Main Street from the paving line to the house line; the Act of 1851 authorized the laying out and widening of streets, alleys and courts. This being so, the action of Borough Council was within the powers conferred by the Act of 1851.

Other reasons advanced by plainitff warrant the court in over-ruling the motion to dissolve the preliminary injunction.

Now, July 13, 1923, motion to dissolve the preliminary injunction issued, overruled. The Prothonotary is directed to immediately notify counsel interested of the disposition of the motion to dissolve. Counsel for parties in interest may agree upon a date for a future meeting, or request the Court to fix a date.

CYPHERS v. GLOSE.

Deed-Deed Absolute-Mortgage-Act of April 23, 1909, P.

L. 137.

Defendants executed and delivered a deed to plaintiff's decedent for certain property, part of which defendants continued to occupy and for a time paid rental to plaintiff.

In ejectment, the defendants contended that plaintiff's decedent and one of the defendants entered into an oral and written agreement for the erection of certain houses on the conveyed premises, to be financed by plaintiff's decedent and constructed by said defendant, the profits, after sale, to be divided, etc.

Held, that there was no writing of defeasance, as contemplated by the Act of April 23, 1909, P. L. 137, and that a rule for judgment on the pleadings should be made absolute.

In the Court of Common Pleas of Lehigh County. No. 67 April Term, 1922. Mary L. Cyphers v. William F. Glose and Mary Glose, his wife. Ejectment. Rule for Judgment on Pleadings. Rule Absolute.

George R. Booth and Russell C. Mauch, for Plaintiff.
B. F. McAtee and Butz & Rupp, for Defendants.

Groman, P. J., August 6, 1923. The defendant, on January 10, 1914, executed and delivered a deed to H. A. Cyphers for the real estate described in this proceeding. H. A. Cyphers dies August, 1917, and by will devised all

his real estate to his wife, the plaintiff herein. On part of the tract conveyed, is located a dwelling house occupied by defendants, for which a rental of Thirty Dollars a month was for a time paid to plaintiff. On the same tract, a row of houses was erected during the years 1914 and 1915. The defendants refuse to pay rent, or to vacate the premises, and this action of ejectment to recover possession was brought. Defendants filed an answer and entered a plea.

The answer admits the allegations contained in the declaration, and further alleges that one of the defendants, William F. Glose, and Harry A. Cyphers, plaintiff's decedent, entered into an oral agreement whereby Cyphers was to finance the erection and construction by Glose of six houses on the premises conveyed. Cyphers was to receive one-half of the profits realized from the sale of the houses; that Glose was to collect, demand, receive and take all of the rents until the sale of the houses. Defendants also allege that a written agreement to the same effect was made by the parties, which written agreement is found in a book of account kept by the decedent Cyphers; and the agreement so entered signed by both parties. On a motion for judgment on the pleadings, is the answer sufficient to prevent the entry of judgment in favor of the plaintiff?

The deed was an absolute deed on its face; no contemporaneous writing, properly signed, sealed and acknowledged, so as to bring it within the provisions of the Act of April 23, 1909, P. L. 137, making such a writing a defeasance, is alleged or set forth in the answer.

In the brief submitted by plaintiff (defendant submitted no brief), Moran v. Munhall, 204 Pa. St., page 242 is cited. This case is decisive of the question herein involved; the syllabus reads as follows: "Where an absolute deed of real estate is made by a debtor to a creditor, and it is the intention of the parties that the deed shall extinguish the debt, and that the creditor may convey the land to whomsoever he chooses, but an oral agreement is made between the parties at the time, that the property shall be sold, that both parties shall use their best efforts to make a sale, and that any surplus remaining after the creditor is paid in full shall be paid to the debtor, the debtor is entitled to collect such surplus after a sale of

the land, by an action of assumpsit. Such a parol agreement does not convert the actual deed into a mortgage under the Act of June 8, 1881, P. L. 84, nor into a trust under the Act of April 22, 1856, P. L. 532."

Now, August 6, 1923, rule for judgment on the pleadings in favor of the plaintiff made absolute.

HAUSMAN v. WEED ICE CREAM COMPANY. Practice, C. P.-Points for Binding Instructions-Exceptions to Charge Trial-Failure to Object at Trial—Waiver.

Where no binding instructions were presented, a motion for judgment n. o. v. must be dismissed.

Where no exception was taken to the charge of the court, nor a motion made to reduce it to writing, it cannot be reviewed on a motion for a new trial.

Where, on the trial, the court itself having raised the question of the proper measure of damages, plaintiff's counsel contended that the measure of damages was that which was afterwards incorporated in the charge, defendant's counsel remaining silent, but arguing the case to the jury along the lines of the suggested measure of damages, taking no exception to the charge, nor presenting points for the charge a new trial will be refused.

In the Court of Common Pleas of Lehigh County. No. 132 April Term, 1923. Robert W. Hausman v. Weed Ice Cream Company. Motions for Judgment n. o. v. and for a New Trial. Motions overruled and dismissed.

Dallas Dillinger, Jr., for Plaintiff.

Gernerd & Boyle, for Defendant and Motion.

Reno, J., October 16, 1923. The defendant did not present a point for binding instructions at the trial. Hence, its motion for judgment n. o. v. must be dismissed.

a

No exception was taken to the charge nor was motion made to reduce the same to writing and to place it of record. So much of the motion for new trial which assigns errors in the charge must therefore be dismissed: Sikorski v. P. & R. Railway Co., 260 Pa. 243.

The responsibility for error in the charge, if any there be, must be shared by defendant. The trial judge, of his own motion, raised the question as to the proper

measure of damages. In response to the question raised by the trial judge, plaintiff contended that the measure of damages was that which was afterwards incorporated in the charge. Defendant's counsel remained silent and made no contention concerning the measure of damages. He argued his case to the jury along the lines of the suggested measure of damages. He took no exception to the charge. He did not present points for the charge. In other words, he took his chances for a favorable verdict upon the measure of damages proposed by the plaintiff. We do not understand that a party may remain silent while a matter of vital interest to his cause is the subject of discussion and when the verdict is unfavorable to him allege error upon the very question upon which he remained silent. It is his duty to speak and having remained silent he is estopped by his silence. Cf. Gail v. Philadelphia, 273 Pa. 275; Lipshutz v. Lipshutz, 274 Pa. 217; Garver v. Lightner, 275 Pa. 401.

Now, October 16, 1923, motion for judgment n. o. v. and for new trial are overruled and dismissed.

BUTZ v. MARUCCI,

Justice of the Peace-Appeal-Filing Transcript Nunc Pro Tunc-Neglect of Counsel.

Through neglect of counsel, an appeal from a judgment of a justice of the peace was not entered in court in due time. Held, that negligence of counsel is not one of the causes that would move the court to exercise its discretionary powers, in allowing an appeal nunc pro tunc.

In the Court of Common Pleas of Lehigh County. No. 19 January Term, 1923. Morris Butz v. Joseph Marucci and Lizzie Marucci. Rule for Appeal nunc pro tunc. Rule discharged.

John L. Cutshall, for Plaintiff.

William H. Schneller, for Defendant and Rule.

Reno, J., June 18, 1923. The justice of the peace entered judgment June 4, 1922; defendant appealed on June 19, 1922; and the transcript of appeal was deliver

ed to defendant's counsel on June 21, 1922. It should have been filed in this court on June 26, 1922. On October 7, 1922, defendant prayed for an appeal nunc pro tunc alleging that the transcript was not filed within the time required by law through inadvertence of counsel. We are not called upon to discuss the extent of the discretion lodged in us to relieve appellants of the requirements of law regulating the time of filing appeals; for, whatever may be the causes which will move the court to exercise its discretionary powers, negligence of counsel is not one of them: Ward v. Letzkus, 152 Pa. 318.

Now, June 18, 1923, rule to show cause why an appeal nunc pro tune should not be allowed discharged; petitioner to pay the costs.

SCANLON v. WINTERSTEIN.

Trespass-Case-Damages by Negligent Operation of Automobile-Jurisdiction of Justice of the Peace.

When one person by his operation of an automobile collides with another's car and damages it, the latter may maintain an action of trespass vi et armis. It is immaterial whether the act causing the damage arose from wilfulness or from negligence.

An alderman or justice has jurisdiction over an action brought for the recovery of damages to an automobile caused by the negligent operation of another automobile, and upon an appeal being taken, a rule to dismiss the case on the ground that the alderman had no jurisdiction will be discharged.

Rule to dismiss case. In the Court of Common Pleas of Lackawanna County. No. 240, May Term, 1922.

C. A. Battenberg, for Plaintiff.
F. A. Hughes, for Defendant.

Maxey, J., October 10, 1923. This case comes before us on a transcript of appeal from the judgment of an alderman. The transcript sets forth that the summons was in trespass vi et armis. The evidence in support of the action is, as set forth in the record, as follows:

"Margaret Scanlon sworn, states that while riding in an automobile on the 15th day of November, 1921, at