(115 A.)

2. Mortgages 497 (1)—Judgment held not binding on creditors as to amount due under mortgage.

Where a judgment was entered in favor of second mortgagee on a transcript of a judgment from another county, entered by virtue of warrant of attorney accompanying the bond secured by the second mortgage, the contention that such judgment was binding on creditors obtaining prior judgments against the mortgagor, as to the amount due on the second mortgage, so as to defeat a claim of such creditors of part payment of the second mortgage, could not be sustained under the theory that such claim of part payment could only be considered in the county where the judgment was first entered.

200 feet of the spring when it failed, while | personally interested in the fund, but is claimnone within 1,000 feet on the adjoining land ing for another who did not appear before the had been removed, strengthens plaintiff's court below, and is apparently appealing in his contention. No one saw the subterranean own name and in his own right, and not as the representative of such other person. reservoir or stream which fed the spring, or knew whence it came; hence, it could not be definitely affirmed that it came through other land a fifth of a mile away; under the evidence, its source may have been on plaintiff's own farm. The vice of the contention of the able counsel for defendant is the assumption that there is no evidence that the loss of the spring resulted from the mining done under plaintiff's land. True, some of Mr. Stoker's answers on cross-examination might seem to justify this contention, but not his testimony considered whole, as it properly should be. Danko v. Pittsburg Railway Co., 230 Pa. 295, 79 Atl. 511. There were also circumstances tending to support plaintiff's case, and the conflicting evidence, as to which mining caused the damage, was necessarily for the jury. Weaver v. Berwind-White Coal Co., 216 Pa. 195, 65 Atl. 545. It was not a case where the jury were left to guess, but where they had to pass upon conflicting evidence, aided by a personal view of the premises.

as a

[4, 5] A large stream of water called Stony creek ran along the southerly side of plaintiff's farm, the waters from which were appropriated by water companies about 1912: and, as it was brought out by defendant in this trial that plaintiff had submitted claims against such companies for damages, it was not cause for the withdrawal of a juror for his counsel to say to the jury that so far his client had recovered nothing from the water companies. The evidence supports such assertion, and, so far as we can judge, the defendant was not harmed there by. There was a further request on part of defendant for the withdrawal of a juror on account of some statement made to the jury by plaintiff's counsel as to the evidence of a witness which had been stricken out; but, as the alleged statement is not brought upon the record, and the trial judge instructed the jury to disregard it, we cannot say there was error in refusing the request.

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

I. Appeal and error 150(1)-No appeal by party without interest.

3. Mortgages

568-Proceeds of sale distrib

uted according to equity.

Where sheriff's special return of sale under a mortgage was made under Act June 4, 1901 (P. L. 357; Pa. St. 1920, § 10574), and exceptions were filed, distribution should be made according to the rules of equity; that is, as provided by Act June 16, 1836 (P. L. 777, § 86; Pa. St. 1920, § 10565).

4. Subrogation 21, 41(6)—Depends on paying debt for which another was liable, and burden is on claimant.

One is entitled to subrogation only in case he was required to pay a debt for which another was primarily liable, and which in equity and good conscience the other should have paid, and the burden is on him to show the facts on which he claims to have been subrogated. 5. Bills and notes

ma facie liable.

298-Prior indorser pri

As between indorsers on a note, the prior indorser is prima facie the one ultimately liable.

Appeal from Court of Common Pleas, Greene County; J. A. Ray, President Judge.

Action by John W. Donnan against James R. Barnes. Decree for defendant, and plaintiff appeals. Affirmed, and appeal dismissed.

Argued before MOSCHZISKER, C. J., and FRAZER, WALLING, SIMPSON, KEPHART, SADLER, and SCHAFFER, JJ.

W. J. Sturgis, S. J. Morrow, and Dean D. Sturgis, all of Uniontown, for appellant.

E. C. Higbee (of Sterling, Higbee & Matthews), of Uniontown, W. J. Kyle (of Kyle & Reinhart) and A. F. Silvens, both of Waynesburg, and A. C. Hagan, of Uniontown, for appellee.

SIMPSON, J. On a writ of levari facias, based on a judgment recovered on foreclosure of a first mortgage, on defendant's prop

An appeal from a decree distributing a bal-erty, in Greene county, Pa., it was sold by the ance after payment of mortgage will be dis- sheriff, who made a special return, under the missed, where it appears that appellant is not act of June 4, 1901 (P. L. 357, Pa. St. 1920, §

10574), setting forth that, after payment of could only be considered in Washington the costs, taxes, and expenses there remained county, where the judgment was first enin his hands the sum of $244,997.93, for tered. For certain purposes this contention, which he had taken plaintiff's receipts, one as to both fact and effect, is true, indeed necfor $134,179.48 in full for debt, interest, and essarily so; but to it the maxim, "In fictione costs of said first mortgage, and the other juris semper æquitas existit," is particularly for $110,818.45 on account of debt, interest, relevant, and hence the contention will not and costs of a second mortgage for $85,000, be sustained in a case like the present. If also held by plaintiff. Exceptions were filed sustainable, it would be good, though the to the return, alleging that only $47,291.02 judgment was first entered in the remotest was due on the second mortgage, leaving a and most inaccessible county of the state, balance of $63,527.43, to which defendant's and a transcript thereafter filed in Greene judgment creditors were entitled, and plain-county; or, indeed, under the "full faith and tiff was not. By agreement of the parties credit" clause of the Constitution of the an auditor was appointed to distribute this United States, if a judgment on the warrant balance; he reported in favor of awarding it of attorney had been entered in Florida or to plaintiff, in accordance with the sheriff's Texas, and a suit thereon had ripened into a special return; but, upon exceptions filed by local judgment in Greene county. appellees, the court below decreed they were entitled to it, and plaintiff then appealed.

[1] Appellant admits he is not personally interested in the $63,527.43, but alleges it belongs to one John T. Robinson, for whose benefit he claims it. At no time did Robinson appear before the auditor or the court below, nor does he appeal from the decree in favor of appellees, plaintiff alone appealing, in his own name and apparently in his own right, and not as the representative of Robinson. Since appellant has in fact no interest in the fund, we might well dismiss the appeal on this ground alone; the same result is reached, however, if we treat the appeal as taken by or on behalf of Robinson.

[3, 4] The sheriff's special return was made under the act of June 4, 1901 (P. L. 357), which says that, if exceptions are filed, "the court shall proceed to hear and determine the same, as now provided by law in case of disputes as to the distribution of the proceeds of sheriff's sales"; that is, as provided by section 86 of the act of June 16, 1836 (P. L. 777; Pa. St. 1920, § 10565), "according to law and equity." The distribution being in a court of equity, according to whose rules, indeed, all such distributions are made (Wolf v. Ferguson, 129 Pa. 272, 283, 18 Atl. 139; McCune v. McCune, 164 Pa. 613, 30 Atl. 577, and Robinson being entitled to subrogation only in case he was required to pay a debt for which one Barnes was primarily liable, and which in equity and good conscience the latter should have paid (Lackawanna Trust & Safe Deposit Co. v. Gomeringer, 236 Pa. 179, 84 Atl. 757), the burden was on Robinson to show the facts by virtue of which he claimed to be subrogated, on (1) 1914, January 20th, the foregoing sec- this distribution, to the rights of the mortond mortgage of $85,000, in favor of appel-gagee; and here his case wholly fails. lant;

Excluding the first mortgage, which has been paid in full out of the price realized at the sale, and some 200 judgments against defendant, which will not be reached in the distribution, the liens upon the property, at the time of the sheriff's sale, were as follows:

[5] As already stated, appellant admits

(2) 1915, January 29th to March 18th, 12 that, though the mortgage was given to him, judgments held by appellees;

(3) 1915, May 31st, judgment in favor of appellant on a transcript of a judgment from Washington county, which had been there entered by virtue of the warrant of attorney accompanying the bond secured by the foregoing second mortgage of $85,000.

he had no personal interest in it. He was president of the Citizens' National Bank and also of the Washington Trust Company, each of Washington, Pa., and the mortgage was given to secure to them the payment of an antecedent indebtedness of one J. V. Thompson, represented by five notes, in[2] The first and last of said liens were, of dorsed by several people for his accommodacourse, for the same debt; and it is evident tion and discounted by the bank and trust that the latter thereof, considered merely as company; two of the indorsers, at the time a judgment, would take no part of the fund, of the sheriff's sale, being Barnes and Robbecause subsequent in entry to the judgments inson. Admittedly, also, the bank and the held by appellees; and hence the questions trust company have been paid in full, and arising on this distribution must really be have no interest in the distribution. Upon decided as between the mortgage itself and two of the notes Barnes was the only inthe 12 judgments. Appellant's claim is dorser, and the amount thereof was inbased on the legal fiction that the mortgage cluded in the $47,291.02, which was allowed is merged in the judgment entered on the as a credit upon the price bid by appellant warrant of attorney, though, for the purpose at the sale. Upon the other three notes of lien, the latter takes effect as of the place Robinson was a prior indorser to Barnes, and date of record of the former; and hence, and therefore, as between themselves, Rob

(115 A.)

liable. These three notes, which were also further protected by a mortgage given by Robinson on his own property, were paid by him and his collateral mortgage thereupon satisfied; and the claim now made is that he is entitled, by reason of this payment, to be subrogated to the right of the bank and trust company on the $85,000 mortgage, to the detriment of appellees, as judgment creditors of Barnes, though in making the payment he was, as between himself and Barnes, only paying his own debt. This would be against equity and good conscience, and hence the claim to subrogation cannot be allowed. A different question would have arisen had Robinson appeared and set up facts sufficient to show that, despite the order of the indorsements, Barnes was, as between themselves, the primary debtor; but this he did not do.

to obtain compensation for the death of an em-
ployee struck by the crank of a crab, medical
testimony held to show that the accident was
a contributory cause in the development of tu-
berculosis, which resulted in his death, upon
to the quick development of the disease and
the theory that the shock rendered him subject
that such development was due to the injury.
2. Evidence 550 (2)-Physicians' conclu-
sions from reading evidence held competent.
In a proceeding under the Workmen's Com
pensation Act (Pa. St. 1920, § 21916 et seq.),
testimony of medical experts based on a read-
ing of the evidence in the case, each stating
facts they assumed to be true, which formed
the basis of their conclusions, was competent.

Appeal from Court of Common Pleas, Indiana County; J. N. Langham, President Judge.

We have not overlooked appellant's contention that this second mortgage was given by Proceedings under the Workmen's CompenBarnes, and the notes indorsed by him, be sation Act by Carrie S. Kelly for the death cause he was indebted to Thompson in a of H. E. Kelly, opposed by the Watson Coal sum exceeding the amount of the mortgage, Company, employer, and the Etna Life Inwhereas Robinson was a creditor of Thomp-surance Company, insurer.

Affirmed.

Award of the

Argued before MOSCHZISKER, C. J., and
FRAZER, WALLING, SIMPSON, KEP-
HART, SADLER, and SCHAFFER, JJ.

John M. Reed, of Pittsburgh, and James
W. Mack, of Indiana, Pa., for appellant.
S. J. Telford, of Indiana, Pa., for appellee.

son and hence only an accommodation indors- Compensation Board affirmed by the court er. It is difficult to make the first of these al- of common pleas and the insurer appeals. legations accord with the fact that, in the proceedings in bankruptcy instituted against Thompson, Barnes was adjudicated a creditor in the sum of $712,757.07, but whether he was a debtor or a creditor does not necessarily determine the rights of the parties here, where each was a surety for Thompson, since no agreement was shown that, as between Barnes and Robinson, the former was to be primarily liable, notwithstanding the prima facies arising from the order of their indorsements. Especially is this true, since the contention, now made by appellant for Robinson, is in the teeth of the claim of the latter, in a suit he brought against Barnes in another county, wherein he alleged it was agreed all the indorsers, including Barnes and himself, were to be considered as equally bound, without regard to the order of their indorsements; a fact which, if true, directly contradicts the claim now made for Robinson, but which the latter did not undertake to prove on this distribution.

The decree of the court below is affirmed, and the appeal is dismissed, at the cost of appellant.

(272 Pa. 39)

KELLY v. WATSON COAL CO. et al. (Supreme Court of Pennsylvania. Jan. 3, 1922.)

1. Master and servant 405 (4) Evidence held to show compensable injury to workman developing tuberculosis causing death.

MOSCHZISKER, C. J. At the inception of this suit, Carrie S. Kelly made a compensation claim against defendant coal company for the death of her husband, H. E. Kelly; this was allowed by the Board and the decision was affirmed by the court below; the insurance carrier has appealed, contending that the evidence was insufficient to connect Kelly's death with the accident here in question and that the testimony of certain of the medical experts should not have been considered.

[1] It appears from the evidence that Kelly, a carpenter in defendant's service, was injured March 19, 1918; he had been employed by the coal company for three years prior to the accident, was "a steady worker," and had lost no time on account of sickness, although there is some testimony that he was not what would be termed a robust man. Deceased was winding a crab, turning over a car to make some repairs on its bottom, when the crank flew out of his hands striking him on the head and at a point on the left side of his abdomen near the waistline, The head was quite

In a proceeding under the Workmen's Com-knocking him down. pensation Act (Pa. St. 1920, § 21916 et seq.), badly cut, but the injury to the body was not

at first considered serious, although claimant testified there was a bruise "between the hip and waistline," and the patient told his doctor of an uneasy feeling on the left side of the abdomen; five days after the injury, he complained of soreness in the region of the left testicle, which, upon examination,, was seen to be swollen, inflamed, and tender; subsequently, about a month after the accident, an operation was performed to remove the testicle, and it was found to be infected with tubercular baccilli; following this, deceased had trouble with his hip, and a general consumptive condition developed. On November 6, 1918, he died, at the age of 46, of tubercular peritonitis.

On the facts above stated-and as to them there is no conflict-it was found that

The "injuries sustained by the decedent" were due to "violence to the physical structure of his body," which "so lowered his vital resistance that a tubercular condition quickly developed, hastening and causing his death."

Appeal from Court of Common Pleas, Allegheny County; James R. Macfarlane, Judge.

Proceedings under the Workmen's Compensation Act by Ella Lawton for compen

sation for death of her husband, Neil Lawton, opposed by the Diamond Coal & Coke Company, employer, and the Etna Life In

Workmen's Compensation Board for claimant affirmed by Court of Common Pleas, and the employer and insurer appeal. Affirmed.

Before MOSCHZISKER, C. J., and FRAZER, WALLING, KEPHART, SADLER, and SCHAFFER, JJ.

Clarence Burleigh and William A. Challener, both of Pittsburgh, for appellants. Robt. M. Steffler, of Pittsburgh, for appellee.

There is ample medical testimony on the record to sustain the findings just recited;surance Company, insurer. Award by the it being the opinion of several competent doctors, at least one of whom was an eminent expert, that the accident under investigation was a "contributory cause of the development of the tuberculosis * * which resulted in his [Kelly's] death." The doctors said there was "a direct connection between the trauma, injury, and the tubercular condition," upon the theory that the shock of the accident and consequent lowered vitality rendered the injured man particularly subject to the quick development of the disease from which he died, and that such development was, in all probability, due to the assigned cause. Under our cases, this was sufficient to warrant and sustain the award. Dumbluskey v. Coal & I. Co., 270 Pa. 22, 112 Atl. 745; Tracey v. Coal & I. Co., 270 Pa. 65, 112 Atl. 740; Zukowsky v. Coal & I. Co., 270 Pa. 118, 113 Atl. 62; Miller v. Director Genl. of Railroads, 270 Pa. 330, 113 Atl. 373. Compare Fink v. Sheldon Axle Co., 270 Pa. 476,

113 Atl. 666.

PER CURIAM. We adopt the following excerpts from the opinion of the common pleas:

* *

"This is an appeal by defendant from an award, to the widow of Neil Lawton, made by the Workmen's Compensation Board, and the question involved is whether the case is one of admiralty jurisdiction. The defendant corMonongahela and Ohio rivers, navigable waters poration operates steamboats on the Allegheny, under the acts of Congress. On December 26, 1919, Lawton was employed by defendant as [2] While certain of the medical experts superintendent of its landing, situated near the testified that they based their conclusions on junction of these rivers. He was killa reading of the evidence in the case, yet ed [during the course of his employment] on a each of them clearly stated the facts they ashouseboat owned by defendant. • Lawton and his family lived on this houseboat. It sumed to be true, and which formed the was not found by the board that the houseboat basis of their conclusions, just as much as had any other purpose or use; it was attached though these facts had been put to them in to the landing by ropes, and was not moved the form of a hypothetical question; and about; the landing was its fixed location, and some of those who gave expert testimony it was considered part of the landing. The were doctors who either actually attended or board states: 'We are therefore of the opinoperated on the deceased. Under these cir-ion, relying on the above, that, this accident cumstances, there is no merit in appellant's happening on land, the Workmen's Compensacomplaint concerning the alleged incompeten-board did not find as a fact that the houseboat has jurisdiction.' * cy of the testimony in question. was on land; it drew a conclusion of law from The assignments of error are overruled, recited facts, nevertheless it did not find that and the judgment is affirmed. (the houseboat) was in the water, or between

tion Board

The

(115 A.)

high and low water mark. They found suffi-| SIMPSON, J. The commonwealth, by its cient to show jurisdiction, and nothing to oust Attorney General, filed a petition in the it." court of common pleas of Dauphin county, praying a writ of peremptory mandamus to compel appellees, who are three of the five district, to dismiss certain children from the school directors of Millcreek township school public schools, they having been admitted in violation of the provisions of the Act of June 18, 1895 (P. L. 203), and the amendatory Acts of April 22, 1903 (P. L. 244), and June 5, 1919 (P. L. 399, Pa. St. 1920, § 9038); an answer was filed, the writ was refused, and the commonwealth appeals.