Fifth Amendment protection and prejudices this guaranteed right. That court reasoned: “We simply cannot adopt an interpretation of the Fifth Amendment under which one exercising his right to remain silent upon and immediately after his arrest—a right which the Supreme Court has so . earnestly sought to guarantee and preserve—is severely prejudiced by his recourse to that cherished right. It would be anomalous indeed if honorable law enforcement officers were required to elaborate upon the traditional fifth amendment warning and advise arrested persons, in effect: If you say anything, it may be used against you. You have the constitutional right to remain silent, but if you exercise it, that fact may be used against you.” Fowle v. United States, 410 F. 2d at 54. The conclusion we reach is compelled by the Supreme Court’s explicit pronouncement that the prosecution may not—as was done here—introduce at trial the fact that the accused “stood mute or claimed his privilege.” In Miranda, the Court stated: “In accord with our decision today, it is impermissible to penalize an individual for exercising his Fifth Amendment privi- lege when he is under poliee custodial interrogation. The prosecution may not, therefore, use at trial the fact that he stood mute or claimed his privilege in the face of accusation. Cf. Griffin v. State of California. . . .” Miranda v. Arizona, 384 U.S. 436, 468 n.37, 86 S. Ct. 1602, 1624-25 n.37 (1966) (emphasis added). It must, therefore, be held that reversible error was committed in admitting, at trial, evidence of appellant’s request for counsel and his silence at time of arrest. To permit such evidence would certainly impair and burden appellant’s constitutional privilege and impose the very penalty which Miranda specifically forbids. The order of the Superior Court is reversed, the judgment of sentence is vacated and a new trial granted. Mr. Chief Justice Jones and Mr. Justice Pomeroy dissent. Mr. Justice Eagen and Mr. Justice O’Brien joined in the opinion of Mr. Justice Roberts which would have reversed the conviction and granted a new trial. That opinion stated “that any testimonial reference to an accused’s silence and request for a lawyer at the time of arrest is reversible error, when made in the jury’s presence and over timely objection. As aptly stated by the United States Court of Appeals for the Fifth Circuit in the factually similar ease of Baker v. United States, 357 F. 2d 11 (1966) : ‘In asking for counsel before making any statement, appellant was exercising a Constitutional right which the Supreme Court has time and again declared to be guaranteed to all persons accused of crime. To have proven that appellant requested the right of counsel and thereafter made no further statement was, we feel, as objectionable as it would have been to comment on a defendant exercising his Constitutional right not to take the witness stand.' Id. at 13-14.” Commonwealth v. Haideman, 284 A. 2d 757, 758 (1971). Appellant also contends that the court erred (1) by admitting into evidence certain incriminating statements; (2) by failing to submit the issue of voluntariness of the statements; (3) by failing to compel the Commonwealth to identify the informant; (4) by refusing a request for a suppression hearing; (5) by denying a request for a bill of particulars; (6) by failing to prove conspiracy beyond a reasonable doubt; (7) by limiting defense counsel’s cross-examination; (8) by permitting testimony that appellant was running a layoff house; and (9) by denying numerous motions for mistrial. In view of our disposition, we need not pass upon these challenges. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966). The Commonwealth suggests that evidence of appellant’s silence and request for counsel is relevant for the purpose of showing that he was aware of the circumstances, notwithstanding his hysteria. Here, in fact, appellant did not challenge that he was informed of his rights and that he was aware of the police activity. Accordingly, “this testimony . . . did no more than turn on the red light of potential prejudice involving the defendant’s fifth amendment rights.” United States v. Arnold, 425 F. 2d 204, 206 (10th Cir. 1970).

OPINION OF THE COURT POMEROY, Justice. Following a jury trial, appellant was convicted of voluntary manslaughter for the slaying of his wife. A sentence of from four years to twelve years was subsequently imposed. Appellant now appeals that judgment of sentence. The sole issue raised concerns the applicability to the facts of this case of our rule of criminal procedure governing the time within which a defendant must be tried or retried, Pa.R.Cr.P. 1100. Specifically, appellant contends that paragraph (e) of that rule was not complied with, and that in consequence his judgment of sentence should be reversed and he should be discharged. For the reasons hereinafter stated, we agree. Appellant was originally convicted of murder in the second degree for the killing of his wife. On appeal from the judgment of sentence following that conviction, this Court on November 26, 1973, ordered the judgment reversed and granted appellant a new trial. Commonwealth v. Woods, 454 Pa. 250, 311 A.2d 582 (1973). On February 26, 1974, 92 days after our decision, appellant petitioned the court of common pleas to dismiss the charges against him, because of non-compliance with Rule 1100(e). On the same day the Commonwealth filed a petition for extension of time pursuant to Rule 1100(c) , nunc pro tunc. Two days later, the trial court rejected appellant’s petition to dismiss and granted the petition of the Commonwealth. Appellant was then subsequently retried on April 19, 1974, with the result indicated above. It is apparent that neither the Commonwealth’s petition for an extension of time nor the actual commencement of trial was within the time limits prescribed by Rule 1100. In our view, this is dispositive. The time limits set forth in the rule are definite; there is no provision for the granting of any extension applications nunc pro tunc. The Commonwealth argues, however, that Rule 1100 is inapplicable to this case because the original criminal complaint against the appellant was filed prior to June 30, 1973. This argument is based upon paragraphs (a)(1) and (a)(2) of the Rule and an accompanying explanatory note. That note reads: “Adopted June 8, 1973, effective prospectively as set forth in paragraphs (a) (1) and (a) (2) of this rule.” The note, however, serves merely to call attention to the differing prospective applications of the rule insofar as original trials are concerned, as set forth in paragraphs (a)(1) and (a)(2). Paragraph (e), on the other hand, deals only with new trials, and contains no reference to the date of the filing of the complaint. While that date marks the commencement of the limitation period in cases newly brought, it has no pertinency in cases where new trials are ordered; the only meaningful date in such cases is the date the new trial is ordered. Because it is the entry of an order granting a new trial which starts the 90 day time limit in paragraph (e) running, that paragraph is applicable to any court case in which such an order is entered after June 8, 1973, the date of adoption of Rule 1100. Not only is this holding required by the language of the Rule and accompanying note, but it is also consonant with the desire of this Court to expedite the trial and retrial of criminal cases as expressed in our recent decisions. See Commonwealth v. Lee, 460 Pa. 374, 333 A.2d 773 (Filed March 12, 1975); Commonwealth v. Roundtree, 458 Pa. 351, 326 A.2d 285 (1974); Commonwealth v. Pearson, 450 Pa. 467, 303 A.2d 481 (1973); Commonwealth v. Jones, 450 Pa. 442, 299 A.2d 288 (1973); Commonwealth v. Hamilton, 449 Pa. 297, 297 A.2d 127 (1972). Judgment of sentence is reversed and appellant is ordered discharged. JONES, C. J., did not participate in the consideration or decision of this case. . Pa.R.Cr.P. 1100(e), 19 P.S. Appendix (Supp.1974-75) provides: “A new trial shall commence within a period of ninety (90) days after the entry of an order by the trial court or an appellate court granting a new trial.” . Rule 1100(f) provides in pertinent part: “At any time before trial, the defendant or his attorney may apply to the court for an order dismissing the charges with prejudice on the ground that this Rule has been violated.” . Rule 1100(c) provides in pertinent part: “At any time prior to the expiration of the period for commencement of trial, the attorney for the Commonwealth may apply to the court for an order extending the time for commencement of trial. . . . Such application shall be granted only if trial cannot be commenced within the prescribed period despite due diligence by the Commonwealth.” . Paragraphs (a)(1) and (a)(2) provide as follows: “(a)(1) Trial in a court case in which a written complaint is filed against a defendant after June 30, 1973 but before July 1, 1974 shall commence no later than two hundred seventy (270) days from the date on which the complaint is filed. “(2) Trial in a court case in which a written complaint is filed against the defendant after June 30, 1974 shall commence no later than one hundred eighty (180) days from the date on which the complaint is filed.”